How Constitutional Law is Made in Modern-Day America

We didn’t have the federal right to gay marriage in this country until, one day, the Supreme Court said we did.  And we didn’t have a federal individual right to bear arms, either, until one day the Supreme Court created one.  How these rights came about says everything about how constitutional law is made in America today.

The ins and outs of constitutional campaigns are ably described in a recent book, Engines of Liberty – The Power of Citizen Activists to Make Constitutional Law, by the national director of the ACLU, David Cole.  Written from a liberal perspective, this book does for constitutional campaigns what The Blueprint did for political campaigns.  The Blueprint is the story of how the Democrats masterfully turned Colorado blue in 2008.  Both books are essential reading for anyone who wants to know how these things are done, successfully.

A right to gay marriage was ‘found’ by the Supreme Court in Obergefell v. Hodges in 2015.  But it didn’t happen overnight.  The campaign for it began in the 1980s, starting incrementally with smaller issues like adoption, inheritance, and domestic partnerships in key states.  Advocates picked their battles carefully – sometimes suing in court, other times lobbying for legislation or pushing for referendums.  For example, they sued in states where they expected to win in court and the law made it difficult to overturn a court victory by getting an amendment to the state constitution. 

There was plenty of opposition at the beginning.  By 2006, 27 states had constitutional amendments banning same-sex marriage.  But advocates worked on shifting public opinion, eventually switching their messaging from gay equality to love and commitment, and using straight people with appealing stories to deliver it.  Gone was confrontational language about gay rights.  The new messengers could easily have been your neighbors, ordinary folks that people could identify with.  They told stories about how they overcame their doubts on the issue.  By the time Obergefell was decided, polls showed a majority of Americans favored recognition of same-sex marriage and more than 60 lower courts had upheld the right.  Advocates didn’t go to the Supreme Court until a tipping point had been reached, and it could be said that the Court would not be leading social change, but merely reflecting it. 

Many of the same ingredients were present in the run-up to the gun case District of Columbia v. Heller, which was decided in 2008.  Prior to Heller, it was thought that the right to bear arms was only about protecting a state’s right to maintain a militia.  Gun rights advocates, led by the NRA, first worked to effect change at the state level.  By the time Heller declared a federal constitutional right, all but six state constitutions recognized a right to bear arms and most of those protected an individual right to have guns for self-defense and other personal purposes.

The campaign hinged on new scholarship – law review articles paid for by advocates - showing an individual right to bear arms in the historical record, starting in 17th-century England.  That scholarship “won the case,” the federal government’s lawyer would later say.  Other key techniques included drawing on the NRA’s huge passionate national membership for lobbying purposes, getting state laws preempting the use of local gun control ordinances, supporting – and punishing - politicians, and influencing the nomination of Supreme Court justices.  The NRA even endorsed the socialist Bernie Sanders for the U.S. House in 1990 because his opponent had supported an assault weapons ban.  The NRA would go on to get Congress to expressly recognize an individual right to bear arms in the preamble to a 2005 piece of legislation.  As with gay marriage, it was a matter of mapping out incremental steps and deciding how best to sequence them.  The Heller case was filed against the wishes of the NRA which felt the time was not yet right, but the time had indeed come.

There’s a bonus section in the book on changes to constitutional law and civil liberties that came about after 9/11 as a result of activists using many of the same techniques previously discussed – effective messaging, rallying public opinion, etc.  Prior to that campaign, it was thought hopeless to expect courts to grant writs of habeas corpus to Guantanamo prisoners and other detainees in the war on terror, but advocates managed to completely change constitutional law in that regard.  They even got Fred Korematsu to write an amicus brief in the Guantanamo case urging the Supreme Court not to repeat the mistake it had made in the notorious 1944 decision that bears his name upholding the internment of Japanese-Americans in World War II.  Advocates also succeeded in getting the Bush administration to change many of its practices in the war on terror, short of constitutional change.

To wrap up, suppose you think, as I do, that something’s out of whack when the Supreme Court can make up new fundamental rights out of thin air when what we should really be doing, instead, is getting back to using the amendment process.  The current practice is still marginally better than what the Supreme Court did in Brown v. Board of Education.  In that case, the Court was way out ahead of the country with regard to school desegregation.  The Brown decision never really took hold.  It was ten years before the Supreme Court dared say another word about school desegregation.  There were massive fights and upheaval about school busing in the ‘60s and ‘70s and there’s still resistance to school desegregation to this day.  Today, things are actually going backwards.  Segregation in schools is getting worse, not better, despite the Supreme Court’s edict in Brown.  The Supreme Court’s social experiment in school desegregation is a complete failure.

Compare that to what happened after Obergefell.  Hardly a peep out of anybody about gay marriage.  Heller is a bit different – the Left has never let up on its gun-grabbing efforts.  But, still, the ongoing gun control fight is nothing like what happened after Brown.  It seems the Supreme Court took a lesson from Brown not to get out too far ahead of public opinion, but hasn’t learned yet that top-down social engineering by nine unelected lawyers without any basis whatsoever in the Constitution is completely unacceptable, regardless of how many people agree with them. 

There’s an app for that, but we’ll leave that to another day.