In a prior post I looked at the connections between Griswold and poverty law that were brought out at the AALS constitutional law panel. For this entry I would like to focus on another issue raised at that panel—the problem of conflict and backlash in the development of constitutional rights. Reva Siegel, in her opening remarks, suggested that the history of Griswold reflects the importance of conflict, rather than consensus, to the development of constitutional law and constitutional meaning. The basic idea here is that the conflict over the meaning and extension of privacy rights after Griswold, and the conflict over contraceptive rights themselves, has had a substantial impact on the meaning of the underlying rights, to the point that the right to contraception reached near-canonical status after the battle of the Bork nomination. All subsequent Court nominees professed acceptance of Griswold, at least to the extent of its holding regarding contraceptive rights. In this way conflict can itself build consensus. As people and groups stake out their competing arguments about one aspect of the right--the role of privacy rights and abortion, for instance--consensus may appear, or at least be professed, around a baseline application of the right, such as contraception, especially when that right has gained status in social practice.
This idea presents an important counterweight to the idea of backlash. The backlash thesis is well known, and is associated most commonly with the work of Gerald Rosenberg and Michael Klarman. The (overly) simplified version is that when the courts advance constitutional rights in periods of social conflict, political and social opposition to those rights will coalesce and harden in a manner and degree that would not have happened had courts and litigants stayed their hands. By provoking backlash, the Court may well retard the poltical development of the very rights it hopes to advance. One can apply this basic framework to reproductive rights in the 1970s, where the reaction to Roe arguably resulted in a backlash both politically and judicially (with cases like Harris and Maher). (In a future post I will discuss how the work of Mary Ziegler begs us to complicate that assessment.) Backlash is then sometimes cited as a reason for caution in pressing for constitutional change through the courts.
The history of the reception of Griswold may show that such political conflict, played out in a dynamic relationship among courts, legislatures, public opinion, party elites, and social movements and counter-movements, affects the accepted meaning of the constitution at least as much as do Supreme Court opinions or consensus politics. In this sense the backlash thesis and the conflict thesis have something in common: both assert a reduced emphasis on the Supreme Court’s singular role in constitutional development. The conflict thesis is, however, more demanding: When thinking historically, it asks us to explore the complex relations of political, social, and legal change and resistance. When thinking prospectively (as advocates, for instance), it asks us to engage multiple strategies in multiple fora, something a future history of the same-sex marriage movement will no doubt explore in depth. The difficult question, I suppose, is to decide when we have conflict that changes meanings, or backlash which inhibits or reverses changed meaning. To take an example from a period I have focused on in my own work, the reaction against Reconstruction and the consensus reached by whites that secured Jim Crow may look more like backlash than conflict.
Perhaps the best way to think about this is to return to Siegel's earlier thesis on preservation-through-transformation, which she applied to 19th century status (race and gender) law. According to this view, in periods of conflict the law of status changes form in order to preserve much of the subordinating character. Equal protection law develops as one means to end slavery, only to itself become the basis for upholding Jim Crow. Backlash then can be seen as one mechanism in which the preservation takes hold, even if constitutional meaning changes through conflict. This then raises the question of whether (or better, to what extent) the Griswold consensus on contraception reflects substantive change versus perpetuation. No doubt this depends on the poltical, economic, and social dynamics surrounding gender and reproduction. And no doubt the answer to this is still a work in porgress, as the panel's discussion of Burwell v. Hobby Lobby suggested.
"...One can apply this basic framework to reproductive rights in the 1970s, where the reaction to Roe arguably resulted in a backlash both politically and judicially (with cases like Harris and Maher)."
A least one person involved with the formation of the modern religious right has declared that that's simply not true, that the Protestant wing didn't care until the late seventies, when their tax status for private segregation academies was lost.
Posted by: Barry | January 20, 2015 at 01:45 PM