MLK and Robert Cover
In what has become one of the most historic speeches of American history, “I Have a Dream”, Martin Luther King, Jr. said the following,
I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”
Rhetorical flourish aside, what do King’s words say about the legal process? How can it be that the same law system that once supported discrimination, that interepreted “All men are created equal” to exclude certain people, can then reverse its decision, basing itself upon the same systemic rules and principles? Robert Cover, in his classic article “Nomos and Narrative”,[1] wrote,
Consider the case of the civil rights sit-in movement from 1961 until 1964. The movement’s community affirmed that the Constitution of the United States has a valid moral claim to obedience from the members of the community. Yet the community also affirmed an understanding that the Constitution’s guarantee of equal protection includes a right to be served in places of public accommodation without regard to race. In the face of official interpretations of the Constitution that permitted continued discriminatory practices in public accommodations, the movement had this choice: it could conform its public behavior to the official “law” while protesting that the law was “wrong,” or it could conform its public behavior to its own interpretation of the Constitution. There is both “disobedience” and “obedience” in either case. But only obedience to the movement’s own interpretation of the Constitution was fidelity to the understanding of law by which the movement’s members would live uncoerced. Thus, in acting out their own, “free” interpretation of the Constitution, protesters say, “We do mean this in the medium of blood” (or in the medium of time in jail); “our lives constitute the bridges between the reality of present official declarations of law and the vision of our law triumphant” (a vision that may, of course, never come to fruition).
Cover continues and says,
A community that acquiesces in the injustice of official law has created no law of its own. It is not sui juris. The community that writes law review articles has created a law -a law under which officialdom may maintain its interpretation merely by suffering the protest of the articles. The community that disobeys the criminal law upon the authority of its own constitutional interpretation, however, forces the judge to choose between affirming his interpretation of the official law through violence against the protesters and permitting the polynomia of legal meaning to extend to the domain of social practice and control. The judge’s commitment is tested as he is asked what he intends to be the meaning of his law and whether his hand will be part of the bridge that links the official vision of the Constitution with the reality of people in jail. (pp. 47-48)
According to Cover, one of the ways in which legal change happens is when communities who see themselves as loyal to the legal system and the rule of law, offer alternative interpretations of the law as it is currently understood. While their vision “may…never come to fruition”, it is through their vision and struggle that legal change often comes about. History has shown that Martin Luther King, Jr.’s interpretation of “All men are created equal” has in fact become self-evident.
[1] See this post for an overview of a critique of Cover.