Amna Akbar, Sameer Ashar, and Jocelyn Simonson –
In this moment of crisis for the rule of law, a number of thinkers on the left have prescribed new strategies for progressives to shift reigning ideas about constitutionalism and the law. Jedediah Purdy, for example, has argued that part of the answer is to “reclaim the Constitution” by articulating visions of how constitutional rules can promote true democracy. In Purdy’s view, strengthening voting rights and the rights of non-citizens, promoting economic citizenship, and reforming the criminal legal system should be central to a left vision of the Constitution. He argues these substantive ideas pose a challenge to the status quo distribution of power, resources, and life chances. Eyeing a different branch of government, Samuel Moyn has urged progressives to resist the “juristocracy” and to shift our vision for change away from the courts and towards legislators at all levels. Moyn bases his analysis on the idea that in the short term, legislatures will be more likely than Trump-appointed judges to enact laws that reduce inequality.
Purdy and Moyn generate important insights for left lawyers and social justice activists. But neither identifies where we should look for the substance of left legalist vision, or the process by which we should derive one. How is it that we, as progressives, should generate and evaluate the desired ends of constitutional doctrine or legislative change? Addressing this question is essential for a renewed left legalism of the sort this blog and its community hope to provoke.
As we suggested in our prior piece, we believe a left political agenda must be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces. (Willie Forbath, too, recently gestured on this blog at the relationship between social movements, labor, and left legalism.) The prevailing underlying presumption of much legal discourse is that the formulation and interpretation of legal doctrine requires specialized expertise. Past waves of left legalist critique, such as Critical Legal Studies, reflected this traditionally elitist approach to law by remaining confined within elite institutions and purveyed by law professors, sometimes in impenetrable language. Like Purdy and Moyn, we care deeply about democratic engagement, but we believe that the institutional choice between courts and legislatures misses the bigger picture: that a new left legalism should be derived from social movements fighting for justice on the ground.
Each of us has written about how movements are engaging in the radical rethinking of law, law reform, and the state. The epistemological method that we describe collectively in our work is in many ways anti-constitutional, in that the jurisgenesis is organic and bottom-up, most often a weaving together of ideas and practices originated at the margins of the legal order. It is anti-constitutional in another sense, in that it rejects the mythologizing of the founding, in particular, to use Aziz Rana’s frame, it refuses to ignore that second face of American freedom: enslavement and settler colonialism, which is central to the early history and ongoing realities of the country. At the same time, our epistemology of legal imagination on the ground contributes to the development of a new kind of constitutionalism, one that generates collective ideas of how we should relate to the state and to each other. These collective imaginaries relate to formal legal institutions like courts and legislatures; but the ideas come from contemporary social movements, movements composed of the very people who are excluded from traditional sites and methods of generating legal understanding. It is alongside these social movements that we should position ourselves when generating ideas about legal change.
Our call to promote collaboration with movements is one of epistemological diversification and alternate courses of action. As law professors, for example, we believe it is essential to study and teach how law is made, imagined, and contested through social movements and community organizing. Through such engagement, our capacity to support these grassroots projects may grow. Similarly, if public interest legal organizations reallocated just a fraction of their capacity away from individual legal representation or impact litigation to collaborations with visionary organizers, left legalism will flourish and be exponentially more generative. (For bright stars leading the way, see Law for Black Lives, Movement Law Lab, Community Justice Project, Detroit Justice Center, People’s Law Office, the Center for Constitutional Rights, and the Advancement Project.) And when legislators work alongside social movements, modeling radical participatory governance, what emerges are ideas about what laws can do that extend beyond longstanding, rigid boundaries.
Law-making of this sort necessarily involves ongoing dialogical relationships with movements and with each other. Intellectually, we need to hold conflicting ideas in our heads, in the way that Critical Race Theory has long counseled: of reforming existing laws and doctrines and abolishing legal institutions that are near-constant sources of all stripes of slow and fast violence; of fighting for change under law while understanding it is not the end of the horizon. In order to successfully negotiate these sometimes conflicting relationships and generate transformative ideas, leaders and thinkers on the left need to recommit to full investment in the intellectual and political capacity of organized social movements.
A left legal agenda with the necessary power to transform our social, economic, and political order must be grounded in solidarities with social movements and their allied organizations. Approaches to law that prescribe particular constitutional or even political economy norms without grounding those prescriptions in collective struggle will remain limited, bound in the halls of power. Social change comes from bold visions sustained by a critical intellectual-political firmament, and sustained efforts at pragmatic, boisterous and plural campaigns for concrete change. Contemporary social movements are engaging in the radical, practical rethinking of law, law reform, and the state. Our inspiration for reimagining our collective future should begin there, together.
Amna Akbar (@orangebegum) is a Law and Public Affairs Fellow and Visiting Scholar at Princeton University for 2018-2019 and an Associate Professor at The Ohio State University, Moritz College of Law. Jocelyn Simonson (@j_simonson) is an Associate Professor Law at Brooklyn Law School. Sameer Ashar (@sameer_ashar) is Vice Dean for Experiential Education and Professor of Law at UCLA School of Law.