Introduction

W
EVAN WOLFSON WAS A YOUNG STUDENT AT HARVARD LAW SCHOOL IN THE
HEN
1980s, there were no courses on sexual orientation and the law.
It wasn’t until two lawyers from the then-fledgling Lambda
Legal Defense Fund, a gay rights public interest law firm, came to
speak at Harvard that it dawned on Wolfson that one might devote
a legal career to “gay rights.” In his last year at Harvard, he decided
to write an independent research paper exploring a gay rights issue.
Harvard’s constitutional law professors at the time viewed his proposed
topic—whether the Constitution guarantees same-sex couples the
right to marry—as so far-fetched that none would agree to supervise it.
He finally convinced a professor of trusts and estates, David Westfall,
to take him on, even though constitutional law was not Westfall’s field.
Wolfson wrote a 141-page manifesto arguing that same-sex marriage
should be constitutionally guaranteed. At the time, a handful of gay
and lesbian couples across the nation had filed quixotic lawsuits claim-
ing the right to marry, but all of the suits had been dismissed, in some
instances with outright derision. When the Minnesota Supreme Court
heard one such case in 1970, for example, none of the seven justices
asked the lawyer representing the gay couple a single question, and

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 2 ENGINES OF LIBERTY

one justice is said to have turned his back on the couple’s lawyer for the
entire oral argument. The court cited the book of Genesis, an unusual
source of constitutional law, in its decision unanimously rejecting the
claim. When the couple sought review in the US Supreme Court, the
highest court in the land responded with a one-sentence dismissal of
their appeal as presenting no serious legal question.1
Yet on June 26, 2015, in Obergefell v. Hodges, the Supreme Court de-
clared that same-sex couples have a constitutional right to marry, the
same right to marry that straight couples have long enjoyed. By then,
Wolfson had become one of the country’s leading advocates for marriage
equality, and had founded a major nonprofit advocacy group, Freedom to
Marry, to pursue the cause. After the Obergefell decision was announced,
Wolfson declared that his organization, having achieved its goal, would
begin shutting down. The next day, he published an op-ed in the New York
Times celebrating the victory but at the same time insisting that “now we
must get back to work.” His new priority: “securing protections from dis-
crimination for gay, lesbian, bisexual and transgender Americans.”2
As a little girl raised on a Florida farm in the 1940s and 1950s, Mar-
ion Hammer was introduced to guns by her grandfather, who took her
rabbit hunting. She loved shooting but did not become politically active
until 1968, when Congress passed the Gun Control Act in response
to the assassinations of John F. Kennedy, Martin Luther King Jr., and
Robert Kennedy. Hammer believed that she had a right to bear arms,
and that the act was a first step toward extinguishing that right. She
decided to fight back. Starting as a volunteer for Unified Sportsmen of
Florida, she ultimately became the National Rifle Association’s (NRA)
first female president. Today, she is one of Florida’s most effective lob-
byists, and Florida is, largely because of her efforts, a bellwether state
for protective gun rights laws. She has successfully pressed for state leg-
islation to ensure that gun owners can not only keep weapons in their
homes but carry them on their persons, and, through the controversial
“stand your ground” law, be assured of their right to use their guns in
self-defense.3
In Hammer’s view, and the view of the NRA, the Second Amend-
ment protects an individual right to bear arms. For most of her life,

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 Introduction 3

however, that was not the law. In 1939, the Supreme Court upheld a
federal law banning interstate transportation of sawed-off shotguns and
machine guns, and suggested that the Second Amendment protected
only the authority of states to raise militias, not the right of private
individuals to bear arms. In 1990, then-retired Chief Justice Warren
Burger, a conservative Republican, dismissed the idea that the Second
Amendment protects an individual right to bear arms as “one of the
greatest pieces of fraud—I repeat the word ‘fraud’—on the American
public by special interest groups that I have ever seen in my lifetime.”
In 1996, conservative judge and scholar Robert Bork similarly con-
tended that the Second Amendment protected only state rights, not
individual rights. But in 2008, in District of Columbia v. Heller, the Su-
preme Court officially endorsed the right that Hammer and the NRA
had been defending for almost forty years, and ruled that the Second
Amendment protects an individual’s right to bear arms.4
When Michael Ratner, then a fifty-eight-year-old lawyer with the
New York–based Center for Constitutional Rights (CCR), learned in
early 2002 that President George W. Bush was holding prisoners in
the “war on terror” at Guantánamo Bay Naval Base without hearings
or access to attorneys, he resolved almost immediately to sue. Did he
think he had any chance of success? “None whatsoever,” he told me
years later. So why did he do it? “We filed one hundred percent on
principle.” In Ratner’s view, it is always unconstitutional to lock up a
human being without charges or any access to a court. As he put it,
“Wasn’t that what the Magna Carta was all about?” He hoped the law-
suit would bring attention to what he considered a grave human rights
violation. But he had no illusions about the odds, either legally or po-
litically. Fifty years earlier, the Supreme Court had ruled, in Johnson v.
Eisentrager, that foreign prisoners of war held in Germany had no right
to seek review in US courts. That decision, written by the widely re-
spected Justice Robert Jackson, who himself had been a lead prosecutor
in war crimes trials against Nazi leaders at Nuremberg, had never been
overturned. So the law seemed dead set against Ratner. And as a polit-
ical matter, why would Americans be concerned about the detention
of foreign enemies their government told them were “the worst of the

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 4 ENGINES OF LIBERTY

worst?” Guantánamo didn’t threaten Americans’ liberties. But Ratner,

together with capital punishment defense attorney Joe Margulies and
CCR, went ahead and sued anyway.5
They lost unanimously in the lower courts. But two years later,
to the surprise of almost everyone, the Supreme Court ruled that
Guantánamo prisoners had a right to sue the president in federal court
to challenge the legality of their imprisonment. With the threat of ju-
dicial oversight came reform. By the time he left office, President Bush
had released over five hundred of the 779 people kept at Guantánamo.
He agreed, as did his secretaries of defense and state, that the prison
should be closed. He had also by that time halted the CIA’s torture,
emptied its secret prisons, and agreed to subject National Security
Agency wiretapping to judicial oversight. President Barack Obama
took office in 2009 promising to close the facility within a year. Con-
fronting numerous obstacles, he did not succeed, but he renewed the
pledge upon reelection in 2013. He has released more than one hun-
dred detainees.6

There are many issues on which Wolfson, Hammer, and Ratner would
not agree. But they share a deep-seated commitment to their respec-
tive constitutional visions and a willingness to work for many years,
even decades, to realize them. They share a method, too. None of
them stood alone. Instead, each worked with civil society organizations
dedicated to preserving and protecting particular fundamental values.
Wolfson was an attorney at Lambda Legal Defense Fund for many
years, heading its Marriage Equality project, before branching off to
start Freedom to Marry in 2002. Hammer worked with, and ultimately
served as president of, the NRA, probably the most effective individual
rights organization in the country today. And Ratner’s legal career has
been spent with CCR, a civil rights organization founded in the 1960s,
where he litigated a wide range of seemingly impossible constitutional
issues, many challenging US foreign policy. In turn, the work of each of
these groups was supported by many others with similar goals.

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 Introduction 5

How did the right of same-sex couples to marry go from unthink-

able to inevitable? How did the individual right to bear arms, dismissed
by a retired chief justice as a fraud in 1990, become a constitutional
right in 2008? And what led President Bush to rein in virtually all of
his most rights-infringing initiatives in the war on terror, when most
previous presidents had been given a free hand in wartime? The answer
lies in significant part in the efforts of the groups with which Wolfson,
Hammer, and Ratner were associated, and in the efforts of others who,
like them, were willing to engage in the protracted, intensive, and in-
cremental campaigns necessary to change constitutional law.
Freedom to Marry, the NRA, and CCR are examples of a particular
kind of nonprofit group: one defined by and dedicated to constitutional
values. There are many such groups in the United States. They span
the political spectrum. They include organizations dedicated to pro-
tecting the rights of the press, racial and religious minorities, women,
criminal defendants, immigrants, the unborn, business persons, prop-
erty owners, and the disabled, among many others. The United States
boasts a robust civil society, and the segment devoted to constitutional
rights is almost certainly stronger than anywhere else in the world. Yet
popular and scholarly accounts of constitutional law too often neglect
the critical function such groups play in our constitutional order.7
As the political diversity of the groups and causes featured here
illustrates, citizens’ associations do not necessarily lead constitutional
law in one political direction. As the NAACP Legal Defense Fund,
gay rights groups, and the ACLU have successfully pressed for liberal
understandings of constitutional ideals, so right-to-life groups, the In-
stitute for Justice, the NRA, and the US Chamber of Commerce have
successfully pressed for conservative understandings. My purpose here
is not to offer my own opinion on the validity of particular constitu-
tional claims, but to illustrate how constitutionalism works. No matter
what one’s political views, the NRA, the marriage equality groups, and
the civil liberties and human rights organizations featured here com-
mand our attention as agents of constitutional change.
Most accounts of constitutional law emphasize the separation of
powers, federalism, and judicial review as bulwarks of constitutional

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 6 ENGINES OF LIBERTY

liberty. Some accounts have looked beyond the formal branches of gov-
ernment and characterized the media, “the fourth estate,” as another
check on government power. The argument of this book is that civil
society groups play an equally important part in shaping constitutional
law. At their best, they are the catalysts of constitutional change—the
engines of liberty.8

Previous books examining campaigns for constitutional change have

tended to focus on federal litigation. The classic in the field, Richard
Kluger’s Simple Justice, recounts the NAACP Legal Defense Fund’s
effort to eliminate racial segregation. It is largely a story about law-
yers, clients, and judges in federal courts. This is understandable as,
absent a constitutional amendment, only the courts, and ultimately the
Supreme Court, can actually change constitutional doctrine. Groups
committed to the protection of constitutional rights must therefore
ultimately turn to the federal courts, as did the groups in each of the
three stories recounted here. But as these accounts will show, the vast
majority of the work necessary to transform constitutional law took
place outside the federal courts.9
There is a simple reason for this. When existing federal doctrine
does not reflect your views, you cannot simply file a lawsuit to change
it; the likely result will be a prompt dismissal, underscoring that your
vision lacks merit within the existing legal order. Instead, you must
initially seek out other more sympathetic forums. In the campaigns
examined here, advocates pursued their claims in state legislatures,
state courts, Congress, the executive branch, the media, the academy,
the public at large, and even foreign and international venues. When
groups represented by Wolfson, Hammer, and Ratner did succeed in
court, it was generally because they had helped to change public opin-
ion and the opinion of legal experts through work outside the courts.
And often these groups won constitutional victories without any for-
mal judicial intervention at all.

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