Robert L. Tsai

Document Type

Article

Abstract

This article explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively recharacterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working within a broader professional and political culture that respects the role of other branches of government, including the prerogative of the courts to interpret the laws. A useful case study concerns the Obama administration’s shift in position on the federal Defense of Marriage Act (DOMA) and its subsequent articulation of a theory of equality that encompasses same-sex marriage. This episode should be understood, in part, as an act of presidential leadership over individual rights, though presidentially-instigated rights differ from judicially-derived ones. Recognizing this model of leadership doesn’t require embracing executive supremacy, but it does suggest we ought to emphasize institutional dynamics over party politics or social movements in explanations of constitutional change.

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