March 25, 2016

Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

by David Cole, Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown Law

President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.

In my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, I tell this story, tracing the strategic choices and incremental victories and losses that ultimately brought us marriage equality. I also show how the individual right to bear arms, dismissed as a fraud by Chief Justice Warren Burger in 1990, became a constitutional right in 2008. Here, too, the key lies in civil society, and in particular in the National Rifle Association, almost certainly the most effective civil rights organization in the United States today. The story of how the NRA prompted recognition of an individual right to bear arms after courts had denied one existed for 100 years has striking parallels to the marriage equality campaign and provides important lessons for anyone seeking constitutional change, whether in a liberal or conservative direction.

Finally, I ask what made President George W. Bush curtail so many of his most aggressive counter-terrorism measures by the time he left office, given the history of courts and Congress deferring to presidents in times of crisis. Here again, the answer lies in the work of civil society groups—such as the Center for Constitutional Rights, the ACLU, Human Rights First, and Reprieve. The challenges human rights groups faced were quite different, but they, too, had to seek alternative forums from the Court itself if they were to succeed in pushing back against Bush and Cheney.

Through these three accounts, I seek to show that the real movers of constitutional change are not the elite lawyers who argue before the Supreme Court, nor the Justices themselves—although both sets of actors of course play a part—but ordinary citizens, working together to make their own shared vision of constitutional ideals into constitutional law. In this sense, you might even say, it is “citizens united” who are the true drivers of constitutional change, and the real “living Constitution.” The book underscores the central importance of groups like the American Constitution Society to the vitality of our Constitution, argues that healthy constitutionalism requires, in addition to the separation of powers and judicial review, a robust and engaged civil society, and provides a template for action.