Sheila Suess Kennedy: Republican in the ACLU 3

My topic for my write-up today on Sheila Suess Kennedy's What's a Nice Republican Girl Like Me Doing in the ACLU? will be the mission of the American Civil Liberties Union.

The ACLU's mission is to defend people's constitutional rights, even if those people are unpopular with the majority.  There have been notable times in U.S. history when that mission has led the ACLU to do some very heroic deeds.  As Kennedy narrates on pages 40-41:

"In 1933, when the government tried to ban importation of James Joyce's Ulysses as obscene, the ACLU won a ruling that the First Amendment prohibited such censorship.  When a 1925 law was passed in Tennessee making it a crime to teach evolution in the public schools, it was Clarence Darrow, a member of the ACLU national committee, who headed the team of volunteer lawyers.  In the 1930s, when West Virginia adopted a resolution allowing the expulsion of public school students who refused to salute the flag, the ACLU represented the children of Jehovah's Witnesses whose religious beliefs forbade them to salute.  In 1932, when the Scottsboro boys----nine black Alabama youths charged with raping two white women----were denied the assistance of counsel during a trial in which they were sentenced to death, the ACLU won a ruling that established the right of defendants to representation by a lawyer.  In these and numerous other well-known cases, the ACLU has represented individuals against arbitrary and overreaching government action."

But there are a number of times when many wonder why the ACLU sticks it neck out for certain people.  Why does the ACLU go to bat for a kid who is suspended from school for wearing an earring, or someone who owns a nudie bar, or someone who didn't care for the prayer at a public school's ceremony, or people who want to listen to music that has trashy lyrics?

In many cases, Kennedy uses what some would characterize as the slippery-slope argument: if you allow the government to infringe on people's rights in these cases, what is to prevent the government from infringing on your rights?  Many would say that the slippery-slope argument is a logical fallacy and that people should focus on the issue at hand rather than on where the issue could lead.  But personally, I don't have a great problem with certain uses of the slippery-slope argument.  In the case of the ACLU, its position is that people have rights and the government should not infringe on those rights.  If the government is allowed to infringe on anyone's rights, even if that person is unpopular, that sets a bad precedent.  What would keep the government from infringing on your rights?  The Bill of Rights?  Well, the Bill of Rights is pretty meaningless if it is not consistently applied and enforced.  As Kennedy says in her book, you cannot be selectively totalitarian.  For the ACLU, the Bill of Rights should be the arbiter, not the will of the majority or whether a person or a cause is popular or unpopular, good or bad.  Moreover, laying aside for a second the slippery-slope argument, I think that Kennedy makes a good case that there are issues at hand that are problematic in their own right: anti-pornography ordinances that are vague about what pornography is, a conservative group that regards the movie Toy Story as pornographic, etc.

But there are conservatives who have problems with the ACLU's mission, for they believe that there should be more to public policy discussions than people's rights.  Granted, a number of the principles that Kennedy discusses in this book have been affirmed by conservatives.  Kennedy is critical of allowing the majority to trample on the rights of the minority, and I have read conservatives who have expressed similar concerns about majority rule: William F. Buckley in Up from Liberalism (see my post here), the John Birch Society when it stresses that the United States is not a democracy but a republic (see my post here), etc.  At the same time, there are many conservatives who believe that we should value more principles than individual rights: traditions, morality, family, the stability of the community, etc.  One conservative told me that it was wrong for the ACLU to defend Nazis who were marching through a Jewish neighborhood, for what the Nazis did was grossly insensitive.  For my friend, there should be more to the discussion than people's rights, such as consideration for others.

I don't want to make Kennedy's position into a straw-person by saying that she wants to make rights the only thing that matters.  She does, after all, express concern about the moral decline of America, and she seems to believe that people should take action if something offends them.  For example, if someone does not like a raunchy video that a video-store is selling (back when this book was written, videos were still popular), then he should call the video-store owner!  What Kennedy deems problematic, however, is the government stepping in and infringing on people's freedom of expression.

On pages 92-93, Kennedy manifests an awareness that a libertarian focus on individual rights can get pretty sticky:

"Those of us who defend the libertarian principle sometimes explain it thusly: You may swing your fist until it comes into contact with my nose.  In other words, individuals may enjoy the maximum liberty compatible with an absence of social harm.  Simple.  Except there are as many definitions of social harm as there are people on the planet.  You have a right to smoke a cigarette, but do you have a right to fill my environment with passive smoke?  You have a right to drive a motorcycle, but does that include a right to drive up the cost of automobile insurance for those who drive safe little sedans and never fail to buckle up?  What if I am convinced that your 'art' is a pollution of the culture that undermines the quality of life for everyone?  Suddenly, what was simple no longer is quite so straightforward."

I'm leery about saying that rights should be the most important factor in public policy discussions, for I believe that the health of the community is also important.  But I also recognize that a number of abuses throughout history have occurred in the name of protecting the health of the community, and so I'm reluctant to compromise on individual rights.