Michael: Alright Kevin, quick question. What do you think of when you hear the phrase 'constitutional law'? Kevin: Oh, easy. Old guys in wigs, dusty books, and a Supreme Court that moves at the speed of a melting glacier. Basically, something that has nothing to do with me. Michael: That's what most people think! But what if I told you the biggest constitutional changes of our lifetime—from marriage equality to gun rights—were actually driven by people just like us, often working against the courts? Kevin: Okay, now you have my attention. That sounds like the complete opposite of what we're taught in civics class. Michael: That's the explosive argument at the heart of David Cole's book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. And Cole is the perfect person to make this case. He's not just an academic; he's the National Legal Director of the ACLU, so he's been in the trenches of these fights. The book was even named a Notable Nonfiction Book of the Year by The Washington Post. Kevin: So he's got an insider's view. He's seen how the sausage is really made. Michael: Exactly. And he argues it's made in the streets, in town halls, and in the media, long before it ever reaches the Supreme Court. Today we're going to dive into three of his most powerful and contrasting case studies. First, the 'inside-out' cultural revolution that won marriage equality. Then, the powerful 'outside-in' political machine of the NRA that redefined gun rights. And finally, the global campaign to defend human rights in the war on terror. Kevin: Wow. Three completely different fights. This should be fascinating.

Michael: Let's start with marriage equality. Most people think of the 2015 Supreme Court decision, Obergefell v. Hodges, as the moment it all happened. But Cole argues that was just the finish line of a marathon that started decades earlier, with activists fighting their own side. Kevin: Hold on, fighting their own side? Why would gay rights activists be against fighting for marriage? Michael: It’s a fantastic question, and it gets to the heart of the strategy. In the early days, say the 1980s, the idea was seen as radical and dangerous. A young law student named Evan Wolfson wrote his thesis on same-sex marriage, and even his own professors and fellow activists told him he was crazy. They had two main concerns. First, strategy: they were terrified of a massive public backlash. They were still fighting just to decriminalize being gay. Pushing for marriage felt like sprinting before you could even crawl. Kevin: That makes sense. It could have set the whole movement back. What was the second reason? Michael: Ideology. Many activists, especially lesbian feminists, saw marriage as a patriarchal and assimilationist institution. They’d say, "Why are we fighting to get into this flawed system? We should be creating new kinds of relationships, not mimicking straight ones." Paula Ettelbrick, a prominent lawyer, famously said, "I do not want to be known as ‘Mrs. Attached-to-Somebody-Else.’" Kevin: So there was a real philosophical divide. How did they ever get past that? Michael: Tragically, the AIDS crisis was a major catalyst. Suddenly, the lack of "relationship recognition" wasn't an abstract legal concept; it was a matter of life and death. Partners were being barred from hospital rooms, denied the right to make medical decisions, and cut out of wills because the law saw them as legal strangers. It made the practical, human need for legal protection painfully clear. Kevin: Wow. So the crisis forced the issue, making the practical needs more important than the ideological debates. Michael: Precisely. And this led to the "marathon, not a sprint" strategy, which is the core of Cole's analysis for this movement. Activists in states like Vermont, led by lawyers Susan Murray and Beth Robinson, realized they couldn't just file a lawsuit and win. They had to change the culture first. Kevin: What does that look like in practice? Changing a whole culture sounds impossible. Michael: It’s about storytelling. They started what they called a "politics of protection." First, they fought for smaller, incremental wins, like second-parent adoption rights. Susan Murray tells a heartbreaking story of representing a woman whose partner died, and the woman had to fight her deceased partner's parents for custody of the son they had raised together for twelve years. Winning those smaller battles built legal precedent, but more importantly, it started a public conversation. Kevin: It humanized the issue. Michael: Exactly. The Vermont Freedom to Marry Task Force trained same-sex couples to talk to their neighbors, not about abstract rights, but about their lives. They coached one couple, Lois and Holly, saying, "Nobody should ever hear you speak without learning up front that you’ve been together for twenty-three years and that Lois is a seventh-generation Vermonter." They were framing it not as a radical demand, but as a story about love, commitment, and neighbors. Kevin: That’s brilliant. They're making it relatable, not threatening. They're saying, "We're just like you." Michael: And it worked. They built public support, lobbied legislators, and only then did they file a lawsuit. The court, seeing the shift in public opinion, eventually nudged the legislature to create civil unions. It wasn't full marriage yet, but it was a huge step. Cole’s point is that the legal victory was the result of the cultural work, not the cause of it. It was an inside-out revolution.

Kevin: Okay, so the marriage equality story is about changing culture from the inside out, winning hearts and minds. But the book's other major example, gun rights, feels like the complete opposite. How did the NRA become this political juggernaut that seems to bend Washington to its will? Michael: It’s a fascinating and, as Cole presents it, a strategically brilliant counter-narrative. And you're right, it's the polar opposite of the marriage equality playbook. The NRA didn't start by trying to win hearts and minds; they started by building a political machine. And most people don't know that for the first hundred years of its existence, the NRA was basically a hobbyist club. It was founded after the Civil War to improve soldiers' marksmanship. Kevin: Wait, so you're telling me the NRA, this giant political force, started as just a club for marksmen? How does that even happen? Michael: The turning point, according to Cole, was the "Cincinnati Revolt" in 1977. After the Gun Control Act of 1968, a group of hard-line activists within the NRA felt the leadership was too soft and too focused on hunting and sport. At the annual convention in Cincinnati, they staged a coup. They voted out the old guard and passed a resolution making the organization's primary purpose the defense of the Second Amendment as an individual constitutional right. Kevin: So that's the moment it became a political organization. Michael: That's the moment. And their strategy was genius in its own way. They realized the federal courts were hostile to an individual rights interpretation of the Second Amendment. So they ignored them. Instead, they adopted what Cole calls a "federalist" strategy, focusing entirely on the states. Kevin: What does that mean? Like state-level lobbying? Michael: Exactly, but with a few key tactics. First, they pushed for "preemption" laws. These are state laws that forbid cities and counties from passing their own, stricter gun control ordinances. This meant gun control advocates had to fight on 50 state-level battlegrounds, where the NRA had more influence, instead of in thousands of cities. By 2005, forty-five states had these laws. Kevin: That's a clever way to neutralize local opposition. What else? Michael: They pushed for state constitutional amendments. They lobbied states to add language to their own constitutions explicitly protecting an individual's right to bear arms. This built a powerful legal foundation, state by state. And then came the big one: "shall-issue" concealed carry laws. Kevin: I’ve heard that term. What does it mean? Michael: It used to be that getting a permit to carry a concealed weapon was at the discretion of a local sheriff. It was a privilege. The NRA campaigned for laws that required the state to issue a permit to anyone who met basic criteria, like not being a felon. It turned concealed carry from a privilege into a presumptive right. A woman named Marion Hammer in Florida was the architect of this strategy, and her success there became the template for the rest of the country. Kevin: So while marriage equality activists were sharing personal stories to build empathy, the NRA was systematically changing laws state by state to build power. Two totally different playbooks. Michael: And here's the final piece: they funded "revisionist history." They supported a wave of legal scholars who produced articles and books arguing that the "original intent" of the Second Amendment was always about an individual right, not a collective militia right. By the time the Heller case reached the Supreme Court in 2008, the academic and legal landscape had been completely transformed. The Court didn't invent the individual right to bear arms; it ratified a reality the NRA had spent 30 years building from the outside in.

Michael: Exactly. And that brings us to the third, and maybe most difficult, case study: defending human rights in the 'war on terror.' If you don't have popular support or a political machine, what do you do? This is what Cole calls activism on "hard mode." Kevin: Honestly, this is the one that's hardest to get people to care about. After 9/11, it was easy for the public to say 'they're terrorists, they don't deserve rights.' How do you even begin to fight that? Michael: You’ve hit on the central problem. The people being affected—detainees at Guantánamo Bay—were non-citizens, held offshore, and labeled "the worst of the worst." There was no natural domestic constituency for their rights. Michael Ratner, a lawyer at the Center for Constitutional Rights, described the prospect of filing a lawsuit on their behalf as "completely hopeless." Kevin: So why even try? What was the legal argument? Michael: The argument was ancient and fundamental: habeas corpus, the right to have a court determine if your detention is lawful. The Bush administration argued that Guantánamo was a "law-free zone," outside the reach of U.S. courts. They were relying on a World War II-era case, Johnson v. Eisentrager, which had denied habeas rights to German prisoners of war held overseas. Kevin: So the legal precedent was against them, and public opinion was against them. It really does sound hopeless. Michael: It did. But the activists developed a different kind of strategy, one based on transparency and international pressure. Since they couldn't win hearts and minds at home, they appealed to a "global conscience." Lawyers like Clive Stafford Smith, a British-American, focused on the detainees who were UK citizens or residents. They used the British courts to pressure the UK government, a key U.S. ally, to intervene. Kevin: Ah, so they created a diplomatic problem for the Bush administration. Michael: A huge one. The UK government couldn't just ignore its own citizens being held indefinitely without trial. This external pressure was one engine. The other was transparency. The ACLU and other groups filed a flood of Freedom of Information Act, or FOIA, lawsuits. They weren't suing to free anyone; they were suing to get the government to release documents. Kevin: What kind of documents? Michael: Memos about torture, photos of abuse, reports on interrogation techniques. The release of the Abu Ghraib photos was a turning point. It made the abstract claims of abuse horrifyingly real. It showed the world what was being done in America's name. This public shaming, Cole argues, was more powerful than any court order. The Bush administration eventually rescinded its "torture memos" and curtailed its worst practices not because a court ordered it, but because the political and diplomatic cost became too high. Kevin: That's a really subtle but powerful idea. The victory wasn't freeing a specific person, but forcing the government to operate in the light, where its worst impulses couldn't survive. Michael: Precisely. And they used history as a weapon. Fred Korematsu, the man who challenged the Japanese-American internment during WWII and lost, filed a friend-of-the-court brief in the Guantánamo cases. He warned the Supreme Court not to make the same mistake twice—not to blindly defer to the executive in a time of fear. His story, once a symbol of judicial failure, became a powerful argument for judicial courage. Kevin: Wow, that's incredible. To have his fight from the 1940s come back to influence a 21st-century case. It gives me chills.

Michael: It really is a testament to the long arc of these struggles. And it brings all three of Cole's case studies together. Kevin: So after looking at these three wildly different movements—marriage equality, gun rights, and human rights—what's the one big lesson Cole wants us to take away? Michael: That liberty isn't a gift from the Supreme Court. It's earned. It's not a noun, it's a verb. Whether it's through the slow, patient work of changing culture like in the marriage equality movement, or building a formidable political machine like the NRA did, or appealing to the world's conscience when you have no other allies, the Constitution is ultimately powered by us. Kevin: It’s not a self-enforcing document. It needs people to give it life. Michael: Exactly. Cole closes with a powerful quote from the famous judge Learned Hand, who said in 1944: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." The courts are often the last stop, ratifying changes that have already been won in the broader society. Kevin: So the message is, don't wait for the courts. Find your people, build your case, and start the work. It's a much more active and, frankly, more democratic vision of how our country is supposed to work. Michael: It is. It’s a deeply hopeful book, because it argues that the power to shape our nation's deepest values doesn't just belong to nine justices in Washington. It belongs to anyone with the commitment to organize, to persuade, and to persist. Kevin: A powerful and important message, especially today. It makes you think about what issues we'll be looking back on in 30 years, and who the activists are right now that are laying the groundwork. Michael: Absolutely. We'd love to hear what you all think. Which of these strategies—the cultural, the political, or the global—resonates most with you today? Let us know. This is Aibrary, signing off.