In this time of heightened political awareness, David Cole’s Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law offers us maps for our way forward.
Cole, professor of law and public policy at Georgetown University Law Center, tells the stories of how activists paved the way for Supreme Court recognition of rights in three areas:
*the right of same-sex couples to marry,
*the right of individuals to bear arms,
*and the right of detainees to protection from torture and unjust imprisonment.
Activists’ strategies varied in each area. To move the nation to legal recognition of same-sex marriages, activists adopted an incremental approach, laying the groundwork through state legislative action and courts before taking their case to federal courts. That way, a setback in one state would not apply to other states.
Setbacks were common, as victories led to backlash, in the form, say, of referendums or amendments of state constitutions. But after “decades of advocacy of small groups of committed individuals,” the Supreme Court, in Obergefell v. Hodges, acknowledged a national change of mind.
In the case of the right to bear arms, the National Rifle Association, following a similar incremental strategy, worked for changes in state laws before moving on to federal courts. To erode certainty about earlier court interpretations that the Second Amendment applied only to militias, the NRA also encouraged legal scholars “to unearth historical evidence to support its view that the Second Amendment was originally understood to
protect an individual right to bear arms.”
Extending legal protection to detainees in the War on Terror presented a special challenge: most of those who were tortured, imprisoned at Guatánomo, held incognito in other nations’ prisons, or killed by drones were not American citizens; their claim to protection under the U.S. Constitution had not been established.
Organizations like the ACLU used the Freedom of Information Act to bring to light U.S. practices that violated international human rights law and the moral codes of many Americans. Publicity and criticism at home and abroad led the executive branch to revise its treatment of prisoners, and through a series of rulings between 2004 and 2008, the Supreme Court ruled that detainees had a constitutional right to court review. The Supreme Court decisions were, in significant part, a consequence of the work of organizations that drew back the veil of government secrecy.
In his conclusion, Cole offers this takeaway: “Constitutional law is not something that hovers in the sky above us, or in an old piece of parchment to be divined, intoned, and enforced by judges in robes seated behind the well in formal courtrooms…. If you care about constitutional rights, the way forward should be clear: find or found associations of like-minded citizens, engage broadly and creatively, and do not leave constitutional law to the lawyers, much less the judges.”
In a time when the foundations of our governance seem especially unsteady, Engines of Liberty suggests useful strategies for us.