The Constitution, the Court, and Social Change | Tomiko Brown-Nagin || Radcliffe Institute
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The Constitution, the Court, and Social Change | Tomiko Brown-Nagin || Radcliffe Institute

November 6, 2019

Good evening. My name is A’Lelia Bundles. And I am Radcliffe College and
Harvard College class of 1974. And I just– [APPLAUSE] –and I just spent the
weekend in Cambridge at my 45th reunion,
which was lots of fun. We have a really special class. What can I– I know everybody’s
class is special, but ours is really special. And I just want to
welcome you here. What an incredible turnout. Thank you all for coming. We have a wide range of
ages and connections– Harvard and Radcliffe, and
not Harvard and Radcliffe, and people who love the
mission of what is going on. When the Radcliffe
Institute for Advanced Study was founded 20 years
ago, those of us who were lucky enough
to be in the room during the planning
stages hoped it would blossom into
something that was both special and powerful. We knew its roots in the
Radcliffe College community gave it a strong connection to
120 years of women’s education. And the careful selection of
Drew Faust as the first dean set the tone for intellectual
rigor and visionary leadership. And we all know how
that worked out– with the fabulous
first woman president of Harvard University. I’m a proud Radcliffe College
and Harvard College alumnae, part of that transition
generation of coed dorms, Radcliffe admissions,
and Harvard diplomas, who gets to claim
both institutions. And I realize now that I’m
one of those ancient people I used to watch
carrying the Radcliffe banner during commencement. I’m still secretary
of my class, and I was the second-to-last president
of the Radcliffe College Alumni Association, when
there was such a thing. Radcliffe may no longer
be a standalone college. But the institution now is
more than the sum of its parts, including the Schlesinger
Library on the History of Women in America, the
Radcliffe Fellows, several other initiatives,
and robust intellectual and public programming. What now is the Radcliffe
Fellows program– and I saw several former Bunting
Fellows and Radcliffe Fellows– began in 1961 as a
postgraduate study center for women scholars
and artists that provided time, financial
support, and membership in a vital community of women,
with access to all Radcliffe and Harvard resources. Polly Bunting, who then
was Radcliffe’s president, conceived it in the tradition
of Virginia Woolf’s wish for a room of one’s own,
when such a thing was difficult for women to find. Today a Radcliffe
fellowship is much coveted. There are even men who
are Radcliffe Fellows. And I’m told that it
could be entirely filled by Harvard professors
who are clamoring to spend their sabbaticals
in beautiful Radcliffe Yard. But wise people know that
a mix in some diversity is really important. We build on this tradition
by cherishing our alumnae, making connections
with undergraduates, and taking our story
to those of you who seek common ground
with our mission of interdisciplinary study. It’s my pleasure to introduce
you to Tomiko Brown-Nagin, dean of the Radcliffe Institute
for Advanced Study, who also is the Daniel PS Paul
Professor of Constitutional Law at Harvard Law
School and professor of history at Harvard. I remember when there were
no women in the Department of History at Harvard. So things have changed a lot. As the fourth dean of
the Radcliffe Institute, she brings expertise
in constitutional law and education law and policy. She has published
articles and book chapters on a wide range of topics,
including the Supreme Court, civil rights law and history,
and the Affordable Care Act. Among her awards is a
Bancroft Prize in US history. During her time as
a Radcliffe fellow, she moved forward with her
biography about Constance Baker Motley, the path-breaking
attorney, politician, and judge, whose son Joel
Motley is my classmate. Her book is forthcoming. Dean Brown-Nagin earned
her law degree from Yale, where she was editor
of the law review. She received a BA in
history, summa cum laude, from Furman university, and
her doctorate in history from Duke University. Please help me welcome
Dean Tomiko Brown-Nagin. – Thank you so much. Thank you so much to A’Lelia
for that beautiful introduction. I spend a lot of time talking
to friends and supporters of the Institute
and people who don’t know a lot about
it, trying to show the linkages between Radcliffe
College and what we are today. And you did it beautifully in
the span of those two minutes. I really appreciate that
introduction, as well as all that you do for
the Radcliffe Institute and for the Schlesinger Library. Thank you. I also wanted to start with
some other special thank you’s tonight. I am delighted to be joined
by members of the Radcliffe Associates program,
the Radcliffe society, and our Radcliffe Institute
Leadership Society. The institute’s remarkable array
of programs and fellowships, exhibitions, are free and open
to the public because of you, thanks to your generosity. We really appreciate it. We also are joined by
distinguished alumni and alumnae of Radcliffe
and Harvard, as you heard. And we have a lot of people
in the audience for whom this event is your first
introduction to the Radcliffe Institute. I’m so glad to have you here. Thanks for coming. Finally, I want to
extend my appreciation to the Harvard Alumni
Association and the Harvard Club of Washington, DC. So before I dive into
the topic at hand on the relationship
between the US Supreme Court and social
change, I did want to spend just a few minutes
talking about myself and why I am absolutely
delighted and honored to be the fourth
dean of the Radcliffe Institute for
Advanced Study, now getting my second year as dean. So when I decided– and I was honored
to be asked to be– the dean of the
Institute, I was so happy to accept that
position because of the intellectual
community that I found as a Radcliffe Fellow in 2016. As A’Lelia explained,
I’m trained in both history and law. And for an interdisciplinary
scholar like me, Radcliffe really did, and
still does, feel like home. And as A’Lelia said,
during my fellowship year, I worked on a biography
of Constance Baker Motley. It is forthcoming soon. Motley was a path-breaking
civil rights lawyer who worked with Thurgood Marshall. She was Manhattan
Borough president. And then she was on
the bench for 30 years and involved in the country’s
great social reform movements. And it was really
special for me to work on that book at the
Institute, including because of that
interdisciplinary community but also because of the
Schlesinger Library, where, as I’ve said to a
number of people before, the work in the archives
of the Schlesinger allowed me to add a layer
to my work about Motley that was missing. So I went to archives
all over the country and learned a great
deal about her. But it was at the
Schlesinger Library where I was able to appreciate
the social network of women who were behind her and who
were breaking barriers at the same time that she was. And so I learned during that
year how really important it is to have the Schlesinger as
the core part of the Radcliffe Institute for Advanced Study. I also want to say that the
Radcliffe Institute isn’t only a place for fellows
and scholars. It is a place where we
serve broad audiences who come to Harvard to explore
urgent issues guided by the best thinkers, the
most creative thinkers, in the world. It is a home for
curiosity and creativity. It is a place of
inclusion and opportunity. We’re building on the
history of Radcliffe College in viewing ourselves
in that way. And it is an institute
that is poised– after building on
a firm foundation, a strong foundation– it is poised to do even
more in the future. During my deanship, we
are going to carry out that founding mandate
to blend the disciplines into this wonderful community. But we’re also going
to make sure that we’re integrating applied subjects. So we’re going to make
sure we have people who are from the professions–
from law and medicine– who are interested in
issues like public health and education, all with
the goal of promoting civic engagement and
informed leadership. So I’m really honored
to be leading Radcliffe at this challenging time
but also a wonderful time to be a leader in
higher education. And now I want to turn
to my substantive remarks about the Supreme Court
and social change. And I have to say, I’m
so happy to be doing this because there’s
an irony involved in being an administrator, which
is that you’re chosen in part because of your scholarship. But then when you’re
administrator, you don’t really have time to
talk about one scholarship. And so this is an
exception, when I am able to tell you a little
bit about my scholarship and to talk about the
long view of the Supreme Court and social change. Now, when Americans think
about social change, they often think about
the US Supreme Court. And that’s for good reason. The court has often been the
focus of debate and angst in conversations about
large scale social problems and the large scale policy
and legal interventions that often have been deemed necessary
to address those problems. Debate about the court’s
relationship to social change has been most prominent
during historical moments when our country appeared to
be on the brink of division and disaster. I’m talking about history. So I mean periods like 1860s,
when our country repeatedly met the issue of slavery in
Congress and in the courts; in the 1870s through the early
20th century, when women fought for suffrage; during the Great
Depression of the 1930s, when Congress passed, and the Supreme
Court repeatedly reviewed, expansive legislation. And more recently, I’ll give you
the example of the Affordable Care Act, where the
Supreme Court was at the center of this great
debate about American health care. During these moments of
cataclysm, economic insecurity, commentators often asked,
what is the appropriate role for unelected justices in a
constitutional system that is premised on an elegant
design of separated powers and federalism? Now, it’s because there’s
so much intellectual and political energy
focused on the court that debates over who
should sit on the court had become increasingly fraught
over time, as you probably have noticed. So every time a seat opens up
on the court, this happens. We see a list of names. There’s a parlor
game that occurs, where commentators try to figure
out who’s on the shortlist. And they opine about
what each name might signal about the future
of important issues, like reproductive rights
or campaign finance reform or environmental protection. And so of course, we
witnessed this phenomenon following Justice Scalia’s
death and Justice Kennedy’s retirement from the court. Some groups were up
in arms, as this slide shows, before the nominee
was even announced. And so the question is, what
is driving this phenomenon? And I would say it’s
two assumptions that animate this political theater. The first is the assumption
that the identity of a justice really matters, that the choice
of candidate x versus candidate y could portend disaster
on this issue or that one. The second matter that is
driving this phenomenon is the idea that the Supreme
Court is a uniquely powerful institution, and
that the justices are inclined to protect against
the tyranny of the majority, to quote the Federalist
51 and James Madison. Now, I’m not going to argue here
that the identity of a justice does not matter. In fact, I think
that on the margins, individual members of the
court can be important. And yet, I don’t think it
makes as much of a difference as people tend to think. And there’s lots of
political science literature on that point. Now, nor am I going to
directly engage the assumption that the court is
uniquely situated to guard against tyranny,
although I have to say, I’ve written about that
issue, and the short answer is, don’t hold your
breath for that one. So my thesis is at once
more narrow and broader. It relates not only
to the court but to our entire constitutional
design and democratic system. What I hope to
persuade you of is that rhetoric about the
court’s role and its impact and about who sits
on the court promotes a far too court-centric
understanding of our constitutional democracy. The overemphasis on
the court actually minimizes the role
of we the people, as voters, as donors, as
members of interest groups who are engaged with
the legal order. Now, one way to explain
what I’m driving at is to remember Justice Oliver
Wendell Holmes, his insight. Holmes famously said
that “The life of the law has not been logic; it
has been experience.” So in the remainder of this
talk, what I’m going to do is to discuss that idea, the
idea of experience or events that are external to
law, to legal doctrine, affecting constitutional law. So one type of experience
that can be a driver of change is popular movements, are
citizens who are mobilized in support of a cause. And here, what I’m
going to focus on is how those movements shape
and are shaped by the law and how they use the law
to try to spur change. And when I’m talking
about popular movements, I’m talking about
movements like this. Importantly, they can lean
in any ideological direction. They can be conservative
and status quo preserving, like the Tea Party. Or they can be liberal
and change oriented, like the movement for marriage
equality or MeToo, which is one that we’ve heard a
lot about recently. So the particular
point that I want to make about law and
social change in relation to these popular
movements is that they deploy rights talk to frame
disputes, to tell stories, and to move forward
their agendas. They cite the Constitution,
the paramount law, to quote Chief Justice
John Marshall, as well as aspirational texts,
such as the Declaration of Independence, the
preamble to the Constitution, along with Supreme
Court decisions, always typically
loosely interpreted, along with popular
understandings of what the law should be. And they’re all doing this
to support their claims about what is fair. What is fair. So this is quite
a different kind of endeavor than the nuts
and bolts of legal cases and yet, really
important, in my view. And so I would say
that these movements deploy legal discourse
in four major ways– to make legal claims, which
is the conventional way; for moral suasion; for
cultural identification; and for political mobilization,
which is to say that law is deployed in a strategic
manner and opportunistically. Now, having established
that conceptual framework, I want to look at history,
at signature episodes in legal and social
history to illustrate that law and social change
is really about much more than winning a case
in the Supreme Court, I say humbly, in Washington,
DC, not far from the court. So I want to start
off by considering 19th-century conflicts. And I’ll first focus
on abolitionist who, amidst the
controversy over slavery, invoked legal rhetoric
for moral suasion and for political mobilization. The abolitionists did so
in the context of cases like Dred Scott
versus Sanford, one of the most notorious,
probably the most notorious, decision in constitutional law. This is the one where Justice
Taney and his brethren on the Supreme Court sought
to solve the sectional crisis by removing slavery or
regulation of slavery from the states and Congress. He did so in a
decision that said that no person of
African descent could be a citizen
of the United States, which was a sweeping
pronouncement that answered a question that
no one actually asked, which is a clue. But something’s amiss. Now, the point
that I want to make is that in response to
the Dred Scott decision, the abolitionist movement
didn’t focus their energies on, say, packing the Supreme Court. Instead, this movement
engaged in resistance to slavery inside and
outside of court system. So here we have Frederick
Douglass, the former slave turned internationally
known abolitionist, who called Dred Scott monstrous. And on speaking
tours, Douglass used Dred Scott to mobilize the
public in support of his cause. So in a 1860 speech,
said, “The Constitution of the United States. Is it pro-slavery
or anti-slavery?” Douglass demolished the court’s
arguments in Dred Scott. He argued that the
Constitution did not support a pro-slavery position. And he did this through
an ingenious textual interpretation of
the Constitution that set aside the political
or economic motives of the framers. So Douglass argued that, far
from sanctioning slavery, the Constitution went to great
lengths to avoid doing so. And so he pointed to the
3/5 clause, which he said worked a disability on
the slave holding states, depriving them of
representation. He talked about the
slave trade clause and how it stipulated that
the trade would actually end in 50 years. And so Douglass resisted
and advanced his cause by paying homage to
the Constitution, doing an end run
around the justices. And so you see, he said that
the Constitution itself, the words of the
text, are supreme, not the justices themselves. I also want to talk about
William Lloyd Garrison, who was the publisher
of The Liberator and the leader of the
Massachusetts Anti-Slavery Society, who took quite a
different tact from Douglass. So Garrison called
the Constitution a bloody and a wicked document. And he actually set it on
fire at a 4th of July event, saying that the Constitution
was wicked precisely because it produced cases like Dred Scott. So Garrison, in
contrast to Douglass, had a contempt for
the Constitution. And that level of contempt
presaged violent disunion and the Civil War. And so in the end, the Supreme
Court’s decision in Dred Scott had exactly the opposite
of the intended impact. It caused those who had been on
the sidelines to choose a side, to choose abolitionism
or to choose slavery. And many chose abolition
and committed themselves to fighting slavery
until the death. And no abolitionists
believe that the personnel or the decisions of
the US Supreme Court defined or constrained
their political goals. Now, I want to talk about the
fight for women’s suffrage, honoring the upcoming
100th anniversary of the 19th Amendment. So women’s rights
advocates deployed rights talk as well to
push forward their agendas. And so when you think
about this movement, you think about Susan B.
Anthony and Elizabeth Cady Stanton, who organized
a sophisticated strategy to promote suffrage. And once again,
adverse law motivated, animated their struggle. So what do I mean? Well, first of all, the
reconstruction amendments and the court’s interpretation
of the reconstruction amendments that ended up being
catalysts for this movement. And that’s because, in the
course of mandating freedom for former slaves, Congress
inscribed un-freedom for women. So the 14th Amendment
explicitly connected political representation to
males, and the 15th Amendment left women out of
the prohibition against discrimination
and voting. And it’s after the passage
of these amendments that advocates
for women’s rights redouble their efforts to
seek equality for themselves. And they used an
array of tactics to fight discrimination. They turned to
litigation, for instance. There was the case of
Minor versus Hapersett, a famous case where a
woman was denied the right to register to vote. The case went all the way
up to the Supreme Court, where the court held that
while women are citizens under the 14th Amendment, the
amendment did not actually confer voting rights to women. And so it’s without recourse
in the Supreme Court that these women
and their allies turn to an array of
tactics, including mass meetings, education, and
public persuasion campaigns. They advocated for
suffrage in women’s clubs. They enlisted male allies
to help them fight. And some women engaged
in civil disobedience. Most famously, Susan B.
Anthony voted illegally in the presidential
election of 1872. She then used her trial to argue
that her conviction violated the spirit of the Constitution. And so Anthony said that– she cited the preamble to the
Constitution, which said, “We, the people; not we, the
white male citizens; nor yet we, the male citizens;
but we, the whole people, who formed the union.” And so she’s showing that the
language of the Constitution did not mean to exclude women. There were lots
of other tactics, including lobbying state
and federal officials, including President
Wilson, who ultimately endorsed women’s suffrage in
an address before Congress. And yet, I want to say that
the fight for women’s suffrage was still not without
controversy, even among women. There were female
anti-suffragists who claimed that only
a minority of women wanted to enter politics. And yet, ultimately, the face
of the Constitution changed. And adverse law had
mobilized the suffragists. The Constitution changed,
and yet, as we know, women of color,
including in the South, remain unable to exercise the
vote because of poll taxes, literacy tests, and so forth. Which brings us to the
Civil Rights movement, 20th-century examples of
political mobilization and the law. So the Civil Rights
movement featured citizens pushing
for racial change by invoking constitutional
discourse to make their cases. And yet, I know who
you’re thinking of. It’s Thurgood Marshall. But I don’t mean
Thurgood Marshall. I’ll get to him. I’m thinking instead
about Dr. King, who was the leader of
nonviolent civil disobedience campaign against segregation in
Montgomery, Birmingham, Selma, and so forth. King frequently deployed
the law for moral suasion. He invoked
constitutional concepts, such as liberty, equality,
and citizenship, the very idea of the rule of law. He quoted the Declaration
of Independence, all to argue that racial
discrimination violated both the laws of God and of man. King articulated these views
during the famed Montgomery bus boycott of 1955 at the
Holt Street Baptist Church, where he said, “We
are here because first and foremost, we are
American citizens, and we are determined
to apply our citizenship to the fullness of its means. We are also here because
of our love for democracy, because of our deep-seated
belief that democracy transformed from thin paper”– so from the laws– “to thick action is the greatest
form of government on Earth.” And it is by articulating
a vision of equality that was deeply rooted in
the American dream and in these legal principles,
and coupling his sermons with resistance in the streets,
that Dr. King and the people who supported King
laid the groundwork for the social change,
for racial change, for the Civil Rights Act of
1964 and the Voting Rights Act of 1965. And so here is the puzzle. If I’m correct, if the
Supreme Court, typically, has not been the heroic
actor and struggles over social change,
then why have we come to place so much
trust in the justices to protect against tyranny
and to inspire change? And I would argue
that it all goes back to World War II to 1954, and to
the struggle over segregation in the South. And now I’ll talk about
Thurgood Marshall. So the five cases
that Marshall brought challenging school segregation
under the 14th Amendment ended up in the Supreme Court. And as you know,
Marshall prevailed on behalf of his clients. The unanimous Brown
case came to be seen as a textbook example
of the nine justices siding with discrete
and insular minorities against an oppressive majority. But the point that
I want to make is that, in fact, the history
is a bit more complicated. The context is vital
to understanding why the justices actually ruled
in favor of Marshall’s clients. They did so in no small part
because of the wartime context and because of their
recognition that Jim Crow actually compromised
US national security. In propaganda campaigns
aimed at nations in Africa, in Asia, and in Europe, the
Soviets pointed to Jim Crow to argue that the
US, which claimed to be a democratic
nation, and that said that it was morally
superior, in fact was hypocritical. And so conversations
among the justices revealed their sensitivity
to this geopolitical context, as some of my colleagues
have written– Professor Mary Dudziak and
Michael Klarman, for example. Justice Hugo Black called
segregation Hitler’s creed. And Justice Robert Jackson
had been a prosecutor of Nazis at Nuremberg. So they were very acquainted
with this larger context. And yet, once the Supreme
Court issued its decision, that context, that
complexity, fell away. And the justices became
the heroes of the story, and Thurgood Marshall became
a legend in his own time. And there he is on the
steps of the Supreme Court. Now, in the coming
years, commentators praised Brown as the
greatest constitutional case of the 20th century, a
decision that reconsecrated American ideals, according to
Richard Kluger, the Pulitzer Prize winning journalist. And newspapers nationwide
published photographs like this one, this iconic
photo depicting the US Supreme Court as having saved the
nation by creating opportunity for little girls like this one. And so I would say
that decades later, the reputation of the court
that was earned in 1954 mostly remains intact
because the decision itself has stood the test of time. Now, to be sure,
there were those who criticized the Brown decision. There were those who,
after Brown, believed that the Warren Court intruded
too far into American Life. Nevertheless, the decision
itself is sacrosanct. Virtually every
commentator asserts that it was correctly decided. And the only Supreme Court
nominee in recent memory who declared that Brown was
wrongly decided, Robert Bork, was not, in fact, confirmed when
civil rights and women’s rights group led the opposition to him. And so there it is. The outsized reputation
of the Supreme Court and the fever pitch
over who is nominated goes far back into
history, to Brown, no matter that the
public understanding of the case itself gives
a misleading impression about the court’s
role in social change. And so in conclusion,
I’ll return to the present and the
phenomenon that’s represented by these face shots. So the next time
you see this list, I hope you’ll appreciate
the lessons that are taught by legal and
social history of the kind that I’ve discussed here. As a historical
matter, and as a matter of constitutional design,
liberty resides in the people. Law, in fact, is
a plural concept. It’s not just Supreme Court
and legal institutions, but it’s ideology. It’s a tool. It’s a tactic. It’s a lot of things. And so effective use of
the law can be about much more than winning a
Supreme Court case. The Supreme Court
plays a limited role in our elegant system
that is premised on popular sovereignty
and three functioning branches of government. Thank you. [MUSIC PLAYING]

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