Saturday, April 02, 2005

Thomas Paine's Corner

By Jason Miller

As I opened my inbox today, I was greeted by a notification that "Civil Warrior" had commented on the blog that I founded, Thomas Paine's Corner. "Civil Warrior" directed my attention to a site at Being the civil libertarian and devout member of the ACLU that I am, naturally I was intrigued and visited the site. Quickly, I realized that there are some serious misconceptions about our organization and its members. I decided that a more realistic perspective was in order.

Roger Baldwin, Albert Desilver, and Crystal Eastman are generally credited with founding the ACLU in 1920, a period in America's history when civil rights were in a deplorable state. People like Upton Sinclair and Eugene Debs were pressing for the rights of the working class, the poor, and consumers in the face of virtual unbridled corporate avarice and its amoral pursuit of profit. Anti-war activists were jailed. Jim Crow ruled the south. Women had just gained the right to vote through the 19th Amendment, but still faced serious oppression in our patriarchal society. The Supreme Court had not once upheld the First Amendment guarantee to the right of free speech. The times were ripe for the founding of an organization called the American Civil Liberties Union, whose purpose was, and is, to protect the rights of the individual, the minority, the oppressed, the disabled, and the disenfranchised in America, regardless of religion, race, creed, sexual orienation, sex, or economic status.

Surprisingly, the Bill of Rights faced formidable opposition from many of our founding fathers. The Bill of Rights was an after-thought to our Constitution that was discussed in the Constitutional Convention, but not included until several years later. Even James Madison, who eventually bore much of the burden of sorting through the many proposed amendments, winnowing them down, and polishing their language to an acceptable form, was reluctant to add a Bill of Rights. Despite Madison's argument against the tyranny of the majority in Federalist Paper 51, he only wrote and endorsed the Bill of Rights because he knew that not enough states would ratify his beloved Constitution without express guarantees of the rights of the individual. Slavery was accepted by our nation at its inception, so at that time, the Bill of Rights did not even apply to many of our country's inhabitants, including both blacks and Native Americans. As Americans, our individual rights have been subject to attack or denial since our nation's founding. Individual rights in the "land of the free and the home of the brave" have been tenuous and have been applied selectively from the very start of our nation. Americans need the vigilance and protection of groups like the ACLU.

From its humble beginnings in 1920, the ACLU has risen to become a powerful advocate and guardian of the Bill of Rights and the 13th, 14th, 15th, and 19th Amendments. 400,000 members-strong, the ACLU engages in approximately 6,000 legal actions each year, and has offices in virtually every state. It is a nonprofit and nonpartisan entity which receives no government funding, and is therefore subject to little or no undue influence (or corruption) by government entities or political parties. The raison d' etre of the ACLU, was, and is, to act to protect the civil liberties of everyone, including groups as difficult to endure as the Ku Klux Klan. Contrary to the rhetoric and belief of many amongst the Christian Right, the ACLU has even defended the rights of Christians to exercise and practice their beliefs.

The courts provide a ready vehicle for the ACLU to work to enforce our Constitutionally guaranteed rights. Despite the fact that he was often hostile to the rights of individuals, Chief Justice John Marshall cast the die of judicial power with the landmark decision of Marbury vs. Madison, and thus created an avenue for individuals to pursue their rights. In the 1803 ruling, the Supreme Court flexed its muscles for the first time as they declared a federal law unconstitutional. This set a landmark precedent that has enabled the Judicial Branch to take its place as the third equal partner in the system of checks and balances that comprise our republic, and prevent the Legislative and Executive Branches from becoming tyrannies.

Individuals facing injustices wrought by an imperfect system can turn to the judiciary for relief.

Recently, the Christian Right has spewed much propaganda concerning the "tyranny of the courts". Over the last century, unless one is hostile to freedom of the press, the freedom to worship (or not) freely without state intervention, the freedom to speak and write one's opinion, the freedom to protest government policy, the rights of the accused to due process, the rights of minorities to receive comparable educations to that of the majority, the rights of the disabled, the rights of gays, or freedom from censorship, one could hardly consider the Supreme Court to have acted as a tyrant. In fact, they have overturned many laws and lower court rulings that seriously violated the rights of individuals, and have issued many rulings to support the rights of individuals. The ACLU was involved in a number of these cases. In 1932, the Court held that under the 6th Amendment, Americans have a right to effective cousel (on behalf of indigent blacks in the Jim Crow south). DeJonge vs. Oregon upheld the right to assembly freely (on behalf of the Communist Party). Brown vs. the Board of Education ushered in a new era of civil rights when the Supreme Court declared racially segregated public schools unconstitutional in 1954. The Court ruled in 1964 (New York Times vs. Sullivan) that a public official cannot successfully sue a newspaper for damages to their character without proving "actual malice". The Miranda vs. Arizona ruling in 1966 furthered the rights of the accused by guaranteeing them a right to counsel and the right against self incrimination. The Court ordered former President Nixon to hand over the Watergate tapes in 1974, and thus prevented the President from acting "above the law". Romer vs. Evans, rendered in 1996, determined that the state of Colorado could not use its state constitution to prevent the state or cities from enacting laws supporting gay rights. Romer represented another landmark civil rights decision. These are but a few of many examples of Supreme Court decisions, in which the ACLU has played a role, that have contributed to maintaining and enhancing the social justice of our republic.

The writers on the "Stop the ACLU" blog, and others who disseminate negative propaganda or opinions about the ACLU via the Internet, actually owe the ACLU a significant debt of gratitude for two principal reasons. First and foremost, since their reason for being is to "stop the ACLU", were it not for the ACLU, they would not exist. Secondly, the ACLU was involved in yet another landmark Supreme Court decision that helped to safeguard our civil liberties. In the 1997 Reno vs. ACLU case, the Court eradicated Congress' Communications Decency Act. The law was written to censor the Internet by banning "indecent" speech. Again the First Amendment, which is what gives bloggers their right to exist, was upheld when the Court ruled that "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship". Those "activist judges legislating from the bench" again rendered a powerful decision that benefited the rights of everyone in our society, not just the "liberals".

The fact is, the ACLU is imperfect. All human endeavors and organizations are imperfect. The Judicial Branch, their primary vehicle to promote social justice is imperfect. However, so are the Legislative and Executive Branches. That is why our founding fathers had the foresight to create an intricate system of checks and balances, so that one Branch could not become a tyrant. While the ACLU and the Judicial Branch do not always "get it right", they have done far more to benefit our nation than to contribute to its detriment, and without them, our society would be far more brutal and inequitable. Many examples of social injustices throughout American history pre-dating the Populist movement, which spawned America's progressive social evolution, are testaments to this fact.

It is also a fact that American civil liberties are truly unique and valuable. Those rights are not irrevocable, and are subject to the perpetual assault of the natural corruption, will to power, and greed that evolves within a government (another imperfect human endeavor). The ACLU is the watchdog of these liberties, and over the last 85 years has done an outstanding job helping to preserve and enhance our individual freedoms. I feel grateful that the ACLU exists, and gladly contribute my time and money to help perpetuate its cause. I am also grateful that our independent judiciary exists to interpret the laws and Constitution governing our land. We have many blessings to count in this diverse nation, and the ACLU and the judiciary are two of them.