Transforming Our View of the Law

“The Constitution doesn’t mean what it used to mean”—when that’s our impression, our first impulse is to blame (or praise) activist judges. But the most feverishly activist judge cannot make any changes at all until a case comes before him or her. Judges don’t just wake up and say, “Let’s change how the Constitution is understood on same-sex marriage or campaign finance or religious liberty.” They can only respond to lawsuits that have been brought, so that if one were to account seriously for the changes that have taken place in these matters, one would have to recall the resolve and tenacity of citizen litigants, the organizations they created, the energy they invested, and the strategies they pursued right across the political process.

I don’t expect to read a better account of this than David Cole’s new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. It transforms one’s understanding of the contributions of other forums—state legislatures, for example, and public opinion (at home and abroad)—in campaigns that eventually culminate in Supreme Court decisions. For not only is it citizen activists who bring cases before courts, it is their hard work that sets up a background in politics and public opinion against which constitutional change begins to seem sensible. Of course it doesn’t always work. Courts are sometimes obtusely recalcitrant or out of touch with public opinion. We can’t be confident that a majority of justices wants what the people want. And anyway, public opinion is never just one thing. Indeed its hydra-headed malleability is crucial to the campaigns that Cole describes.

Engines of Liberty treats us to three stories. One is about a change in the constitutional understanding of the Second Amendment: it used to be taken for granted that the amendment recognized each state’s right to maintain a militia but did not confer a right on individuals to possess weapons; since 2008 that is no longer the understanding and the right to have a gun at home or in one’s pocket or holster is now widely recognized. The second story is about the campaign for same-sex marriage and the multiple forums in which this struggle was fought. A third is about the rights of detainees in the war against terrorism, and the way federal courts were brought to see the necessity for some sort of legal process for those being held at Guantánamo and elsewhere.

Few people will endorse all three of these changes. And some of the changes, like procedures for detainees, remain unsatisfactory to those on both sides of the issue. That is part of the value of Cole’s book: it shows citizen activism working to bring about changes and compromises that we don’t necessarily support, but whose dynamics should engage us nevertheless because of the ways they complicate our conception of democracy. Each of the stories, says Cole, “shows civil society organizations succeeding against daunting odds,” though it might have been good to see them balanced against stories in which similarly steadfast campaigns failed in the end: think of the campaign for the Equal Rights Amendment, for example. The amendment, which guaranteed that people would not lose rights on account of sex, was approved by thirty-five out of the thirty-eight states that would have had to support it.¹ Still, for the stories he tells, Cole gives himself space to develop the description at considerable length, so we see not just the overall strategy, but the hesitations and even the bitter disputes among people on the same side about which tactics were more promising at any given time.

For example, I didn’t know until I read Engines of Liberty that the National Rifle Association was ambivalent (to say the least) about the lawsuit that resulted in a triumph for individual gun owners in District of Columbia v. Heller (2008). The suit was brought by a conservative public interest law firm in Washington and, apart from an amicus brief, the NRA had no direct involvement. As a tactical matter it thought the challenge to D.C.’s gun laws was premature and it fretted about a fifth vote on the Court: Which way would Justice Sandra Day O’Connor go? (It was wasted fretting: she retired and was replaced by Samuel Alito.) The NRA preferred to stay out of court and keep on with the work it was doing in state and national legislatures, grading politicians for their votes on gun control and pressing states to preempt municipal gun control legislation—a move that enabled the NRA to mobilize rural opinion against urban elites.

When it couldn’t persuade the D.C. lawyers to drop the Heller case, the NRA tried to head them off by lobbying Congress to get the District’s ban on guns repealed. When that failed, it sought to wrest control of the issue by filing a distinct but parallel lawsuit into which the Heller suit could be consolidated. That failed also. Intriguingly, there was hesitation on the other side too: liberals urged D.C.’s mayor not to make matters worse for gun control by asking the Supreme Court to overturn an adverse ruling by the D.C. Circuit Court of Appeal. (But he did appeal, and the city lost, and the rest is history.) Making a federal case out of a political cause makes everybody nervous, because the stakes are suddenly so high.

Despite this bickering, Cole has no doubt that “Heller’s success owes more to the NRA than to the able lawyers who filed and litigated the case.” The NRA may have supported some academic writing by constitutional scholars like Stephen Halbrook and Sanford Levinson. It may have proclaimed its interpretation of the Second Amendment in its literature and on its website. But overall its campaign was, as Cole puts it, “a multidimensional enterprise, taking place in a variety of forums,” involving political tactics that had precious little to do with any doctrinal analysis of the Constitution’s right to bear arms.

There was disagreement too about the value of litigation in the movement to recognize same-sex relationships. Indeed, many in the gay rights movement did not want to put marriage at the center of their campaigns at all. To some, it seemed like an unworthily assimilationist strategy. Wasn’t marriage an institution fundamentally tainted by patriarchy? (In the case that eventually became Obergefell v. Hodges, the Sixth Circuit observed that “even the gay-rights community…was not of one mind about taking on the benefits and burdens of marriage until the early 1990s,” and commented wryly that “a decade later, a State’s voters should not be taken to task for failing to be of one mind about the issue themselves.”²)

Many activists also opposed the lawsuit brought by David Boies and Ted Olson in their federal challenge to California law in the cases that culminated in Hollingsworth v. Perry (2013). By now their opposition was mostly tactical. Could success in litigation be defended? There was great fear of backlash, borne out by the political response to an earlier gay marriage victory in Hawaii. One can, as Mark Tushnet has argued, sometimes lose by winning in court.³ But defeat too might be devastating. Advocates spoke gamely of “losing forward,” with a loss working as an energizing catalyst. But many remembered that it took seventeen long years after Bowers v. Hardwick (1986) before the Supreme Court reversed itself on the constitutionality of state bans on sodomy.

Once it got underway, the campaign for same-sex marriage had other things in common with the story of gun rights. Arguments were developed and tested state by state, and the campaign advanced for the most part by “small, unheralded steps” in a long-term strategy, with success envisaged for 2020 or 2030. A Supreme Court victory was not indispensable; the prize after all was same-sex marriage itself, not necessarily constitutional recognition of same-sex marriage.

New approaches to canvassing, such as “long-form persuasion,” where one lingered on doorsteps for more than just a few minutes, were put into play. Interviews using this technique relied on studies showing that people were less persuaded by rights and doctrine and constitutional case law than by being asked to recollect whether they knew someone who was gay at work or in their family, and by communicating an empathetic understanding of long-term commitments among same-sex couples. An analogy with Loving v. Virginia, the 1967 decision that struck down laws prohibiting interracial marriage, might be popular within the movement but it often affronted potential converts on the doorstep by implying that their hesitations were like racism. Street-level advocates had to learn from hard experience the value of actually listening to voters’ anxieties, not just condemning them as prejudice. All this laid the groundwork for the success that eventually came so decisively in the Supreme Court’s decision in Obergefell v. Hodges (2015)—a success in judicial approval of same-sex marriage that would have been unimaginable without thirty years of setbacks and incremental advances in the court of public opinion.

What about the ethics of all this? The justices who dissented in Obergefell reproached the choice of judicial review as a means of challenging marriage laws. Why not settle the matter democratically? It seemed to be going well. Justice Antonin Scalia observed that “until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best.” And Chief Justice John Roberts took a similar line:

Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.

Such a description may be a bit rosy, but it raises some difficult questions. If it is outcomes that matter ultimately to activists, may those outcomes be pursued by any means necessary, through courts or through legislatures, whichever seems more promising? Is this just strategy? Or must activists consider the respect they owe to fellow citizens who oppose their campaigns, and not try to do an end run around the democratic principles that empower all voters as equal participants?

Activists know they have to win a majority in these cases, for there is disagreement everywhere. But getting five unelected justices on their side may seem easier than getting fifty votes in, say, Ohio’s House of Representatives. So, as a sort of hedge against losing in the political process, they go to court and effectively disenfranchise the mass of their fellow citizens who for the time being oppose their campaign. True, the legislative process is far from perfect, and sometimes “discrete and insular” minorities can be blocked from political influence because of prejudice against them. But that was hardly the case with gun owners in our first story; and legislative triumphs in eleven states (and counting) had shown that it was less and less the case with advocates of same-sex marriage. In both stories, activists were winning victories, only not as quickly or as comprehensively as some would like.

Cole’s own view is that the choice of such strategies is not a matter of either/or. In a long endnote, he maintains that it is a mistake to oppose the ethics of litigation to the ethics of legislation. In the campaigns he describes, the two approaches are inseparable and their entanglement means that what happens in federal court is often less important than what goes down in the court of public opinion. Resort to courts does not diminish the political role of what he calls civil society organizations. The groundwork has to be laid. And civil society, he says, “is the means by which citizens not only transform constitutional law, but make it their own.”

David Cole is not just a chronicler of these stories. He participated himself in the third campaign he describes—the campaign for detainees’ rights—both as a prolific author on civil liberties and as a collaborator in the active work of the late Michael Ratner and others at the Center for Constitutional Rights (CCR). He worked hard on this from the beginning. I remember his leading article in the Boston Review in 2002–2003, entitled “Their Liberties, Our Security,” challenging the myth that we were all equal in having to give up some of our liberty to make our society safer.

So he knew at first hand the odds that campaigners faced in trying to secure due process rights for those being brought into the camps at Guantánamo Bay. More than any of the others, this campaign faced serious “constitutional headwinds.” It had never before been thought that, in wartime, courts could use habeas corpus to regulate the commander in chief’s authority over battlefield detainees. Indeed it was never thought that courts would be much use at all; judges too saw the World Trade Center towers come down on September 11 and their fear and anger were no different from those of other citizens. In December 2001, the Harvard constitutionalist Laurence Tribe had written in The New Republic:

It would be a terrible mistake for those who worry about civil rights and liberties to pin too much hope on the judiciary…. The current Court is no different from its predecessors, all of whom—when confronting the “blood-swollen god” of war—nearly always deferred to the president in trading liberty for security.⁴

How then—in cases like Rasul, Hamdi, Hamdan, and Boumediene⁵—was the Supreme Court persuaded to “break from its history of virtually complete deference to executive power in wartime and rule against the president”?

Once again, the least convincing answer is that some lawyers devised clever constitutional arguments to put in front of the justices. Public opinion had to be turned around by working in other forums. In the nature of things, this was not the sort of case in which one could pursue a state-by-state strategy. The detainees were mostly not American citizens—though Yasir Hamdi was—and if cases defending them were to be made in alternative forums, they would have to be foreign forums.

So Cole charts the importance of opinion abroad and the shaming of the Bush administration in changing the public’s mind on this issue. Central to it all was an appeal to the shared value of the rule of law. Instead of Us v. Them or the Administration v. Terrorism, the issue came to be understood, at least for sizable sections of the public, as the Rule of Law v. Lawlessness. The rule of law was represented by a coalition of American and international legal opinion, including a number of prominent British lawyers, while lawlessness was understood not in abstract terms but in images of hooded men in orange jumpsuits being carted around in wheelbarrows, not to mention the highly publicized descent into depravity at Abu Ghraib. The phrase “legal black hole” entered the language to describe what was going on at Guantánamo Bay; it was coined by the English judge Johan Steyn.⁶ This, says Cole, is what helped lead a majority of Supreme Court justices to accept the challengers’ approach and not the administration’s.

Supreme Court decisions figure as culminating victories in each of these stories—though the outcome remains incomplete and unsatisfactory in the case of the detainees. But the message of Engines of Liberty is that lawsuits and constitutional doctrine had a relatively small part in the politics of the overall campaigns. Before anyone stood up to address the Court, a tremendous amount of work had to be done unglamorously on the streets, in the meeting halls, and through contacts in the newspapers.

And the politics were difficult. They are as fine an example as you will ever see of what Max Weber once called the “strong and slow boring of hard boards.”⁷ Within civil society organizations like the NRA or the CCR or the Lambda Legal Defense Fund, egos had to be massaged, rivals diverted, messages framed, talking heads signed up, and priorities thrashed out. If there was to be litigation, favorable occasions had to be manufactured and attractive petitioners identified. And beyond the world of courthouse activism, ordinary people had to be spoken to: minds needed to be changed and doubts allayed on doorsteps, in Op-Eds, and on television. Members had to be enlisted. (In the case of the NRA, millions of people apparently think they are members of the organization though they are actually not.)

Scholars talk, as I did earlier, of “the counter-majoritarian difficulty” in judicial decision-making.⁸ But the campaigns here were counter-majoritarian in a much deeper sense. The activists began with unpromising levels of public support. They set about defending certain ideals whether or not those ideals had popular support at the beginning or indeed at any stage in the struggle. Even on constitutional matters, counter-majoritarian campaigns couldn’t be won just by filing a lawsuit. They succeeded, where they did, by patient and flexible organization in civil society, because as David Cole reminds us at the end of the book, in a lesson that I guess can also be learned from labor politics, “only institutions have the fortitude, capacity, expertise, resources, and persistence to…commit to the long haul.”