Law, Politics

The Supreme Court, Backlash, and Gene Sharp

Free Photo: Separating Sections of Ice

Gene Sharp is a political scientist who wrote a celebrated handbook for carrying out a nonviolent struggle against a repressive regime, From Dictatorship to Democracy. Sharp’s work has been used by activists around the world, from the color revolutions in the former Eastern Bloc to the uprisings in the Arab Spring of 2011.

I’ve never seen anyone connect Sharp’s ideas to the role of the U.S. Supreme Court in American democracy. But it seems to me there is a connection: the importance of backlash.

Like Ghandi and Martin Luther King, Jr., before him, Sharp recognizes the importance of what he calls “political jiu-jitsu,” using nonviolent means to provoke an oppressive (and possibly violent) response from more powerful opponents — which may then cause the powerful opponents to lose support from those who object to the excessive response.

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Bruce Ackerman and the Reagan Era

A quick note for anyone reading this blog who doesn’t come from a background in the law: these days, if you study American constitutional theory in law school, one of the major writers you’ll inevitably come across is Bruce Ackerman, a professor at Yale Law School. I’m not sure how widely read Ackerman is in political science or American history programs. But in law schools, if you hear the argument that America has gone through a small number of fundamental constitutional transformations—above all, during the Civil War and Reconstruction, and again during the New Deal—chances are the speaker inherited this idea directly or indirectly from Ackerman.

Since my thumbnail sketch of American political history also relied on there having been a fundamental political transformation during the New Deal, my account probably has some of its roots in Ackerman’s work. But based on what I’ve heard, Ackerman would disagree with the idea that the Reagan era represented the same kind of hard-fought, deeply rooted constitutional transformation that took place during Reconstruction and the New Deal. Instead, Ackerman’s latest book—which I haven’t read yet—may suggest that the most recent constitutional transformation took place through the civil rights movement in the 1960s.

It’s probably not worth arguing over, but it seems to me—for the reasons stated in previous posts—that there are a lot of parallels between the political transformations of the New Deal era and of the Reagan era, even if the former were undoubtedly more consequential than the latter. And the Reagan era, as I’ve sketched it, fits well within the basic parameters of Ackerman’s model of constitutional transformation: a challenge to the legitimacy of a previous era’s understanding of the Constitution, a political struggle involving multiple branches of government, a battle for the public’s allegiance, victory by the challenger, and ultimate acquiescence in the transformation by former opponents.