SOME EFFECTS OF IDENTITY-BASED SOCIAL MOVEMENTS ON CONSTITUTIONAL LAW IN THE TWENTIETH CENTURY William N. Eskridge, Jr* TABLE OF CONTENTS I. CONSTITUTIONAL ARGUMENTS AND STRATEGIES DEPLOYED BY THREE TWENTIETH CENTURY IDENTITY- BASED SOCIAL MOVEMENTS .................................................... 2069 A. The Civil Rights Movement ................................................ 2072 1. The Politicsof Protection,1913-40 .............................. 2073 2. The Politicsof Recognition and Some Remediation, 1940-72 ...........................................................................2082 3. The Politicsof Remediation and the New Politics of Preservation,1972-Present ........................................... 2096 B. Women's Rights Movements .............................................. 2113 1. The Politics of Protection: Women's Control of Their Own Bodies, 1916-72 .......................................... 2115 2. Feminists' Politics of Recognition, 1961-76 ................ 2124 3. The Politicsof Remediation and the New Politics of Preservation,1976-Present ........................................... 2138 C. Gay Rights M ovem ent ........................................................ 2159 * John A. Garver Professor of Jurisprudence, Yale Law School. B.A. Davidson; M.A. Harvard; J.D. Yale. - Ed. I am very grateful to Liora Brener, Jillian Cutler, Jason Cyrulnik, Lisa Mahle, and David Sweet (all Yale Law School class of 2004 and wonderful students in my fall term 2001 procedure class) for excellent research assistance. Gene Coakley and Kris Kavanaugh, both of the Yale Law School, provided invaluable assistance in gathering needed primary and secondary sources. This Article benefited from questions and comments I received when presenting drafts of it at the law schools of McGill University, the Univer- sity of Michigan, Northwestern University, the University of Minnesota, and Ohio State University, and at a luncheon of Yale Law School graduates. In addition, I benefited from conversations with or written comments from Jeffrey Berger, Jim Brudney, Steven Calabresi, Jim Chen, Ruth Colker, Jack Cound, Dan Farber, Andrew Koppelman, Brett McDonnell, David McGowan, Miranda Oshige McGowan, Stephen Smith, and William Tetley. I appreciate the great cooperation of the staff of the Supreme Court Library and of the Manuscripts Division of the Library of Congress. The former made available to me thou- sands of Supreme Court briefs and dozens of oral arguments. The latter facilitated my use of the Papers of the following Justices: William J. Brennan, Harold Burton, William 0. Douglas, and Robert Jackson. I also thank Mrs. William J. Brennan for granting me permis- sion to use and refer to the Brennan Papers. 2062 HeinOnline -- 100 Mich. L. Rev. 2062 2001-2002 August 2002] Identity-Based Social Movements 2063 1. The Politics of Protection,1946-69 .............................. 2161 2. The Birth of a Politics of Recognition, 1961-81 .......... 2169 3. The Ongoing Politicsof Recognition and Remediation and the Politics of Preservation, 1981-Present ................................................................... 2179 II. IDENTITY-BASED SOCIAL MOVEMENTS AND THE EVOLUTION OF CONSTITUTIONAL DOCTRINE ....................... 2194 A. ProceduralDue Process: National Rules of Criminal Procedure,Dialectical Federalism, and Vagueness as an A nti-Discretion Doctrine .................................................... 2202 1. Selective Incorporationof ProceduralProtections in C riminal Cases............................................................... 2204 2. Habeas Corpus and DialecticalFederalism: Federal Courts as Monitors of State CriminalProceedings .... 2219 3. The Vagueness Doctrine as a Mechanism for Restricting Law Enforcement Discretion.................... 2226 B. Substantive Due Process: The Right to Sexual Privacy.. 2236 C. Equal Protection's Sliding Scale: Suspect Classifications,Invidious Motives, and Fundamental Interests................................................................................. 2250 1. Tiers: The Story of Suspect and Other Classifi cations ................................................................ 2251 2. Legislative Motivation and FundamentalInterests: The Equal Protection Sliding Scale ............................. 2269 3. The Disaggregationof Suspect Classificationsand Subordinated Classes .................................................... 2279 D. The Death Penalty Cases: Equal Protectionand the Eighth A m endm ent ............................................................ 2287 E. Equal Protection and the Shifting Fortunes of the PoliticalQuestion, Federalism,and State Action Doctrines .............................................................................. 2299 1. Voting Cases and the Displacement of the Political Q uestion D octrine ......................................................... 2300 2. Federalismand Expanded NationalAuthority to Protect Civil Rights ....................................................... 2310 3. State Responsibility for Discrimination....................... 2324 F. The Imperial First Amendment .......................................... 2332 1. Beyond Speech and Assembly: Expressive Conduct and A ssociation ............................................................. 2334 2. The Sexualized First Amendment ................................ 2340 3. FirstAmendment-Equal Protection Clashes: Defining Who We Are by Whom We Exclude ........... 2349 111. IDENTITY-BASED SOCIAL MOVEMENTS AND META- CHANGES IN CONSTITUTIONAL DISCOURSE AND JURISPRUDENCE ......................................................................... 2353 HeinOnline -- 100 Mich. L. Rev. 2063 2001-2002 2064 Michigan Law Review [Vol. 100:2062 A. Legal Realism, Social Movements, and the Living C onstitution.......................................................................... 2355 B. Legal Process and PluralistTheories of JudicialReview 2375 C. ConstitutionalSkepticism and Popular Constitutionalism................................................................. 2390 1. Inefficacy: Disappointmentwith the Court's Pragmaticand InstitutionalistResponses to the Politics of Recognition and Remediation.................... 2391 2. A More Aggressive Politics of Remediation: Missed Opportunitiesfor a Politics of Transformation.......... 2394 3. A Deeper Politics of Protection: Court-Based Constitutionalismas an Impediment to Combating Private Violence Against Minorities............................ 2402 What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text,' and rarer still because scholars or judges "discovered" new informa- tion about the Constitution's original meaning.2 Precedent and com- mon law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth cen- tury changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century.3 Race, sex, and sexual orientation were markers of social inferiority and legal exclusion throughout the twentieth century. People of color, women, and gay4 people all came to resist their social and legal dis- abilities in the civil rights movement seeking to end apartheid; various feminist movements seeking women's control over their own bodies and equal rights with men; and the gay rights movement, seeking equal rights for lesbigay and transgendered people. All these social 1. See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457 (2001). 2. Although scholars and judges are "discovering" new constitutional meanings all the time, most (maybe almost all) of the "discoveries" rest upon thin historiography. See gener- ally Martin Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523 (1995); Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-in- Law. 71 CHI.-KENT L. REV. 909 (1996). 3. Social movements have driven most of the big changes in American constitutional law. The American Revolution and the founding period were the products of a generation- based social movement. The Reconstruction amendments were the ultimate fruition of the abolitionist movement. The union movement and reactions against it drove much of consti- tutional law during the Lochner era and overlapped with the civil rights movement that commences the story I am telling in this Article. 4. 1 use the term "gay people" to refer to lesbians, bisexuals, and gay men. Sometimes, I shall use the term "lesbigay." HeinOnline -- 100 Mich. L. Rev. 2064 2001-2002 August 20021 Identity-Based Social Movements 2065 movements sought to change positive law and social norms. In both endeavors, constitutional litigation was critically important. Specifi- cally, these IBSMs became involved in constitutional litigation as part of three different kinds of politics in which they were engaged: their own politics of protection against state-sponsored threats to the life, liberty, and property of its members; their politics of recognition, seeking to end legal discriminations and exclusions of group members and to establish legal protections against private discrimination; and a politics of remediation, to rectify material as well as stigmatic legacies of previous state discrimination. At every stage, but particularly