Author: Douglas NeJaime


Understanding the Relationship Between Plan A and Plan B

I’m honored to be part of the symposium celebrating Martha Ertman’s important new book, Love’s Promises. Ertman writes in an accessible, engaging style and weaves in her own deeply moving—and encouraging—family story. Even as Ertman provides a text for a general audience, she makes a substantial intervention in ongoing debates among family law scholars. By showing how contracts and deals shape family life, Ertman debunks the conventional wisdom that intimacy and childrearing are incompatible with the cold language of bargain and exchange. And, as importantly, she shows how contract actually facilitates a freedom in family formation that we should celebrate. As Ertman argues, “society and people individually are better off when we can choose when, how, and with whom to have a family.” (p. xiv)

Ertman focuses on what she calls Plan B families. She means Plan B to convey “exceptions to the general rule instead of unnatural or inferior.” (p. xiv) Plan A “is what’s common: more than nine out of ten kids are raised by their genetic parents, marriage is the most common family form, and most people are straight.” (Id.) Plan B, on the other hand, “covers a wide variety of uncommon families, from repro tech and adoption to cohabitation.” (Id.) As Ertman explains, “‘common’ is not the same as better.” (Id.) The Plan A/Plan B dichotomy translates into legal frameworks. The law, Ertman explains, devises “a general rule for the most common state of affairs”—Plan A—but “[w]hen something unusual happens, like repro tech, adoption, or cohabitation”—Plan B—“the law carves out exceptions to fit that situation.” (p. xv)

In this post, I rely on Ertman’s Plan A/Plan B distinction to say more about the relationship between the two, conceptually and legally. The Plan A/Plan B distinction is unstable, and that is partly what makes it so illuminating. As Ertman’s examples throughout the book demonstrate, families can be Plan A along some dimensions and Plan B along others—a married same-sex couple, or a different-sex couple using reproductive technology. And so Plan A rules may fit the mold in some ways and yet fail to fit in others. Because of this blurriness, the legal regulation of families may use different justifications to apply the same rule in different circumstances; a Plan A rule may be interpreted to apply to a Plan B family. And as rules are devised and principles articulated for Plan B families, Plan B concepts and rationales may seep into Plan A rules and reasons. My main point is that as the law grapples with and recognizes Plan B families, the logic it employs—in Ertman’s terms, a contractual one—reverberates across family law’s regulation of all families.

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Treating Elite Support as an Empirical Question

I want to offer my thanks again to Danielle Citron for organizing such a lively symposium.  And I want to thank Jack Balkin for elaborating some of the themes taken up in the blog posts and connecting them to his wonderful book.  I want to offer some final thoughts on the new directions that Jack suggests in his post — understanding and measuring how “nodes of influence and authority . . . shape constitutional culture and move claims from off-the-wall to on-the-wall.”  Jack suggests an interdisciplinary research agenda.  Here I want to map more specifically merely some of the ways in which such a project would impact social movement work in sociology and political science.

For purposes of this post, what Jack refers to as “nodes of influence and authority,” I will refer to as the potentially more narrow “elite support” and include within the term state and non-state elites (e.g., elected officials, judges, policy elites, media commentators, government lawyers, celebrities); I do not mean to include here social movement advocates themselves, who in many senses are in fact elites and whom we have been discussing within the broader category of elites.

The conventional account in social movement work argues that elite support produces a deradicalizing and narrowing impact on movement politics and organizing.  As elites buy into the movement’s claims, the movement is slowly coopted.  Elite support, which is necessarily correlated with institutional, non-confrontational tactics, narrows the movement’s goals.  More recent social movement work questions this generally pessimistic account and instead acknowledges the more complicated effects of elite support.  For instance, Suzanne Staggenborg’s work on the pro-choice movement acknowledges that while elite support produced a narrowing effect on the movement’s agenda, it also contributed to the movement’s longevity and organizational strength.

While social movement theory has stressed the moderating effects of elite support, legal mobilization work in law and social movements has furnished a more optimistic account of elite support.  Through the legal mobilization lens, elite support is a key indirect effect generated by court-centered strategies (and resort to constitutional frames).  Once elites buy in to the movement’s claims, the movement advances; elsewhere I have labeled this the “elite support progress narrative.”

Yet closer attention to elite support suggests a more nuanced and complicated dynamic.  Elite support may aid a movement’s goals, as legal mobilization scholars claim, or it may hinder a movement’s progress.  Elite support may manifest itself in institutional tactics that narrow the movement’s objectives, as social movement scholars suggest, or it may appear in confrontational acts of defiance that electrify the movement.  Accordingly, we must, as Jack suggests in his post, treat elite support as an empirical question.  Social movement work in political science, sociology, and law will benefit just as much from Jack’s suggestion as constitutional theory will.

I want to add two qualifications or additional points, suggested by social movement and legal mobilization scholarship, to Jack’s agenda for research on this topic.  First, we should make room for the demobilizing potential of elite support.  How might supportive elites negatively impact the trajectory of constitutional arguments?  (How) might elite support alter the trajectory of an argument in a way that actually takes that argument off-course in its journey from off-the-wall to on-the-wall?  Second, we should attempt to understand the limiting effects of elite buy-in, particularly when mediated through constitutional frames.  How does take-up by elites limit the broader social movement agenda?  How might “nodes of influence and power” narrow the constitutional, political, and moral vision advanced by the movement, and what are the effects of such limiting functions on the social movement and on constitutional culture?  How might constitutional argumentation itself relate to political moderation?  Jack pushes us to address elite support as an empirical question; the scholarly reach of this project should not be underestimated.  A more empirically grounded and multidimensional analysis of the “nodes of power and influence” would, at a minimum, advance work in law, sociology, and political science.


Constitutional Text and the Role of Elites

Joey Fishkin’s post on Jack’s book poses a fascinating and provocative question: “Is this book really about faith in something like the project of the United States — its ideals, its promise, its commitments, its possible future redemption — rather than just the Constitution?”  Joey himself questions whether the dichotomy he draws is a false one, whether American ideals are inseparable from constitutional commitments.  Joey’s comments force us to contemplate whether the constitutional text itself is less important (perhaps not important at all) as compared to the stories of American development and identity that we tell one another.  In this post, I want to take up Joey’s questions and seriously consider how important (if at all) text is to the project of constitutional redemption.

As Joey notes, Jack has much to say about the role of constitutional text: “The text — and the grand statements of principle found in the text — play a crucial role in this constitutional culture.  The text is public.  Anyone can pick up the text, read it, and use it in argument.  Anyone can refer to the principles of due process, or equal protection, the separation of powers, federalism, freedom of expression, or freedom of religion.  A written Constitution that anyone can read and comment on encourages a culture of participation in constitutional argument and a popular sense of ownership in the Constitution[.]” (p. 236, emphasis added)  Jack goes on to argue for the democratizing role of the constitutional text.  The text, which is open and accessible, “authorizes people from all walks of life to claim the right to interpret it.” (p. 237).  Jack connects this reliance on text to his theory of framework originalism; a focus on constitutional text and principle “bridges the gap between laypersons and legal professionals.” (p. 238)

But instead of focusing on “anyone,” let’s focus on elites and situate them as key players in the process of textual meaning and translation.  I want to suggest that Jack’s argument about text as a democratizing and participatory vehicle relies on the importance of textual mediation, largely undertaken by (legal and non-legal) elites.  That is, while we may on rare occasions observe an idealized notion of laypersons reading and invoking the constitutional text, the more common way in which constitutional text is taken up and proclaimed by ordinary citizens relies on a process in which elites — government officials, social movement advocates, cause lawyers, policy elites, cultural leaders — apply constitutional principles (and their textual grounding) to laypersons’ struggles.

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Jack Balkin’s Constitutional Redemption: A Much-Needed Dose of Optimism

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin’s book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution’s promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin’s descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin’s theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues – from race to abortion to labor – and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

By deemphasizing adjudication, Balkin suggests that the most significant effects of constitutional claims emerge from the claims-making process itself. The claim is not merely instrumental – to convince a judge to grant some right or benefit to the plaintiff. Rather, the claim may be transformative and may articulate a vision that holds power regardless of judicial validation. In fact, when the judge validates the plaintiff’s claim, it is often because that claim has already affected the culture more generally.

Balkin’s second key move, which follows from the first, is his contextualization of courts within a broader political and cultural world. (Balkin, pp. 97-98) For Balkin, constitutional claims-making is political and moral claims-making. (Balkin, p. 118) Through this lens, courts cannot (and generally do not) go it alone. Instead, courts participate in an ongoing dialogue with other social change agents, including social movements and political actors.

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