Narrative and the Transforming Power of Alternative Constitution Day
The power of Alternative Constitution Day lies in its celebration of narrative. Narrative is our most basic cultural currency, our “tool for giving meaning to experience or observation.” The holy books of the three most prominent monotheistic religions are written in parables. We spend hours binge-watching television shows. We spend millions of dollars to sit in theaters to watch plays and motives.
But as the saying goes, “until the lion learns how to write, every story will glorify the hunter.” Narratives act as cultural filters. Every dominant narrative has buried within it innumerable subsumed voices. This dynamic plays out in court opinion after opinion: for every set of facts included in the majority opinion, there is often a set of facts in the dissent so different it seems to come from a different case. Connick v. Thompson offers one telling example of this.
The law’s narrative choices can have enormous consequences. As I argued in the Maryland Law Review, the narrative choices in the Warren Court’s juvenile justice jurisprudence have allowed the profound racial disparities that dog our country’s juvenile justice system to persist. In In re Gault, the case that extended the right to counsel to juvenile delinquency proceedings, the Court eloquently detailed the narrative of the “Child Savers,” who championed juvenile courts as centers of social rehabilitation doled out by a kindly, avuncular judge.
That was the hunter’s story.
The lion’s story, the brutal narrative of system-involved children of color, was lost. The treatment black children received was devoid of the nuanced, individualized rehabilitation seemingly reserved for white children. In other words, as I discuss in my article, “black children were black before they were children, and therefore exempt from the presumption that they were amenable to rehabilitation.” Elevating the Child Savers’ narrative, the Court located children’s right to counsel in Fourteenth Amendment Due Process, with its adaptable, discretion-based process that benefitted white children, rather than the relatively more hard-shelled criminal procedural protections of the Sixth Amendment. As a result of this narrative choice, the Court enshrined the experience that was, instead of reaching for the juvenile justice system that could be. Subsequent cases would compound this misstep, and ultimately, insulate juvenile court from the Civil Rights Movement.
So let Alternative Constitution Day be about celebrating the subsumed narratives. Let it give us reason to discuss the narratives of the protesters – not rioters – after Freddy Gray’s death and the protection the First Amendment failed to afford them; of the criminally accused whose faces are reported in news stories using mug shots instead of yearbook pictures and the fitfulness of the presumption of innocence; of the hyper- incarcerated and their lived experience of the connection that the Thirteenth Amendment draws between criminal conviction and sanctioned slavery. Let us hear all the stories.
In solidarity,
Robin Walker Sterling
Robin Walker Sterling is an Assistant Professor at the University of Denver Sturm School of Law, where she co-teaches the Criminal Defense Clinic