Collective Action And Court

INTRODUCTION

In order to analyze and or evaluate social movements, an important starting point, if not the most important starting point, is to define collective action. Researchers and scholar alike agree that collective action is not the easiest concept to define. It includes, an enormous array of behaviors, processes, structures and contexts. Collective action tends to focus on a particular kind of behavior, rather than on a particular institution such as schools, on abstract group properties such as social stratification or bureaucratic structure, or on a single social process such as socialization. Collective action has strong implications of power.

From the vantage point of power, collective action can be viewed as a double-edged sword. It may be utilized in a positive or negative light depending on the context, the goal one holds to be important and one's belief about the proper relationship between means and ends. At another level collective action is intricately involved with issues of freedom and tyranny. Organization and structure can be enemies of freedom, creativity, and adaptability. Collective behavior can mean challenge to unjust authority, liberation and renewal. It may demonstrate humans at their most moral and heroic. But it can also involve destruction, irrationality, barbarism and the most self-serving and least honorable of human qualities.

WHY STUDY MOVEMENTS?

Regardless of one's own personal values, where one stands on a left-right continuum, or whether one views themselves as an activist, in order to be an informed and reasonably autonomous citizen of a democratic society, some knowledge of mass behavior and movements is essential. As a potential target for, or a voluntary consumer/participant of collective behavior activity, it is vital that one has some level of understanding of and ability to analyze crowd behavior, propaganda, ideology, rumor, mass communications, social movements, and fads. A citizenry informed in these matters is a necessary condition for political democracy.

In more contentious settings such as prison riots, (e.g. Attica in 1971) civil disorders (e.g.Watts in 1964, Detroit and Newark in 1967) knowledge of crowd behavior and social movements can reduce loss of life and injury and help prevent conflict from escalating in a destructive way. Most of the loss of life during the 1960s urban civil disorders was caused not by protestors, but by control agents who, lacking experience in crowd control and holding discredited or inappropriate ideas about crowds, frequently overreacted.

The importance of understanding behavior in disasters such as floods, earthquakes, hurricanes tidal waves, and nuclear accidents is obvious. Research, education and planning can make it more likely that the damage that occurs is entirely a result of the disaster and not the human response to it. The Center for Disaster Research at the University of Delaware, founded by collective behavior scholars E.L. Quarantelli and Russell Dynes, has had a worldwide impact. The center has served as a clearinghouse and international model for other research centers and researchers. Its research has been useful to disaster planning and control efforts.

Apart from its direct usefulness, knowledge of collective behavior is relevant to the educated person and as a participant in a democratic society. It calls attention to some of the most basic questions about human beings. There is the question posed by Hobbes: how is social order possible? How fragile is the social order and what happens when it breaks down? There is the question raised by Freud: how rational is modern man in an industrial urban setting? There is the question posed by Karl Marx: how do societies change? Does history follow a pre-determined path? Are individuals simply pawns of some more profound historical necessity or do persons make their own history? Why are social reform efforts frequently unsuccessful or limited in their impact or duration? Of course in this short text we cannot begin to do justice to these questions, but the study of collective behavior offers one way to approach them.

RESEARCH DESIGN

In this paper I will discuss five concepts about social movements and the courts, how individuals mobilize to form groups to achieve their goals, and how through social movements and the Courts the meaning of the United States Constitution is altered. By way of illustration, the 1954 desegregation case (i.e., Brown v. Board of Education ) and the struggle for civil rights will be my key example in this analysis. I will also examine other cases, in which the Supreme Court decision played a decisive role in advocating social change including Lawrence v. Texas , the 2003 case that was a victory for the "gay rights movement".

By way of organization, Part I expounds on Jack Balkin contention that Supreme Court is nationalist. Part II provides empirical evidence for Balkin's contention and places the Court in a different light by suggesting that the Court protects minorities just as much as the majorities want them to. Part III discusses the power of social movements and the courts in altering constitutional law. Part IV discusses other possible forums for relief other than the judiciary that can be effective in protecting minority rights. Part V suggests best possible way for collective actors to seek reform.

PART I

Professor Jack Balkin of Yale University contends in Brown, Social Movements, and Social Change that the Supreme Court is not counter-majoritarian, but it is nationalist. Most researchers and scholars are familiar with the concept of "judicial activism" and the charge that courts are basically anti-democratic institutions that are always vetoing what majorities want. Balkin asserts that "judicial activism" and the charge that the courts are anti-democratic is a popular misconception, or as he puts it "at the very least it is misleading". Balkin asserts that the Court never strays too far from the views of national majorities, and in particular from the views of national elites. Instead, often what the Court does is ratify the views of national majorities and impose those views on regional majorities. And for the purpose of this analysis, this is what is meant when I say that the Supreme Court is less anti-majoritarian than nationalist.

Balkin's analysis that the Court is nationalist appears true. In fact, scholars and practitioners in the legal community may argue that in order for the court to maintain it's legitimacy and their desire to generate enduring policy, they must be attentive to the preferences of both legislative and executive officials. This philosophy