Tag Archives: ACLU

Libertarian/Civil Libertarian

Later today, I’ll be speaking to the state Libertarian convention about the ACLU. Here’s the speech I plan to deliver–another longer-than-average read, tendered with my apologies! (After this, I fully expect to return to my much shorter “regularly scheduled broadcasting”…)

____________________________________________________

I think that one of the reasons I was asked to speak today is that—at one time or another—I have been a member of all three political parties: Republican, Libertarian and now Democratic. It really isn’t because I can’t make up my mind. I like to think it’s because I reject an approach to political identity that seems all too common among political partisans: pick a team (sort of like a sports team) and stay loyal to that team no matter what. Get your news exclusively from Fox or MSNBC, read only the blogs that pander to your “team,” ignore information that doesn’t fit nicely with your chosen identity, and of course, vote accordingly.

My changing affiliations do reflect some changes in my personal understanding of policy issues, but they are much more the result of dramatic changes in my original party—the Republican party—over my adult life. As I like to say, I didn’t leave the GOP—the party left me.

That said, no matter what my partisan affiliation, I have always been a civil libertarian—a card-carrying member of the ACLU—and I have always been an advocate of fiscally responsible government. Those positions used to be consistent with Republican philosophy and that was why I originally joined the GOP. I would argue that Republicans can no longer credibly argue that they stand for the principle of limited government.

In 1980, when I left my position as Corporation Counsel in the Hudnut Administration to run for Congress against Andy Jacobs, Jr., I was pro-choice and pro-gay rights (at least, as gay rights were understood back then), and I won a five-way Republican primary. When I lost the general election, most local pundits said I lost because I was much too conservative.

Think about that for a minute.

By 1992, when I became Executive Director of the Indiana  affiliate of the ACLU, the GOP had already undergone considerable change. That was the year that Bill Hudnut was booed on the floor of the Republican National Convention because he was prochoice—the same year Pat Buchanan made a convention speech that people quipped sounded better in the original German.

When the ACLU announced that it had hired me, NUVO, Indianapolis’ alternative newspaper, ran a huge red headline proclaiming “ICLU taken over by card-carrying Republican!” One member resigned: he said my political affiliation was inconsistent with civil liberties and the Board was insane to hire me.

I had been a “card-carrying” member of the ACLU since 1967 and a politically active Republican since 1964, and up to that point, I’d considered the two affiliations entirely consistent. In fact, I finally wrote a book because I got tired of people asking me “What’s a Republican doing at the ACLU?” It’s still in print, but today the title seems quaint: “What’s a Nice Republican Girl Like Me Doing at the ACLU?”

Now, I should clarify that I was a Goldwater Republican.  Back then, Goldwater Republicans believed that government power is easily misused, and thus must be carefully monitored and limited. They weren’t anarchists; they recognized that government is a necessary mechanism through which citizens establish order and provide for the common welfare. But it was a recognition that concentrated power, even in the hands of the most benign and well-meaning functionaries (maybe especially in such hands) is a potential threat to individual freedom.

If liberty is something we actually value—rather than something to which we pay dutiful lip-service—prudence requires that we limit the ability of the state to interfere with our personal or economic behaviors—that we limit laws to those that are truly necessary.  People of good will can argue about what is necessary, where to impose those limits and where to draw those lines, but restraining the power of government to invade either one’s boardroom or bedroom used to be the Republican message.

Exactly the same logic impelled my membership in the ACLU. If free markets are good for our economic health, surely markets for ideas are equally desirable. Furthermore, liberty isn’t divisible—a government that can dictate my reading material or religious beliefs or my associations can just as easily deprive me of the use of my property, and vice versa. How secure are any of our rights—political or economic—against a government that can decide who gets rights and who doesn’t?’ The issue is the same: the power of the state.

I spent a substantial portion of my tenure at the ACLU explaining the organization to people who had a very distorted image of who we were, people who simply didn’t understand what we did.  In the process, I discovered that very few people–even politically active, aware people–know what civil liberties are. Fewer have read the Bill of Rights, let alone the Federalist and anti-Federalist arguments that accompanied its adoption. American ignorance of our own history and legal system is one of the unremarked scandals of our educational system, and it’s the reason I have recently established the Center for Civic Literacy at IUPUI.

During my six years at the ACLU, I found that there are three major misconceptions about the organization. The first involves what I call “endorsement confusion.” For some reason, people have a real problem separating the defense of someone’s rights from an endorsement of the way he or she is exercising those rights. So if we say the KKK has a right to use the public streets just like everyone else, we are accused of agreeing with the KKK.

That’s nuts. The ACLU can defend your right to choose the books you read without approving of the books you choose, or oppose police brutality without being pro-criminal.

The issue for civil libertarians is who decides? Not what decision is made, but who has the power to make it. In a free country, people will make lots of decisions I don’t like. Some of those decisions will be harmful, or even dangerous. But the alternative is to allow government to make them—which can be a far more dangerous proposition.

The second misunderstanding comes from those who believe that the Bill of Rights is some sort of free-floating protection against all unfairness in society. They don’t understand that the Bill of Rights restrains only government, and that no matter how obnoxious or evil Walmart or Chik-Fil-A may get, they aren’t violating your civil liberties. Only the government can do that.

The most troubling misunderstanding is also the most fundamental: people really do believe that the United States is a majoritarian democracy. When I spoke to high school classes, I would typically begin by saying “This is America, so the majority rules, right?” And virtually every time, all the hands would shoot up and all the heads would nod. Then I would ask  “So you can vote to make me an Episcopalian, right?” That would generate confusion; they knew enough to know that they couldn’t vote to make me join a particular church, but they really didn’t know why. The “why,” of course, is the Bill of Rights, which limits what government can do even if a majority authorizes it.  So we don’t take votes to decide what prayer you can say, what book you can read, what groups you will associate with.

The entire purpose of the Bill of Rights was to remove certain matters from the reach of popular opinion—what the founders called the “tyranny of the majority.” Of course, the majority generally doesn’t deny rights to attractive and popular people, so the ACLU ends up representing some fairly unpleasant people.

Contrary to popular opinion, very few ACLU staff are politically active Democrats. Virtually all of them celebrate the non-partisan nature of the organization. Most of them agree with the director of a western affiliate who began all his speeches by asserting that the ACLU is a conservative organization because its mission is to conserve the values of the Constitution and the Bill of Rights.

When I joined the GOP, back in the Ice Age, and for the 35 years I actively worked for the party, traditional Republicans (and I stress traditional) and core civil libertarians really agreed on most such issues, although neither seemed to recognize that.

Both believed in limiting the power that the state may exercise over the individual. Both supported the concept that majority rule must be subject to the restraints of law; that certain rights are too fundamental to be subject to the whims of voters, or to popular passions. And both believed that rights are individual; that is, that government has the obligation to treat each of us as an individual and not as a member of a group.

Over the years, the GOP abandoned those principles in favor of a majoritarian culture war, and I left the GOP. I made a brief stop with the Libertarian Party before deciding that I support a more robust role for government than you do.

When I was Executive Director of the Indiana ACLU, I often made a point that libertarians frequently make: the political spectrum is not a straight line, with “liberals” on the left and “conservatives” on the right. It’s a circle, where the far left and far right touch.  And the only thing extremists on both ends are arguing about is whose agenda government should impose on the rest of us.

We live in a complex and interdependent world, and I have come to understand that there often is no reasonable substitute for collective action. (My libertarianism has much more in common with Friedrich Hayek than it does with Ayn Rand.) Markets are wonderful, but there are areas in which markets do not and cannot work. There are things governments simply have to do.

But Republicans, Democrats and Libertarians should all be civil libertarians. Whatever one’s position about government’s role in the economy, whatever tax or economic policies you support, we should all agree about the importance of defending individual liberties. We should all resist government’s efforts to prescribe our beliefs, censor our speech or surveill our behaviors without probable cause.

We should all be card-carrying members of the ACLU.

Thank you.

 

 

Singing an Old Familiar Song

Yesterday, I participated in the ACLU of Indiana’s much-lauded “First Wednesday” series. I was on a panel titled “The Constitution: Peruse It or Lose It.”   The program was introduced by ACLU Executive Director Jane Henegar; the moderator was local businessman and owner of the IBJ, Mickey Maurer; the two other panelists were Michael Gordon, who teaches government at Munster High School, and State Senator Brant Hershmann.

Michael Gordon was superb. If we could clone this guy and put a clone in every high school government class, we might beat this civic deficit problem. And this event may have marked the first time I’ve ever agreed with Sen. Hershmann (who opposes any and all gun regulations, and sponsored the ban on same-sex marriage, among other things).

The format was informal, with Mickey goading the panelists (and making an effort to promote fireworks–an effort that failed). Although there were no scripts, we each were allowed a brief opening statement, and I thought I’d share mine.

I know this will seem all too familiar to regular readers, but really–it can’t be said too often!

Only 36% of Americans know we have three branches of government. Why does that freak me out?  Why is civic literacy important?

 This is a country where, increasingly, people read different books and newspapers, visit different blogs, watch different television programs, attend different churches and even speak different languages—where the information and beliefs we all share are diminishing and our variety and diversity are growing. Our constitutional values, our history and governing philosophy are ultimately all that Americans have in common.

 Like all human enterprises, governments have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, because this is a country based upon what Todd Gitlin has called a covenant. Americans don’t share a single ethnicity, religion or race. (Culture warriors to the contrary, we never have.) We don’t share a comprehensive worldview. What we do share is a set of values, and when we don’t know what those values are or where they came from, we lose a critical part of what it is that makes us Americans.

 At the end of the day, our public policies must be aligned with and supportive of our most fundamental values; the people we elect must demonstrate that they understand, respect and live up to those values; and the electorate has to be sufficiently knowledgeable about those values to hold public officials accountable. We can’t do that if we don’t know what those values are or where they came from.

 In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and they aren’t all equal. When we argue from within the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When those arguments are between people trying to rewrite history and citizens who don’t know better, we undermine our political institutions and erode social trust.

 At our new Center for Civic Literacy at IUPUI, we intend to research a large number of unanswered questions. What, for example, do citizens need to know? Why have previous efforts to improve civics instruction lacked staying power?  How is civic ignorance implicated in our currently toxic politics?

 At the end of the day, it doesn’t matter if I think the Establishment Clause requires a certain result and you think it requires a different one. What matters is that we both know what the Establishment Clause is, and what value it was meant to protect. It doesn’t matter whether I think Freedom of the Press extends to bloggers and you disagree. It matters a lot that we both know what Freedom of the Press means, and why it was considered essential to the maintenance of trustworthy government.

 Daniel Patrick Moynihan famously said we are all entitled to our own opinions, but not to our own facts. If I think this is a table and you think it’s a chair, we aren’t going to have a very productive discussion about its use. We don’t need citizens who all agree about the implications of our founding decisions, or who even agree with the decisions themselves.

But we desperately need citizens who share an understanding of what those decisions were.

 

 

Boobs and “Boobies”

Yesterday, I received a news release from the Indiana ACLU announcing the organization’s representation of a middle-school student. As the release recounted the facts of the case,

 

The minor child, “L.G.,” is a student at Roosevelt Middle School, which is part of the Twin Lakes School Corporation in Monticello, Ind. In early January, school officials instructed the student to turn inside-out a silicone bracelet that contains the message “I© (heart) BOOBIES” as well as the ribbon symbol for breast cancer awareness, and at that time informed the student he could be expelled if he continued to wear the bracelet to school.

The student wore the “I © (heart) BOOBIES” bracelet to assist with breaking down the barriers that make it difficult for young people to talk about breast cancer. The bracelets help support the work of the Carol M. Baldwin Breast Cancer Research Fund. Carol Baldwin is the mother of the Baldwin brothers, generally known as Hollywood actors and activists. The bracelets are popular among students at Roosevelt Middle School, and have not disrupted the educational environment.

“Decades ago the Supreme Court stressed that students do not shed their First Amendment rights when they enter school buildings,” said Ken Falk, legal director of the ACLU of Indiana, who is representing L.G.

“The bracelet did not disrupt the educational environment, and the speech here, designed to assist in the fight against breast cancer, is not profane, indecent, lewd, vulgar, or offensive to school purposes, and is therefore protected speech under the First Amendment,” added Falk.

I have two reactions to the school’s position–both negative.

First, why do public school officials constantly fixate on aspects of student behavior that are either irrelevant to their education or, as here, offer educational possibilities? Why not use students’ interest in breast cancer as a “hook” for science education and civic engagement? Even if teenage boys are “tittering”–forgive the pun–about “boobies” (there is no indication of such reaction but I had sons and I’m certainly willing to entertain the possibility), the focus on cancer clearly offers multiple opportunities for positive educational experiences.

And second, why don’t public school officials respect the constitutional rights of students? The law in this area is, as Ken Falk notes, pretty clear. How do we expect to raise a generation that understands and respects the constitution when those charged with their education repeatedly model unconstitutional behaviors? Authoritarian schools do not produce democratically-skilled students.

Knowledge of the word “boobies” is not nearly as damaging as being educated by people who think it’s important to pick a fight over its use.

Stop the Presses! ACLU Supports Christian Athletes

One of the great myths promulgated by the Christian Right is that the ACLU is “anti-religion” and “anti-Christian.” Those bent on demonizing the organization conveniently overlook the many cases in which the ACLU represents the rights of religious folks. When I was Executive Director of Indiana’s ACLU, it used to irritate me that we got no credit for being principled.

That is mostly because so few people understand what the principles are.

A friend just alerted me to a Virginia news item about that state’s ACLU, which has defended the right of student athletes to tape copies of the Ten Commandments to their lockers.

For people who are constitutionally literate, this position hardly comes as a surprise. If a school allows students to post items on their lockers, it cannot dictate the content of those items (other than forbidding obscenity). The school could constitutionally forbid the posting of anything at all, but if it does allow students to express themselves in that fashion, the  First Amendment’s Free Speech doctrine prohibits the school from picking and choosing among the messages.

If, on the other hand, a public school posts the Ten Commandments, the school is violating the Establishment Clause of the First Amendment, because the school is an agency of government, and government cannot endorse or sponsor religion.

There’s nothing inconsistent here. The point in both cases is to limit the authority of government.

In our legal system, individuals get to decide what they say and believe, free of government interference. That’s the principle the ACLU is protecting, and it isn’t anti-religious. It’s pro-individual liberty.