Transforming Our View of the Law

Camp X-Ray, where the US’s first prisoners from the war in Afghanistan were held, Guantánamo Bay, Cuba, 2002
Lori Grinker/Contact Press Images
Camp X-Ray, where the US’s first prisoners from the war in Afghanistan were held, Guantánamo Bay, Cuba, 2002

“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…

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