Sometimes, the only reason I see things is that former students send them to me. Unfortunately, the things they send tend to be infinitely depressing.
A few days ago, a former student sent me a link to a story about crazy Alabama Judge Roy Moore. You’ll remember Moore from his previous term as Chief Judge of the Alabama Supreme Court (note to self: never, ever move to Alabama), when he commissioned a five-ton stone engraved with the Ten Commandments and had it installed at the Courthouse door. It was removed after the Federal Courts ruled it a gross and obvious violation of the First Amendment religion clauses–something you’d expect a judge to know.
Moore subsequently ran unsuccessfully for President on a Christian-Theocrat ticket of some sort. Most recently, he ran for–and won–his old seat on Alabama’s high court. (Note to self: remember this example of why we should not elect judges).
So, like Jaws (only more scary), he’s baaack.
Speaking at the Pastors for Life Luncheon, which was sponsored by Pro-Life Mississippi, Chief Justice Roy Moore of the Alabama Supreme Court declared that the First Amendment only applies to Christians because “Buddha didn’t create us, Mohammed didn’t create us, it was the God of the Holy Scriptures” who created us.
Moore had more:
Discussing Thomas Jefferson’s use of “life” in the Declaration of Independence, he said that “when [Jefferson] put ‘life’ in there, it was in the womb — we know it begins at conception.”
He later said the “pursuit of happiness” meant following God’s law, because “you can’t be happy unless you follow God’s law, and if you follow God’s law, you can’t help but be happy.”
And I bet Roy Moore will be happy to explain exactly what God wants. Which just happens to be what Roy Moore–in his twisted little mind–wants.
(Note to self: uncurl from fetal position–it’s bad for the back.)
Chutzpah is a yiddish word meaning gall or nerve–but to the nth degree. Remember this oldie? “Question: what’s an example of chutzpah? Answer: a man kills his mother and father, then throws himself on the mercy of the court because he’s an orphan.”
After Kansas courts ordered the state legislature to provide more funding for K-12 education, the legislature passed and sent to the governor a bill (HB 2338) that provides as follows:
1) It allocates $2 million additional funding for the Kansas judiciary for the upcoming fiscal year;
2) It increases various court fees;
3) It strips the Kansas Supreme Court of the power to control local court budgets, personnel systems, and manage other administrative costs;
4) It strips the Kansas Supreme Court of its existing power to designate local Chief Judges;
5) And–ta da!– the icing on the chutzpah cake: it provides that if the Court strikes down any of these provisions as unconstitutional, the entire bill fails (including and most especially the extra funding).
How much would you like to bet that the lawmakers who passed this measure carry small copies of the Constitution in their pockets, wear flag pins, and piously proclaim their devotion to “original intent”?
Assaulting separation of powers, the very basis of our constitutional architecture, while proclaiming your devotion to the nation’s charter–that’s chutzpah!
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.
Retired Supreme Court Justice Stevens has a new book out in which he makes the case for six Amendments to the Constitution.
The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Political Gerrymandering – Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
Campaign Finance – Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
Death Penalty- (Amend the 8th Amendment) Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
The Second Amendment – (Amend the 2nd Amendment) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.
Of course, the likelihood of passing any amendments in this politically polarized age is fanciful; lawmakers can’t even manage to pass what should be relatively noncontroversial legislation.
Nevertheless, these eminently rational suggestions provide plenty of food for thought. Not to mention, an implicit condemnation of our unwillingness to come to terms with the realities of modern life.
David Schultz is an election law expert who teaches at Hamline University and the University of Minnesota law school. (He and I also co-authored my last book, a Law and Policy textbook.) When the Court handed down the McCutcheon decision, he took to his own blog to analyze it.
On one level the Supreme Court yet again issued a decision in which it examined one issue about American politics and elections–the role of money or the right of individuals to make political contributions–without adequately considering the broader impact of that decision on the actual performance of American democracy. The Court treats in isolation one aspect of our political democracy–the right of an individual to spend money–without considering other competing values and how they come together to form a more complete theory about government, politics, and elections. Yes individuals may have a right to expend for political purposes, and such an act may further an important value of free speech, but that is not the only act and value that must be furthered or considered in a democracy.
Democratic theorists such as Robert Dahl point out that a theory of democracy includes several values, such as voting equality, effective participation, enlightened understanding, control of the agenda, and inclusion. For each of these values there is a need to construct institutions that help sustain them or give them meaning. Effective participation includes institutions that create for example free and fair elections, opportunities for non-electoral participation, and competitive parties. However, none of these values operates in isolation; a real concept of democracy requires that one understand how they interact, coming together to form a fuller theory of American Democracy.
Someone once said that the problem with the contemporary Supreme Court is that none of the Justices ever held elective office–that we’d be better served if one of these brilliant jurists had ever had to run for county sheriff.
