Vol. 26 No. 8 (December 2016) pp. 144-147
ENGINES OF LIBERTY: THE POWER OF CITIZEN ACTIVISTS TO MAKE CONSTITUTIONAL LAW, by David Cole, Basic Books, 2016. 308 pp. Hardcover $27.99. ISBN 0465060900.
Reviewed by Laura Van den Eynde, Center for Public Law, Université libre de Bruxelles (Belgium). Email: email@example.com.
In ENGINES OF LIBERTY, David Cole argues that the real drivers of constitutional change in the United States are not judges but committed citizens. He recounts in detail three different enterprises that shaped the understanding of constitutional provisions in recent years: the struggle for marriage equality, gun rights advocacy, and the curb of egregious counterterrorism measures adopted after 9/11. In a narrative style and combining interviews, analysis of documents, and participant observation (David Cole himself is involved in various civil society organizations and has litigated many cases), he presents these three case studies to point out that major transformations of U.S. constitutional law are less attributable to the Supreme Court than generally thought. Instead, he turns the spotlight to the multi-faceted work of dedicated individuals, in many instances outside the federal courts.
In his first example, the author traces the strategic choices that activists had to face along the way towards marriage equality. He portrays several individuals and organizations and presents the incremental victories and losses that ultimately led to the 2015 Supreme Court decision, OBERGEFELL V. HODGES, recognizing a constitutional right to marriage equality. In his next example, he traces the many-sided strategy of the National Rifle Association to pursue its goals, among which is the reading of the Second Amendment as guaranteeing an individual right to bear arms. In both instances it took the relentless work of committed individuals, designing a strategy of litigating in sympathetic states, discussing the issue in public events and private homes, fine-tuning their message to the general public, to obtain groundbreaking Supreme Court decisions. The protection of civil liberties after 9/11 faced different challenges: the actions had to be quickly reactive, there was a veil of opacity on the adopted counterterrorism measures, there were no state laws involved and no large constituencies to mobilize (p. 153). Civil society groups, such as the Center for Constitutional Rights or the ACLU, thus had to devise different strategies, for example spurring pressure from abroad. Through these three accounts, he demonstrates that constitutional change happened thanks to the work of citizens, trying to imprint the understanding of the Constitution with their own ideals.
This idea may not be so new — certainly since the creation of the Civil Rights Movement — but it is valuable to document and to record the efforts of relatively recent campaigns. Although Cole briefly mentions that inspiration was drawn from previous struggles — civil rights, right to vote for women, workers’ rights and abortion —, he could have inquired more deeply how campaigns inspired each other and which connections or networks were at play. As this idea is not new, Cole could also have drawn upon the abundant American literature on law and social change, legal mobilization and cause lawyering. For instance, Charles Epp argued almost 20 years ago that the increasing recognition of civil liberties was not only attributable to a blend of guaranteed rights, judicial independence, leadership of activist judges and rights consciousness in legal culture, but also to what he called the “support structures for legal mobilization”, consisting of organizations dedicated to establishing rights, committed and able lawyers, and sources of financing (Epp 1998). Even closer to the main idea of the book, there is the theory developed by Robert Post and Reva Siegel on the role that social movements play in creating new forms of constitutional understanding. Under the term ‘democratic constitutionalism’, they describe a process by which actors engage in norm contestation to challenge existing interpretations that can lead to changes over time (Post and Siegel 2007). It is thus regretful that the authors having formulated ideas close [*145] to those presented in this book are only discussed marginally, in the endnotes. Cole could have entered into dialogue with their theories by stressing his own contribution. Interested readers should have a look at an article he wrote in 2011 in which he develops the idea of “civil society constitutionalism”, calling for a reorientation of constitutional theory and practice and pointing out to the unique role played by civil society organizations to stand up for constitutional rights when they are dismissed by courts, by the political branches or even by “the people” at large (Cole 2011).
Since Cole has conducted this analysis elsewhere, this absence is probably intentional and explained by the aim of the book; to offer a refreshing understanding of how constitutionalism works in practice and speak at a larger audience — which is certainly one of the strengths of the book. Cole indeed formulates the hope that the book might “help inform future movements for constitutional change” (p. 7). Let me extend that ambition to the work of activists, scholars and policy-makers, also outside U.S. borders.
First, activists worldwide can learn simple but crucial lessons here. For example, the content of constitutional law was also debated at doorsteps, kitchen tables and the media, in order to convince the public and not only the courts. Or that an ingredient of success might also lie in the large membership base of organizations. Furthermore, the careful selection of cases and plaintiffs should not be neglected — and this sometimes involves discouraging individuals to go to courts. A story that comes to mind is the French burqa case that went to the European Court of Human Rights. It is not my claim that the applicant in S.A.S. V. FRANCE was unsympathetic, but, with the glasses of the American tradition of carefully choosing plaintiff and framing certain type of arguments, U.S.-based organizations would probably have chosen a different applicant to test the law and set the precedent. The one involved before the Court remained anonymous and declared to be “content not to wear the niqab in public places at all times but wished to be able to wear it when she chose to do so, depending in particular on her spiritual feelings” (S.A.S. V. FRANCE, §12), which confused some in relation to the right of freedom of religion. Similarly, strategies inherent to American federalism could also inspire activists working across countries, to spot specific places to start litigation and make their way to higher courts.
Secondly, the idea defended in this book has implications for constitutional law scholars too. The reproach he formulates against traditional scholarship to have ignored the civil society sector can without doubt be extended to most countries, particularly in the civil law tradition. This book could thus serve as example. It presents parallels with the ‘new civil rights history’ field defined by Risa Goluboff that could be looked at for inspiration as the methodological expansions are not limited to civil rights history alone: it is “interested less in legal output at a single level of the legal system than in the movement of consciousness, arguments, and doctrine throughout the process of law creation” (Goluboff 2013, p. 2323). It combines a traditional approach to the legal history of the subject — ‘major-case-centered’ focus — with that of traditional social history — the “movement on the ground in particular communities” (Goluboff 2013, p. 2319).
Finally, there are serious implications for policy-makers. If the strength of a society’s constitutional and human rights commitments lies at least in part on civil society organizations, there are reasons to be worried today. There are on-going developments around the world that constrain the operating space for civil society organizations in various ways (often qualified as “the shrinking space for civil society”) (van der Borgh and Terwindt 2012). Among the restrictive initiatives observed throughout the world, some target the incorporation/registration, operation, and general lifecycle of civil society organisations, others forbid or hinder their financing (for example by requiring prior government approval to receive international funding), and finally some restrict the freedom of assembly or of expression (Rutzen 2015). This tendency should trigger increased action and concern, also outside the regimes where it is observed. As David Cole noticed regarding the post 9/11 situation “in the absence of effective formal avenues for checking at home, civil society groups often operated at a transnational level [*146] to bring pressure to bear on the US.” Similarly, this shrinking space phenomenon remains largely unexplored by the academic world and, in particular, by legal scholars. This is confounding, as the law has a great impact on the functioning of civil society (Mertus 1999).
The author collected some interesting anecdotes that should feed further reflection. For example, the framing of the marriage equality issue was attentive to the narrative the public wants and used ‘mainstream’ messengers, i.e. straight people – as they were better listened to –, with a polished discourse on love and commitment rather than rights (see also Carpenter 2012). David Cole notes that one of the lessons taken away from the unsuccessful Proposition 8 campaign is that sometimes “it’s better to talk about a right in terms other than rights” (p. 70). This might be refreshing in an era where rights discourse invaded our daily life, but it is frightening too: why can’t the message be about rights?
Another observation that raises questions is the involvement of professional specialists and organizations. Cole shows that influencing constitutional understanding requires committed individuals, a deep sense of political opportunities, and that money helps oil the machine. Yet, it also seems that in every successful struggle, at a certain stage, there have been renowned lawyers, academics, experts, pollsters or international contacts: do the efforts of politically engaged citizens then really suffice or do they necessarily need to turn into or to an institutional organization?
The book finishes with a call for hope for the future and in that sense it is unsurprisingly dedicated to the late renowned human rights lawyer Michael Ratner. It might also be considered as a timely warning, considering the state of liberties today in many places. On top of that, similarly organized citizens committed to defy liberties or the lack of citizens committed to guard them also constitutes a threat (not to speak about constitutional illiteracy). It brings me to add to the quote of Judge Learned Hand oft-cited by Cole that liberty lies in the hearts of men and women, but also their hands and brains.
Carpenter, Dale. 2012. FLAGRANT CONDUCT: THE STORY OF LAWRENCE V. TEXAS. New York, New York: W. W. Norton & Company.
Cole, David. 2011. “Where Liberty Lies: Society and Individual Rights After 9/11.” WAYNE LAW REVIEW. 57: 1203‑1268.
Epp, Charles. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University Of Chicago Press.
Goluboff, Risa. 2013. “Lawyers, Law, and the New Civil Rights History.” HARVARD LAW REVIEW. 126: 2312–2335.
Mertus, Julie. 1999. “From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Civil Society.” AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW. 14(5): 1335‑1389.
Post, Robert and Siegel, Reva. 2007. “Roe Rage: Democratic Constitutionalism and Backlash.” HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW. 42: 373–433.
Rutzen, Douglas. 2015. “Aid Barriers and the Rise of Philanthropic Protectionism.” INTERNATIONAL JOURNAL OF NOT-FOR-PROFIT LAW. 17: 5‑44.
van der Borgh, Chris and Terwindt, Carolijn. 2012. “Shrinking Operational Space of NGOs – A Framework of Analysis.” DEVELOPMENT IN PRACTICE. 22: 1070‑72.
OBERGEFELL V. HODGES 576 U.S. ___ (2015).
S.A.S. v. FRANCE, European Court of Human Rights (Grand Chamber), 1 July 2014, Application Number 43835/11. [*147]
© Copyright 2016 by author, Laura Van den Eynde.