Forty-five years ago the “Summer of Love” began with a San Francisco rock concert that drew thousands of students and dropouts determined to change society with their childlike visions of peace and freedom.

They succeeded. And the Constitution hasn’t been the same since. Its 225th birthday this week has been a time to honor our beginnings, but also a moment to remember these past decades of phenomenal change, and to ponder what lies ahead.

Since our social revolution in 1967, in case after case, the individualism of so-called “hippies” has been tested, debated, vilified and celebrated. In the end, that movement forged new, broader meanings for liberty second only to what the Civil War wrought.

Even though the freedom to be different was essentially written into the Constitution’s Bill of Rights, it took rock ‘n’ roll, flower children and a divisive war to make “doing your own thing” a legal movement that is as inexorable and controversial today as when it started.

The Summer of Love was the season that activated the largest generation of teen-agers in the nation’s history, the baby-boomers. Children of middle-class parents with enough money to send them to college, they had the time and the inclination to rebel.

What was born that summer did not end with the ’60s. Proving again that freedom, once loosened, is not easily contained, the love children prompted Americans to rethink their own assumptions about what was decent and acceptable. Once-ridiculed trappings of the counterculture — health food, rock music and longer hair — became part of mainstream America.

As the public has grown more tolerant of unconventional lifestyles, the courts have stretched the Constitution beyond tightly defined freedoms of speech, political association and religion. Judges have been persuaded to uphold unorthodox behavior they once would have forbidden. Today, advocates for same-sex marriage are gradually winning in the courts and in state legislatures, thanks in part to what began in the Summer of Love.

Our Secret Amendment

The spirit of constitutional evolution is embedded in a provision that, strangely, has never really been cited as controlling authority in a Supreme Court case: the Ninth Amendment. It says,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Written by James Madison, the Ninth Amendment was passed by Congress with little debate in 1789 and was ratified easily by the states as part of the Bill of Rights. Since then, the courts virtually ignored it, perhaps fearing its open-ended invitation to change.

Still, in a 1965 opinion, the Supreme Court frankly stated,

“The language and history of the Ninth Amendment reveal that the framers of the Constitution believed that there are additional fundamental rights, which exist alongside those fundamental rights specifically mentioned” in the Constitution.

So-called “strict constructionists” argue that the Constitution should only be applied as the founders specifically intended. But in the Ninth Amendment its authors were telling us otherwise, that they knew they had not thought of everything, and they encouraged us to expand our rights as we see fit.

Indeed, our nation’s founders were much more modest about their handiwork than those who now insist their original intent must be revered and applied without any adjustment.

“Nothing human can be perfect,” said Pennsylvania delegate Gouverneur Morris, who wrote the final draft of the Constitution. “Surrounded by difficulties, we did the best we could, leaving it with those who come after us to take counsel from experience, and exercise prudently the power of amendment.”

As American history unfolded, constitutional change became constant. The nation has approved 16 amendments to the Constitution since the Bill of Rights was adopted.

Judicial interpretation has been used much more often. The U.S. Supreme Court has interpreted the Constitution in thousands of cases, often reversing its previous rulings or giving bold new meaning to neglected phrases in the document.

Even former Chief Justice William Rehnquist, considered a stalwart of strict construction, once praised the Constitution’s evolving nature.

“Change is the law of life, in government as well as in other matters,” Rehnquist said. “There is no reason to treat our present Constitution with an ark-of-the-covenant mentality. Two hundred years from now, our present-day Constitution may well seem to our descendants to have many shortcomings which were not apparent to us.”

The Chief of All Justices

Even the Supreme Court’s power to interpret the Constitution stems from an exceedingly liberal reading of the document. Some would say it was simply made up, having no basis in the Constitution’s words.

Today, we take it for granted that the Supreme Court can strike down laws that it deems unconstitutional. But that was not considered legally possible until more than a decade after the Constitution’s adoption, when a Virginia frontiersman invented a new role for the judiciary.

“It is, emphatically, the province and duty of the judicial department to say what the law is,” wrote Chief Justice John Marshall in Marbury vs. Madison, an 1803 Supreme Court opinion that forever changed American constitutional law.

Marshall, a western Virginia woodsman and Revolutionary War hero, had persuaded his fellow justices to declare a federal law unconstitutional, even though the Constitution specifically gave that power to no one.

In assuming a right to decide what the Constitution means, Marshall, then 48, created a legal principle that reached well beyond his 34 years at the helm of the Supreme Court. His work underlies momentous rulings issued generations later, such as the orders in the 1950s to desegregate public schools.

“Marshall had the wit and courage to make the most of his opportunity,” said former Chief Justice Warren Burger in a London speech in 1972. “He was the Great Chief Justice on our side of the Atlantic. How could there have been a greater one?”

It was during his Revolutionary War years that Marshall saw a need for strong central government, a lesson he remembered on the court as he engineered ways to strengthen federal powers.

At age 21, Marshall served with Gen. George Washington during the miserable winter at Valley Forge, when the loosely knit Colonies nearly bungled their bid for independence. Even though clothing, food and ammunition were plentiful, the lack of centralized authority kept the supplies from reaching the soldiers.

Seeing this handicap led Marshall later to write an opinion expanding the power of the federal government to control transportation networks.

Marshall’s career as a leading federalist began soon after the war. He debated Patrick Henry, the most eloquent anti-federalist, in favor of ratifying the proposed Constitution.

Washington offered him several jobs in the new government, including those of attorney general and minister to France. Marshall declined in favor of making money to compensate for his family’s losses in the war.

He spent only two months in law school, but his natural skills as a tactician and an incisive speaker made him one of the country’s highest-paid lawyers, earning more than $5,000 a year. Not intrigued by the philosophical debates of his more educated contemporaries, he preferred the thrill of arguing real cases.

Even so, a few potential clients were put off by Marshall’s eccentricity. Shunning the powdered wig and satin breeches favored by most lawyers, Marshall wore plain linen clothes and bundled his hair in a ponytail. A bit absent-minded, he sometimes misplaced important court documents, and his eyes wandered during conversations that bored him.

Marshall’s financial success eventually allowed him the luxury of public office. After stints in the Virginia Legislature and the U.S. Congress, he became minister to France under President John Adams.

As Adams prepared to leave office, the post of chief justice became vacant for the fourth time in 12 years. The Supreme Court was not considered a very important branch of government in its early days, and few were interested in serving on it.

Adams knew that this time he needed a strong federalist in the job — someone devoted to a strong central government. Thomas Jefferson was taking over the presidency, and as a staunch anti-federalist he could be expected to weaken much of the federal power gained by Washington and Adams (although he turned out to be far more friendly to power once he had some).

Adams turned to Marshall. In his third year of office the new chief justice entered a showdown with Jefferson in Marbury vs. Madison. Although Marshall’s invention of the court’s right to interpret the Constitution escaped immediate notice by the press and public, Jefferson was enraged.

Jefferson warned that letting the court decide what the Constitution means would make the document “a mere thing of wax in the hands of the justices.” He believed that each branch of government “has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

With the Marbury decision, Marshall began the practice of issuing written opinions. During his next three decades on the court, he often pleased the federalists by using interpretation to expand many powers granted to the federal government under the Constitution.

The jurist’s immeasurable contribution to federalism led Adams to call his appointment of Marshall “the pride of my life.”

It is arguable whether Marshall’s disdain for the social pretensions of his contemporaries means he would have been a hippie in 1967, but there is no doubt that his legacy – creating the Supreme Court’s power to interpret our Constitution – helped make the Summer of Love the law of the land.

(Craig Crawford, The Orlando Sentinel, 8/16/1987) — Alan Reitman reaches for what he calls “The Bible,” a blue looseleaf notebook filled with provocative policies he has advanced during 39 years as a national spokesman for the American Civil Liberties Union.

“We take policy-making seriously,” said the ACLU’s associate director, flipping through the 500-page book in his New York City office. “We study and argue for months, sometimes years.”

The book reads like a history of the modern struggle over what Reitman calls “our client, the Bill of Rights.” Through it all, the ACLU has become perhaps the nation’s most unpopular private institution.

“We are not destined to be loved by a majority of Americans,” Reitman, 66, said. “We are the nation’s gadfly, its Jiminy Cricket conscience.”

Begun in 1920 to combat the Wilson administration’s mass arrests of protesters against American involvement in World War I, the ACLU has represented, without charge, a wide variety of people whose civil liberties were challenged:

• John T. Scopes, a high school teacher who in 1925 was convicted of violating a Tennessee law against teaching evolution.
• The approximately 110,000 Japanese-Americans held in camps after the attack on Pearl Harbor in 1941.
• Government employees who refused to take anti-communist loyalty oaths during the 1950s.
• Florida inmate Clarence Gideon, who claimed successfully in 1963 that criminal defendants should be given a lawyer if they can’t afford one.
• The American Nazi Party, which in 1977 won the right to demonstrate in Skokie, Ill., a largely Jewish suburb of Chicago.

The ACLU has grown steadily from its initial 40 members to nearly 200 full-time staffers, more than 250,000 members and a $15-million annual budget from grants and membership dues.

During Ronald Reagan’s presidency the ACLU enjoyed a dramatic rise in membership and contributions. Reitman attributes that to anti-libertarian views espoused by several administration figures, including Attorney General Edwin Meese, who said the Bill of Rights affords citizens protection from the federal government but not from the states. “In Meese,” Reitman said, “we have a live devil.”

ACLU officials insist that they defend the liberties under attack, not the individuals. They believe that even the most unloved Americans should be protected from restrictions of their rights, in order to preserve constitutional freedoms for everyone.

“The Bill of Rights puts limits on what the majority can do to the minority,” legal director John Powell said. “But it seems we’re always fighting a rear-guard battle against those who ignore the limits. Americans should understand that what we’re doing is the best way to protect people from government.”

Still, the ACLU is at odds with most Americans in case after case, reinforcing its reputation for being wrongheaded.

Orange County (Fla.) Sheriff Lawson Lamar echoed that sentiment when he was told last month that ACLU officials criticized his program of using undercover deputies wearing black masks to stop and question motorists on a street notorious for drug dealing.

“We’re not trying to harass anybody,” Lamar said. “Frankly, if the ACLU is concerned about this, it underscores the fact that this is a good program.”

The ACLU’s maverick image is reflected throughout its eight-story building about a block from Times Square, the world’s capital of free expression. Some workers wear sandals. Others make pots of hot tea at their desks. Waiting for a slow elevator, one employee curses loudly, and no one seems to notice.

“We go to the heart of what a person does, not outward appearances,” Reitman said, “although we would object if someone considered wearing no clothes their means of personal expression.”

Even though it provokes hostility, the ACLU represents hope for many Americans.

“We’re a private organization that defends the Bill of Rights,” receptionist Cheryl Douglas tells a caller who is asking for legal help. She answers nearly 500 such calls every day. Many are referred to ACLU chapters, which are found in all 50 states.

On the wall near Douglas’ desk, a poster sums up the ACLU philosophy: “The Bill of Your Rights. Celebrate it. Defend it. Use it.”

[Update: Reitman died at age 91 in July, 2012, at his home in Palm Desert, CA]

(Craig Crawford, The Orlando Sentinel, 7/19/1987) — One day in the spring of 1980, Diane Joyce took a break from her northern California job shoveling asphalt, put a dime into a phone outside a convenience store and helped expand the rights of America’s working women.

The call was to the affirmative action coordinator of Joyce’s employer, the Santa Clara County Transportation Agency. Joyce complained that because of her sex, the agency had refused to promote her from road maintenance worker to radio dispatcher.

Diane Joyce

Joyce is a widowed grandmother who wears jeans to work and curses freely. A supervisor once wrote in an evaluation that she “doesn’t act like a lady.” Years ago she grew tired of conforming to expectations.

“I challenged what I was told about who I was supposed to be,” said the thin, chain-smoking Chicago native. “But you know the attitude: A woman with an opinion is ‘argumentative.’”

Recognizing that it had fewer female workers than did the area’s private employers, the county relented and promoted Joyce. But Paul Johnson, the man in line for the job, sued the county, claiming reverse discrimination.

A federal judge voided Joyce’s promotion, saying the county had violated laws against discrimination by considering her sex in the decision. So Joyce, who was not a party in the lawsuit, was forced to return to the road crew.

Then, in 1985, a federal appeals court in San Francisco decided Joyce’s promotion was fair because the agency was trying to remedy an imbalance in its work force. Of the 238 employees in the job grade that included radio dispatchers, none were women at the time of Joyce’s promotion.

After the appeals decision, Joyce regained her dispatcher’s job. Johnson took his case to the U.S. Supreme Court, where it became the climax of a long struggle among the justices over whether affirmative action amounted to unconstitutional discrimination in reverse.

In March the justices agreed with the appeals court and upheld Joyce’s promotion. It was the first Supreme Court endorsement of affirmative action for women and the first ruling to give minority and female workers special treatment on the basis of statistical evidence of hiring imbalances rather than proven discrimination.

The decision, along with an earlier 1987 case in which the justices allowed strict quotas, has given companies their first clear signal to move ahead with affirmative action.

Joyce, who once refused to join the National Organization for Women because “they’re too hard on housewives,” became a model for feminists. Her picture was on the front page of The New York Times. She appeared on Donahue and was interviewed by reporters from as far away as Italy and Japan.

On the job last month in the tiny green building where she keeps track of the county’s maintenance crews, Joyce berated a driver over the radio.

“Knock off the coffee and get on time,” she told him. Then, off the radio, she added, “That should embarrass him.”

Joyce relishes her work, which, in addition to keeping track of the drivers, includes organizing time sheets and completing maintenance reports. She scoffs at the notion that some jobs and lifestyles are for men only, an attitude that haunted her during Supreme Court arguments about her promotion.

She recalled that Justice Antonin Scalia argued that no woman had filled the job of dispatcher because none had wanted it — and that he later wrote a bitter dissent to the majority opinion. “Well, I’d like to meet him in a boxing ring with a pair of gloves,” Joyce said. “You’d see a 100-pound woman who could lift a ton.”

Joyce is used to resisting what she considers prejudiced men. Her high school guidance counselor in Chicago wouldn’t let her take a shop class because “nice girls don’t.”

At the University of Illinois, her faculty adviser discouraged her from majoring in architecture and pressured her to study liberal arts. “After several weeks of dance and other junk, I dropped out.”

For a while Joyce thought about joining the Army, but friends told her that “only women who were lesbians went into service. I figured it would be a good way to meet men.”

Later, she often fought her husband over her “masculine” habits, which included getting a full-time job. When he died of cancer in 1969, she moved to California with her four children and started working for the transportation agency.

“There was no women’s liberation then, and no assertiveness classes,” Joyce said. “It was just me against all the brainwashing. Even today, a lot of women are brainwashed into thinking they can’t do some things.”

The Supreme Court victory “restored most of my faith in what they taught us about equality in civics class,” Joyce said. “One of my duties at work was to raise the flag each morning. For a while I cursed the thing all the way up the pole. Now I feel proud of it again.”

[Update: Diane died in 2011. Over the years we stayed in contact, sporadically. I'll never forget her favorite saying: "The sin is not to try." -- Craig]