Sunday, December 23, 2012

Sheila Suess Kennedy: Republican in the ACLU 6

I finished Sheila Suess Kennedy's What's a Nice Republican Girl Like Me Doing in the ACLU?  I have two items.

1.  A significant theme in Kennedy's book is the need for civility in political discussions.  On page 164, Kennedy states: "Direct mail campaigns by the ACLU aren't much different than those conducted by the Christian Coalition or the Republican National Committee.  Only the enemy has been changed.  Such appeals may fill organizational treasuries, but they do a serious disservice to public dialogue.  Worse, as the public becomes more sophisticated, they contribute to a dangerous and growing cynicism about American institutions."

I appreciate this passage because Kennedy acknowledges that the ACLU itself needs to work on being part of the solution rather than part of the problem in the area of public dialogue.  When she referred a few pages earlier to a "Campaign for Civility" that the Indiana Civil Liberties Union initiated in 1994, I was rather skeptical about the effectiveness of such an enterprise, for I thought that the right-wing could simply come back and say that the ACLU and people on the Left (not that Kennedy regards the ACLU as left-wing) were themselves uncivil and thus had no authority to lecture people on civility.  But Kennedy acknowledges that there is enough guilt to go around.

The thing is, what do you do when you believe that somebody else is a genuine threat to the well-being of society?  Well, the ACLU and the religious right choose to warn people about what they think is a threat.  This is understandable.  But how productive is it?  Wouldn't it be better if people sat down and talked and listened to one another, rather than just fighting?

Although Kennedy talks about fruitful interactions that she has had with people who disagree with her, overall, she appears to be skeptical that the religious right is even open for dialogue.  She is probably right about that, in an overall sense.  But I do believe that a fruitful discussion between elements of the religious right and the ACLU, Americans United for the Separation of Church and State, People for the American Way, etc., is conceivable.  Back in the 1990's, Ralph Reed came across as someone with whom you could have a conversation.  He was tactful.  He was open to addressing questions.  He approached discussions as a place where he could listen and clarify his own position.  Whatever his tactics in the political arena, he modeled respectful engagement of others in dialogue whenever he appeared on TV news programs.  And this is not surprising, for he has a Ph.D. in American History from Emory!  Nowadays, my impression is that Reed does not have the same level of star power that he once did, on account of questions about his relationship with Jack Abramoff, and other factors.  It would be nice if the religious right could have somebody like Ralph Reed, at least in terms of modeling respectful dialogue.  Or perhaps elements of the religious right are already moving in the direction of being open to constructive dialogue.  Tim Daly of Focus on the Family has talked in the past about making Focus more open to conversation (see here).  I hope that this happens.

I will say, though, that there are times when I am glad that personal attacks are a part of political discourse.  Case in point: the 2012 Presidential race.  I suppose that Barack Obama could have sat down with Mitt Romney to have a dialogue about the issues of the day, and, on some level, they did.  But, in my opinion, Obama needed to bring up Bain Capital and Romney's continual flip-flops in order to win.  Positions are important, but it's also important for people to know what kind of person would be representing them were he or she to win!

2.  One question that has been swimming around in my mind is the school of constitutional interpretation to which the ACLU belongs.  Is it strict constructionist?  Originalist, in terms of wanting us to go with the intentions of the Founding Fathers?  Textualist and literalist?  Or does it regard the U.S. Constitution as a living, breathing document?  I seriously wondered this.  A number of people on the right-wing probably assume that people who disagree with them are in the "living, breathing" school of constitutional interpretation, but I was not certain that this could be said about the ACLU.  The ACLU, after all, strikes me as strict and almost absolutist when it comes to the Bill of Rights, and that, to me, lacks the flexibility of the "living, breathing" approach.  At the same time, it seems to me that a narrow, over-literal interpretation of the Bill of Rights has been used by judges to restrict people's constitutional rights, and so I wouldn't be surprised if the ACLU shied away from textualism.

In terms of Kennedy's book, she does treat the intentions of the Founders as significant in trying to understand the Establishment Clause of the First Amendment.  At the same time, she highlights her problems with originalism on pages 183-184.  She notes that it's difficult to uncover the original intent of the U.S. Constitution, for there was more than one Founding Father, each of whom may have had a different original intent.  She also says that the Founding Fathers did not foresee some of the issues that exist today, such as pornography on the Internet.  But she does believe that we should look at the principles of the U.S. Constitution and seek to apply them to the concerns of today.  Speaking for myself, I think that looking at original intent is important in this task, for we should see what the Founding Fathers intended each amendment in the Bill of Rights to accomplish.  Is there an alternative to this approach that is not arbitrary?

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