Constituting Our Constitution, Constituting Ourselves: Comments on Reva Siegel's Constitutional Culture, Social Movement Conflict and Constitutional Change

Abstract

Powerfully resonating with the life of the Justice whose center hosts this lecture, Reva Siegel's important Brennan Lecture interprets key his torical experiences in order to help us understand how democracy and con stitutionalism can and do connect. Siegel channels Justice Brennan's good cheer when she recasts our failure to amend the Constitution to prohibit sex-based discrimination as not only a de facto success, but also as an illus tration of a vibrant constitutional culture. Like Justice Brennan, who had an uncanny ability to make each interlocutor feel uniquely heard and impor tant, Siegel offers each reader the role of potential constitutional re fresher: we each can play a role in the social movements and counter movements that revitalize constitutional meaning. Despite Siegel's explicit claim that hers is a modest enterprise, we find ourselves blinking in the brightness of a re-envisioned constitutional landscape. I will first restate her central argument, and then ask two questions. Professor Siegel identifies social movements as central channels in the navigation between the sometimes divergent goals of self-government and legal order. Social movements construct informal pathways for democratic responsiveness by debating Supreme Court nominations and proposing largely unsuccessful constitutional amendments. In this process, people The People-contribute to the project of constitutional interpretation. Siegel asserts that by using these informal pathways as focal points of self-government, social movements revitalize the Constitution. By partici pating in rallies, giving and attending speeches, proposing even successful