Chief Justice John Roberts closed his dissent in the marriage equality case by assuring same-sex couples that they were free to celebrate their victory. “But do not celebrate the Constitution,” Roberts added sternly. “It had nothing to do with it.”
To the contrary, according to Georgetown law professor David Cole in his new book Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. “The Constitution had everything to do with it,” Cole says of the court’s 5-4 decision last June. [Disclosure: Cole is a personal friend and Georgetown faculty colleague.]
As Cole suggests in the subtitle, however, the credit or discredit for the landmark decision in Obergefell v. Hodges goes not to the justices on the Supreme Court, but to engaged citizen activists who “made” constitutional law through a combination of intellectual discourse and strategic political and legal advocacy. “The bulk of constitutionalism actually takes place outside the [Supreme] Court,” he writes.
The gay marriage decision is the most recent and most dramatic example of citizen-made constitutional law in Cole’s telling, but not the only one. The label applies equally to the gun-rights decision in Heller v. District of Columbia that Roberts joined seven years earlier.
The late justice Antonin Scalia debunked the idea of a “living Constitution,” the slogan popularized by among others the great liberal justice of an earlier era William J. Brennan Jr. Scalia took puckish delight in startling listeners or readers by describing the nation’s founding charter as a “dead Constitution” — its meaning today fixed by its original meaning when written. Cole takes Brennan one step further by saying that it is not a “living” Constitution but a “lived Constitution” – its meaning changed by words and deeds of those who use its text to expand liberty in ways unforeseen when written.
Cole, a committed liberal, may surprise some or even most of his readers by linking the gay marriage and gun rights rulings. Liberals hailed the first and denounced the other with the same fervor conservatives brought to attacking the first and celebrating the other. The libertarian Cato Institute was the only legal advocacy group to back the winning side in each at the Supreme Court.
Introduced at a Georgetown Law School event last week [April 7] as a “public intellectual,” Cole finds in each of the two cases the power of an idea to turn the unthinkable into the inevitable. For gay marriage, the seminal writing is Evan Wolfson’s 141-page research paper completed in 1983 as a 3L at Harvard Law School proposing a constitutional right for same-sex couples to marry. For gun rights, the seminal writings are a half dozen law review articles written by Stephen Halbrook in the 1980s seeking to find an individual right to “keep and bear arms” in the Second Amendment despite that militia clause at the beginning.
Wolfson’s idea was so preposterous that he had found no constitutional law professor to sponsor his paper, only an expert on wills and trusts. Halbrook found law journal editors willing to take his articles — tellingly, the George Mason Law Review was the first — but Cole notes that no less an authority than the former chief justice Warren E. Burger denounced the individual rights view of the Second Amendment in 1991 as “a fraud.”
If either of those ideas had been squarely presented to the Supreme Court in the 1980s or 1990s, Wolfson or Halbrook would have been lucky to get two votes or even one. But instead gay marriage and gun rights advocates were working to build support and move forward step by step, state by state — strategies of “patient incrementalism,” in Cole’s phrasing — even as there were internal divisions within each of the movements on how best to proceed.
For gay marriage, same-sex couples in Hawaii forced the issue despite opposition from national organizations. The result was a national backlash emblemized by the Defense of Marriage Act and overcome only by the slow succession of victories beginning in the late 1990s. Gun rights supporters experienced no comparable nationwide backlash as they made slow gains with enactment of “shall carry” laws in state legislatures.
As the endgames neared, national organizations were wary of taking their cases to the Supreme Court. The National Rifle Association was not ready for Heller to go to the justices. Gay rights organizations were livid when the dream team of Theodore Olson and David Boies took the California Proposition 8 case to the court in 2012.
In the end, each of the two movements won 5-4 decisions establishing rights that Cole aptly says are “not self-evidently supported by the Constitution.” Today, he expects neither decision to be overruled even as opponents call for that to happen. Despite those attacks, both decisions now command popular support as measured by public opinion polls.
“The Supreme Court doesn’t change constitutional law so much as it recognizes that constitutional law has changed,” Cole remarked at the law school event. Scalia, one imagines, is turning over in his grave. He viewed anything other than originalism and strict textualism as anti-democratic, a usurpation of political power by unelected, unaccountable judges.
To the contrary, Cole says. Constitutional law, as actually lived, is “more democratic than commonly understood.” We the People rewrite the Constitution generation by generation through words and deeds – and thus, one can add, it endures.
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