The Long Resistance: Continuity and Change in the American Social Contract

Introduction to the Contemporary Resistance and Historical Context

• The Age of Turbulence: Tomiko Brown-Nagin, Dean of the Radcliffe Institute for Advanced Study and Daniel P.S. Paul Professor of Constitutional Law at Harvard University, delivered this plenary lecture at the $2017$ American Society of Legal History conference. She observes that the United States is in an age of political turbulence, social division, and resistance specifically focused on the election of Donald Trump in $2016$.

• Defining the "Resistance": The movement styles itself as a defender of constitutional rights, democratic norms, and the rule of law. Jeet Heer, in the New Republic (May $11$, $2017$), characterizes it as born of "partisan—that is, Democratic—fury" following a stunning defeat for liberalism, yet infused with new energy and purpose.

• The Author's Thesis: While the Trump-era protests are remarkable, they must be contextualized within the "long arc of American history." Brown-Nagin argues that the current resistance is part of a "long resistance" involving a struggle over the nature of the American social contract itself.

• Connection to Recent Activism: The author links the current moment to a lineage of activism including:     * Anti-World Trade Organization (WTO) protests ($1999$ in Seattle).     * Occupy Wall Street (began $2011$ in NYC).     * The "Fight for a $15$ minimum wage."     * The Movement for Black Lives (BLM).     * Protests against the Affordable Care Act (ACA) that preceded the Tea Party.

• The Common Thread: Backlash against structural economic and political inequality connects both Right-wing and Left-wing contemporary movements. These reflect unresolved conflicts from the $18th$ and $19th$ centuries, specifically the struggle to prioritize human rights over property rights.

The Framework of Rights Talk in Social Movements

• The Concept of "Thick Law": Social movements often invoke a "thick" conception of law. This goes beyond the "paramount law" defined by Chief Justice John Marshall in Marbury v. Madison ($5$ U.S. $137$, $177$) to include:     * The aspirational language of the Declaration of Independence.     * The Preamble to the Constitution.     * Loose interpretations of case law.     * Popular understandings of justice.

• Strategical Uses of Rights Talk: Movements deploy legal concepts in four primary ways:     1. Legal Claims: Making formal arguments for rights.     2. Moral Suasion: Using law to argue for the righteousness of a cause.     3. Cultural Identification: Building identity around legal ideals.     4. Political Mobilization: Using law to organize and activate supporters.

The Long Civil Rights Movement and Divergent Legal Strategies

• Varieties of Activism: The $20th$-century civil rights movement utilized law differently across its various organizations:     * NAACP Legal Defense Fund (Inc. Fund): Led by Thurgood Marshall, it utilized a top-down, professional style focused on text- and history-based constitutional claims.     * Southern Christian Leadership Conference (SCLC): Spearheaded by ministers like Dr. Martin Luther King, Jr., it used aspirational legal rhetoric for moral suasion.     * Student Non-Violent Coordinating Committee (SNCC): Radical students and "movement lawyers" used legal precepts for cultural critique and political mobilization.

• Internal Conflicts Over Strategy: Thurgood Marshall insisted that "the way to change America was through the courts." In contrast, labor leader A. Philip Randolph worried that federal courts would reject or water down legitimate claims. Randolph urged black and white workers to unionize for better wages and conditions rather than relying solely on legal interpretations.

• The Influence of External Factors: Marshall’s success in Brown v. Board of Education was fueled by the war against fascism (exposed American hypocrisy), the activism of black veterans, and the public drama of lynchings illustrating the depravity of white supremacy.

Dr. Martin Luther King, Jr. and Law as a Moral Resource

• Moral Suasion: Dr. King invoked words like "liberty," "equality," and "citizenship" to argue that racial discrimination violated the laws of both God and humanity.

• The Montgomery Bus Boycott ($1955$): King told listeners at Holt Street Baptist Church that they were there primarily as "American citizens." He defined democracy as moving from "thin paper" (the Constitution) to "thick action."

• Loose Interpretation of Law: King famously linked the Supreme Court, the Constitution, and "God Almighty" in his justification for the boycott, stating that if the movement was wrong, then all those institutions were also wrong. This was a moral claim, not necessarily a formal legal one.

• Path to Legislation: This rhetoric, coupled with nonviolent protests facing violent resistance (bombings, murders of children), laid the groundwork for the Civil Rights Act of $1964$ and the Voting Rights Act of $1965$, which John Lewis called the nation's "finest hour."

The Evolution Toward Economic Justice

• Rising Dissent: As the movement progressed, everyday people became dissatisfied with the limits of antidiscrimination law. Groups in New York, Philadelphia, Mississippi, and Atlanta (detailed in Brown-Nagin's Courage to Dissent) began to centralize economic opportunity.

• King’s Shift in Focus: By the mid-$1960s$, Dr. King visited northern and southern slums, demanding a "massive assault" on educational and medical inadequacies. He proposed:     * Job training.     * Guaranteed minimum income for all Americans.

• Critique of the Economy: In $1966$, King observed that depressed living standards for the poor were a "structural part of the economy." In his final speech in Memphis ($1968$), "I’ve Been to the Mountaintop," he defended labor rights by citing the freedoms of assembly and press, urging the nation to "Be true to what you said on paper."

• Controversy: King's shift to economic justice was criticized by figures like Senator Daniel Patrick Moynihan, who attributed black poverty to "pathology" in the report The Negro Family: The Case for National Action ($1965$).

SNCC and Law as Cultural/Political Resources

• Conceptual Differences: Unlike Thurgood Marshall or the early Dr. King, SNCC (nurtured by Ella Baker) sought to be a countervailing force to elite institutions, often working outside prevailing structures.

• Exposing Hypocrisy: SNCC utilized what Edwin Corwin called the "cult of the Constitution" to highlight American hypocrisy. They argued that desegregation was necessary but insufficient, demanding also:     * Affordable housing.     * Community schools.     * Political power.     * Fair policing (noting many officers, including Atlanta's Police Chief from $1947$ to $1972$, were KKK members).

• The John Lewis Perspective: Lewis emphasized a "mass movement… of hundreds, thousands of everyday people… taking their cause and belief to the streets," rather than "a handful of lawyers in a closed courtroom."

• Rights as Illusory: Borrowing from Stuart Scheingold's "myth of rights," SNCC activists viewed foundational legal texts as making "fictive" or "illusory" promises that could actually facilitate oppression.

Comparing Modern Resistance Rhetoric to Historical Movements

• Historical Continuity vs. Strategic Difference: While modern lawyers file claims regarding travel bans (Trump v. International Refugee Assistance Project) and emoluments, the author sees a significant rhetorical departure from the past.

• Rhetorical Styles:     * Past: Emphasized shared values, unifying themes, and national ideals to build consensus and persuade enemies.     * Present: Scathing, humorous, and viral rhetoric designed for digital platforms. Examples of protest signs include:         * "Resist Bigly" and "Woke."         * Allusions to Anatomy Grabbing Back.         * "Not My President" and "Not My Cheeto."         * "It’s so bad, even introverts are here!"

• The Persuasion Gap: Brown-Nagin wonders if the "frenzied pace" of digital platforms has undercut the sustained intellectual and cultural work required to persuade the public and create lasting political change.

The Long Resistance in Abolitionism and Suffrage

• Abolitionist Rights Talk: In response to Dred Scott v. Sandford ($1857$), abolitionists turned to the Constitution's text.     * Frederick Douglass ($1860$): Argued the Preamble's "We the people" meant all people, not just white people, denying the right to hold property in humans.     * William Lloyd Garrison: Took the opposite view, calling the Constitution a "bloody" and "wicked" compact, famously burning a copy at an $1854$ rally.

• Woman Suffrage: Susan B. Anthony and Elizabeth Cady Stanton borrowed abolitionist tactics. Anthony voted illegally in $1872$ and justified her action using the Preamble, arguing citizenship did not exclude women. Suffrage was formally gained with the ratification of the $19th$ Amendment in $1920$.

• Women's Liberation ($20th$ Century): Serena Mayeri noted that feminists "reasoned from race," drawing success from analogies to civil rights. However, radical feminists argued that conformist legal equality fell short of true liberation.

• Internal Divisions in Feminism:     * NOW (National Organization of Women): Middle-class focus on workplace inclusion.     * Grassroots/Working-Class: Welfare rights activists like Johnnie Tillmon (daughter of a sharecropper) sought living wages over welfare.     * Intersectionality: Black and Chicana feminists focused on the overlap of race, class, and sex.

Relationship Between Movements and Electoral Politics

• Partisan Politics as a Narrow Frame: The author warns against funneling grassroots energy solely into electoral politics to "tame" discontent. Historically, movements maintained independence from party control.

• The "Malignant Kinship": SNCC used this phrase to describe Dr. King's alliance with President Lyndon Johnson. While the alliance helped pass the Economic Opportunity Act ($1964$), it led to compromises that many local people could not afford.

• Impact of the War on Poverty: Between $1959$ and $1978$, the Southern black rural poverty rate declined from $77.7\%$ to $37.2\%$. Yet, LBJ rejected King's call for a guaranteed minimum income.

• Shirley Chisholm and Bella Abzug: Both represented political independence. Chisholm (Brooklyn) famously called herself "Unbought and Unbossed," rejecting poor committee assignments (Agricultural Committee) irrelevant to her district. Abzug was fired by Jimmy Carter in $1978$ from the National Advisory Committee for Women after a "stormy relationship."

• Representation vs. Substance: Political scientists note the difficulty in translating "descriptive representation" into "substantive representation," a struggle worsened by decades of gerrymandering.

Critiquing the Tea Party Analogy

• Popular Commentary: Many writers (e.g., Molly Ball in The Atlantic) compare the current Resistance to the Tea Party.

• Theda Skocpol's Critique: Skocpol argues the Tea Party was not a pure grassroots revolt. It was a manufactured backlash funded by wealthy foundations, the Koch brothers, and media elites like Glenn Beck.

• Manipulation vs. Manifestation: It was a concerted effort to exploit racial resentment and anxiety about the "undeserving poor." Therefore, the Tea Party represents the manipulation of democracy rather than its manifestation.

• Better Analogy: Past progressive movements that "pushed and pulled the Democratic Party closer to its agenda" are more apt comparisons for the current Resistance.

Historical Memory and the Neglect of Right-Wing Mobilizations

• Selective Memory: Public memory often focuses on caricatured villains like Bull Connor (Birmingham Commissioner), George Wallace (Alabama Governor), or Orval Faubus (Arkansas Governor).

• Everyday Resistance: Scholars like Jason Sokol (There Goes My Everything) and Nancy MacLean (Democracy in Chains) document how cultures of white resistance persisted among "everyday people" and shaped libertarian policies as a form of "massive resistance" to Brown v. Board of Education.

• The Movement for Black Lives (BLM): BLM focuses on basic human rights such as "bodily integrity." It follows a long historical pattern of police brutality, exemplified by the $1940$ case of Earl Sands.

• The Case of Earl Sands ($1940$): A $21$-year-old black man beaten by a white officer with a blackjack and iron link chain. The officer claimed Sands was "disturbing the peace" at $2$ AM. Judge Robert Carpenter dismissed the complaint, commending the officer and stating "being a police officer is no easy job."

• Conclusion: What appears new is deeply rooted in old conflicts between liberty, equality, and property rights. Dr. King's "triple evils" of poverty, racism, and militarism remain relevant in the age of deindustrialization, social media, and the cult of celebrity.

• The Age of Turbulence: Tomiko Brown-Nagin highlights the current age of political turbulence and social division in the U.S., notably after the election of Donald Trump in 2016.

• Defining the "Resistance": The movement positions itself as a defender of constitutional rights and democratic norms, emerging from Democratic fury post-election.

• The Author's Thesis: The protests are part of a long history of resistance in America, reflecting a struggle over the social contract.

• Connection to Recent Activism: Current activism is linked to previous movements, such as Anti-WTO protests, Occupy Wall Street, the Fight for a $15 minimum wage, Black Lives Matter, and protests against the ACA.

• Common Thread: Backlash against structural inequality connects both Right-wing and Left-wing movements, rooted in 18th and 19th century conflicts.

• Thick Law Concept: Movements use a comprehensive interpretation of law that includes the Declaration of Independence, constitutional principles, and popular notions of justice.

• Strategical Uses of Rights Talk: Movements utilize legal concepts through formal claims, moral arguments, cultural identity, and mobilization.

• Varieties of Activism: The 20th-century civil rights movement employed diverse legal strategies with institutions like the NAACP, SCLC, and SNCC utilizing different methods.

• Moral Suasion: Dr. King advocated for civil rights by linking moral imperatives with legal claims. His sermons emphasized the connection between democracy and personal dignity.

• Rising Dissent: Dissatisfaction with civil rights law led to a focus on economic justice, with King demanding job training and a guaranteed income.

• Critique of the Economy: King identified structural economic issues affecting the poor and emphasized labor rights alongside civil rights.

• SNCC's Approach: SNCC worked outside traditional frameworks, exposing societal hypocrisy and advocating for a broader range of rights.

• Comparative Rhetoric: Modern resistance employs a different rhetorical style characterized by scathing, viral commentary compared to past movements' focus on unity and shared ideals.

• Abolitionism and Suffrage: Historical movements rooted in rights talk, with figures like Frederick Douglass and Susan B. Anthony pushing against systemic injustices.

• Political Independence: Historical movements maintained independence from party politics to avoid compromise on fundamental issues.

• Historical Memory: A tendency to overlook everyday resistance undermines understanding of past and present social movements.

• Conclusion: Current resistance draws from historical conflicts relating to liberty, equality, and economic justice, continuing Dr. King's legacy of challenging systemic injustices.