New Book by Professor David Cole Argues that Citizens, Not the Supreme Court, Are Catalysts of Constitutional Change
March 29, 2016 —
It’s not the decisions of justices that drive constitutional change, but the efforts of ordinary and typically unsung citizens operating outside of the federal courts. This is the central theme of the new book Engines of Liberty — The Power of Citizen Activists to Make Constitutional Law (Basic Books), by David D. Cole, the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown Law.
To make his case, Cole tells the surprising and instructive stories behind three recent successful constitutional reform campaigns: for marriage equality, gun rights, and human rights in the war on terror. “A quarter century ago,” says Cole, “the idea that gay and lesbian couples had a constitutional right to marry was far-fetched, to put it mildly.” By the same token, he observes that in 1991, “former Chief Justice Warren Burger dismissed as fraudulent the notion that the Second Amendment protects an individual’s right to bear arms.” And yet, in 2008, the Supreme Court recognized an individual right to bear arms, upending 70 years of law, and last year, the Court recognized that gay and lesbian couples have the right to marry.
Both decisions followed decades of advocacy by nonprofit organizations, virtually all of it outside federal court. Both reform efforts began in the states most sympathetic to the causes — Florida for gun rights, Vermont and Massachusetts for marriage equality — and then sought to export victories there to more and more states. The NRA also funded legal scholarship supporting its view of the Second Amendment, and gay rights groups dedicated millions of dollars and thousands of volunteers to defending the principle of equal marriage in referenda throughout the nation. By the time the issues of gun rights and marriage equality made it to the Supreme Court, the right had already been recognized by many states, making it easier for the Court to recognize the right as a federal constitutional matter.
Engines of Liberty also examines the forces that impelled President George W. Bush to curtail so many of his counterterrorism initiatives by the end of his tenure, and finds, again, that the catalysts for change were civil society groups, such as the Center for Constitutional Rights, the ACLU, and Human Rights First. Here, too, activists were able to change constitutional law and practice, which had long deferred to the president on matters of security during wartime. And here, too, the work that achieved these ends took place largely beyond the federal courts.
With campaign finance and the Citizens United decision as much in the public eye these days as the selection of a replacement for the late Supreme Court Justice Antonin Scalia, the real-life lessons offered in Engines of Liberty are particularly timely. Indeed, Cole published an op-ed recently in the New York Times called “What Liberals Can Learn from the NRA,” and wrote an article for the April issue of The Atlantic applying these lessons to ongoing efforts to reverse Citizens United.
“True change takes political and legal engagement by citizens in the states, in the academy, in the private sector, and even, sometimes, overseas,” Cole says in the New York Times op-ed. “This is how our Constitution actually works and why it remains a living force in our democracy 240 years after it was written.”
Cole teaches constitutional law, national security and criminal justice at Georgetown Law. He is a regular contributor to the New York Review of Books, and the legal affairs correspondent for The Nation. He has been published widely in law journals and the popular press, including the Yale Law Journal, California Law Review, Stanford Law Review, New York Times, Washington Post, The New Republic, Wall Street Journal and Los Angeles Times. He is the author of several award-winning books, including Enemy Aliens: Double Standards and Constitutional Freedom in the War on Terrorism, which won the American Book Award.
Cole is also a noted constitutional lawyer, and has litigated several significant Supreme Court cases, including Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flag burning. Nat Hentoff has called him “a one-man Committee of Correspondence in the tradition of patriot Sam Adams.” Cole has received many awards for his human rights work, including, in 2013, the inaugural Norman Dorsen Presidential Prize from the ACLU for lifetime commitment to civil liberties.Share This Article