Law and Social Movements

Law in support of social movements stems from the role of the Constitution and the Bill of Rights in a democratic society—to protect minority groups, including women, Latinos and African Americans, English language learners, gays and lesbians, the disabled, and the poor, from legislative tyranny by the majority. Historically, civil rights groups as well as organized labor have sought the power of the courts to force compliance with principles of equality and justice where voluntary compliance did not occur. Contemporary organizations that use law for social movements include the Mexican American Legal Defense Fund (MALDEF), the National Association for the Advancement of Colored People (NAACP), the National Organization for Women (NOW), and the Center for Constitutional Rights (CCR). Unions, including the AFL-CIO and UAW, have also served this function when they used laws to improve the working conditions for all workers, such as filing suit to enforce the Occupational Safety and Health Administration standards and advocating for legislation to increase the minimum wage.

To some, law in support of social movements also extends to laws on environmental protection, abortion rights, and free speech rights. Under such a definition, the National Resource Defense Council (NRDC), the National Abortion Rights Action League (NARAL), and the American Civil Liberties Union (ACLU) would be considered as groups that use law for social movements. These and similar groups use law to protect rights and concerns that do not receive equal treatment with the interests of the groups that dominate society.

The creation and use of law has been a central part of progressive social movements in the United States since the republic's inception. At the time of the Revolutionary War, the U.S. Constitution and the Bill of Rights embodied and reified in a legal document the expansion of individual rights against government. After the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments increased the rights of African Americans. Further, the due process and equal protection clauses of the Fourteenth Amendment expanded constitutional protections to all Americans and served as the grounds for future cases.

During the 20th century, the creation and use of law for progressive social change expanded to include consumer protections, the expansion of fundamental legal rights, and civil rights. The Food and Drug Administration (FDA) was created under the Federal Food and Drugs Act of 1906 to protect consumers from dangerous products. The clean water acts of 1972 and 1977 limited the amount of pollutants that manufacturers could discharge into waterways. Gideon v. Wainwright of 1963 established the right to counsel as a fundamental right under the Sixth Amendment, and Miranda v. Arizona of 1966 reinforced the Fifth Amendment provision against self-incrimination. Brown v. Board of Education of 1954, the Civil Rights Act of 1964, and the Individuals with Disabilities Education Act (IDEA, 1975) expanded the rights of marginalized groups. Together, these actions appear to demonstrate that law can be a dynamic force in leading progressive social change.

By the 1980s, however, scholars and legal activists had begun to question that belief. These concerns increased with the conservative turn in the federal courts and with the growing strength of conservative activist groups. Conservative groups won legal battles during the William H. Rehnquist court that they had lost during the more liberal Earl Warren and Warren Burger courts.

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