Civic Incompetence and Its Consequences

A college in CanadaLakehead University—is running a rather audacious recruitment campaign: an internet advertisement with George W. Bush’s face and the message “Yale, Shmale. Graduating from an Ivy League university doesn’t necessarily mean you’re smart. If you agree, click here.” When you click on the link, you get a pitch for Lakehead.

Just another bit of evidence—as if evidence were needed—of the low esteem in which the current American President is held.

If his usefulness to Canadian ad men and late-night comics were the only consequences of Bush’s incompetence, that would be an embarrassing, but short-lived, problem. Unfortunately, having a chief executive who doesn’t recognize basic constitutional principles or comprehend important distinctions has created domestic and international disaster. 

Let’s just connect the dots by way of one example. Bush has constantly talked about the importance of bringing “democracy” and “freedom” to the Middle East. He clearly believes the terms are interchangable. They aren’t. Democracy is the practice of popular election; liberty, as the western world has come to understand that term, requires the rule of law. The rule of law protects our freedom to live our lives as we see fit, without government interference so long as we aren’t harming someone else. Liberty thus includes freedom of speech and religion, a right to due process and equal protection, the right to privacy, and so forth.

In the Middle East, for example, Hamas—the Palestinian terrorist organization—was democratically elected (and Hezbollah enjoys majority support in much of Lebanon). It is quite likely that Iraq, which used to be the most secular Arab state, will eventually elect a theocratic government—assuming Iraq survives its current civil war intact. In short, a country can be both “democratic” and repressive. 

Why is any of this important—or relevant—to the gay community? 

The central concern of civil liberties and the rule of law is to trump what James Madison called “the passions of the majority.” The ACLU is never called upon to defend people everyone agrees with; the First Amendment was intended to protect, as Justice Holmes once put it “the idea we hate,” not the popular, widely-accepted idea. The gay community’s ability to make progress toward acceptance and equal rights depends upon America’s commitment to liberty, not its practice of democracy. In 2004, we saw what happens when citizens get to vote on the rights of their gay neighbors. The principle that matters is equal protection of the laws, not fidelity to majority passions.

This is not to suggest that democracy is unimportant, only that it is insufficient. Majority vote unconstrained by the rule of law and respect for equal rights can be every bit as tyrranical and despotic as the rule of a dictator.

An example: when I was the Executive Director of Indiana’s ACLU, we represented the KKK in a suit against the state. The then-governor, Evan Bayh, had refused to allow a Klan rally on the steps of the Indiana Statehouse. The steps were routinely used by other groups—prochoice and prolife, major and minor political parties, all manner of issue advocacy organizations—but the Klan was (for good and obvious reasons)massively unpopular. Those of us defending the right of these despicable people to be treated like everyone else included me (Jewish), a co-operating attorney (gay), and a paralegal (African-American). We’d have been the first people killed if the Klan ever came to power.

In a very real sense, however, we weren’t representing the Klan—we were defending the rule of law. We knew that our own rights depended upon fidelity to the principle of equal protection—that if the most despised citizens don’t have rights, no one really has rights—they just have privileges that government can revoke when majority opinion makes it politically convenient to do so. 

Too bad our President doesn’t understand that.