Wednesday, April 13, 2016

Cole’s Engine

by Sidney G. Tarrow*

Every once in a while a book comes along that makes me wish I had veered towards the "law" part of the Department of Public Law and Government when I got my MA at Columbia, instead of shifting towards political science. David Cole's Engines of Liberty is such a book. In 230 closely-reasoned and amply-documented pages, Cole surveys three areas of constitutional politics – same-sex marriage, Second Amendment gun rights, and the defense of human rights during the War on Terror – to put forward the thesis that the law makes progress largely outside the Supreme Court, mainly through non-legal strategies, and very incrementally. “The campaigns for marriage equality, gun rights, and human rights in the war on terror were as much about molding public sentiment as shaping law, as much about working outside the courts as pressing a case within them” (p. 221). The civil society groups that work to mold public sentiment are Cole’s “engines of liberty.”

I have to begin with a confession – no, two of them. Having just published a book that deals in large part with efforts by civil society groups to check overweening states (War, States and Contention), I am sympathetic to Cole’s thesis. And for truth in advertising, I need to record that Cole offered a far-too-generous endorsement of that book. Nevertheless, we differ, and not on minor details.

Engines of Liberty advances seven main arguments and makes a good case for most of them:

First, constitutional change often begins in other forms of state, federal, and international law – nothing surprising here;

Second, most of the work of constitutional change takes place outside the federal courts – well, maybe;

Third, framing and messaging are as essential to a constitutional campaign as formal legal arguments – I think so too, but it is complicated and I wish Cole had drawn more on the substantial social movement literature on framing;

Fourth, the work of constitutional reform is intensely political – yes, but in what sense? At bottom, everything is political;

Fifth, constitutional reform is slow, difficult, and incremental – slow and difficult, yes, but incremental? See below;

Sixth, civil society groups play a crucial part in constitutionalism – I strongly agree, but I also think that Cole sometimes forgets how much stronger states are than society;

Seventh, the Constitution lives in and depends on us (pp. 221-230). Maybe so, but since his “civil society groups” are minorities, who is the “us” in this final hypothesis?

Engines of Liberty was written so that non-lawyers can understand it, but it takes a strong – nay, strident – position on the formalism-versus-realism debate that has roiled the legal academy for decades. If you think you can understand United States v. Windsor,  District of Columbia v. Heller, or Rasul v. Bush as stories about legal doctrine, you need to read this book. If you think that GLAD, which argued Windsor, the Cato Institute in Heller, or CCR in Rasul were primarily acting as litigators, think again: as Cole’s accounts show, much of the work they did was beyond the Beltway and outside the federal court system altogether. And if you believe the crucial action was limited to the weeks and months preceding these cases, Cole will convince you otherwise. He argues that in these three areas of legal dispute, the real action took place outside the courts, through the deployment of a variety of creative political strategies in civil society, and over the very long haul – often through the actions of groups that were not even present in the courtroom (e.g., the NRA opposed bringing Heller to the Supreme Court up to the last moment.)

As in all studies that are founded on strong theories, you may object to one or another of Cole's assertions. I have qualms about three of them:

First, despite sharing Cole’s bias that civil society groups “count,” I wonder whether –  in his determination to "go behind" the legal doctrine – he gives short-shrift to what Mike Dorf calls "the social meaning of the law." That doesn't reduce the stories to doctrine, but the courts and the legislatures that eventually moved these areas of the law forward spoke the language of doctrine, and language – as any lawyer knows – matters deeply.

A second complaint is that Cole seems overly wedded to an incrementalist vision of how social change takes place. True, most of his stories took years – nay, decades – to unfold, and often followed a “one step forward-two steps backward” trajectory. Think of how long it took advocates of marriage equality to get from the Baehr case in Hawaii in 1993 to Windsor and Obergefell two decades later. But incrementalism is a harder case to make for a number of the decisions that Cole covers, most notably, Rasul, when “the Court, for the first time in its history, stood up to the executive and legislative branches acting together during wartime” (p. 161) – it is Cole whom I am quoting! In many of the cases Cole covers, long-term incremental campaigns were capped by sudden and unpredictable breakthroughs – “constitutional moments,” in Bruce Ackerman’s language. Social scientists have a name for this – “punctuated equilibrium.

Third, perhaps because Cole was so affronted by the Bush administration’s indifference to rights, he gives a pass to the Obama administration. True, Cole cites Ken Roth, the executive director of Human Rights Watch, to the effect that “the Obama administration has been a huge disappointment on human rights” and notes that most civil liberties and human rights advocates have been equally disappointed (p. 210). And what he says about Obama banning the use of torture, ending extraordinary rendition, and striving to close Guantánamo is true. But on drones, on surveillance, and on failing to prosecute the torturers from the previous administration, a case can be made that the Obama administration is “Bush-lite,” softened by the language of internationalism and by the lawyerly instincts of the former University of Chicago law professor.

My biggest beef with Cole’s riveting book is that his civil society groups push against the walls of a state that seems to have little agency. That is: the state is there; civil society groups mobilize it to force changes; and the state either gives ground or doesn’t. But states are not simply walls of “despotic power” – to use the language of social theorist Michael Mann; they are also powerful engines of “infrastructural power,” which react, maneuver for advantage, sometimes give ground, and sometimes use their resources to push back against Cole’s “engines of liberty.”

Consider the current controversy between the government and Apple over breaking open the iPhone of one of the San Bernardino attackers. You may have thought that the fumbling and shifting FBI response was about one iPhone and one admittedly powerful company. It was about much more: in August, 2015, Robert Litt, the intelligence community’s top lawyer, told colleagues that congressional support for anti-encryption legislation “could turn in the event of a terrorist attack or criminal event where strong encryption can be known to have hindered law enforcement. There is value in keeping our options open for such a situation.”  The only question was when.

I am not arguing that Cole’s “engines of liberty” are defenseless against a determined state – far from it. But by devoting such single-minded attention to the civil society groups that challenged the state on marriage equality, gun rights, and the excesses of the war on terror, he elides the true strength and flexibility of the state – its power to duck and weave, advance and retreat, co-opt and oppose the engines of liberty that attempt to breach its defenses.

*Editor's Note: The foregoing is a guest post by Sidney G. Tarrow, Emeritus Maxwell M. Upson Professor of Government at Cornell University and my occasional co-author.


Shag from Brookline said...

Does Cole address the role of originalism,if any, with his "engines of liberty"?

Joe said...

I have read the book and checked "inside" at Amazon and the book briefly touches upon originalism, but it is only briefly touched upon. The author takes a more living constitutionalism approach as reflecting reality as to "engines of liberty."

Shag from Brookline said...

In that case, let's fuel those engines of liberty.

Shag from Brookline said...

I haven't read Cole's book and welcome Joe's comment. My query was based upon this from the post:

"Cole surveys three areas of constitutional politics – same-sex marriage, Second Amendment gun rights, and the defense of human rights during the War on Terror – ...."

Originalists have challenged same sex marriage. Heller (5-4) purported to be determined on originalism per Justice Scalia's opinion, although some originalists have dismissed Justice Scalia's originalism in that decision, including with respect to the limitations dicta. Cass Sunstein in a recent article "exposes" Scalia as a living constitutionalist in a number of his opinions, including perhaps with Heller. The "engines of liberty" in Heller were fueled significantly by the NRA in recent years, garnering right-wing support. But what is the "liberty" produced by Heller? Does it go beyond self-defense in the home? Is the "liberty" of the 2nd A absolute? Does the 2nd A support armed revolution against governments? I thought about this latter question as I read Jack Balkin and Sandy Levinson's "To Alter or Abolish" on the Declaration of Independence; but the article does not specifically reference the 2nd A in conjunction with the Declaration.

Is Donald J. Trump's campaign being fueled by the "engines of liberty"? If so, in this day and age what is "liberty"?

Joe said...

Cole notes that the activists involved in the 2A fight often self-labeled as originalists but basically said he thought that too was living constitutionalism (or whatever term he used) in action. Prof. Dorf has a passing mention in the book; Sandy Levinson a bit more of one given his seminal 2A article.