All Posts by Stephen Gikow

Mobilization Recap: Creating Sustainable Change

To ease you into the weekend, here are some thoughts on the Mobilization Panel from the Constitution in 2020 Conference.  The panel was comprised of a diverse group of practitioners and scholars—it was moderated by Professor Bill Eskridge, Yale Law School, and the panel participants were Marshall Ganz, Harvard Kennedy School of Government; Addisu Demissie, Organizing for America (previously Obama for America); Judy Scott, Service Employees International Union; and Professor Michael Wishnie, Yale Law School.  Since we have the video of the panel (below), I thought I would avoid summarizing each participant’s remarks.  Instead, I would like to point out a few strands to the conversation that are worth reflecting on.

Video courtesy of Yale Law School.

While the participants in the conference’s earlier panels were deeply concerned with issues of constitutional doctrine and legal policy, the Mobilization panelists were more focused on the structure of organizing, the sustainability of change, and the utilization of community resources.  The motivating factor for the organizing seemed to be the representation of the perspectives of minority groups that have been historically neglected, rather than the active creation of support for constitutional principles at the community level.

Judy Scott's comments about the importance of the Labor movement in its ability to represent and to coalesce the bottom third of society were emblematic of this theme.  In discussing the types of structures needed to make a movement successful, Scott emphasized the importance of bridging organizations, such as unions, that can bring people together and bridge diversity on a variety of issues.  Similarly, Marshall Ganz focused on the creation and sustainability of a movement, discussing how a dispossessed community can leverage its resources to gain power (all in the context of his time spent helping organize the Civil Rights movement in Mississippi).  His class at Harvard focuses on organizing centers on five strategies to successful organizing: translating action into narrative; relationship building; creating a space in which to develop ideas; strategizing; and finding measurable results.

In providing these structures for organizing, however, the participants gave insight into a mechanism by which progressive constitutional interpretation can be brought to bear at the community level.  Professor Eskridge's comments most directly addressed how to build popular support for a constitutional movement in the context of same-sex marriage.  He stressed that a successful movement takes a lot of time and effort on the part of many different groups acting at different levels, including the local.  When asked about the tension between impact litigation and long-term mobilization, Professor Eskridge said that progressives "should not fetishize the Supreme court”—meaning that a lot of change happens outside of our highest court.  Marshall Ganz and Mike Wishnie also spoke about specific ways that individual attorneys can help these kinds of movements strengthen and grow, as opposed to engaging in rights-based litigation.

Taking things further, it seems that in some contexts the Constitution can present a real obstacle to progressive change.  The implication was that it can be advantageous for a movement to remain "a-constitutional."  Professor Wishnie was the most blunt, noting that the Constitution is relatively hostile to the Immigrants’ Rights movement, conceding (and giving a nod to Ben Sachs) that the hope in the progressive Immigrants' Rights community is that the Constitution will largely stay out of the way.

My last two observations fall well outside any constitutional discussion.  First, there seemed to be some interesting power dynamics at play between the organizer and the organized.  Marshall Ganz stressed the fact that an organizer “need[s] to engage the resources of those who have an interest” in order to effect real change, and Addisu Demissie noted that Organizing for America focused on indirect influence via citizen interaction and media participation.  It can be unclear, however, where the goals for “grassroots movements” come from—that is, there seems to be a fine line between engaging and organizing the citizenry in support of goals of which they themselves are convinced, and enrolling that citizenry to accomplish the organizer’s own goals.  Where does this line lay?  Can there ever be a truly “democratic” organizing movement?  Of course, we might also ask whether these questions should concern us, or if there's anything to be done about it if they do.

Second, and only mentioned in passing by the panel, is the emerging role of technology and the Internet in organizing.  This seems to be a big part of Organizing for America’s structure, and Judy Scott mentioned that she just hired a new lawyer who would be devoted to exploring ways to harness new media technology to enhance SEIU’s message.  Advances in social and community-based technology are sure to be relevant to organizing's future, but are there other existing technologies that can be adapted to a movement’s needs?  How should organizers structure their web-presence to best recreate and reinforce their physical community online?

I’m sure additional themes stood out to others, so please feel free to post your comments with what you thought was most interesting!

Constitutional Right and Normative Frameworks: The Information Age

Lingering in the background of many of the articles appearing in The Constitution in 2020 is a debate about the rhetorical framing of rights and policy.  The debate is perhaps nowhere more evident than in the transition from Robert Post’s "A Progressive Perspective on Freedom of Speech" to Yochai Benkler’s "Information, Structures, and the Constitution of American Society." The authors of these two articles agree on the underlying goals of information policy: that it should encourage the public to participate in a democratic culture, foster a democratic society, and promote democratic legitimacy.  (Benkler assumes that we should “strive for a more democratic society, where individuals are ever more free and equal citizens”  (Benkler at 195). Post notes that “[t]he First Amendment safeguards the ability of persons to participate in the formation of public opinion so as to preserve the democratic legitimacy of our government”  (Post at 182). Both Benkler and Post train their arguments on similar countervailing interests (the commercial and the individual) and come to similar conclusions (generally favoring the individual).)

Despite their similar goals, Post and Benkler present markedly different ways of reaching those goals.  These different strategies create a tension, reflecting the authors’ divergent agendas. 

Post is trying to make room for good information policy within the normative framework of First Amendment jurisprudence.  His argument is about shaping information policy through a rejuvenated First Amendment: "A strong normative vision of a healthy public sphere will enable progressives to make visible important constitutional questions that are simply invisible when seen through the lens of received First Amendment doctrine." (Post at 185). At the same time, Post steers the First Amendment discussion away from the question of what we have a right to say to a question about how we ought to encourage people to speak in democratically conducive ways. 

Benkler, meanwhile, writes bluntly that information policy “must be concerned with the constitution of the U.S. society, rather than with the U.S. Constitution.”  (Benkler at 187).  He wants policy to incorporate perspectives that lie outside of constitutional jurisprudence.  Benkler (as well as Sunstein in his piece "The Minimalist Constitution") is trying to move the debate out from under the purview of the Constitution. 

It is important to keep these rhetorical frameworks in mind, since they have normative implications  Any constitutional conclusion will necessarily be more rigid and entrenched, for better or worse.  In the area of information policy specifically, this rigidity may be problematic when it comes to regulating an incredibly dynamic and unpredictable medium.  The same constitutional framework, however, provides a stronger normative foundation that appeals to both the jurisprudential and popular, in that an argument founded on constitutional principles appeals to a commonly held, more traditional set of values.  Post is right to seize on this aspect of the argument; progressives need to hang their hat on a normative perspective that has durability. 

At the same time, an overly fluid First Amendment doctrine will struggle to gain traction against a simpler normative framing (such as “all speech is free”).  Benkler, for his part, is skeptical of the boundaries that a constitutional argument imposes; he wants progressives to think as broadly as possible, to consider “the totality of the sources of freedom and constraint, equality and inequality, and to think of law in terms of its role in that broadly defined system of freedom and constraint.”  (Benkler at 195).  This added flexibility is particularly important within the information technology world where innovations are made daily and the wrong regulation could stifle individual creativity and contribution.

In outlining the differences between Post and Benkler’s respective views, I don’t intend to set-up a false choice, to suggest that we have to resolve this conundrum decisively in one direction or the other.  Rather, I think that Benkler and Post would agree that progressives will have to rely on both approaches. We will need a Post-like First Amendment argument to counter conservative appeals to more traditional First Amendment doctrine.  At the same time, we will want to push information policy further and further from under the Constitution, so we can tweak it as we learn what works best.  In other words, the successful implementation of a sound information policy will depend on harmonizing Benkler’s bid for fluidity and Post’s desire for constitutionally derived legitimacy.