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Showing posts with label marriage equality. Show all posts
Showing posts with label marriage equality. Show all posts

Thursday, May 08, 2025

"The Transgender Tipping Point" by Katy Steinmetz | Time Magazine May 29, 2014

Friends:

I'm sharing this interesting article published a decade ago in Time Magazine 
because I work closely with youth, listen to Gen Z podcasts, and read studies that follow cultural trends, particularly as these intersect with terrible policy agendas in Texas against trans youth by mostly "binary Boomers," a phrase I just learned.

It's clear that Gen Z 
(13-28 years old) is not only the most racially and ethnically diverse "age-generational" cohort as compared to Boomers, Gen X, and Millennials (Gen Y), but also the most gender diverse in the history of the U.S. Gen Z is clearly the most "queer" generation. And Gen Alpha (ages 0-12 years old) will be even more diverse.

I grew up in the Baptist church and recall that Jesus never said anything about LGBT issues even if a few others did—for example, the Apostle Paul in both Romans 1:26-27 and 1 Corinthians 6. Regarding the latter, I came across a very interesting discussion on this on Reddit where it's not being homosexual, but sexual violence that is what is condemned.

So Jesus’s silence on the topic of homosexuality is itself telling. Either our attention to it is politically outsized, or Jesus was deliberately modeling a theology of inclusion that placed love, dignity, and human worth above moral dogmatism and rigid moral policing. Read on and learn about Oaxaca's Third Gender—"Las Muxes: El Tercer Género de Oaxaca" [YouTube Video]

Learn, as well, about the "two-spirit" notion of identity in Indigenous communities (Robinson, 2020). Also check out the Netflix movie, The Secret of the River (El Secreto del Rio), that helps viewers understand the complexities of Muxe identity. Again, the Muxes are Indigenous suggesting that gender diversity is older than Jesus and the Bible.

Much is being said these days that education should not be focused on identity, yet if our youth cannot love themselves for the totality of who they are, then no amount of academic achievement will compensate for the wound of self-rejection instilled by an education that demands their silence or erasure.

In this vein, we should take an interest in The Transgender Tipping Point, published by Time Magazine in 2014, because it marked a pivotal moment in the cultural recognition of transgender people as fully human—worthy of dignity, representation, and voice.

Sadly, our legislature wants to put our Gen Z youth back in the closet. An important takeaway from this read is that we in academia are not creating this shift, rather the opposite. It has come to us just as it has come to social media and hard media. This is a cohort that experienced the pandemic and that is coming of age amid climate crises, digital hyperconnectivity, political polarization, and renewed movements for racial and gender justice.

I helped birth this generation and I'm darn proud of them. They are shaping into one of the most socially conscious and outspoken generations in our nation's history. They cannot do it alone, however. We all need to be in this together.

So let's open our minds, my friends. I'm not saying it's easy work, just that it is necessary and ultimately, liberating.

I always tell my students—who will be future teachers, school leaders, policy analysts, and so on—that every way in which our children and youth are different, is every way that we should love.

I believe Jesus affirms this message, for as it is written, 'You will know the truth, and the truth will set you free' (John 8:32). 

And all is well with my soul.

-Angela Valenzuela

#TransLivesMatter

References

Lugones, M. (2007). Heterosexualism and the colonial/modern gender system. Hypatia, 22(1), 186-219.

Lugones, M. (2010). Toward a decolonial feminism. Hypatia, 25(4), 742-759.

Mirandé, A. (2017). Behind the mask: Gender hybridity in a Zapotec community. University of Arizona Press.
Robinson, M. (2020). Two-Spirit Identity in a Time of Gender Fluidity, Journal of Homosexuality, 67:12, 1675-1690.


Laverne Cox has gone from being bullied for acting feminine as a kid in Mobile, Ala., to starring in Orange Is the New Black and becoming a public face for the transgender movement.Photograph by Gillian Laub for TIME


In the beaux-arts lobby of the nourse theater in San Francisco, men in deep V-necks and necklaces walk by women with crew cuts and plaid shirts buttoned to the top.Boys carrying pink backpacks kiss on the lips, while long-haired ladies whose sequined tank tops expose broad shoulders snap selfies. About 1,100 people, many gleefully defying gender stereotypes, eventually pack the auditorium to hear the story of an unlikely icon. “I stand before you this evening,” Laverne Cox, who stars in the Netflix drama Orange Is the New Black, tells the crowd, “a proud, African-American transgender woman.” The cheers are loud and long.


Almost one year after the Supreme Court ruled that Americans were free to marry the person they loved, no matter their sex, another civil rights movement is poised to challenge long-held cultural norms and beliefs. Transgender people–those who identify with a gender other than the sex they were “assigned at birth,” to use the preferred phrase among trans activists–are emerging from the margins to fight for an equal place in society. This new transparency is improving the lives of a long misunderstood minority and beginning to yield new policies, as trans activists and their supporters push for changes in schools, hospitals, workplaces, prisons and the military. “We are in a place now,” Cox tells TIME, “where more and more trans people want to come forward and say, ‘This is who I am.’ And more trans people are willing to tell their stories. More of us are living visibly and pursuing our dreams visibly, so people can say, ‘Oh yeah, I know someone who is trans.’ When people have points of reference that are humanizing, that demystifies difference.”


Photograph by Peter Hapak for TIME


The transgender revolution still has a long way to go. Trans people are significantly more likely to be impoverished, unemployed and suicidal than other Americans. They represent a sliver of the population–an estimated 0.5%–which can make it harder for them to gain acceptance. In a recent survey conducted by the Public Religion Research Institute, 65% of Americans said they have a close friend or family member who is homosexual, while 9% said they have one who is transgender. And as the trans movement has gained momentum, opponents have been drawn in to fight, many of them social conservatives who cut their teeth and fattened their mailing lists opposing same-sex marriage. But perhaps the biggest obstacle is that trans people live in a world largely built on a fixed and binary definition of gender. In many places, they are unwelcome in the men’s bathroom and the women’s. The effect is a constant reminder that they don’t belong.


During her speech, Cox recalled being bullied and chased home from school as kids called her a sissy and a fag, being put into therapy to be cured of feminine behavior and getting assaulted on the street by strangers. She talked of downing a bottle of pills as a sixth-grader, hoping to end her “impure” thoughts. And she spoke about those who didn’t wake up, after suffering violence at their own hands or others’, driven by the enduring belief that trans people are sick and wrong.


“Some folks, they just don’t understand. And they need to get to know us as human beings,” she says. “Others are just going to be opposed to us forever. But I do believe in the humanity of people and in people’s capacity to love and to change.”


Fixing Nature’s Mistake

History is filled with people who did not fit society’s definition of gender, but modern America’s journey begins after World War II with a woman named Christine Jorgensen. (This article will use the names, nouns and pronouns preferred by individuals, in accordance with TIME’s style.) Ex-gi becomes blonde beauty: Operations transform bronx youth, trumpeted the New York Daily News headline on Dec. 1, 1952. Inside was the tale of a soldier born George, who sailed for Denmark after being honorably discharged, in search of a surgeon to physically transform him into her. “Nature made a mistake,” Jorgensen wrote in a letter that the paper printed, “which I have had corrected.”


The “blonde with a fair leg and a fetching smile,” as TIME described Jorgensen in 1953, became a national sensation and led some Americans to question ideas they had long taken for granted, like what makes a man a man and whether a man can, in fact, be a woman. At the time, the word transgender was not yet in use. Instead, America called Jorgensen a transvestite (trans meaning “across” and vest referring to vestments, or clothes); today, those who seek medical interventions are commonly known as transsexuals. Columnists wondered whether Jorgensen could be “cured” or “treated,” and in the decades that followed, many in the medical establishment viewed transsexuality–like homosexuality–as something to correct. In 1980, seven years after homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders, a classification bible published by the American Psychiatric Association, transsexualism was added.


Eventually that entry was replaced by what psychiatrists called gender identity disorder, and in 2013 that diagnosis was superseded by gender dysphoria, a change applauded by many in the trans community. “‘Gender identity disorder’ [implied] that your identity is wrong, that you are wrong,” says Jamison Green, president of the World Professional Association for Transgender Health. The change has helped remove the stigma of mental illness (though some worry that removing “disorder” may make it harder to access health care like hormone therapy). Green describes gender dysphoria as discomfort with the gender a person is living in, a sensation that much of the population will never feel. “Most people are happy in the gender that they’re raised,” says Elizabeth Reis, a women’s and gender studies professor at the University of Oregon. “They don’t wake up every day questioning if they are male or female.”


For many trans people, the body they were born in is a suffocating costume they are unable to take off. “There was a sense of who I was to myself that did not match who I was to other people, and for me that felt profoundly lonely,” says Susan Stryker, 52, a professor of gender and women’s studies at the University of Arizona who transitioned 22 years ago. “It felt like being locked in a dark room with my eyes and ears cut off and my tongue cut out and not being able to connect my own inner experience with an outer world.”


Understanding why someone would feel that way requires viewing sex and gender as two separate concepts–sex is biological, determined by a baby’s birth anatomy; gender is cultural, a set of behaviors learned through human interaction. “Wearing dresses didn’t feel right,” says Ashton Lee, a 17-year-old from Manteca, Calif. “When I was in kindergarten and preschool, we used to line up in girls’ lines and boys’ lines, and I would always struggle on which line to choose, because I didn’t feel like a girl but I didn’t look like the other boys.”


Sexual preferences, meanwhile, are a separate matter altogether. There is no concrete correlation between a person’s gender identity and sexual interests; a heterosexual woman, for instance, might start living as a man and still be attracted to men. One oft-cited explanation is that sexual orientation determines who you want to go to bed with and gender identity determines what you want to go to bed as.


That complexity is one reason some trans people reject all labels, seeing gender as a spectrum rather than a two-option multiple-choice question. The word transgender, which came into wider use in the 1990s after public health officials adopted it, is often used as an umbrella term for all rejections of the norm, from cross-dressers who are generally happy in their assigned gender to transsexuals like Jorgensen.


For the majority of people who are accustomed to understanding gender in fixed terms, the concept of a spectrum can be overwhelming. Last year, when Facebook broadened its options for gender beyond male and female, users suddenly had some 50 categories to choose from. “We generally like to think of things in black-and-white terms, and this just raises so many gray areas,” says Reis. Even some people who are sympathetic to the idea of being trans “just throw their hands up in despair.”


Others reject the notion that a person could have their gender assigned as male at birth but in reality be a woman. “Gender is a known fact–you’re either male or female,” says Frank Schubert, a political organizer who led a failed effort to overturn a new California law that lets students use school facilities in accordance with their gender identity, regardless of the sex listed on their school records. “We introduce this concept called gender identity, and I don’t have any idea what that is. Can you claim a racial identity based on how you feel or the community that you’re growing up in? Can I claim to be an African American if I feel African American?”


Many trans people choose to use hormones and puberty blockers that can result in beards on biological females and breasts on biological males. Some go so far as to get facial feminization surgery or speech therapy, training a tenor voice to spring alto. According to one study, about two-thirds seek some form of medical treatment and about one-third seek surgery. While there remains a public fascination with whether any trans person has had “top” or “bottom” reassignments, these are highly personal decisions that can have as much to do with economic status or the desire to have kids as physical preference. No matter their anatomy, transgender people want to live–and be identified–according to how they feel: to be able to dress and be treated like a woman or a man regardless of what their parents or delivering nurses may have assumed at birth. The focus on what’s in trans people’s pants is “maddening for us,” says Mara Keisling, executive director of the National Center for Transgender Equality. “It’s just not what any of us thinks is an exceptionally interesting thing about us.”


The Generation Gap

Even in the trans community, male-to-female transitions are thought to be more common than female-to-male, though experts caution that exact figures are unknown. At a bustling brunch spot in San Francisco’s Mission neighborhood, Rose Hayes sits straight up, her curly hair in a side-do that hangs around her neck. She and other trans women–male at birth but now identifying as female–are discussing what it was like to start their transitions. Hayes, a software-engineering director at Google, decided to transition after a friend died a few years ago. “I had shut myself down emotionally by being in the closet, and grief opened that up again,” she says. The prospect of proclaiming, in early middle age, that she was ready to realize herself as a woman was terrifying. “There were all these things I was convinced I would lose instantly if I came out,” she says. Some of those fears came true: within a week, her wife of nearly 23 years contacted a divorce attorney. The house was sold within the year.


Hayes is certain she could have had a completely different life if she had been born later. “If the Internet had existed, in any meaningful sense, when I was 21, I would have figured it out,” she says. That alternate reality sits opposite Hayes in a tank top and short purple hair. Teagan Widmer, 25, grew up a pastor’s son in Northern California and now lives as a programmer in Berkeley, where she designed an app called Refuge Restrooms to map gender-neutral, “safe” bathrooms around the world. As with many other millennial trans people, Widmer’s transition started with search results. As a middle schooler who had secretly experimented with wearing women’s clothes, she queried, “How do I hide my penis?” That was the beginning of an education that led to Widmer’s coming out in graduate school.


Her story is a reminder that the Internet has been a revolutionary tool for the trans community, providing answers to questions that previous generations had no one to ask, as well as robust communities of support. And the digital world offers a way to test the water before jumping in. As Widmer puts it, “You can be yourself on the Internet before you can be yourself in person.”


It has also helped expose the broader culture to trans people. Cox’s role on Orange has turned her into a sought-after celebrity. The luxury retailer Barneys featured trans models in a recent ad campaign. And a memoir by the writer Janet Mock that told of her transition from living as young Charles in Hawaii became a best seller. The result has been a radical increase in trans consciousness. When Reis began teaching a trans-issues class at the University of Oregon in the late 1990s, most of the students–already a self-selected group highly attuned to gender politics–had no clue what the word transgender meant. Now, she says, nearly everyone who enters her classroom already knows the term.


That awareness is creating new possibilities. This fall, students in Huntington Beach, Calif., elected a 17-year-old trans girl named Cassidy Lynn Campbell as their homecoming queen. Standing on the football field in a $23 dress, she broke down in tears when her name was announced. “I was crying and sobbing and weeping,” she says. “I was overwhelmed by what a statement it would be, how big it would be.”


Her teary-eyed crowning–a striking event in an Orange County town that was ranked as one of the 25 most conservative in the nation in 2005, according to the Bay Area Center for Voting Research–was celebrated by many as a tolerance milestone. But as Campbell thumbed through congratulations from strangers on Twitter after the game, she also stumbled upon sneers from peers at school, many saying she wasn’t a “real girl” and didn’t deserve to win. She posted a YouTube video that evening, which she later took down, of her crying in front of the computer wearing her sash and tiara. “I can never have something good happen to me and people just be happy for me. Never. I’m always judged and I’m always looked down upon,” she said, wiping tears away with long acrylic nails. “Sometimes I wonder if it’s even worth it, if I should just go back to being miserable and just be a boy and hate myself and hate my life.”


Speaking about the incident months later, Campbell says it was an overreaction. But in the raw pain of her confession is a revelation about how wounding it can be to live outside society’s boundaries, even in this more tolerant age. The statistics also bear it out. According to the National Transgender Discrimination Survey, a 2011 report on nearly 6,500 trans and gender-nonconforming people from each state, nearly 80% of young trans people have experienced harassment at school; 90% of workers say they’ve dealt with it on the job. Nearly 20% said they had been denied a place to live, and almost 50% said they had been fired, not hired or denied a promotion because of their gender status. A staggering 41% have attempted suicide, compared with 1.6% of the general population.


The Personal Is Political


The transgender law center takes up one floor of a skinny building on Telegraph Avenue in Oakland, Calif. The staff there has noticed a shift in the mood, in part because their help-line calls have changed in number and tone. “In prior generations,” says legal director Ilona Turner, “kids who knew they were transgender told their families ‘I’m a boy’ or ‘I’m a girl,’ and their families had no context in which to place that other than ‘That’s not true–stop saying that.'” In the past few years, the help line has started ringing with parents asking what they can do to support their trans children.


On the other end of the line are mothers like Catherine Lee. Her son Ashton told his family he identified as a boy when he was a 15-year-old named Kimberly Marie. Lee soon became an outspoken advocate for the California law fought by a coalition of social conservatives, which ensures his right to use the boys’ bathroom and play on the boys’ sports teams at Manteca High School. When he came out, his mom tried to be supportive, but it wasn’t easy. “I found myself making a lot of mistakes and using the wrong pronouns and confusing people sometimes,” she says. “I would say, my son, my daughter, he or she … It was hard to get Ashton off my tongue.” Less than a year later Catherine was driving Ashton, wearing his mohawk haircut and a tie, to Governor Jerry Brown’s office in Sacramento, where he hand-delivered more than 5,000 signatures in support of the bill.

On May 15, Maryland Governor Martin O’Malley signed a law that protects trans people from being fired or refused service at a restaurant or otherwise mistreated because of their gender identity. 


As in California, opponents have drawn a line in the sand on bathroom access. “I don’t want men who think they are women in my bathrooms and locker rooms,” testified a Marylander named Elaine McDermott at a hearing on the bill. “I don’t want to be part of their make-believe delusion. Males are always males. They cannot change. I’m here to stand up for women, children and their safety.” That criticism rings hollow to state senator Richard Madaleno, who had been pushing the bill for nearly a decade: “We hear this on every gay-rights issue. There’s always this parade of outlandish consequences that are going to occur that never do.”


At least a dozen other states have instituted policies that allow students to play on the school sports team that aligns with their gender identity, often after a panel confirms that they’ve demonstrated habitually living in that gender. One such student is Mac Davis, an 11-year-old from Tacoma, Wash., who just finished his first season on the boys’ basketball team. Through the window of a gym door, he looks like the other sixth-grade boys playing volleyball in gym class: sporting short, dirty blond hair and baggy jeans, checking his phone and playing rock, paper, scissors for the serve. School administrators have tried to be accommodating, instructing teachers to ignore the name on the roll-call sheet and letting him change in a private area before practice. “Our goal is to make him successful,” says Bryant Montessori principal Sandra Lindsay-Brown, “so he has good days and not bad days.”


Mac has had plenty of bad days. “I have almost always felt alone,” he says, sitting on a couch at home with his mom on his 11th birthday. “Most of the time it’s like I’m sitting in a corner, until I make that one friend that helps me get up and dance.” His older sister, though protective, says she doesn’t “believe in [being] transgender” and still refers to Mac as her sister. Sports have provided a crucial outlet.


At women’s colleges, administrators are struggling with how to handle applications from trans women. An even larger question looms over the military, where perhaps as many as 15,500 transgender troops await the day when they can serve openly. On May 11, Defense Secretary Chuck Hagel offered a spark of hope when he said that the policy prohibiting their service “continually should be reviewed” and added that “every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it.” Some advocates for LGBT military personnel believe Hagel’s remarks foreshadow a formal policy review. Others caution that the military remains a slow-to-change institution that is only beginning to adapt to the repeal of “Don’t ask, don’t tell.”


And then there is a far more basic challenge: how to get gender markers changed on official documents like driver’s licenses, birth certificates and passports. Thanks to the efforts of the National Center for Transgender Equality and other advocates, what in many cases used to require proof of surgery can now be handled with a doctor’s note. But other obstacles abound. Many insurance plans have explicit exclusions for treatments related to gender transitions. Five states–California, Oregon, Connecticut, Vermont, Colorado–as well as Washington, D.C., have prohibited such clauses, and activists are pushing for more to follow suit, arguing that many of the services transgender people seek, like hormone-replacement therapy, are provided to nontrans people for other reasons. Eighteen states and D.C. currently have nondiscrimination measures that include gender identity. A federal bill barring discrimination against gay and transgender workers, the Employment Non-Discrimination Act, passed the Democratic-controlled Senate in November but has stalled in the GOP-controlled House. Years may pass before the measure does.


After Cox finished her speech at the nourse theater and took questions about media stereotypes and trans sex workers, a person emerged from backstage with a piece of lined notebook paper, scrawled on by a child. The presenter read it to Cox: “I’m Soleil. I’m 6 and I get bullied. Since I get teased in school, I go to the bathroom or to the office. What can I say to the kids who tease me? What if they don’t listen to me?” The room was heavy with sighs and empathy–and then yells of solidarity as it was discovered that Soleil was in the audience. An older woman made her way to the stage carrying Soleil, who wore a polka-dot shirt. “You’re beautiful,” Cox told Soleil. “You’re perfect just the way you are. I was bullied too, and I was called all kinds of names, and now,” she said, smiling, “I’m a big TV star.” The crowd erupted again, and Soleil reached out her hand. “Don’t let anything that they say get to you,” Cox continued. “Just know that you’re amazing.” From the audience, it was impossible to tell if Soleil had been born female or male, whether the child identified as a boy or girl. And Cox says it doesn’t matter. “We need to protect our children,” she says, “and allow them to be themselves.”


Monday, August 07, 2017

Encouragement for Progressives: Citizen Activism and the Courts

National ACLU director and Georgetown Law School Professor David Cole's recently-published book, Rules for Resistance: Advice from Around the Globe for the Age of Trump, is worth reading.

Just came across this write-up on him by Jedediah Purdy that examines yet another critical text by Cole titled, Engines of Liberty. It looks at important recent Supreme Court decisions that help him to make his larger argument that constitutional law is and can be a form of politics as expressed herein:

"Part of the reason so many elite lawyers and judges underestimated the changeability and surprise of constitutional law is that they took court precedents and standard legal reasoning too seriously, and put too little weight on the creativity and power of grassroots politics."

In summary, Supreme Court Justices are impacted by cultural shifts, too.  This should be encouraging to all progressives. 

-Angela

Citizen Activism and the Courts

David Cole’s Engines of Liberty is a welcome corrective to a conventional way of narrating constitutional law as being the work of federal courts, especially the Supreme Court, whose justices are nerd-celebrities, internet memes, and partisan heroes or villains. Cole argues that constitutional law comes from sources that are more democratic, and more obscure, than judges. It begins in the work of citizen activists, quixotic lawyers, and legal scholars willing to buck mainstream views and take unfamiliar ideas to their logical conclusions. If progressives hope the courts will stand in the way of Donald Trump’s enormities, Cole’s arguments suggest, they had better mobilize now for the constitutional values they hope to see judges protect in a few years.
Cole makes his arguments by telling the background stories behind three important legal developments of the last 15 years: the Supreme Court’s embrace of same-sex marriage in 2015, its announcement of a constitutional right to individual gun possession in 2008, and its pushback against George W. Bush’s “War on Terror” in a series of cases concerning the rights of detainees and other targets of that “war.” In each instance, courts behaved surprisingly.
As late as 1990, Warren Burger, the conservative former chief justice of the Supreme Court, called the idea of constitutional right to gun possession a “fraud.” Most courts and constitutional scholars agreed with him. Less than a decade before the Court announced a right to same-sex marriage in Obergefell v. Hodges, leading advocates for marriage equality adamantly opposed such a suit because they expected their side to lose badly. Pushback against the war on terrorism is less clean-cut, but the federal courts, in times of war and perceived emergency, have often approved draconian measures, such as internment of Japanese Americans in World War II, imprisonment of pacifists and other radicals during World War I, and criminalization of communist activity during the Cold War. Although lawyers at the American Civil Liberties Union, the Center for Constitutional Rights, and other advocacy groups had no doubt that they needed to swing into action against the Bush administration’s response to the al-Qaeda attacks of September 11, 2001, Cole tells us that they had little expectation of success. (He would know. He is now the national legal director of the ACLU, and, besides teaching at Georgetown Law School, has a long history of work as a civil-liberties lawyer.)
Part of the reason so many elite lawyers and judges underestimated the changeability and surprise of constitutional law is that they took court precedents and standard legal reasoning too seriously, and put too little weight on the creativity and power of grassroots politics. Advocates for same-sex marriage spent many years pressing for intermediate forms of legal recognition, especially civil unions. They engaged in political campaigns for sympathy and inclusion in receptive states like Massachusetts and Vermont. They tried out constitutional arguments in state courts, winning marriage equality in 2004 in Massachusetts (chosen partly for its liberal politics, partly because a cumbersome amendment process made it unlikely that voters would overturn the decision by changing the state constitution); the same arguments ended up carrying the day in Obergefell in 2015, but almost certainly would have failed at the Supreme Court in 2004. The most important thing was that enough of the country got used to the idea that a same-sex couple’s marriage was really a marriage. With that done, it was a relatively short step to conclude that constitutional freedom and equality required legal recognition of that marriage.
While marriage equality was moving from a radical goal to a constitutional guarantee, gun-rights activists were helping their favorite liberty along the same path. As Cole tells it, the National Rifle Association began its long march in 1977, concentrating on state legislatures to win laws blessing the carrying of concealed guns, guaranteeing a handgun license to most law-abiding applicants, and authorizing the notorious “stand your ground” response to perceived threats. Gun advocates also won state-constitutional rulings and amendments protecting a right to gun ownership. (Some states, such as Pennsylvania and Vermont, had protected individual rights to own guns for hunting or self-defense in their state constitutions since before the federal constitution existed.) Although the official consensus of elite lawyers and judges was still that the Second Amendment’s “right of the people to keep and bear arms” applied only in connection with service in what the amendment calls a “well regulated militia,” that view was being undercut on the ground.
Gun-rights advocates also benefited from, and sometimes helped to finance, a groundswell of historical scholarship suggesting that an individual right to gun possession was a widely recognized part of founding-era legal culture, and that the Second Amendment might well have been intended to protect it even apart from militia service. Cole suggests that this scholarship, along with the increasing influence of constitutional originalism, gave five Supreme Court justices confidence in a ruling that would have been nearly unimaginable a few years earlier.
The lawyerly resistance to the “War on Terror” fits Cole’s grassroots story less cleanly. As he points out, in the aftermath of September 11, there was little constituency for terror suspects. But an unrelenting series of challenges moved the Bush administration back from its original impulse to embrace torture, military tribunals with no judicial oversight, and “extraordinary rendition” of suspects to countries with more savage interrogation techniques than waterboarding. The results were mixed—today, drone assassinations and surveillance continue, and restraints on the latter owe more to Edward Snowden than to the ACLU—but a series of Supreme Court decisions, congressional actions, and presidential reversals brought counterterrorism policy from an extra-legal zone into a measure of procedural regularity, oversight, and transparency.
Cole’s main points here are tactical. Without a strong domestic constituency, civil-liberties advocates built alliances with foreign governments whose citizens the United States was holding without due process, moving the terrain of advocacy from state-level grassroots work to international diplomacy. Rhetorically, they identified Bush’s policies as lawless, and appealed to courts’ sense of duty (and to that of some politicians) to defend “the rule of law” against unchecked official power. Cole argues that, when the Supreme Court asserted legal oversight of the Guantanamo prison camp, the justices were self-consciously trying to stay on the right side of history, and had in mind the notorious 1944 decision of Korematsu v. United States, which upheld Franklin Roosevelt’s internment policy. (Civil-liberties lawyers had filed a friend-of-the-court brief in the name of Fred Korematsu, whose resistance to internment lent his name to the case.)
This book leads one gently toward a pair of conclusions: first, that constitutional law is a form of politics, and second, that this fact should be somewhat heartening at the present moment.
This book leads one gently toward a pair of conclusions: first, that constitutional law is a form of politics, and second, that this fact should be somewhat heartening at the present moment. Constitutional rulings move from unimaginable to possible to mainstream because of the sincere conviction and activism of the present generation, not because of James Madison’s design or the third alternative definition of the word “arms” in an 18th-century dictionary. Even originalism, whose advocates present it as an exit ramp from politicized jurisprudence, is really a form of political advocacy: no NRA, no new Second Amendment law, never mind what a few law professors might
dig up in the historical archives.
Although Cole’s book appeared just as Donald Trump was emerging as the candidate to beat in the 2016 Republican primaries, and so is written for the ever-receding world of Hillary Clinton and Jeb Bush, it speaks to the many everyday people who raced to airports to protest the Trump administration’s travel ban, who began phoning representatives daily or showing up at town-hall meetings, and who generally feel that their country is at stake in the next four years. That feeling is part of what marks constitutional politics, whether it belongs to the Tea Party or to mobilized progressives. If Cole’s argument holds, these protests, along with a lot of other organizing and legal advocacy, will help to decide whether the federal courts go along with Trump’s nationalist attacks on civil liberties and basic legal protections, or defend and even expand the rights of dissenters and noncitizens.
Besides their political relevance and civic usefulness, Cole’s stories translate more than a decade of groundbreaking work by other legal scholars. In 2004, Larry Kramer, a legal historian, published The People Themselves, a study of the role of popular politics and direct mobilization in shaping and enforcing constitutional law. Since then, leading constitutional theorists have doubled as students of social movements and organizing strategies, producing illuminating studies of the constitutional politics of originalism, gun rights, marriage equality, and much more. The study and practice of law are infused these days with the kind of political self-consciousness that Cole celebrates.
In choosing stories that emphasize citizen activism, Cole has left out important ways that the federal courts are anti-democratic and distinctly un-progressive, although not at all apolitical. In a series of issues, the Supreme Court has taken the right-wing side of intensely partisan disputes in ways that are harder to trace to a noble idea of constitutional citizenship than are Cole’s examples. For instance, there is the fight over the social safety net. The Court’s 2012 ruling on the Affordable Care Act came within one vote of gutting the entire law, and crippled the Medicaid expansion that formed a key part of the ACA’s design. The reasoning behind this ruling was just as novel and unexpected—to put it gently—as marriage equality. It didn’t come from nowhere, but from Tea Party–style advocacy that objected to President Obama’s expansion of the safety net and pushed back in the courts after losing in the political process.
Then there is the question of race. In 2013, the Court significantly weakened the Voting Rights Act, clearing the way for new barriers to voting, which Republican legislatures hurried to adopt. For decades, the Court has been on the brink of invalidating affirmative and race-conscious integration policies in public schools. The Court’s affinity for the center-right wing of American race politics reflects how conservative justices make constitutional law out of the Republican Party’s preferred interpretation of the civil-rights era: Martin Luther King Jr. and Brown v. Board of Education cleared up Jim Crow, and now we can all be judged by “the content of our character” and stop talking about structural inequality and the need to address race as an ongoing reality.
Courts have also turned the First Amendment into a doctrine that supports economic power as much as political dissent. Some of this change has happened in the arena of campaign spending. Although the 2010 decision in Citizens United gets the most attention, as early as 1976 the Court announced an extremely skeptical approach to campaign-finance reform. It is now constitutional law that the government may not try to “level the playing field” in politics by limiting political spending for the wealthy or even providing certain kinds of public-funding subsidies to their opponents. There is also a broader front in anti-regulatory First Amendment law. In recent decades, the Court has used the First Amendment’s free-speech protections to attack economic regulation and public-health laws, protecting pharmaceutical companies’ data collection and marketing strategies as if they were political speech, and striking down bans on alcohol ads near schools and mandatory health disclosures on cigarette packaging. All of these constitutional defenses of private money and private business are, as much as Cole’s examples, the products of activism and mobilization, in this case by economic libertarians and Chamber of Commerce types (such as the National Federation of Independent Business, which brought the suit that nearly sank the ACA).
There are, of course, good-faith debates about all of these questions, as matters of policy and of constitutional interpretation. But what these cases suggest is that the Supreme Court is an intensely political institution even when citizen activism of the kind Cole focuses on is far from the center of the action. The most politically important constitutional rulings in recent years are not David-and-Goliath stories, but more conventional kinds of partisan judgments, in which powerful interests end up getting what they want from judges after losing—despite every advantage—in the political process.
It isn’t David Cole’s goal, in this valuable book, to answer the deeper question of when, exactly, a democratic society should want its courts to second-guess its elected lawmakers and when it should tell judges to stand down. But it is part of the question the rest of us confront. In the last century, progressives have had many different views about this question. Franklin Roosevelt’s supporters largely wanted the federal courts out of the way of their legislative and administrative reforms. The civil-rights era depended on federal judges’ willingness to wade into controversial arenas such as desegregation. Modern civil libertarians want the courts to be bold on abortion and gay rights, but allow Congress to legislate for voting rights and a strong safety net. Cole’s book tells us that in the age of Trump, when courts can seem at once indispensable to progressive goals and dangerous to them, threading the needle will be as much a matter of politics as one of principle.