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In 2015, the Supreme Court ruled that same sex couples have a right to marry under the Constitution, something that would have been unthinkable decades earlier. When the Supreme Court justices decided in 2010 that individuals have the right to bear arms, it again was a major departure for the court. In a new book, constitutional scholar David Cole says the decisions were the results of campaigns by citizens and civil society groups who used deliberate strategies, often outside the courts, to effect constitutional change. David Cole joins Diane to discuss his new book “Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law”.
Reprinted with permission.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Former Supreme Court justice, Antonin Scalia, was perhaps the best known originalist, the belief that the Constitution should be interpreted as the founders intended. But in a new book, Constitutional scholar, David Cole, says the Constitution is not only a living document, he says citizen activists can be the catalyst for Constitutional change. David Cole's new book is titled "Engines of Liberty."
MS. DIANE REHMHe's professor at Georgetown University Law Center. And throughout the hour, we'll take your comments, questions, 800-433-8850. Send your email to firstname.lastname@example.org. Follow us on Facebook or Twitter. And David Cole, it's good to see you.
MR. DAVID COLEThanks for having me. It's a...
REHMMy pleasure. David, the subtitle of your book "The Power of Citizen Activists To Make Constitutional Law," you cite three areas in your book. You talk about the freedom to marry the NRA and what President Bush did to rein in virtually all of his most right-infringing initiatives in the war on terror.
COLEThat's right. And the argument of the book really is that Constitutional law, you know, in the public debate, in the law schools, we focus on the Supreme Court. We read the Supreme Court's decisions. We debate the argument that are made there. But in fact, when you try to understand how Constitutional law changes, I don't think you can understand it by looking only at the court and looking at the arguments that the lawyers appearing before the court make.
COLEAnd what I try to do in this book is follow three areas where people who had a particular Constitutional vision that was not reflected in the Constitutional law at the time nonetheless undertook to change Constitutional law so that it would reflect their vision. The gay rights groups and marriage, gun rights groups and the individual right to bear arms and human rights and civil liberties groups in the war on terror and all of them, I think, succeeded, in large part, through work done outside of the courts altogether.
REHMAnd for the most part, we have only see it when it finally gets to the court and then we see the court deciding. But what you're saying is it's been the work of thousands if not millions of citizens to get it up there to the court.
COLEWell, that's right. Absolutely. Take marriage equality. I mean, people -- one of the first things people say when you have a discussion about marriage equality is it's amazing how quickly we got marriage equality in the United States. And it is kind of amazing how quickly we got it, but when you look at the history, in 1972, somebody brought a gay marriage case to the Supreme Court, argued that the Constitution guaranteed them the right to marry on the same terms as a heterosexual couple.
COLEThe Supreme rejected it unanimously with a one sentence opinion saying this doesn't even raise a substantial federal question. That was 1972. And at the time, it didn't raise a substantial federal question. Nobody thought it was a serious argument.
REHMAnd what changed?
COLEWell, so what changed is a whole range -- I mean, there are whole range of steps along the way, but it didn't change because in June 2015 five members of the Supreme Court announced that there is a right to marriage equality. By the time they had announced it, that right had gone from unthinkable, which is what it was in 1972, to inevitable, which is what it was in 2015. And I lay out all the work that was done. Work done by gay right groups going back to the '50s who -- the earliest gay rights groups that fought for the right of gay individuals just to be themselves and be out.
COLEThe work of the ACLU to fight for the right of gay individuals to organize in groups, in colleges, in universities, again, to come out. The work of Act Up and other groups that fought for funding to respond to the AIDS crisis, which forced many gays and lesbians to come out. And then, a very careful strategy of gay rights groups like Lambda Legal Defense Fund and the GLAD, Gay, Lesbian Advocates and Defenders, to engage in incremental reform starting with the states, starting with small asks and building slowly long before they ever dared bring the case to a federal court.
REHMAnd now, you've just recently had this transgender case in Georgia, that the legislative body passed saying that men could not enter women's rooms, which the governor has now vetoed. Do you see the same thing going step by step on the transgender side, going to the Supreme Court?
COLEI think eventually, I think, transgender issues are sort of the next step. They seem as sort of strange and uncomfortable to many Americans as did gay and lesbian issues just 30 years ago.
COLEBut what I try to show in the book is that the way Constitutional law evolves is actually a very democratic process. It involves organizations of committed citizens who go out and try to convince people in all kinds of forums, not just in courts, not just in reified legal briefs, but in legislatures, in public referenda, in the media, in the academy. And it's only when all of that work is done and the ground has shifted that court comes along and says, oh, well, now we recognize it as a Constitutional right.
REHMWell, but there you have the question of does this Supreme Court make law based on political opinion?
COLEYeah. And I think, you know, I think that's tough question, right? So on the one hand, no. On the one hand, they make law by interpreting the Constitution and interpreting the precedence that inform the Constitution and that they have handed down in the past. And they're not able to say, well, because this is popular, we're going to make it Constitutional. That would not be appropriate. Nonetheless, if you look at the history of Constitutional law decision-making and you look at it in comparison to public opinion on issues, time and again, the court essentially follows public opinion.
COLEThe changing of public opinion makes possible certain legal arguments that were not possible before. It's not that they didn't exist before, but they're more -- it's hard for the court to go out too far ahead of where the people are, but if the ground has shifted, in terms of where the people are on a question, then it's easier for the court to recognize a Constitutional right.
REHMWhat was the final vote on gay marriage in the court?
REHMAnd there you have the split in society as well as the split on the court.
COLERight. And the same thing -- the second story I tell in the book is the story of the individual right to bear arms, which also came down in a 5-4 decision from the Supreme Court, this one in 2008, but not, you know, 20 years before, in 1990, Chief Justice Warren Burger, a Republican, a conservative, said that he thought the notion of an individual right to bear arms was one of the greatest frauds perpetrated on the American people in his lifetime.
COLEEighteen years later, it's a recognized Constitutional right. And for 100 years, the courts had said there isn't an individual right to bear arms. The second amendment protects the states, it protects the state's right to have a militia. It's not really that relevant anymore, but it doesn't protect individual rights to bear arms for their own individual self defense, et cetera. The Supreme Court shifts, but what caused that shift was, I argue, and incredibly successful and strategic undertaking by the NRA.
REHMAnd what's fascinating to me, you write in the book that the NRA had, for years, been very, very quiet, simply representing hunters, not in this political debate, and then what happened?
COLERight. So yeah. I mean, the NRA goes back to just post Civil War. The union -- a couple of Union generals created it because they were concerned at how bad -- what poor shots the Union soldiers were and so they created the NRA to basically be a marksmanship kind of organization and it was, essentially a shooting organization. It taught gun safety. It taught hunting. It, you know, it was about marksmanship, sportsmanship and the like.
COLEIt was not about politics. But in 1968, in the wake of the assassinations of so many, Congress passed the first major piece of federal gun control legislation. And in response to that, they NRA membership got riled up and insisted on the transformation of the organization to focus on defending an individual right to bear arms. And it wasn't until 1975 that they even created a lobbying office in the NRA, now seen as the most powerful lobby in the United States.
COLEAnd it wasn't until 1977 that they made the second amendment sort of the central part of their plank.
REHMDavid Cole of Georgetown University School of Law. His new book is titled, Engines Of Liberty: The Power Of Citizen Activists To Make Constitutional Law." Short break, right back.
REHMAnd welcome back. Legal scholar David Cole is with me. He teaches the Constitution and other legal topics at the University of Georgetown Law Center. His new book is titled, "Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law." Just before the break, David, we were talking about the NRA and how, after 1968 and the number of terrible occurrences, assassinations in our society, came that quest for the individual's right to own a handgun. From Twitter, we have a comment saying, Scalia called himself an originalist, but Heller proved he didn't believe it. Explain that for us.
COLEWell, I disagree with the statement. Heller is very much an originalist decision in the sense that Scalia's justification for recognizing a Second Amendment individual right to bear arms rests on his reading of the understanding of the Second Amendment at the time it was adopted. Justice Stevens and Justice Breyer dissent for four justices. And they also write in an originalist sort of tenor. They just read the historical evidence differently. But everybody's writing from an originalist point of view in that case.
COLEI will say, though, that even though it's basically about what was going on back then, the decision I think was very much affected by work the NRA did between 1977 and 2008. One thing it did was change state law on the right to bear arms, so that by the time the question came to the United States Supreme Court, virtually every state in the country already recognized...
COLE...in state law, a right to bear arms. So it wasn't such a big deal to say there's a federal right to bear arms. The second thing they did was they encouraged scholars to unearth evidence that would -- historical evidence that would support their position on the right to bear arms. And they really changed that field. So before 1970, there were something like 25 articles in history about the right to bear arms, and 22 of them said there is no individual right to bear arms. By the 1990s, two -- there were something like 85 articles written in the 1990s, right before the Supreme Court takes up the case and, of those, two-thirds of them advocated an individual right to bear arms.
COLESo the dominant view in legal scholarship had shifted from, there is no individual right to there is an individual right. And it had been reflected even by liberal scholars like Larry Tribe, Akhil Amar of Yale Law School, Sandy Levinson of University of Texas Law School -- all eminent liberal Constitutional scholars who had said, yeah, we see there's an argument here for an individual right to bear arms.
REHMInteresting. Now, you mentioned that many times this goes -- the process begins at the state level and moves through states. How much money did it cost the gay and lesbian community to move those issues through states? How much money did the NRA put into those arguments moving through the states?
COLEWell, I don't have a -- I don't know that anybody could come up with an exact figure. But it's certainly millions and millions of dollars over a long haul. I mean, take marriage equality. On one -- in one state, California, on Proposition 8, which was a popular referendum, ballot initiative that was seeking to overturn a State California Supreme Court decision that had recognized marriage equality, right? So the opponents of marriage equality were put on the ballot, Proposition 8, let's define marriage as a union between a man and a woman. And on that struggle alone, gay rights groups spent $40 million.
COLEThat's one state.
COLESo it does take a lot of money.
COLEBut -- and the NRA obviously has a lot of money. It spends a lot of money, although it only -- it spends one-tenth of its annual revenues on lobbying, one-tenth. So not a, you know, compared to what else it spends, it's not a big part. But it's a lot of money. But what -- I think what the NRA folks would say and the gay-rights groups would say, yeah, it took a lot of money. But the money followed the issue. That is, we were able to raise money because we were able to persuade people that this was a sufficiently important issue that they were willing us to give us money to fight for the issue.
REHMTalk about Evan Wolfson in regard to same-sex marriage because this is where I think one person can begin to make a difference.
COLEYeah. So Evan Wolfson is a kind of remarkable story. He's a Harvard law student in the 1980s. He's gay. He really has no idea that there is even such a thing as gay rights as a kind of legal career until someone from Lambda Legal, which was one of the first gay-rights organizations, comes to Harvard Law School and talks. And he says, oh, I could actually do this. And then he decides, you know, I'd like to write my, sort of, final senior thesis in law school on the right to marry, that gays and lesbians should have the right to marry. And he goes around to each one of the Constitutional law professors at Harvard to ask for their okay to supervise. Not one of them will supervise. Not one...
COLE...because they think it's so far-fetched...
COLE...it's so crazy. He finally gets a Trusts and Estates professor to agree to supervise the thing. He writes a 141-page article, very sort of philosophical, et cetera, et cetera, and, you know, not really -- it's not taken seriously, right? But he then goes out, he goes to work for Lambda Legal. He fights within the gay-rights community for the importance of fighting for marriage. Because even within the gay-rights community, there was a dispute about this. He gets involved in the first case in the 1980's that's filed in Hawaii that was successful in recognizing that there was a Constitutional issue raised by the denial of marriage to gays and lesbians.
COLEHe then, ultimately, creates his own organization...
COLE...Freedom to Marry, which by the time -- which was wholly focused on the issue of marriage equality and almost entirely focused on public education, campaigning, messaging, sort of the public debate, not the legal fight, but the public debate. And that was a $9 million a year organization that he headed up. And he -- and the day after the Supreme Court announced that there is a right to marry, June 26, 2015, he announced that Freedom to Marry would now close because they had succeeded in meeting their goal.
REHMBut I wonder if you will now see a transgender organization taking up where he left off.
COLEI'm sure, you know, and I'm sure there are students in law schools right now writing papers, visionary papers about the rights of transgender individuals. And, you know, they're probably seen with just as much kind of skepticism. And, yet, it seems, the question as to whether this will become a -- whether it will be successful is not...
COLE...is really a question of political organizing, it's a question of whether organizations of citizens committed to this issue take it on and take it on for the long haul. That's what Evan Wolfson's group did. That's what Lambda Legal did. That's what the NRA did. They took these issues on for the long haul. Because Constitutional change doesn't come overnight. It comes after decades of work. And you have to have an organization focused on these issues in order to have the stamina and the resources...
REHMAnd the money.
COLE...and the resources, exactly.
REHMYeah. Absolutely. David, you know, and my listeners know, that I am an advocate for the right to die, the individual's right to die. I work with no group. I am simply speaking on my own behalf and for my husband. Now you have five states in this country -- California being the most recent -- that have passed so-called death with dignity laws. Is that an example of how you see an issue moving state by state by state, until someone challenges it and takes it to the Supreme Court?
COLEAbsolutely. So that is a -- that's a perfect example. It's an issue where there are individuals and groups that care deeply about developing and establishing this right of human dignity. The existing law doesn't recognize it, existing federal constitutional law doesn't recognize it. So if you just file a lawsuit in federal court and say, I have a constitutional right to death with dignity, not likely to get very far, right? And so what you need to do -- what the NRA did on the right to bear arms, what the gay-rights groups did on marriage equality was -- is work -- start in the states.
COLEStart in the most sympathetic states. Use the precedents that are developed in those states to demonstrate, hey, it's not the end of the world if we recognize death with dignity. It's not the end of the world if we recognize that gay people can marry. And use those precedents to extend to one state after another after another. And eventually you have enough of a kind of -- enough momentum that you can jump the tracks to the federal level and make the federal constitutional argument and succeed. And that's what happened with the right to bear arms. That's what happened with marriage equality. I think it's quite likely to happen with the right to die.
REHMAnd along the way, there's always pushback...
REHM...from various organizations, as surely there was with the right to marry among gays.
COLEAbsolutely. And some -- and one of the things that I found in the -- in talking to people, I -- for this book, I interviewed, you know, hosts, many of the people in the NRA and the gay-rights groups and the human-rights groups -- one of the things you find is that, you know, the ability to succeed turns in large measure on your ability to respond to defeats in an effective way, to learn from those defeats. And the best example I thought was Prop. 8, where the gay-rights groups lost on Proposition 8, the...
COLEThat was the ballot initiative in California to overturn the Supreme Court decision in California that had recognized marriage equality. And the gay-rights groups said, well, okay, we spent $40 million in one of the most liberal states in the country and nonetheless we lost in taking this issue to the people. What can we learn from that? What do we need to change? And they studied how people responded to marriage arguments.
COLEAnd they found that, you know, it doesn't work to sort of analogize marriage equality to civil rights and the racial equality, because that makes people who are opposed to marriage equality think, oh, I'm not a racist. I don't associate myself with Southern racists. I can't go there. Instead, what they did, in shift -- when they shifted to -- their message after Proposition 8 was to talk...
COLEThe message became a message of love and commitment, of -- you know, the way you convince people in the middle that this is important is not by talking about rights but by talking about the love -- the human desire to express love and commitment to another. And why should that be any different for a gay couple as a straight couple? And they had heterosexual messengers. The older, the more Republican, the more sort of, you know, military veteran, the better. Make, you know, provide these messages.
COLEAnd they were often people who would say, you know, in their advertisements, look, I didn't originally think that marriage equality was a good idea. My church taught me it wasn't. But I, you know, my daughter or my granddaughter has a partner and I think she should be able to express love and commitment in the same way that I have for 40 years to my wife. And that was a very powerful message.
REHMAnd you're listening to "The Diane Rehm Show." We have several callers and I want to open the phones here. Let's first go to Ray in Houston, Texas. You're on the air.
RAYHi. Professor Cole, I hope there's -- I hope there's hope for freedom of -- freedom from religion down the road. It seems like marriage equality and right to bear arms and right to die are easy compared to a federal Supreme Court decision granting freedom from religion. As an atheist who is in the closet, there's a lot of parallels with the gay-rights movement. But is there hope? I wonder if you think there is hope for, down the road, after decades, of a Supreme Court decision granting freedom from religion?
COLEWell, I, yeah, I think there is. I think the establishment clause already prohibits the state -- whether it be your own state or the federal government -- from establishing any particular religion, from favoring any particular religion, and even from favoring religion over non-religion. So that's -- that one is one that's -- it's there in the Constitution. It -- but, like all other rights that are there in the Constitution, it requires organizations that will fight to defend it. The ACLU has, for its entire history, spent a great deal of time and attention on defending the very right that you're talking about. But, yeah, I think it's -- it is a constitutional right.
REHMLet's go to Wynn in Durham, N.C. You're on the air.
WYNNGood morning, Diane.
WYNNThank you very much for your show. It's wonderful.
WYNNProfessor, Citizens United, a First Amendment analysis, originalist's analysis, no way could come up with a corporation being a person. It seems like Scalia talks out of both sides of his face. If it's a Tea Party oriented agenda, I'm an originalist. If it's not, I'm a radical activist.
REHMAll right, let's talk about Citizens United.
COLEWell, I'm glad you raised Citizen United. I think that's a great example of the kind of case that is ripe for being overruled or being radically shifted because there are so many organizations that are fighting against Citizens United in a variety of forums and with a variety of strategies. So, for example, they have -- there have been a number of initiatives at the state level to support very creative public financing laws. In New York, the government provides $6 for every $1 that a candidate raises. And that makes it possible for people of ordinary means to actually compete effectively. And other states have done similar types of measures.
COLEThere's also a tremendous amount of work being done on the scholarly level. Just as the NRA funded scholarship to try to change constitutional law on the right to bear arms, groups are funding scholarship to challenge the underpinnings of Citizens United.
REHMDavid Cole, his new book is titled, "Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law." Your calls, your comments when we come back. Stay with us.
REHMAnd welcome back to our discussion with David Cole. He's a professor of constitutional law at Georgetown University. He has a brand new book out, very, very interesting, on the power of citizens to make constitutional law. His new book is titled "Engines of Liberty." And here's an email from Carol. Is it legal for citizens to write to the justices about their opinions and their deliberative process? I realize they might not want to be deluged, but it's a small price for them to pay for their power and their lifelong incomes. As citizens we have few direct ways of getting our opinions into the system.
COLERight so it certainly is legal to write to the justices, and many people do. After Roe v. Wade, for example, which was a very controversial decision protecting the right of a woman to choose to terminate a pregnancy, every member of the court got thousands of letters, including a couple members who had retired from the court and no longer took part -- and didn't take part in the decision. They nonetheless got thousands of letters.
COLESo yes, they get letters. I -- you know, I don't know that the letters are the most effective way to engage and organize on constitutional issues. I think the more effective way, and this is available to every citizen is to work with those organizations that reflect your interests. So if you believe in freedom of religion, you go to the ACLU, and if you believe in -- if your issue is gay rights, you go to Lambda Legal, and you can support them financially, but you can also get involved, you can volunteer, you can respond to their action alerts.
COLEThe NRA -- what many people say is the key to the NRA's power is not so much its money, which is nonetheless significant, but its membership and its supporters. It has five million members, and those members are very active. They will respond. When the NRA asks them to call, they call. And that makes a difference to the people on the Hill. And so that's the way that people -- and what I'm showing, what I show in this book is that if you do that in a strategic way, united with others, like-minded citizens, you can in fact change constitutional law, and nothing else does change constitutional law.
REHMDavid, explain the Burwell case that the Supreme Court just heard and with a perhaps four-four tie on the court what that could mean.
COLESo this is a -- well, it's not a constitutional challenge, actually. It's a religious freedom challenge based on the Religious Freedom Restoration Act to the requirement that employers under Obamacare provide full coverage for contraception to their employees, along with everything else. And the government accommodated religious groups by saying if you object to providing -- having your employees have their contraception covered by the insurance coverage that you contract with, you don't have to provide it. Just tell us, tell the government, that you object, and then we will ensure that those women get coverage independently of your wishes.
COLEAnd -- but the groups have said even that -- the religious groups have said even that compromises their religious principles because it makes them complicit, by putting their hand up and saying I object, it makes them complicit in the provision of contraception to these women.
COLEMost of the lower courts have rejected that argument. One lower court upheld that argument. And so there was a split in the circuits. The Supreme Court agreed to hear the case, as they often do when there's disagreement in the lower courts, but as the argument seemed to suggest last week, there's a four-to-four -- it seems that there's a four-to-four split. We won't know until the decision is written. When that happens, it has no precedential value, it just affirms the decisions below.
COLEAnd what that will mean for all practical purposes is that in most parts of the country, it's legal for the government to provide contraception to women who work for these employers, but in some states, those that are governed by the court that struck this down, it'll be illegal. So we'll have two different federal laws, depending on what part of the country you live in.
REHMHow difficult will it be for the Supreme Court to operate without that new appointee?
COLEWell, I think it's tough. I mean, just today I read just before we came in that the court decided a case about union dues for public unions. It decided -- which is very controversial issue. It decided it four to four. And so it doesn't change the lower court decision, but it also doesn't resolve the question. So, you know, the idea of having a Supreme Court is to resolve questions that there's dispute about in a final way. When you have eight justices who are evenly divided ideologically, it can be very difficult to resolve things finally. So it's a problem.
REHMTo Kathleen in Indianapolis, you're on the air.
KATHLEENHi. That does it. I'm going to have to go buy the book. You've answered my question. But I do have a question about the Second Amendment. I live in Indianapolis, and as you -- I don't know if you know, but it's pretty awful with the guns and things. But I'm not likely to be that affected by gay rights other than being invited to some really cool weddings. And by the guns, the Second Amendment frightens me, especially military-grade weapons. How is it that if we control military-grade weapons in the hands of the public, how does that -- how does that deny people their right to bear arms? How do they explain that?
COLERight, so that's a great question. The NRA's view is that the Second Amendment protects an individual right to bear arms of essentially almost any kind, and therefore the government has to have a very strong reason justifying its regulation. It doesn't mean the government can't regulate, it just means that they have to have a very strong reason for doing so. Thus far, all the Supreme Court has said is that there is indeed an individual right to bear arms and that that right makes it unconstitutional to prohibit absolutely the possession of handguns. That's all they've said.
COLEThey have not addressed these much more complicated questions, and in fact in that decision, Justice Scalia, who wrote the decision, said we're not calling into question the right to impose reasonable regulations on guns, including the prohibition of certain kinds of sort of military-style guns. Machine guns have been prohibited for a very long time under federal law, and that law has never been struck down as unconstitutional. So the fact that there's an individual right to bear arms does not mean no regulation of guns is permissible, it means that you have to justify the regulation of guns on a case-by-case basis.
REHMTo Walton, Kansas, Bruce, you're on the air.
BRUCEThank you, Professor, I really appreciate your input here. You kind of mentioned this, but I would like you to address whether or not the ongoing efforts to repeal Roe v. Wade you think will be successful and that'll be in your next book.
COLEYou know, that's a great question. In fact I was initially thinking about covering that effort, as well, because that's a similar long campaign of people who are very committed to the right to life of the unborn, who saw a law that they didn't like, Roe v. Wade, and have fought for a long time to try to change it. And, you know, I think they've been -- they've been successful in some respect.
REHMThus far, yeah.
COLEThey have not overturned Roe v. Wade, the core of the right remains, but they have succeeded in cutting back at its edges. There is also, of course, a very organized campaign of organizations committed to protecting that right on the other side. And I think both of those groups are going to continue to fight for a very long time, and the course of constitutional law will be governed by their efforts. And it has been governed by their efforts thus far, which has led to, again, some cutting back on the right but not an overturning of the right.
COLEI'm -- I don't -- I would not an overturning of the right as long as there are organizations committed to defending it and effectively doing so in the future.
REHMThis is interesting. He says, you now have a dedicated group working state-by-state to eventually overthrow Roe v. Wade. This is similar to the NRA in some ways, but the NRA had a constitutional amendment to work from. Those who would overthrow Roe v. Wade have to overcome an existing Supreme Court decision. Does that make a difference?
COLEI think it is -- it is harder to overturn an existing constitutional decision, although in some respects the NRA was successful in doing that. The Heller decision, which in 2008 declared that there is an individual right to bear arms, was in some sense an overturning of, or at least a very different reading of, a decision from the Supreme Court from the 1930s called United States v. Miller, which had suggested and had been interpreted for years as holding that the Second Amendment only protects the right of the states.
COLEBut what makes it difficult to organize against an existing a -- a right that's already been recognized like the right of corporations to give money in campaigns and the right of women to terminate a pregnancy, what makes it difficult to campaign against those kinds of rights is that it limits what states can do to sort of push the envelope. If there's no right, so take marriage equality, there just wasn't -- there wasn't a federal decision on whether there is or isn't a right to marriage equality. There wasn't a constitutional right they had to overcome. There was just nothing.
COLEAnd so they were able to go to states, and states can say, in the absence of anything, we're going to recognize a right to marriage equality. But with, say, Citizens United, if a state were to pass a law saying we're going to restrict corporations' right to give money in political campaigns, the corporations could challenge that as violating the First Amendment. So there's a more uphill battle when you're trying to roll back a right than when you're trying to create a right.
REHMBut there are so many people who say right off the bat, how could the court equate a corporation with an individual in the right to free speech.
COLEWell that's right. That's one of the arguments that people make against it, and there have been many scholars who have written articles critical of that line of reasoning, and that's one way that the decision might ultimately be overturned. I think a more likely way to overturn it is to say even if corporations have rights to speak, I mean the ACLU is a corporation, it's a nonprofit corporation, but it's a corporation, we would say the ACLU has a right to speak. Ben & Jerry's is a for-profit corporation with a political ideology. Does it not have a right to speak?
COLESo I think there's an argument that corporations have a right to speak, but the question to me is should the states be permitted to regulate money in campaigns for broader equality and corruption concerns, rather than for what the court has said is they can only regulate it to stop quid-pro-quo bribes. That's it. We're not concerned about the fact that the Koch Brothers are spending $800 million on the next presidential election.
REHMOr George Soros.
COLEOr George Soros or anybody, as long as they're not -- it's not an explicit bribe, you can't do anything about it. I think that's very short-sighted, and I think that's where I think it's likely that there will be developments over time in which the court will say it's permissible for a broader set of reasons to regulate the spending of large amounts of money in campaigns.
REHMAnd you're listening to the Diane Rehm Show. Let's go to St. Petersburg, Florida. Tonu, you're on the air.
TONUThank you for taking my call.
TONUI have a question for your guest in what really happened to the democratic way of changing the Constitution under the provisions of Article V, rather than have the philosopher kings change it for us.
COLEThat is such a great question. So, you know, I would say -- I mean, the reality is that the constitutional amendment process is extraordinarily difficult. You have to get two-thirds of both houses of Congress and three-quarters of the states to agree. We can't pass ordinary laws, much less amend the Constitution.
COLEIt's only been amended 27 times, and the first 10 were sort of part of the original deal. So it's really only been amended 17 times since the Constitution was adopted in 240 years. So it's extraordinarily difficult, that particular democratic process. But you said, you know, instead of the philosopher kings. The point of my book is to show that constitutional law, when it changes through the court, it is in fact a much more democratic process than...
REHMThan we think it is.
COLEThan we think it is, precisely, because it only happens when people have worked in political ways, through legislation, through the media, through the academy, through, you know, talking to their neighbors, to change public opinion so that new arguments and new ways of thinking can be then recognized by the court. The court doesn't change constitutional law as much as recognize that constitutional law has been changed by us, by the people.
REHMBut then to argue as they do that Supreme Court does not respond to political pressure is not true.
COLEWell, they don't respond in the sense -- you know, in the sort of -- in the way that a legislator, for example, might respond, by saying, well, my constituents...
COLEFifty-four percent of my constituents want me to do X, so I'll do X, no. But do they respond more broadly? Absolutely because after all, the Constitution is -- constitutes our values, and over time, our values shift, and it's the work that organizations committed to constitutional values do that informs how they shift. The Supreme Court ultimately puts its stamp on that change, but I don't think the Supreme Court makes the change. I think we make the change.
REHMSo what you are arguing, it seems to me, and tell me if I'm wrong, you are urging more people to get involved in the causes in which they believe.
COLEAbsolutely. The central message of this book is that the Constitution resides in us. It lives in us. It depends on us. It depends on our working, in particular through nonprofit organizations that are focused on constitutional issues and working in a variety of forums, in order to make it a living Constitution. And so yes, get engaged. Find those groups that are working for your issue. If there isn't one, create one. That's how constitutional law remains a living thing in the United States, not just some old document signed by a bunch of dead old white men but something that we can call our own.
REHMDavid Cole of Georgetown University School of Law, his new book is titled "Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law." David, congratulations on this book.
COLEOh thank you so much, and thank you so much for having me.
REHMAnd I thank you. Thanks, all, for listening. I'm Diane Rehm.
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