I know I cannot expect too much at the beginning of the semester, so it shouldn’t have taken me by surprise when a young woman in my class asked “Isn’t the Bill of Rights intended to protect our civil liberties until we infringe the rights of the majority?” Of course, she had it exactly backwards: the right of the majority to instruct government to act on its behalf is constrained by the Bill of Rights, which limits the right of those majorities to infringe individual freedom.
Fall classes have begun, and I am once again engaged in discussions with students about the Constitution, the Bill of Rights, and those incredible, impressive men (unfortunately, women contributed, when they did, behind the scenes) we tend to lump into an undifferentiated group and refer to as The Founders.
Each year, I am amazed and depressed by the deficits in understanding my students bring with them to the classroom. It isn’t that they aren’t bright. Most are. Sometimes it is because they are disinterested, or turned off, by matters civic and governmental—perhaps as a result of years of anti-government rhetoric coming (ironically) from those we elect to govern us. But mostly it is because they have not been taught even the most basic principles of the system we all live under.
I know I cannot expect too much at the beginning of the semester, so it shouldn’t have taken me by surprise when a young woman in my class asked “Isn’t the Bill of Rights intended to protect our civil liberties until we infringe the rights of the majority?” Of course, she had it exactly backwards: the right of the majority to instruct government to act on its behalf is constrained by the Bill of Rights, which limits the right of those majorities to infringe individual freedom. The Founders were no less leery of the “passions” of the mob, the “tyranny of the majority” than they were of kings and despots.
Of course, logic tells us that folks uttering popular opinions are rarely the object of attempts to censor; adherents of mainstream or majority religions are rarely persecuted for their beliefs. White, heterosexual citizens are not the usual targets of legislation banning them from adopting children, or engaging in consensual sexual behavior. Why have a Bill of Rights if those rights can be withheld whenever the majority dislikes the folks who are exercising them?
Members of minority or marginalized groups tend to understand the importance of the Bill of Rights. One of my most vivid memories from my days at the ICLU involved a suit we brought when the state refused to allow the KKK to hold a rally on the Statehouse steps—a venue that had routinely been made available to any other group that applied. Working on the case—protecting the rights of despicable people who would probably have killed us all if they ever achieved power—were an African-American legal secretary, a gay co-operating attorney, and me, the Jewish Executive Director. We sure didn’t act on their behalf because we liked them, or agreed with their message. Each of us understood that a government that could deny rights to the Klan could deny rights to any of us. Indeed, in the 1960’s, the same arguments used to justify refusing access to the KKK were used across the South in an attempt to deny similar access to Martin Luther King. In a country where the government can pick and choose who gets rights, no one really has rights—at best they have privileges, that can be revoked when the majority disapproves of one’s message, politics, religion or sexual orientation.
A few years ago, when Mel White was in Indianapolis, he spoke to a largely gay audience and drove home that same lesson about the indivisibility of liberty. He ended his talk with a passionate appeal to his listeners to work for equal justice for all groups—not just because it is the right thing to do, but because it is in the self-interest of the gay community. A country that does not extend equal liberty to all its citizens is not safe for any of them.
The task for all of us—not just teachers, or lawyers or activists—is to make sure that equal citizenship means exactly that: equal rights and responsibilities before the law for all citizens, not just those we agree with. Despite their lofty language, the country the Founders created extended equality only to property-owning white males. We have made enormous progress in extending the principles they espoused to women, African-Americans, and those who do not own property. We need to complete the task by insuring that gay men and lesbians, transgendered individuals and others, are subject to the same rules and expectations, and enjoy the same rights, as anyone else.
Those rights—as I tried to explain to my student—are not to be extended or withdrawn at the whim of the majority.