By MARY JENKINS
On Tuesday, Sept. 4, Colorado College welcomed David Cole, The National Legal director of The American Civil Liberties Union, for a lecture titled “Defending Liberty in Perilous Times: Why Courts Can’t Do It Alone, and What That Means for the Rest of Us.”
Cole, who joined the ACLU in 2017, has been at the forefront of litigation for some of the most successful constitutional cases in recent memory, including Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flag burning, as well as Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the ACLU represented a same-sex couple who were refused service by a bakery for their wedding.
The ACLUis a non-profit organization whose mission is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” As Cole explained throughout his lecture, the ACLU’s overarching goal — constitutional change to protect civil liberties — is difficult to achieve because their goal is resistant to traditional democratic processes and therefore requires citizen activism. Cole argued that this process of civic engagement, however, is not unique to the advancement of civil liberties, but also deeply connected to the prohibition of those same liberties.
Cole illustrated the power of this process with two examples: marriage equality and gun rights. In 1972, same-sex marriage was unthinkable. Fast-forward to 2015, and marriage equality became a constitutional right. Cole attributed this evolution to “people engaging in a calibrated strategy of change.” While the courts “ultimately,” he emphasized, allowed gay marriage, it was a series of small grassroots steps that truly advanced this liberty. After being denied by the Supreme Court, defenders of marriage equality took to incrementalism. They fought first at the local level and then at the state level, starting with progressive states like Vermont to avoid intervention by the Supreme Court.
Cole’s second example — the evolution of gun rights — was remarkably similar. He remembered Warren Burger describing the right to bear arms under the second amendment as “a fraud” in 1991. What was once considered a fraud in 1991 became a constitutional right in 2008, a change made possible by democratic engagement through the National Rifle Association.
Both of Cole’s examples show that, in perilous times, whether you define peril as an encroachment on your right to marry or on your right to bear arms, activism and civic engagement often have more success than the courts.
Cole went on to describe the current political peril — as aPresident who is threatening our civil liberties, and a government controlled by one party, that requires resistance for positive change. In response to President Donald Trump’s election, the ACLU published a full-page letter in The New York Times where they asserted that they would see President Trump in court; and they have, numerous times, with success.
Despite this success, Cole said he believes fervently that “people seeing themselves as defenders of liberty is where strength lies in a democracy.” He noted that, in the 15 months after President Trump’s election, the ACLU grew from 400,000 to 1.84 million members. This growth is consistent with an increase in Planned Parenthood members and subscribers to The New York Times, Cole added, and is evidence that people are turning to activism.
The ACLU has harnessed this reaction to peril in their initiative “People Power,” which encourages people to defend civil liberties at the local level by training volunteers to fight unlawful policies and recommending policies to take action against.
“The courts, the constitution, and law are necessary central truths; but ultimately, the guardians of liberty are you and me,” Cole said.
In the closing of his book “Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law,” Cole quotes Cornell West and Robert Unger: “Hope is more the consequence of action than its cause. As the experience of the spectator favors fatalism, so the experience of the agent produces hope.”
Much as liberty cannot be achieved without the people, hope cannot be achieved without action. Although his lecture was predicated on peril, Cole was hopeful — because people are taking action.