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The Long Resistance

  • Tomiko Brown-Nagin

We are living in an age of political turbulence, social division, and resistance. The resistance that formed in reaction to the election of Donald Trump styles itself a force to defend constitutional rights, democratic norms, and the rule of law in the United States. Perhaps the New Republic best explained its advent: the Resistance had been born of partisan—that is, Democratic—fury after “liberalism had been dealt its most stunning and consequential defeat in American history.” “For the first time in decades, liberalism has been infused with a sense of energy and purpose,” with millions of people devoted to a singular cause: resisting Trump.

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1. Jeet Heer, “The Path of Most Resistance,” New Republic, May 11, 2017. (accessed July 18, 2018).

2. Ibid.

3. See, for example, Molly Ball, “Is the Anti-Trump ‘Resistance’ the New Tea Party?” The Atlantic, February 9, 2017. (accessed July 18, 2018); contra Paul Rosenberg, “Stronger than Tea: the anti-Trump resistance is much bigger than the Tea Party—and it has to be,” Salon, March 11, 2017. (accessed July 18, 2018).

4. On the World Trade Organization protests of 1999 in Seattle, Washington, see Wood, Lesley J., introduction to Direct Action, Deliberation and Diffusion (New York: Cambridge University Press, 2012).

5. On Occupy Wall Street, which began in 2011 in New York City, see Bolton, Matthew, Welty, Emily, Nayak, Meghana, and Malone, Christopher, Occupying Political Science: The Occupy Wall Street Movement from New York to the World (New York: Palgrave Macmillan, 2013), 18.

6. See “About Us,” Fight for $15, n.d., (accessed November 20, 2017); also see Orleck, Annaelise, “We are All Fast Food Workers Now”: The Global Uprising against Poverty (Boston: Beacon, 2018); and Ashby, Steven, “Assessing the Fight for Fifteen Movement from Chicago,” Labor Studies Journal 42 (2017): 366–86.

7. See “About Us,” The Movement for Black Lives, n.d. (accessed November 20, 2017). For perspectives on the origins and context in which the movement developed, see Taylor, Keeanga-Yamahatta, From #BlackLivesMatter to Black Liberation (Chicago: Haymarket, 2016); and LeBron, Christopher, The Making of Black Lives Matter: A Brief History of an Idea (New York: Oxford University Press, 2017).

8. See Skocpol, Theda and Williamson, Vanessa, The Tea Party Movement and The Remaking of Republican Conservatism (New York: Oxford University Press, 2016), 312, 56, 160, 162–63; and Dolgin, Janet L. and Dietrich, Katherine R., “Social and Legal Debate about the Affordable Care Act,” UMKC Law Review 80 (2011): 8384.

9. Stiglitz, Joseph E., The Price of Inequality (New York: W. W. Norton & Co., 2012).

10. See Brown-Nagin, Tomiko, “The Constitution, the Law and Social Change: Mapping Pathways of Influence,” in Cambridge Companion to the Constitution, eds. Compton, John and Orren, Karen (New York: Cambridge University Press, 2018); Brophy, Alfred L., “The Civil Rights Act of 1964 and the Fulcrum of Property Rights,” Alabama Civil Rights & Civil Liberties Law Review 6 (2014): 7576; and Larkin, Paul J. Jr., “The Original Understanding of ‘Property’ in the Constitution,” Marquette Law Review 100 (2016): 611.

11. See Ackerman, Bruce, We The People, Volume 3 (Cambridge: Belknap Press, 2014), 7; and Deloria, Vine Jr., “Minorities and the Social Contract,” Georgia Law Review 20 (1986): 918–21.

12. See “Our Mission,” The Resistance Party, 2017. (accessed January 7, 2018); and “The Trump Threat to the Rule of Law and the Constitution,” Niksaken Center, February 3, 2017. (accessed January 7, 2018).

13. Marbury v. Madison, 5 U.S. 137, 177.

14. Brown-Nagin, Tomiko, “The Civil Rights Canon: Above and Below,” The Yale Law Journal 123 (2014): 26982739.

15. Brown-Nagin, , Courage to Dissent (New York: Oxford University Press, 2012), 4.

16. See Randolph, A. Philip and Owen, Chandler, “A Socialist Critique in The Messenger,” in Black Protest Thought in the Twentieth Century (Indianapolis: Bobbs-Merrill, 1971), 84, 8687, 88.

17. See Welky, David, Marching Across the Color Line: A. Philip Randolph and Civil Rights in the WWII Era (New York: Oxford University Press, 2013).

18. Brown-Nagin, Courage to Dissent, 4.

19. DuBois, W.E.B., Black Reconstruction in America: Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880 (Piscataway: Transaction Publishers, 2013), 26.

20. See Dudziak, Mary L., Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2011).

21. See MacLean, Nancy, Freedom is Not Enough: The Opening of the American Workforce (New York and Cambridge: Russell Sage Foundation, 2006); Lee, Sophia, “Hot Spots in a Cold War: The NAACP's Post-War Labor Constitutionalism, 1948–1964,” Law and History Review 26 (2008): 327–77; and Lee, Sophia, The Workplace Constitution: From the New Deal to the New Right (New York: Cambridge University Press, 2014).

22. See Brown-Nagin, “The Constitution, the Law and Social Change.”

23. Brown-Nagin, “The Civil Rights Canon,” 2705.

24. Martin Luther King, Jr., “MIA Mass Meeting at Holt Street Baptist Church,” speech, December 5, 1955, Montgomery, transcript. (accessed July 18, 2018).

25. Ibid.

26. See generally, Alexander Bickel, “The Original Understanding and the Segregation Decision,” 81 Va. L. Rev. 947 (1995).

27. Brown-Nagin, “The Constitution, the Law and Social Change.”

28. Martin Luther King, Jr., “I Have a Dream,” speech, August 28, 1963, Washington DC, transcript (accessed July 18, 2018). For insightful analyses, see Sundquist, Eric J., King's Dream: The Legacy of Martin Luther King's “I Have a Dream” Speech (New Haven: Yale University Press, 2009); and Hansen, Drew D., The Dream: Martin Luther King, Jr., and the Speech that Inspired a Nation (New York: Ecco, 2003).

29. See Eskew, Glenn T., But for Birmingham: The Local and National Movements in the Civil Rights Struggle (Chapel Hill: University of North Carolina Press, 1997), 299332.

30. See May, Gary, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (New York: Basic Books, 2013), ix–x, 167–69. John Lewis called the passage of the Voting Rights Act the nation's “finest hour.” See Clayborne Carson, “1965: A Decisive Turning Point in the Long Struggle for Voting Rights,” The Crisis, July/August 2005, 16–20.

31. Brown-Nagin, “The Civil Rights Canon,” 2722–23.

32. Biondi, Martha, To Stand and Fight: The Struggle for Civil Rights in Postwar New York City (Cambridge, MA: Harvard University Press, 2003).

33. Countryman, Matthew J., Up South: Civil Rights and Black Power in Philadelphia (Philadelphia: University of Pennsylvania Press, 2006).

34. Payne, Charles M., I've Got the Light: The Organizing Tradition and the Mississippi Freedom Struggle (Berkeley: University of California Press, 1995).

35. Brown-Nagin, Courage to Dissent, 4–5.

36. Jackson, Thomas F., From Civil Rights to Human Rights: Martin Luther King, Jr., and the Struggle for Economic Justice (Philadelphia: University of Pennsylvania Press, 2007), 160, 171–72.

37. Jackson, From Civil Rights to Human Rights, 2–3, 21, 33, 209, 350.

38. Ibid, 204.

39. Ibid, 192–94.

40. Dyson, Michael E., April 4, 1968: Martin Luther King, Jr.’s Death and How it Changed America (New York: Basic Civitas Books, 2008), 123.

41. King, Martin Luther Jr., Where Do We Go from Here: Chaos or Community? (New York: Harper & Row, 1967), 163, 193.

42. Martin Luther King, Jr., “I've Been to the Mountaintop,” speech, April 3, 1968, Memphis, transcript. (accessed July 18, 2018).

43. Jackson, From Civil Rights to Human Rights, 192.

44. Daniel P. Moynihan, The Negro Family: The Case for National Action, report (Office of Policy Planning and Research: United States Department of Labor, 1965).

45. See Brown-Nagin, “The Civil Rights Canon,” 2722–26.

46. See Carson, Clayborne, In Struggle: SNCC and the Black Awakening of the 1960s (Cambridge, MA: Harvard University Press, 1981), 158–62, 207–11.

47. See Brown-Nagin, “The Constitution, the Law and Social Change.”

48. McFarland, Andrew S., “Social Movements and Theories of American Politics,” in Social Movements and American Political Institutions, eds. Costain, Anne N. and McFarland, Andrew S. (Oxford: Rowman & Littlefield Publishers, 1998), 8, 11.

49. Corwin, Edward S., “The Constitution as an Instrument and Symbol,” American Political Science Review 30 (1936): 1071–85, at 1078.

50. See Carson, In Struggle, 158–62, 207–11.

51. Ibid.

52. Brown-Nagin, Courage to Dissent, 35.

53. See Carson, In Struggle, 158–62, 207–11.

54. Ibid., 62–64; and Brown-Nagin, Courage to Dissent, 266.

55. Brown-Nagin, “The Constitution, the Law and Social Change.”

56. Brown-Nagin, Courage to Dissent, 138.

57. Brown-Nagin, “The Constitution, the Law and Social Change.”

58. See, generally, Papke, David, Heretics in the Temple: Americans Who Reject the Nation's Legal Faith (New York: New York University Press, 1998).

59. Scheingold, Stuart A., The Politics of Rights: Lawyers, Public Policy, and Political Change (Ann Arbor: University of Michigan Press, 2004), 5.

60. For the travel ban litigation, see, for example, Trump v. International Refugee Assistance Project, 137 S.Ct. 2080 (2017). For emoluments litigation, see Mark J. Stern, “Donald Trump is Now Facing Three Emoluments Lawsuits,” Slate, June 14, 2017. (accessed July 18, 2018).

61. This article focuses on particular strands of particular social movements. For a movement with countercultural and more strident rhetorical strategies, consider, for example, the anti-war movement. See Windt, Theodore O. Jr., Presidents and Protestors: Political Rhetoric in the 1960s (Tuscaloosa: University of Alabama Press, 1991), 169–70.

62. For photographs of signs with these three allusions, see Ian Simpson and Joseph Ax, “Washington braces for anti-Trump protests, New Yorkers march,” Reuters, January 19, 2017. (accessed July 18, 2018).

63. See Jon Sharman, “The Best Women's March signs from around the world as feminists protest Donald Trump,” The Independent, January 22, 2017. (accessed July 18, 2018).

64. See Daniel Albanese, “LGBT Rally,” Dusty Rebel (blog), February 5, 2017. (accessed July 18, 2018).

65. Keri Phillips, “Is it Fair to Call Donald Trump a fascist?,” ABC News, March 6, 2017. (accessed July 18, 2018).

66. Alan Taylor, “‘Not My President’: Thousands March in Protest,” Atlantic, November 10, 2016. (accessed July 18, 2018).

67. Brian Josephs, “These are the Best Protest Signs We Saw at the Women's March on Washington and New York,” Spin, January 22, 2017. (accessed July 18, 2018).

68. Sophia Dembling, “Even Introverts Are Here,” Psychology Today, January 24, 2017. (accessed July 18, 2018).

69. This quote is actually credited by some to Rev. Theodore Parker, an abolitionist. Dr. King later adapted to the twentieth-century context. See Jamie Stiehm, “Oval Office rug gets history wrong,” Washington Post, September 4, 2010.

70. Hall, Jacqueline Dowd, “The Long Civil Rights Movement and the Political Uses of the Past,” Journal of American History 91 (2005): 1233–63.

71. See generally Trodd, Zoe Frances, The Reusable Past: Abolitionist Aesthetics in the Protest Literature of the Long Civil Rights Movement (Cambridge, MA: Harvard University, 2009).

72. See, generally, Beckert, Sven and Rockman, Seth, eds., Slavery's Capitalism: A New History of American Economic Development (Philadelphia: University of Pennsylvania Press, 2016).

73. See, generally, Baptist, Edward E., The Half Has Never Been Told: Slavery and the Making of American Capitalism (Philadelphia: Basic Books, 2014).

74. Plessy v. Ferguson, 163 U.S. 537 (1896).

75. Dred Scott v. Sandford, 60 U.S. 393 (1857).

76. See Fehrenbacher, Don E., The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), 160–62, 278–79, 287, 341–342.

77. Brown-Nagin, “The Constitution, the Law and Social Change.”

78. Frederick Douglass, “The Constitution of the United States,” speech, March 26, 1860, Glasgow, Scotland, transcript. (accessed July 18, 2018).

79. William Lloyd Garrison, “On the Constitution and the Union,” Liberator, December 29, 1832. (accessed July 18, 2018).

80. Ibid.

81. See Finkelman, Paul, “Garrison's Constitution: The Covenant with Death and How it was Made,” Prologue: Quarterly of the National Archives 32 (2000): 231–45 and Mayer, Henry, All on Fire: William Lloyd Garrison and the Abolition of Slavery (New York: W. W. Norton & Co, 1998).

82. See Kraditor, Aileen S., The Ideas of the Woman Suffrage Movement, 1890-1920 (New York: W.W. Norton, 1981), 4374.

83. Ibid. at 219–48.

84. Susan B. Anthony, “On Women's Right to Vote,” speech, 1873, New York, transcript. (accessed July 18, 2018); also see Siegel, Reva B., “She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family,” Harvard Law Review 115 (2002): 9481046.

85. Anthony, “On Women's Right to Vote.”

86. Mayeri, Serena, Reasoning from Race: Feminism, Law and the Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2011), 14.

87. Ibid.,  5.

88. See Eisenstein, Zillah R., The Radical Future of Liberal Feminism (Boston: Northeastern University Press, 1993), 177–79.

89. Ibid., 176–78.

90. Ibid., 180.

91. Canela A. Jaramillo, “Feature: A Tribute to Johnnie Tillmon,” Standard, Spring/Summer, 2001. (accessed July 18, 2018).

92. See Roth, Benita, Separate Roads to Feminism: Black, Chicana and White Feminist Movements in America's Second Wave (New York: Cambridge University Press, 2003).

93. See Ziegler, Mary, “The Price of Privacy: 1973 to the Present,” Harvard Journal of Law and Gender 37 (2014): 285329.

94. See, generally, Eisenstein, The Radical Future of Liberal Feminism.

95. See Boles, Janet K., The Politics of the Equal Rights Amendment: Conflict and the Decision Process (New York: Addison-Wesley Longman, 1979).

96. See Boles, The Politics of the Equal Rights Amendment, 128.

97. See Lynn Olson, “Nixon Leaves Mixed Legacy on Education, Family Issues,” Education Week, May 4, 1994. (accessed July 18, 2018).

98. See Balfour, Nancy, “The US Presidency in Danger,” Royal Institute of International Affairs 29 (1973): 505–13.

99. See, for example, Kenneth P. Vogel, “The ‘Resistance,’ Raising Big Money, Upends Liberal Politics,” New York Post, October 7, 2017. (accessed July 18, 2018).

100. See Brown-Nagin, “The Civil Rights Canon,” 2711.

101. Ibid.

102. Brown-Nagin, “The Civil Rights Canon,” 2730.

103. See Ferguson, Karen, Black Politics in New Deal Atlanta (Chapel Hill: University of North Carolina, 2002), 2223; and Katznelson, Ira, Fear Itself: The New Deal and the Origins of Our Time (New York: Liveright Publishing, 2013), 159–63.

104. Payne, I've Got the Light, 338–39; and Carson, In Struggle, 258–59.

105. Wright, Gavin, Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (Cambridge, MA: Harvard University Press, 2013).

106. Jackson, From Civil Rights to Human Rights, 8.

107. Brown-Nagin, “The Civil Rights Canon,” 2715.

108. Ibid.

109. See Rustin, Bayard (ed. Long, Michael), I Must Resist: Bayard Rustin's Life in Letters, (San Francisco: City Lights, 2012).

110. Ashmore, Susan Youngblood, Carry It On: The War on Poverty and the Civil Rights Movement in Alabama, 1964–72 (Athens: University of Georgia Press, 2008), 158, 247–49.

111. Chisholm, Shirley (ed. Simpson, Scott), Unbought and Unbossed: Expanded 40th Anniversary Version (Boston: Take Root Media, 2010).

112. Ibid., 99–100.

113. Ibid., 101.

114. Ibid., 102.

115. Levy, Alan H., The Political Life of Bella Abzug, 1920–1976: Political Passions, Women's Rights, and Congressional Battles (Plymouth: Lexington Books, 2013), 86.

116. See Edward Walsh, “Abzug Praises President – And Then He Fires Her,” Washington Post, January 13, 1979. (accessed July 18, 2018).

117. See Brown-Nagin, Courage to Dissent, 58; and Kanthak, Kristin and Krause, George, The Diversity Paradox: Parties, Legislatures, and the Organizational Foundations of Representation in America (New York: Oxford University Press, 2012).

118. See Levi, Margaret, Johnson, James, Knight, Jack, Stokes, Susan, eds., Designing Democratic Government: Making Institutions Work (New York: Russell Sage Foundation, 2008), 189224.

119. See Vanessa Williamson and Theda Skocpol, “What can (and should) activists learn from the Tea Party?” Washington Post, May 11, 2017. (accessed July 18, 2018).

120. Tomiko Brown-Nagin, “To better understand the future of protest, we need to look at its past,” Pacific Standard, March 9, 2017. (accessed July 18, 2018).

121. See “Our Republic at 230,” Documents, Georgia Tea Party, 2018. (accessed July 18, 2018).

122. See, for example, Jesse Ferguson, “The Resistance is the majority of Americans—not a new Tea Party,” Time, February 21, 2017. (accessed July 18, 2018).

123. See, for example, Skocpol and Williamson, The Tea Party, 1–11.

124. Ibid, 130.

125. Gilens, Martin, Why Americans Hate Welfare: Race, Media and the Politics of Antipoverty Policy (Chicago: University of Chicago Press, 1999), 61.

126. Skocpol and Williamson, The Tea Party, 9–13.

127. Ibid, 11–13.

128. Gabriel Debenedetti, “Democrats sweat Clinton v Sanders rift,” Politico, January 16, 2017.

129. Bull Connor was the commissioner of public safety in Birmingham, Alabama. During 1963, he directed the use of attack dogs against civil rights activists. Brown-Nagin, Courage to Dissent, 218.

130. George Wallace was a long-serving governor of Alabama, who in his inaugural speech stated “segregation now, segregation tomorrow, segregation forever.” He did later, however, repent his views on segregation. See Carl T. Rowan, “The Rehabilitation of George Wallace,” Washington Post, September 5, 1991. (accessed July 18, 2018).

131. Orval Faubus was the governor of Arkansas who opposed the desegregation of the Little Rock School District. See Jacoway, Elizabeth, Turn Away the Son: Little Rock, the Crisis that Shocked the Nation (New York: Free Press, 2007).

132. Charlottesville was the site of white nationalist protests in 2017, where woman was killed after one of these protesters ran his car into a crowd of counterprotestors. See Ellie Silverman and Michael Laris, “Charlottesville victim: ‘She was there standing up for what was right’,” Washington Post, August 13, 2017. (accessed July 18, 2018).

133. See, for example, Matthew Delmont, “African Americans fighting fascism and racism, from WWII to Charlottesville,” The Conversation, August 21, 2017, (accessed July 18, 2018).

134. See Michael H. Schill, “The misguided student crusade against ‘Fascism’,” New York Times, October 23, 2017. (accessed July 18, 2018).

135. Sokol, Jason, There Goes My Everything: White Southerners in the Age of Civil Rights, 1945–1975 (New York: Alfred A. Knopf, 2006).

136. MacLean, Nancy, Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America (New York: Viking, 2017).

137. See Joseph, Peniel, ed., The Black Power Movement: Rethinking the Civil Rights–Black Power Era (New York: Routledge, 2006); and Joseph, Peniel, Waiting ‘til the Midnight Hour: A Narrative History of Black Power in America (New York: Henry Holt, 2006).

138. See Countryman, Up South.

139. See Self, Robert O., American Babylon: Race and the Struggle for Postwar Oakland (Princeton: Princeton University Press, 2003).

140. See, for example, Rojas, Fabio, From Black Power to Black Studies: How a Radical Social Movement Became an Academic Discipline (Baltimore: John Hopkins University Press, 2007).

141. Brown-Nagin, Courage to Dissent, 36.

142. Martin Luther King, Jr., “Beyond Vietnam,” speech, April 4, 1967, New York, transcript. (accessed July 18, 2018).

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