Tonight I went to a talk by David Cole to promote his new book Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law and I left feeling empowered and optimistic (which is not a given when it comes to events hosted by lawyers). The author used three issues—marriage equality, the right to bear arms, and human rights in the war on terror—to examine how Constitutional law has evolved incrementally over time.
While Scalia saw any changes in Constitutional law as five justices imposing their personal views on the rest of the country, Cole takes issue with this criticism. When justices make new Constitutional law, they are not unilaterally imposing their views on the people, but rather responding to changes in the views held by society at large. When people who care deeply about a certain issue unite and organize, they have been able to win small victories that have ultimately led to a SCOTUS decision enshrining their right in the Constitution. It is actually a quite democratic process.
The marriage equality movement began by bringing family law and anti-discrimination lawsuits in states more sympathetic to their cause (like progressive Vermont), before bringing cases in federal court about the right to marry. Although they would never admit it, the NRA and gay rights groups used very similar strategies. The NRA started filing lawsuits in states sympathetic to its cause (like Florida, the gunshine state), gradually building up favorable precedent, before it got SCOTUS to recognize the individual right to bear arms in DC v. Heller in 2008. This legal strategy, combined with efforts to shape public opinion and the consensus of the legal academy, helped ensure that justices would be receptive to their arguments when the case was before them.
These examples serve as a good reminder to public interest lawyers that change is possible, it is just slow and incremental. It made me reflect on how proud I am to be interning at EFF this summer, and contribute my small part to work that will ultimately culminate in major victories for Constitutional rights.