If the American Civil Liberties Union was ever a champion of its supposed namesake — civil liberties — it no longer is. The Wall Street Journal reports that the ACLU has quietly drafted new guidelines that address which legal battles it will wade into. Civil liberties are now being balanced with other considerations.
In an eight-page memo, the ACLU agonized over whether and when to lend a helping hand to people it clearly despises. It did not categorically reject the possibility that the organization would defend deplorables’ civil liberties, but it left itself plenty of weaselly escape hatches.
It’s complicated, you see. Really, really complicated.
I suspect that the ACLU has always quietly exercised discretion when choosing its cases even if it didn’t say so publicly. To be sure, even these guidelines were for ACLU eyes only, a clear indication that the organization still wants to be perceived as stalwart defenders of the Bill of Rights.
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Maintaining the organization’s public image is paramount. As former ACLU president Nadine Strossen said in a recent interview, “The ACLU defends all fundamental freedoms for all people.”
But it doesn’t and, let’s be honest, it never has. For example, the ACLU has never filed a Second Amendment lawsuit. Their Bill of Rights apparently includes only nine amendments. Or is it eight? Despite the federal government’s extreme overreach, the ACLU rarely sues the federal government for violating the tenth amendment. The ACLU does however fight valiantly for “a woman’s right to choose” (to kill her unborn baby) even though that one doesn’t appear anywhere in the Constitution. Clearly there’s an agenda here beyond motherhood and apple pie.
The ACLU is now admitting that there are lots of factors that need to be considered before taking a case. The first question that needs to be asked is whose rights are being trampled? Is it good people or bad people? Its own side or the other side? Supposed oppressors or the supposed oppressed?
One factor that the ACLU will consider is “the impact of the proposed speech and the impact of its suppression.” They elaborate:
Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.
While the memo stresses that the ACLU might still decide to take on such cases, it isn’t automatic.
And so the great climbdown begins. The ACLU, that great defender of free speech even when it’s inconvenient, is now affixing caveats.
But at least it’s finally admitting what I have been saying for a long time, namely that there’s a conflict between fundamental constitutional principles — free speech, free exercise of religion, a free press — and what they like to call “justice,” which is nothing more than code for their political agenda.
And make no mistake about it, their agenda creates a lot of “tension” — a word that appears eight times in memo — with Madisonian rights. The ACLU will now approach this tension gingerly, hoping that no one notices that it’s deserted its core mission of defending the Bill of Rights. People will just have to understand that its members failed to defend our supposedly inalienable rights only after serious deliberation that made plenty of allowances for, as they call it, “nuanced and intentional consideration of the competing interests.”
At the core of these guidelines is the tacit admission that the ACLU’s “values” are in fact antithetical to the Constitution. On this we can agree. Clearly the ACLU has arrived at a time for choosing even if it doesn’t want to admit it.
Throughout our history there have always been constitutional violations and in every case they were defended by people who believed they had other, more important interests to uphold, such as the protection of public morals, the dignity of the family unit, or wartime necessity, to name a few.
This last justification for ignoring the Constitution is what eventually gave birth in 1917 to the National Civil Liberties Bureau (CLB), forerunner to the ACLU. It was a tumultuous time, with the United States committing itself to war in Europe over the stringent opposition of socialists, communists, and anarchists. Citing the need to mobilize the country for “the war to end all wars,” the U.S. government cracked down on dissent. The CLB argued (correctly) that there was no wartime exception to the civil liberties safeguarded in the Constitution.
This is obviously a veiled reference to the recent Masterpiece Cake Shop decision, which was, at the time this document was written, on its way to the Supreme Court. The memo is clearly implying that Colorado really was violating two of the First Amendment’s clauses — free speech and free exercise of religion — but the ACLU just doesn’t care. “Equality” was more important.
In any other context I have no doubt that the ACLU, with its expansive view of speech, would have come to the aid of an artisan compelled to use his talents to create a message of which he disapproves. But not when it’s a Christian baker who doesn’t want to custom-design a cake for homosexual nuptials. “Gays” good, Christians bad.
It would have been bad enough if the ACLU had refused to take on the Christian baker’s case because of other, competing, anti-constitutional values. But it went further than that. It litigated the case from the other side. Not content to stand on the sidelines while Jack Phillips’s constitutional rights were being savaged, the ACLU decided to jump in and get some blood on its own knuckles.
Not that it would ever admit this openly. In court the ACLU attorneys argued that Jack Phillips’s rights were not being violated, which is a more compelling argument than “Yeah, but so what?”
The ACLU’s blog directly and disingenuously addresses the question of whether constitutional rights are at stake in the Masterpiece case. Under the heading “Does this [nondiscrimination law] violate the bakery’s First Amendment rights?” staff attorney Ria Tabacco Mar writes:
No. The Colorado anti-discrimination law doesn’t tell the bakery how to make its cakes. What it says is that if the bakery chooses to sell cakes, it can’t refuse to sell them to certain people based on their sexual orientation. The ACLU is proud to defend the First Amendment freedoms of speech and religion. But religious freedom doesn’t give anyone the right to discriminate.
She’s lying, of course. If she’s within the ACLU “circle of trust” she must know that the ACLU secretly admits the validity of Phillips’s complaint. But the salient point is clear enough: The ACLU claims that it would surely support Jack Phillips if he had a legitimate First Amendment case. But that’s just the line the ACLU dangles out there for public consumption.
The ACLU is suffering from a bad case of cognitive dissonance, trying to navigate a course between what it thinks it stands for and what it actually stands for. It can have the Constitution or it can have its agenda, but it can’t have both.