This is a very abstract paragraph. Only a highly-motivated reader, or one who is very familiar with the ideas being expressed, will follow you through that length without some concrete example to provide a base for your formulations.

Founding Fathers and Constitutional Moments

I see no sign that this supposed seeming blasphemous is indeed how it seems to everyone. Consider, for example, the speech by Thurgood Marshall on the bicentennial of the United States Constitution, pointing out the racist and inhuman immorality of the original Constitution and the absence of any guarantee that the document will ever cease to countenance injustice. Although I had some particular reasons for following with care the public reception of those remarks, which were certainly extensive and prominent, my observation led me to a slightly different conclusion. It seemed to me that a few people confirmed the argument that there was an inherent relationship between white supremacy and the insistence on veneration of an unchanging US Constitution; another, much larger, minority of people felt it was a legitimate opinion with which they couldn't bring themselves to agree because it seemed somehow unpatriotic; and the vast majority thought it was obviously true, however pessimistic, and that it was somehow Thurgood Marshall's constitutional responsibility to have said what he did. Which was pretty much how it seemed to me. That in the long run it didn't seem blasphemy is shown by the fact that it's now included in all the collections of American historical speeches for young people, and is as much a monument of American history as Abraham Lincoln on the house divided.

but once we can move past the idea of the document as sacred, and past the unhealthy worship of a generation far removed from contemporary life and problems, the idea of some inherent moral quality loses its vitality. We start to see the narratives of “founding”, “evolution” and “constitutional moments” as part of a larger national myth meant to inspire conformity to national ideals determined by the dominant class of power monopolizing interests. It is apparent to all but the voluntarily blind that the moral legitimacy of the constitution is nothing more than a veil, and the deference and respect we are to show is nothing more than our complacency in the existing power structure. A system that seeks both social justice for contemporary problems and the alleviation of oppression for the marginalized cannot operate within the framework of the constitution. Such system must be sought through radical change and revolution.

The conclusion does not follow. Even if the premises were tight, the hole between the premises and the conclusion is exactly the size and shape of Thurman Arnold's conceptions. All organized society must be held together precisely by contradictory creeds, and what you are calling "nothing more than a veil," is actually the spider's web, lighter than silk and tougher than steel, that holds all human social institutions together. Observing that it is made out of neither logic nor morality is necessary in order to begin understanding the social fabric enough to transform it, says Arnold, in response to precisely the insight that you claim ineluctably leads to the resolve to rip it up.

Of course, the premises aren't tight. As I've explained above, I don't think the constitutional culture of the US is correctly represented here, on both empirical and theoretical grounds. Experience persuades me as I've described. From a theoretical perspective, I agree with Arnold both that the institutional life of every organization is made of symbolic content that is not addressed to rational choice-making behavior, and also that being aware of the non-rational basis of organizations is much easier for ordinary working people than for privileged law school graduates who have mostly been trained to justify what is, in the mode you describe. The governed by and large acquiesce precisely because revolution is so undesirable, and is so pointless when every revolutionary regime must in the end resort to creeds that are no more morally consistent than those of the organizations it replaces.

Lawyering Towards Social Justice

Somewhat problematic, because every lawyer here swears to uphold it. Is every lawyer to begin by swearing falsely?

Given the benefit of training in the law, lawyers are those with intimate knowledge of the superficial quality of the constitutional moral legitimacy, and of the oppressiveness of the legal system as a whole. As a result she is in the best position to undermine the asphyxiating hand of the power structure on the crowded margins of society. When both those being oppressed and those watching the oppression, believe that it is in the best interests of all involved, it becomes the lawyer’s duty to point out that what is happening now will not change, and has not changed, that it is, in fact, only in the best interests of a few, and that such injustice need not be accepted as necessarily part of life. The stories that convince most to surrender to the idea of inherent moral legitimacy in the constitution are powerful, and lawyers must work to undermine those beliefs, and awaken the public to the possibilities of social justice through revolution.

My impression, after I let the sense of faintness brought on by the purple prose wear off, is that a false conflict is here asserted between upholding the Constitution and advocating sufficient social change to enable the provision of justice. I see no reason to believe they're inconsistent, until you show that there is something about the existence of the Constitution, which is after all capable of infinite amendment, that prevents the achievement of justice. This you cannot have by assumption and must demonstrate.

Conclusion

Unless "social revolution" has come to mean something you can do at a tea party, this sounds like a recipe for constant suffering. It's a drawback, not a boast, for a scheme of social improvement—no matter how comprehensive or how beneficial—that it requires massive suffering for the poor. Almost every revolutionary disruption, no matter how redistributive, ends in the suffering of the most vulnerable, who are the poor.

We must spend generation after generation unsettled and in flux. Injustice will always exist given the inherent limitations of humanity, but to draw from this the conclusion that that inevitability makes any endeavor pointless is a self-damning response. What we need in the face of constant injustice is constant endeavor. Every constitution must be undermined, every law stretched, every narrative debunked, and every power structure dismantled as we, as lawyers seek social justice on the margins.

This appears to exclude a priori all schemes for the appropriation of power structures, or their modification, through the exploitation of unintended consequences. I discuss social strategies of this kind with co-authors Karl Marx and Friedrich Engels in The dotCommunist Manifesto.

The Lawyer's Craft

-- By AjaySaini - 26 Feb 2010

Introduction

Laws and Social Paralysis

Founding Fathers and Constitutional Moments

Lawyering Towards Social Justice

Conclusion

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