This article originally appeared in the Spring 2017 issue of The American Prospect magazine. Subscribe here.
David Cole’s Engines of Liberty is a welcome corrective to a conventional way of narrating constitutional law as being the work of federal courts, especially the Supreme Court, whose justices are nerd-celebrities, internet memes, and partisan heroes or villains. Cole argues that constitutional law comes from sources that are more democratic, and more obscure, than judges. It begins in the work of citizen activists, quixotic lawyers, and legal scholars willing to buck mainstream views and take unfamiliar ideas to their logical conclusions. If progressives hope the courts will stand in the way of Donald Trump’s enormities, Cole’s arguments suggest, they had better mobilize now for the constitutional values they hope to see judges protect in a few years.
Cole makes his arguments by telling the background stories behind three important legal developments of the last 15 years: the Supreme Court’s embrace of same-sex marriage in 2015, its announcement of a constitutional right to individual gun possession in 2008, and its pushback against George W. Bush’s “War on Terror” in a series of cases concerning the rights of detainees and other targets of that “war.” In each instance, courts behaved surprisingly.
As late as 1990, Warren Burger, the conservative former chief justice of the Supreme Court, called the idea of constitutional right to gun possession a “fraud.” Most courts and constitutional scholars agreed with him. Less than a decade before the Court announced a right to same-sex marriage in Obergefell v. Hodges, leading advocates for marriage equality adamantly opposed such a suit because they expected their side to lose badly. Pushback against the war on terrorism is less clean-cut, but the federal courts, in times of war and perceived emergency, have often approved draconian measures, such as internment of Japanese Americans in World War II, imprisonment of pacifists and other radicals during World War I, and criminalization of communist activity during the Cold War. Although lawyers at the American Civil Liberties Union, the Center for Constitutional Rights, and other advocacy groups had no doubt that they needed to swing into action against the Bush administration’s response to the al-Qaeda attacks of September 11, 2001, Cole tells us that they had little expectation of success. (He would know. He is now the national legal director of the ACLU, and, besides teaching at Georgetown Law School, has a long history of work as a civil-liberties lawyer.)
Part of the reason so many elite lawyers and judges underestimated the changeability and surprise of constitutional law is that they took court precedents and standard legal reasoning too seriously, and put too little weight on the creativity and power of grassroots politics. Advocates for same-sex marriage spent many years pressing for intermediate forms of legal recognition, especially civil unions. They engaged in political campaigns for sympathy and inclusion in receptive states like Massachusetts and Vermont. They tried out constitutional arguments in state courts, winning marriage equality in 2004 in Massachusetts (chosen partly for its liberal politics, partly because a cumbersome amendment process made it unlikely that voters would overturn the decision by changing the state constitution); the same arguments ended up carrying the day in Obergefell in 2015, but almost certainly would have failed at the Supreme Court in 2004. The most important thing was that enough of the country got used to the idea that a same-sex couple’s marriage was really a marriage. With that done, it was a relatively short step to conclude that constitutional freedom and equality required legal recognition of that marriage.
While marriage equality was moving from a radical goal to a constitutional guarantee, gun-rights activists were helping their favorite liberty along the same path. As Cole tells it, the National Rifle Association began its long march in 1977, concentrating on state legislatures to win laws blessing the carrying of concealed guns, guaranteeing a handgun license to most law-abiding applicants, and authorizing the notorious “stand your ground” response to perceived threats. Gun advocates also won state-constitutional rulings and amendments protecting a right to gun ownership. (Some states, such as Pennsylvania and Vermont, had protected individual rights to own guns for hunting or self-defense in their state constitutions since before the federal constitution existed.) Although the official consensus of elite lawyers and judges was still that the Second Amendment’s “right of the people to keep and bear arms” applied only in connection with service in what the amendment calls a “well regulated militia,” that view was being undercut on the ground.
Gun-rights advocates also benefited from, and sometimes helped to finance, a groundswell of historical scholarship suggesting that an individual right to gun possession was a widely recognized part of founding-era legal culture, and that the Second Amendment might well have been intended to protect it even apart from militia service. Cole suggests that this scholarship, along with the increasing influence of constitutional originalism, gave five Supreme Court justices confidence in a ruling that would have been nearly unimaginable a few years earlier.
The lawyerly resistance to the “War on Terror” fits Cole’s grassroots story less cleanly. As he points out, in the aftermath of September 11, there was little constituency for terror suspects. But an unrelenting series of challenges moved the Bush administration back from its original impulse to embrace torture, military tribunals with no judicial oversight, and “extraordinary rendition” of suspects to countries with more savage interrogation techniques than waterboarding. The results were mixed—today, drone assassinations and surveillance continue, and restraints on the latter owe more to Edward Snowden than to the ACLU—but a series of Supreme Court decisions, congressional actions, and presidential reversals brought counterterrorism policy from an extra-legal zone into a measure of procedural regularity, oversight, and transparency.
Cole’s main points here are tactical. Without a strong domestic constituency, civil-liberties advocates built alliances with foreign governments whose citizens the United States was holding without due process, moving the terrain of advocacy from state-level grassroots work to international diplomacy. Rhetorically, they identified Bush’s policies as lawless, and appealed to courts’ sense of duty (and to that of some politicians) to defend “the rule of law” against unchecked official power. Cole argues that, when the Supreme Court asserted legal oversight of the Guantanamo prison camp, the justices were self-consciously trying to stay on the right side of history, and had in mind the notorious 1944 decision of Korematsu v. United States, which upheld Franklin Roosevelt’s internment policy. (Civil-liberties lawyers had filed a friend-of-the-court brief in the name of Fred Korematsu, whose resistance to internment lent his name to the case.)
This book leads one gently toward a pair of conclusions: first, that constitutional law is a form of politics, and second, that this fact should be somewhat heartening at the present moment. Constitutional rulings move from unimaginable to possible to mainstream because of the sincere conviction and activism of the present generation, not because of James Madison’s design or the third alternative definition of the word “arms” in an 18th-century dictionary. Even originalism, whose advocates present it as an exit ramp from politicized jurisprudence, is really a form of political advocacy: no NRA, no new Second Amendment law, never mind what a few law professors might
dig up in the historical archives.
Although Cole’s book appeared just as Donald Trump was emerging as the candidate to beat in the 2016 Republican primaries, and so is written for the ever-receding world of Hillary Clinton and Jeb Bush, it speaks to the many everyday people who raced to airports to protest the Trump administration’s travel ban, who began phoning representatives daily or showing up at town-hall meetings, and who generally feel that their country is at stake in the next four years. That feeling is part of what marks constitutional politics, whether it belongs to the Tea Party or to mobilized progressives. If Cole’s argument holds, these protests, along with a lot of other organizing and legal advocacy, will help to decide whether the federal courts go along with Trump’s nationalist attacks on civil liberties and basic legal protections, or defend and even expand the rights of dissenters and noncitizens.
Besides their political relevance and civic usefulness, Cole’s stories translate more than a decade of groundbreaking work by other legal scholars. In 2004, Larry Kramer, a legal historian, published The People Themselves, a study of the role of popular politics and direct mobilization in shaping and enforcing constitutional law. Since then, leading constitutional theorists have doubled as students of social movements and organizing strategies, producing illuminating studies of the constitutional politics of originalism, gun rights, marriage equality, and much more. The study and practice of law are infused these days with the kind of political self-consciousness that Cole celebrates.
In choosing stories that emphasize citizen activism, Cole has left out important ways that the federal courts are anti-democratic and distinctly un-progressive, although not at all apolitical. In a series of issues, the Supreme Court has taken the right-wing side of intensely partisan disputes in ways that are harder to trace to a noble idea of constitutional citizenship than are Cole’s examples. For instance, there is the fight over the social safety net. The Court’s 2012 ruling on the Affordable Care Act came within one vote of gutting the entire law, and crippled the Medicaid expansion that formed a key part of the ACA’s design. The reasoning behind this ruling was just as novel and unexpected—to put it gently—as marriage equality. It didn’t come from nowhere, but from Tea Party–style advocacy that objected to President Obama’s expansion of the safety net and pushed back in the courts after losing in the political process.
Then there is the question of race. In 2013, the Court significantly weakened the Voting Rights Act, clearing the way for new barriers to voting, which Republican legislatures hurried to adopt. For decades, the Court has been on the brink of invalidating affirmative and race-conscious integration policies in public schools. The Court’s affinity for the center-right wing of American race politics reflects how conservative justices make constitutional law out of the Republican Party’s preferred interpretation of the civil-rights era: Martin Luther King Jr. and Brown v. Board of Education cleared up Jim Crow, and now we can all be judged by “the content of our character” and stop talking about structural inequality and the need to address race as an ongoing reality.
Courts have also turned the First Amendment into a doctrine that supports economic power as much as political dissent. Some of this change has happened in the arena of campaign spending. Although the 2010 decision in Citizens United gets the most attention, as early as 1976 the Court announced an extremely skeptical approach to campaign-finance reform. It is now constitutional law that the government may not try to “level the playing field” in politics by limiting political spending for the wealthy or even providing certain kinds of public-funding subsidies to their opponents. There is also a broader front in anti-regulatory First Amendment law. In recent decades, the Court has used the First Amendment’s free-speech protections to attack economic regulation and public-health laws, protecting pharmaceutical companies’ data collection and marketing strategies as if they were political speech, and striking down bans on alcohol ads near schools and mandatory health disclosures on cigarette packaging. All of these constitutional defenses of private money and private business are, as much as Cole’s examples, the products of activism and mobilization, in this case by economic libertarians and Chamber of Commerce types (such as the National Federation of Independent Business, which brought the suit that nearly sank the ACA).
There are, of course, good-faith debates about all of these questions, as matters of policy and of constitutional interpretation. But what these cases suggest is that the Supreme Court is an intensely political institution even when citizen activism of the kind Cole focuses on is far from the center of the action. The most politically important constitutional rulings in recent years are not David-and-Goliath stories, but more conventional kinds of partisan judgments, in which powerful interests end up getting what they want from judges after losing—despite every advantage—in the political process.
It isn’t David Cole’s goal, in this valuable book, to answer the deeper question of when, exactly, a democratic society should want its courts to second-guess its elected lawmakers and when it should tell judges to stand down. But it is part of the question the rest of us confront. In the last century, progressives have had many different views about this question. Franklin Roosevelt’s supporters largely wanted the federal courts out of the way of their legislative and administrative reforms. The civil-rights era depended on federal judges’ willingness to wade into controversial arenas such as desegregation. Modern civil libertarians want the courts to be bold on abortion and gay rights, but allow Congress to legislate for voting rights and a strong safety net. Cole’s book tells us that in the age of Trump, when courts can seem at once indispensable to progressive goals and dangerous to them, threading the needle will be as much a matter of politics as one of principle.