Engines of Liberty

Engines of Liberty Plot Summary

Introduction

In the summer of 1969, a police raid on the Stonewall Inn in New York City sparked days of protests that would launch the modern LGBTQ rights movement. Few could have imagined that this uprising would eventually lead to nationwide marriage equality. Yet four decades later, same-sex couples would gain the constitutional right to marry—not primarily through the wisdom of nine Supreme Court justices, but through the persistent advocacy of ordinary Americans who transformed constitutional understanding through their collective action. This pattern of citizen-driven constitutional change has repeated throughout American history, challenging the conventional view that the Constitution's meaning is determined solely by courts. The stories in this book reveal how ordinary people, working through civil society organizations, have shaped our understanding of fundamental rights—from marriage equality to gun ownership, from wartime civil liberties to government transparency. These movements share common strategies: they operate across multiple forums beyond federal courts; they frame their arguments in terms that resonate with deeply held American values; and they demonstrate remarkable persistence in the face of setbacks. By examining these successful constitutional movements, readers will gain insight into how citizens can effectively advocate for their vision of constitutional rights in a democracy where the Constitution's meaning ultimately belongs to the people.

Chapter 1: The Grassroots Origins of Marriage Equality (1969-1990s)

The struggle for marriage equality began decades before it reached the Supreme Court, emerging from the broader LGBTQ rights movement that gained momentum after the 1969 Stonewall riots. In those early years, the very idea of same-sex marriage seemed utterly far-fetched. Homosexual conduct itself remained criminalized in many states, and the Supreme Court had dismissed a same-sex marriage case in 1972 as not even presenting a "substantial federal question." The movement's initial focus was necessarily on more basic protections—decriminalizing homosexuality and securing protections against discrimination in employment and housing. Organizations like the Mattachine Society, founded in 1950, and the Gay Liberation Front, formed after Stonewall, created the infrastructure for community organizing and political advocacy. Early activists like Frank Kameny, a Harvard-educated astronomer fired from his government job for being gay, established templates for future litigation by challenging his dismissal all the way to the Supreme Court. Though unsuccessful, his persistent advocacy eventually led the Civil Service Commission to reverse its policy of categorically disqualifying gay and lesbian applicants from federal employment by 1975. The AIDS crisis of the 1980s tragically accelerated the movement's development while highlighting the legal vulnerabilities of same-sex relationships. As thousands of gay men fell ill and died, partners were denied hospital visitation rights, inheritance rights, and other protections automatically granted to married couples. Organizations like ACT UP (AIDS Coalition to Unleash Power) emerged, employing direct action tactics to demand government response to the epidemic. These painful realities made the need for relationship recognition increasingly evident to both the LGBTQ community and sympathetic allies. By the early 1990s, the groundwork for marriage equality was being laid through incremental victories. Cities and states began recognizing domestic partnerships, providing limited benefits to same-sex couples. Lambda Legal Defense Fund and other organizations litigated cases establishing parental rights for gay and lesbian parents. When three same-sex couples in Hawaii filed a lawsuit challenging the state's marriage laws in 1991, they set in motion a legal process that would eventually transform American constitutional law. The Hawaii Supreme Court's 1993 ruling in Baehr v. Lewin, suggesting that denying marriage licenses to same-sex couples might violate equal protection, represented the first significant judicial victory for marriage equality—though a subsequent state constitutional amendment would prevent implementation. This early period demonstrates how constitutional movements often begin far from federal courts, with grassroots organizing and state-level advocacy creating the foundation for later national recognition. Marriage equality advocates recognized that changing constitutional understanding would require changing hearts and minds through community building, public education, and incremental legal victories that could demonstrate the legitimacy of their claims to equal citizenship.

Chapter 2: Strategic Incrementalism: Building State-by-State Victories

The Hawaii marriage case triggered an immediate backlash, with Congress passing the Defense of Marriage Act (DOMA) in 1996 and dozens of states enacting their own bans on same-sex marriage. Learning from this experience, advocates developed a more deliberate, incremental approach focused on winning in carefully selected states before attempting federal constitutional claims. This strategy reflected their recognition that the Supreme Court rarely gets too far ahead of public opinion on divisive social issues. In Vermont, attorneys Beth Robinson and Susan Murray carefully prepared the ground before filing Baker v. State in 1997. They built coalitions, educated the public, and secured commitments from enough legislators to block a constitutional amendment if they won in court. When the Vermont Supreme Court ruled in 1999 that same-sex couples were entitled to the benefits of marriage, the legislature responded by creating "civil unions"—a parallel institution that provided state-level benefits without the name "marriage." Though disappointing to many advocates, this compromise represented a significant step forward and established a model that other states would follow. Massachusetts became the true breakthrough in 2003 when its highest court ruled in Goodridge v. Department of Public Health that the state constitution required full marriage equality. Attorney Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) had strategically chosen Massachusetts because its constitution was difficult to amend and the state had already established protections for gay and lesbian citizens. On May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples, creating powerful images of joyful newlyweds that helped normalize the concept of same-sex marriage in the public mind. The period from 2004 to 2008 saw a complex mix of victories and defeats. While more states passed constitutional amendments banning same-sex marriage, others established civil unions or domestic partnerships. California's Supreme Court recognized marriage equality in May 2008, only to see this right eliminated by voter initiative (Proposition 8) that November. This painful defeat prompted a fundamental reassessment of messaging strategy. Research revealed that talking about marriage primarily as a matter of "rights" and "benefits" was ineffective. As pollster Amy Simon explained, "People do not think of marriage as a bundle of rights. They think of it as an expression of love and commitment." New advertisements featured straight allies—particularly elderly parents, religious leaders, and military veterans—explaining their personal journeys toward supporting marriage equality. Traditional canvassing gave way to "deep canvassing"—extended, empathetic conversations designed to help voters work through their conflicted feelings. These new approaches bore fruit in November 2012, when marriage equality prevailed in all four states where it appeared on the ballot—Maine, Maryland, Minnesota, and Washington. The Maine victory was particularly significant, as voters had rejected marriage equality just three years earlier. By the time the Supreme Court addressed the issue in United States v. Windsor (2013) and Obergefell v. Hodges (2015), advocates had built a foundation of state-level protections and shifted public opinion dramatically. Justice Kennedy's majority opinion in Obergefell, recognizing a constitutional right to same-sex marriage nationwide, reflected this evolution in social understanding—demonstrating how constitutional meaning can be transformed through persistent citizen advocacy across multiple forums.

Chapter 3: The Second Amendment Revolution: NRA's Multi-Forum Campaign

While marriage equality advocates were building their movement, another constitutional transformation was underway regarding the Second Amendment. For most of the 20th century, courts had interpreted the amendment as protecting only the states' right to maintain militias, not an individual right to bear arms. When former Chief Justice Warren Burger was asked about the individual rights interpretation in 1991, he dismissed it as "one of the greatest pieces of fraud on the American public by special interest groups that I have ever seen in my lifetime." Yet by 2008, the Supreme Court would adopt precisely this view in District of Columbia v. Heller, recognizing for the first time an individual constitutional right to possess firearms. This remarkable transformation was largely the work of the National Rifle Association (NRA), which underwent its own transformation in the 1970s. Originally founded as a sportsmen's organization focused on marksmanship, the NRA experienced what became known as the "Cincinnati Revolt" in 1977, when hardliners took control of the organization and committed it to defending an individual right to bear arms. Under leaders like Marion Hammer, the NRA's first female president and a formidable Florida lobbyist, the organization pursued a state-by-state strategy to expand gun rights long before seeking federal constitutional recognition. The NRA's approach was multifaceted and patient. They first secured "preemption" laws that prevented cities from enacting stricter gun regulations than their states. They advocated for state constitutional amendments explicitly protecting individual gun rights. They pushed "shall-issue" concealed carry laws that required states to issue permits to qualified applicants rather than leaving it to official discretion. And they promoted "stand your ground" laws expanding self-defense rights beyond the home. By the early 2000s, these state-level victories had created a new normal of expanded gun rights across much of the country. Simultaneously, the NRA supported legal scholarship challenging the prevailing interpretation of the Second Amendment. In the 1980s, few academics questioned the collective-rights view. By the early 2000s, however, a robust body of scholarship argued that the amendment was originally intended to protect individual gun ownership. This academic shift lent credibility to the NRA's position and provided the intellectual foundation for eventual judicial recognition. The organization also worked to influence federal policy, securing passage of the Firearms Owners' Protection Act in 1986 and successfully challenging parts of the Brady Bill requiring state officials to conduct background checks. The NRA's success stemmed partly from its ability to create a sense of constitutional identity among its supporters. For many NRA members, the Second Amendment became a cornerstone of American liberty itself, tied to deeply held values of self-reliance, personal security, and resistance to government overreach. This identity-based mobilization enabled the organization to sustain advocacy across decades, eventually transforming constitutional understanding through patient, multi-forum advocacy. By the time the Supreme Court addressed the Second Amendment's meaning in Heller, the individual rights interpretation had already gained substantial acceptance through state legislation, political discourse, and academic scholarship—all driven by citizen advocacy coordinated through a civil society organization. The Court's 5-4 decision, written by Justice Scalia, drew heavily on the historical scholarship the NRA had helped nurture, demonstrating how constitutional meaning can be shaped outside the courts through organized citizen action.

Chapter 4: Challenging Executive Power: From Korematsu to Guantánamo

During World War II, the Supreme Court upheld the internment of more than 110,000 Japanese Americans in the 1944 case Korematsu v. United States. The Court accepted the government's claims that national security necessitated this mass detention based solely on ancestry, without individualized suspicion. This decision has come to be seen as one of the Court's greatest failures, but its eventual repudiation offers important lessons about challenging executive power during national security crises. Fred Korematsu, who had refused to report for internment, continued his fight for justice long after losing his Supreme Court case. In the 1980s, legal historian Peter Irons discovered that Justice Department lawyers had deliberately withheld from the Court evidence undermining the military's claims about the necessity of internment. Based on this evidence, Korematsu's conviction was vacated in 1983 by a federal district court. Congress eventually passed the Civil Liberties Act of 1988, formally apologizing for the internment and providing reparations to survivors. This historical reckoning took decades and required persistent advocacy by Japanese American organizations, civil liberties groups, and Korematsu himself. The Japanese American Citizens League initially focused on seeking compensation for property losses, then successfully campaigned to repeal the Emergency Detention Act, which authorized preventive detention in national emergencies. Only in the 1970s did they begin directly challenging the legitimacy of the internment itself, building coalitions with other civil rights organizations and religious groups to transform public understanding of this historical wrong. By the time the United States faced another major national security crisis after the September 11, 2001 terrorist attacks, Korematsu had been thoroughly discredited. When the Bush administration claimed similar sweeping detention powers at Guantánamo Bay, civil liberties advocates could point to Korematsu as a cautionary tale of judicial deference gone wrong. Fred Korematsu himself filed an amicus brief in the Guantánamo cases, urging the Court not to repeat its mistake. The Supreme Court's subsequent decisions in Rasul v. Bush (2004), Hamdi v. Rumsfeld (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008)—all rejecting aspects of executive detention policy—represented a historic departure from the Court's traditional wartime deference. When Michael Ratner of the Center for Constitutional Rights filed the first habeas corpus petition for Guantánamo detainees in February 2002, he described his decision as "completely hopeless." Yet against all expectations, the Supreme Court agreed to hear the case and ruled 6-3 that detainees had a statutory right to challenge their detention in federal court. This unprecedented series of wartime rebukes to executive power reflected decades of civil society advocacy that had transformed Korematsu from a precedent into an anti-precedent, a symbol of what happens when courts fail to check executive power during crises. Civil liberties advocates succeeded in framing the debate as a choice between the rule of law and lawlessness, appealing to values that transcended partisan divisions and resonated with judges across the ideological spectrum. Their success demonstrates how constitutional understanding evolves through persistent citizen advocacy over time, creating space for more robust judicial protection of rights even during national security emergencies.

Chapter 5: Transparency as Power: FOIA and the War on Terror

Beyond courtroom litigation, civil liberties organizations pursued transparency as a powerful tool against government overreach in the war on terror. In October 2003, ACLU attorneys Jameel Jaffer and Amrit Singh filed a Freedom of Information Act (FOIA) request for documents concerning detainee treatment. What began as a modest effort eventually unearthed nearly 6,000 documents totaling 130,000 pages, providing crucial evidence of systematic abuse that the government had sought to conceal. The FOIA litigation yielded a steady stream of revelations over more than a decade. Early disclosures included FBI agents' firsthand accounts describing Guantánamo interrogation tactics as "torture techniques." Later releases revealed the Justice Department memos authorizing "enhanced interrogation" and a CIA Inspector General's report detailing abuses beyond even those officially sanctioned. Each disclosure generated media coverage and public debate, ensuring that torture remained in the public consciousness despite the government's efforts to frame these practices as necessary and limited security measures. The power of transparency was dramatically illustrated in April 2004, when CBS's 60 Minutes II broadcast photographs of prisoner abuse at Abu Ghraib prison in Iraq. The images showed American soldiers humiliating and mistreating Iraqi detainees, contradicting the administration's assurances that it respected human rights. The photographs emerged just as the Supreme Court was hearing oral arguments in the first Guantánamo cases, undermining the government's plea for judicial deference and highlighting the need for independent oversight of detention operations. Human rights organizations amplified these revelations through creative advocacy. The ACLU and PEN American Center produced public readings of government torture documents, featuring prominent actors and writers. They created searchable online databases and published books compiling the evidence. The Open Society Justice Initiative issued reports identifying dozens of countries complicit in the CIA's rendition and detention program, bringing international attention to these practices and creating diplomatic pressure for reform. This transparency strategy proved remarkably effective because the practices being disclosed could not withstand public scrutiny. As James Madison observed, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both." The Bush administration often retreated or modified its programs after they became public. It rescinded the Justice Department's torture memo after it was leaked to the Washington Post. It ended the CIA's secret prison program after details appeared in the press. It introduced significant reforms at Guantánamo after detainee accounts and FBI observations became public. The transparency campaign demonstrates how civil society organizations can use existing legal tools to force accountability even when courts are reluctant to directly challenge security policies. By bringing hidden practices into the light, they created pressure for reform that might not have been possible through direct litigation alone. As Supreme Court Justice Louis Brandeis famously wrote, "Sunlight is said to be the best of disinfectants," and the war on terror proved his wisdom. The FOIA litigation shows how ordinary citizens, working through civil society organizations, can use transparency laws to hold government accountable to constitutional values even in the face of extraordinary claims of executive power.

Chapter 6: Coalition Building: Finding Unexpected Allies for Rights

Perhaps the most innovative aspect of the human rights campaign during the war on terror was its recruitment of unexpected allies. Traditional civil liberties organizations like the ACLU were easily dismissed as partisan or ideologically motivated. To overcome this perception, advocates enlisted messengers whose credibility on national security issues was unimpeachable—particularly retired military officers, intelligence professionals, and conservative political figures. Human Rights First, led by Elisa Massimino, organized a group of retired generals and admirals to speak out against torture and detainee abuse. These military leaders, including former chairmen of the Joint Chiefs of Staff and commanders of major operations, argued that abusive interrogation was not only illegal and immoral but also ineffective and harmful to America's strategic interests. As Rear Admiral John Hutson explained, "If you'd asked any of us, before we'd retired, are you going to be involved with Human Rights First or the ACLU, we would have said, 'What are you, nuts?'" Yet they felt compelled by their oath to the Constitution to speak out against practices they viewed as fundamentally un-American. The generals' intervention proved decisive in 2005 when Senator John McCain introduced legislation prohibiting cruel, inhuman, or degrading treatment of detainees. The Bush administration strongly opposed the measure, arguing it would hamper intelligence gathering. When Vice President Dick Cheney pressed McCain to back down, the senator reportedly placed a letter from the generals on the table between them, saying, "This is what I've got. What do you have?" The McCain Amendment passed the Senate by a 90-9 margin, dealing the administration its most significant legislative defeat on counterterrorism policy. Civil liberties advocates also found allies among foreign governments, particularly those whose citizens were held at Guantánamo. British lawyers Clive Stafford Smith and Gareth Peirce mobilized public opinion in the United Kingdom, generating pressure on Prime Minister Tony Blair to request the return of British detainees. Similar campaigns in other countries led to the release of many prisoners without court orders. As former State Department official Daniel Fried explained, "We were getting beaten up for our unilateral policies all over the world, especially on Guantánamo. We were taking shots every day." Religious leaders provided another source of moral authority. When the National Religious Campaign Against Torture formed in 2006, it brought together Protestant, Catholic, Jewish, Muslim, and Sikh organizations in opposition to abusive interrogation practices. Their involvement helped frame torture as a moral issue that transcended political divides, making it harder for the administration to dismiss criticism as merely partisan or unpatriotic. The success of these coalition-building efforts demonstrates how constitutional advocacy can transcend traditional political alignments by appealing to shared values and recruiting messengers who can reach new audiences. By framing issues in terms of fundamental American principles rather than partisan politics, advocates created space for unlikely allies to join their cause. This approach proved particularly effective in the national security context, where traditional civil liberties organizations often struggled to gain traction against claims that their positions endangered national security.

Chapter 7: From Resistance to Reform: Institutionalizing Rights Protections

When Barack Obama took office in 2009, human rights advocates had reason for optimism. As a candidate, Obama had criticized many Bush administration counterterrorism policies. His first acts as president included orders to close the CIA's secret prisons, restrict interrogation methods to those authorized in the Army Field Manual, and close Guantánamo Bay within a year. He appointed human rights advocates to key positions, including Harold Koh, a vocal critic of Bush's policies, as legal advisor to the State Department. Yet many of these hopes were disappointed. Guantánamo remained open years later due to congressional opposition. Obama dramatically increased the use of drone strikes to kill suspected terrorists far from any battlefield. He opposed accountability for CIA torture and continued to use military commissions rather than civilian courts for some terrorism cases. The administration's early attempt to try 9/11 mastermind Khalid Sheikh Mohammed in federal court in New York was abandoned after political opposition. This mixed record reflected the enduring challenges of advocating for human rights in national security contexts. A president's first obligation is to protect the nation, and security officials vastly outnumber human rights voices in policy deliberations. As Koh later recalled, "for every one voice expressing human rights concerns at a meeting on a national security issue, there were fifteen to thirty representatives of the national security side." Human rights groups had to adjust their tactics for this new environment. With allies inside the administration, they could pursue an "inside game" alongside continued external pressure. Koh advocated internally for greater transparency about drone strikes, limits on targeted killing, and recognition that international human rights law applies to U.S. actions abroad. These internal efforts complemented external criticism from organizations like Human Rights Watch and the ACLU. The drone program illustrates this dynamic. Initially, the Obama administration refused even to acknowledge its use of drones for targeted killing. Human rights groups documented civilian casualties, filed lawsuits challenging the program's secrecy, and brought victims' family members to testify before Congress. International institutions and officials, including UN special rapporteurs, issued critical reports. As criticism mounted, the administration gradually responded with greater transparency and more restrictive targeting criteria. In a 2013 speech, Obama announced new limitations on drone strikes outside traditional battlefields, including requirements that targets pose a "continuing and imminent threat" and that there be "near certainty that no civilians will be killed or injured." The number of drone strikes and casualties subsequently fell dramatically. According to the Bureau of Investigative Journalism, deaths from drone strikes in Pakistan dropped from 751 in 2010 to just 35 in 2014. This pattern of resistance leading to reform played out across multiple issues during the Obama years. The administration initially defended NSA surveillance programs revealed by Edward Snowden, but eventually imposed significant restrictions. It reversed the government's longstanding position that the Convention Against Torture does not apply to U.S. actions abroad. These reforms, while incomplete, demonstrated how persistent advocacy can lead to institutional change even when dramatic victories are not possible. By working simultaneously through multiple channels—litigation, legislation, media advocacy, and internal policy reform—civil society organizations created pressure for incremental improvements that cumulatively shifted government practice toward greater respect for constitutional and human rights values.

Summary

The story of constitutional citizenship in America reveals a profound truth: the Constitution's meaning is not fixed by courts or the original intentions of the Framers, but evolves through the persistent engagement of ordinary citizens working through civil society organizations. Whether advocating for marriage equality, gun rights, or human rights in the war on terror, successful constitutional movements share common strategies: they work across multiple forums beyond federal courts; they frame their arguments in terms that resonate with deeply held American values; they recruit credible messengers who can reach new audiences; and they demonstrate remarkable persistence in the face of setbacks. These citizen-driven campaigns remind us that constitutional democracy requires more than formal institutions—it demands an engaged citizenry willing to defend and advance constitutional values. When Fred Korematsu continued fighting for justice decades after losing his Supreme Court case, when Evan Wolfson persisted in advocating for marriage equality despite universal dismissal of the idea, when civil liberties lawyers filed habeas petitions for Guantánamo detainees against overwhelming odds, they demonstrated that constitutional meaning ultimately resides in the hearts and actions of the people. As Judge Learned Hand once observed, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." The guardians of liberty are not primarily judges in black robes, but citizens committed to making constitutional promises real through collective action and persistent advocacy.

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David Cole

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