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Changing Constitutional Law in the Post-Scalia Era: Lessons from the Past for the Future

The Power of Citizen Activists to Make Constitutional Law


How did gay and lesbian couples’ right to marry go from unthinkable to inevitable? How did the individual right to bear arms, dismissed as fraudulent by Chief Justice Warren Burger in 1990, become a constitutional right in 2008? And what compelled President George W. Bush to rein in many of his initiatives in the war on terror before leaving office? We are likely to answer that, in each case, the Supreme Court remade our nation’s most fundamental law.

Yet the award-winning legal scholar David Cole argues that citizen activists are the true drivers of constitutional change. Cole’s new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, illustrates how time and again, associations of ordinary Americans confronting long odds have managed to transform the nation’s highest law, and have done so largely through advocacy outside the federal courts altogether.

Please join the Brennan Center for Justice and the Open Society Foundations for a discussion celebrating the publication of Engines of Liberty and exploring how this history of activism can best inform strategies for advancing social change, both through and around formal legal channels.


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    David Cole


    David Cole is the the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center. A leading civil liberties lawyer, he is the author of No Equal Justice and Enemy Aliens. Cole was an Open Society Fellow from 2013 to 2014.

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    Jeffrey Toobin


    Jeffrey Toobin is the bestselling author of The Oath, The Nine, Too Close to Call, A Vast Conspiracy, and The Run of His Life. He is a staff writer at the New Yorker and the senior legal analyst at CNN.

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    Wendy Weiser


    Wendy R. Weiser directs the Democracy Program at the Brennan Center for Justice at NYU School of Law. Prior to joining the Brennan Center, she was a senior attorney at NOW Legal Defense and Education Fund.

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