The Power of Citizen Activists to Make Constitutional Law

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.

Talk to Me: Conversation in the Digital Age

Thursday I went to a lecture by Sherry Turkle entitled “Talk to Me: Conversation in the Digital Age” which was promoting her new book. I didn’t notice it when I first took my seat, but when the lights came back on for Q&A it became clear that I was bringing down the average age of the audience quite considerably. Turkle raised some interesting ideas, but the whole event was tinged with the anxiety always felt by the older generation about the latest technology. There was a lot of talk about people always looking at their phones instead of each other and parents not being engaged with their kids because they are constantly distracted. This narrative doesn’t resonate with me, but a lot of the audience seemed to feel differently.

One point Turkle raised, which I had never considered, was that 9/11 caused the widespread adoption of cell phones, largely because it made parents want to be instantly in touch with their children. She said that when she speaks to parents about why they are giving their young children cell phones, the word that always comes up is “emergency.” According to Turkle, the average child gets their first cell phone at eight years old. This is pretty surprising, but it’s unsurprising that people respond with fear about hurting children’s development and turning their brains to mush. I’m not persuaded by this sort of fear-mongering because past generations had the same concerns about TV, radio, and even novels. Turkle said that she disagreed with pediatricians who advise parents to limit their children’s “screen time,” because the quality of technology use is much more important than the quantity of time spent using technology. Her advice to parents is to limit children’s solo use of technology, and help them use technology to engage with other people.

 

She argued that if we want change in the tech industry, it needs to come from a grassroots consumer-based approach rather than a top down approach. She used the food industry as an example, saying how growing up her mother used to serve her “fruit salad” which was little bits of mixed fruit in a cup of syrup with maraschino cherries on top, but once people started demanding more healthy options from the food industry, they listened. I like the idea of a grassroots movement, but I do find it problematic to entrust completely our privacy to large corporations and the free market.

I found this argument to be a bit at odds with her discussion of texting while driving. She said that someone needs to create an invention that prevents a driver from texting while driving. The audience broke into applause, and she said she was grateful because sometimes people disagree with her, citing user autonomy. I don’t see why this invention is necessary. Texting while driving is very dangerous, but I think that laws and public health campaigns are more appropriate responses. An invention that would block involuntarily users from their own devices seems like it would cause more problems than it would solve.

I enjoyed the event overall, but think many of the concerns Turkle and the audience members raised have been exaggerated.