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.


  1. Thank you for a very good read. You do a lot of good. This state is a better place because of all your hard work. Thank You !! Pat..

  2. I agree with all of this, but then scratch my head when it comes to the PPACA.

    The insurance companies were views as “evil corporations” and you just said no matter how evil corporations get, the civil rights were not violated.

    But the PPACA does just that. It imposes rules making citizens purchase a product, trampling on my freedom of association. I should get to decide if I want to do business with a company, or if I don’t want the product at all.

    Sounds like even the Democratic party falls short because most of what they argue for grows government control.

  3. The Republican Party is today much more civil libertarian than it was in 1980. If you look at who is leading the civil liberties fights today (fights against things like civil forfeiture, NSA spying, etc.) you’re more likely to find Republicans than Democrats. Republicans are even taking on things like the “War on Drugs” and the counterproductive incarceration of people for minor or victimless crimes. Republicans are even taking on police brutality. I’ve been to several northside Tea Party meetings. The focus of many of their presentations is the need to protect civil liberties from government. The days of the Republicans supporting any intrusion on civil liberties in order to advance “law and order” is long gone.

    The problem with the ACLU is that it is selective as to which constitutional guarantees it will fight for. The ACLU is also supportive of constitutional interpretations that bend and even obliterate the actual wording of the constitution if those interpretations advance liberal causes. You won’t see the ACLU defend the “right to contract” in the Constitution in order to pay people less than the minimum wage. The ACLU picks and chooses the interpretations they like and invariably those interpretations are ones that advance liberal causes.

    I agree the ACLU is strong when it comes to Free Speech and Search and Seizure Issue. But you get outside of those areas and the ACLU picks and chooses the rights that it will defend in order to advance liberal causes. If the ACLU were consistent in its advancement of the Constitution, you’d see Libertarians flock to the organization. But Libertarians don’t because they know the ACLU doesn’t defend all constitutional rights.

    Sheila, with all due respect, while you suggest the Republican Party left you by going right, I think you vastly underestimate your own personal drift to the left. There’s nothing wrong with that…people’s views transition over time, though usually people become more conservative, there are exceptions. I don’t think the views you hold today would have been compatible in the Republican Party of 1980.

  4. Thank you again for a concise and thorough treatment of the subject. What at least one responder here has missed is that the “free market” in economics only works as long as the participants are honorable. When participants become dishonorable the system becomes perverted. We have attempted to deal with that perversion through government action. Ooops.

  5. Paul S., our free market system is based not on people acting “honorably” but that in pursuing their own self interest, i.e. making money, that we all are better off. That doesn’t mean government does not have a responsibility to pass rules to prevent things like monopolies and fraud, to make sure the free market operates fairly.

  6. How is it possible that a market can ever be ‘free’? The very nature of capital enterprise relies on some manner of privileged advantage. Rockefeller became rich, not because he had a better product or service, but because he blocked competitors from the barrel producers and the rail market. Walmart is Walmart because it takes over local d markets until they are no more, often selling products for less than competitors can buy them, until they are no more. Then the town dies and you have to drive ten miles to the ‘local’ Walmart, spend $10.00 in gas, to get a $1.00 loaf of bread. Free market? Ask Hook’s drugstores, Richard’s Market Basket, Wasson’s, Ayers, Sears, Penney’s and so on and so on, about the ‘free market’.

  7. Paul, you won’t see the ACLU take a case to see if there is a constitutional right to pay someone less than the minimum wage because if Wal-Mart had a constitutional right to pay its workers two turnips and a handful of ground meal it could afford lawyers to file to overturn the Commerce Clause’s allowing of the FLSA. The ACLU represents persons without charge, most of whom could never afford a protracted legal battle. Yes, these include procreative rights. Somehow the notion that women are entitled to control over their own bodies, and not subject to majoritarian religious beliefs, is liberal.

  8. If a woman has a right to her body and kill a living human being inside of her, why don’t I have a right to my body and ingest a harmless plant (or if it harms anyone, only myself) at least me exercising the right to my body doesn’t result in killing an unborn human being.

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