Georgetown University Law Center professor David C. Cole argued that citizenry drives constitutional change more than the U.S. Supreme Court justices in his book “Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law,” published on March 29.
Cole, an Honorable George J. Mitchell professor in law and public policy who has been a constitutional lawyer for more than 30 years and a constitutional scholar for 25, said he wrote the book to remedy gaps in the way constitutional change is conceptualized in the United States.
“I think we tend to think that the Supreme Court changes constitutional law, not the people,” Cole said. “The people can change constitutional law by amending the Constitution, but that’s remarkably difficult to do. It has only been done 27 times in our history.”
Cole contended that there is an alternative to constitutional amendments, stating that this comes in the form of citizens transforming the lens through which constitutional law is interpreted.
“The Constitution changes not because the court decides to interpret the Fourth Amendment differently, but because of citizens who come together around a shared vision of a constitutional right that does not exist but that they believe should exist,” Cole said. “They work strategically and persistently over the long haul to change public opinion sufficiently so that arguments that one time were thought of as crazy can in fact succeed.”
GULC Dean William Treanor praised Cole’s work for highlighting a salient argument that is an essential component of shaping constitutional law.
“Professor Cole’s book convincingly challenges conventional understanding about how constitutional law is made. While scholars and others focus on the role of courts, Professor Cole looks at the power of individual citizens,” Treanor wrote in an email to The Hoya. “He offers a series of case studies from both the right and the left of the political spectrum that show how individuals can, through hard work and vision, fundamentally transform the Constitution’s meaning.”
According to Cole, the role of the Supreme Court is not to decide on its own how to alter constitutional law, but rather to identify and make official the adjustments necessary to accommodate an ever-evolving society.
“For example, in 1972 when gay and lesbian couples sued to argue that they had a constitutional right to get married, the Supreme Court rejected their suit in a one-sentence dismissal, saying it didn’t raise a substantial federal question,” Cole said. “In 2015, the Supreme Court recognized that in fact the Constitution does protect the right of gay and lesbian couples to marry.”
Cole said significant changes in the Supreme Court’s view of law originate from transformations in the people’s perception of the law, which in turn is driven and made known by civil society organizations.
“What explains that shift is not members of the Supreme Court, but the work of gay rights groups in a variety of arenas, from state legislatures to state courts to local municipal governments to public opinion, providing conversations and the like to shift Americans’ attitudes about gays and lesbians and about their right to marry, so the claim went from being unthinkable in 1972 to inevitable in 2015,” Cole said.
Cole said civil society groups are only able to achieve broader constitutional change by mobilizing a greater part of the citizenry.
“When you trace back, what you see are a variety of initiatives undertaken by people, by citizens who care about particular values and are willing to engage in the long-haul fight that is needed to bring constitutional law to their vision,” Cole said. “They only succeed if they can in fact prevail upon a number of their fellow citizens — then their claims become possible.”
In his book, Cole covers three successful instances of constitutional change: the campaign for marriage equality, the National Rifle Association’s push for the right to bear arms and human rights groups’ resistance to the Bush administration’s counterterrorism initiative, the war on terror.
Cole interviewed the principle figures in each of these three changes to determine the factors behind their victories. Cole said the groups involved used innovative means to build support for their causes.
“If federal constitutional law is against you, as it was for all of these groups, you can’t just file a lawsuit in federal court and hope you make a clever argument and prevail, because if the constitutional law is against you, you will lose,” Cole said, “What you need to do is find alternative forums to press your normative claims. For the gun rights groups and the gay rights groups it was principally the states, and for the human rights groups it was principally the international forums.”
Jameel Jaffer, deputy legal director of the American Civil Liberties Union, a nonprofit that aims to preserve individual liberties, lauded the book as an accurate depiction of how change can occur in Constitutional law.
“It’s a provocative and fascinating book, and it supplies a persuasive theory of how constitutional change actually happens,” Jaffer wrote in an email to The Hoya. “At a time when many of us are frustrated with the dysfunction of our political system, it’s god to be reminded of the extent to which ordinary citizens have the power to change the way that the Constitution is understood.”
Cole said he hopes his book will encourage people to push for the change they seek in constitutional law.
“I hope it inspires people to get engaged and to get involved in fighting for the values that they believe should constitute us as a society,” Cole said.
Have a reaction to this article? Write a letter to the editor.