Reflections on the ACLU: It would take me a while to search for the legal history on which case it was that Ruth Bader Ginsburg criticized the timing of in the context of what I came to understand was a carefully crafted legal strategy during an ACLU Board debate on the ACLU’s Women’s Rights Project. Sometime in the 1970s – perhaps 1973? It was a case, she argued, that disrupted that strategy to build towards an interpretation of the 14th Amendment through case law that could essentially eliminate the need for an Equal Rights Amendment. Something to do with Oklahoma sticks in my mind. As a new member of the ACLU Board by virtue of being a representative from the North Carolina affiliate, I remember being amazed by her stance and awestruck by her sophisticated arguments. It was quite a lesson in how constitutional law can be influenced by a deliberate strategy – not just through one case but through a series of cases if they are deliberately chosen and sequentially developed to move the judicial interpretation in a certain direction. Here are some reflections on a dramatic change in ACLU strategy today, but I start with a historical perspective.
I came to be a member of the ACLU Board because of the women’s rights movement back in the late 1960s and early 1970s. I was a relatively slow convert to “women’s rights” myself, following a series of encounters with the likes of Sheila Tobias and Kate Millett in Greensboro, NC, at a conference I had organized with various allies in the “World Federalist Movement”. As a college professor in my first teaching job out of graduate school, my interests were global, not local. I was attracted to my newly found World Federalist friends in an otherwise alien and suffocating small-town Southern environment. But those early days of my academic career eventually drew me to appreciate the mix between the global and the local. It was this particular conference organized in collaboration with the local chapter of World Federalists that brought together a cluster of unusual thinkers challenging racism, colonialism and gender inequality, both globally and locally.
The Conference was great fun. I remember it well because we watched reports of the first moon landing during breaks in the conference – mid-July, it was and very hot, too. That was 1969. We worked with such interesting local personalities as Sam Levering, a Quaker who was active with the Friends Service Committee and McNeill Smith, a NC State Senator with a sharp wit – and Betsy Brinson, the Executive Director of the North Carolina Civil Liberties Union, who could entice you with the sweetest voice that hid her steel convictions. I was duly impressed with her stories about sitting with others at a particular dime-store lunch counter on Main Street in Greensboro, NC – a historic beginning of the “sit-ins” that mobilized the civil rights movement in the US. What colossal bravery she must have shared with the others who risked their lives in that endeavor! It helped me to open up my own world view to see the possibilities for linking the global to the local. And it opened my eyes, as well, to a feminism based on the pragmatic interpretation of civil rights being equal to human rights being equal to men and women being treated equally under the law.
It was this conference and the prodding of these enlightened local friends who encouraged me to take on a local leadership role for women’s rights. More can be written elsewhere on how this drew me into elective politics. Suffice it here to note that in 1972, when I was invited by the Mayor of Greensboro to chair the Mayor’s Committee on the Status of Women, the women’s rights movement was only beginning to penetrate the hinterlands. And it was Betsy’s prodding that motivated me to “go local”.
Our Committee did a lot to document the disparities in opportunities and outcomes for women. And it was a challenging time to assert that women could expect equal treatment in the law, whether in the workplace or in the community or wherever, while also being “feminine” and playing out a legitimate family role. Even the ACLU’s affiliate board in North Carolina needed some educating (for which Betsy skillfully orchestrated my getting into the act). And it was the local board’s desire ultimately to support more opportunities for women in the ACLU that led them to elect me to the national board in lieu of the more prominent and scholarly, male law professor types that had filled that slot over the years.
The ACLU Impact in the Courts
A search of the ACLU Women’s Rights Project on the Internet does not give sufficient recognition to the skills of Ruth Bader Ginsburg. She was right about that Oklahoma case. It did go to the Supreme Court. It did produce a favorable result for equal treatment of males and females – in this case on the age threshold for beer sales, for which the age was higher for males than for females. It might be because of this – discrimination against males rather than discrimination against females – that had led Ms. Ginsburg to criticize its usefulness to the overall strategy. But it was probably something a bit more complicated than that, I am sure, and it is listed as a positive outcome in the current accounting on the ACLU website (available here) of cases taken up to the Supreme Court through this Women’s Rights Project.
In fact, it was this case (Craig v. Boren (1976)) that introduced the concept of “intermediate scrutiny” for gender – rather than applying the “strict scrutiny” concept that had evolved in the case law for racial discrimination under the 14th Amendment. Even though subsequent cases pursued by the ACLU did strengthen the gender protection of the 14th Amendment, it presumably, or at least possibly, diverted the judicial interpretation away from a path that might have eliminated the need for the ERA. This might have happened anyway, regardless of the timing of the gender-related cases that were being taken up to the Supreme Court, but back there in the 1970s, I was struck by the strategic focus and awesome intellect of Ruth Bader Ginsburg in the process.
A new direction for the ACLU
I start with this historic perspective because I was personally very inspired by the reputation of the ACLU – its origins of focusing on legal challenges to strengthen the rights to free expression and free assembly – and the reaffirmation of this history in the approach taken by the Women’s Rights Project in the 1970s and 1980s. And today, I am quite intrigued (and even a bit concerned) by the decision taken recently by the ACLU to support a new more promotional campaign – to engage, as the ACLU’s National Political Director Faiz Shakir explains in a recent blog (available here) in “electoral work in a serious way for the first time”. This is, indeed, a ground-breaking decision for the ACLU. And I wonder what I might have thought and said at the ACLU Board meeting if I were still on the Board if and when this was debated.
It reminds me of the debate by the Board on whether or not to support impeachment of President Richard Nixon back in 1973 and 1974. He was, of course, ultimately on the threshold of impeachment when he decided to resign. I remember that because I was actually in Pakistan at the time he announced the decision. And the ACLU had indeed decided to support the initiation of impeachment proceedings against Nixon on the basis of his violation of fundamental civil liberties. I was fine with the argumentation in support of this position, although I did find it intriguing how the Board debated the merits. Clearly, almost everyone on the Board was in favor of getting rid of Nixon, just as today’s ACLU members are probably almost unanimous in favor of getting rid of the current occupant of the White House. (It would seem, though, that the argumentation for impeachment in 2018 is not yet fully developed.)
So here we are with an alternative to impeachment. Yes, the ACLU is in the forefront of cases to challenge the series of inane executive orders by this quixotic personality, irrationally and provocatively restricting immigration of targeted groups. The ACLU is also active in challenging restrictions on voters’ rights and on gerrymandering. There are probably numerous other issue areas where the ACLU is active in its litigation agenda. And although the ACLU has supplemented its focus on litigation with a legislative lobbying agenda for the same causes, this new campaign is an entirely different arena.
The new approach, it seems, is part of a broader “People Power” campaign that was launched in early 2017 in parallel with the legal challenges to the anti-immigration executive orders. But the new plan broadens the ACLU’s mission to encompass actual educating of the general public on how political candidates stand on core civil rights and civil liberties issues. It is a voter mobilization campaign that is being described as a “dramatic makeover” of the ACLU. The plan, spelled out by Mr. Shakir, is to inform voters on candidate records and to build a base of voters who will factor these records into how they will vote. The ACLU will be mobilizing volunteers to understand the potential consequences and improve awareness and understanding of the records. They will not endorse or oppose any candidates and will not coordinate with partisan groups. They do not seek to affect the balance of political power but rather to drive concrete policy outcomes.
My hope is that they would do more than to think about how to educate voters that these issues are relevant – not just that the records of various candidates might be good or bad on these issues. My wish is to see more on building and expanding a coalition of voters in support of these particular issues. There is, yes, a plan on voter promotion, but it is oriented to becoming an “NRA of the left” rather than an outreach to persuade others beyond the ACLU core. The ACLU plans candidate scorecards, town hall meetings to challenge candidates and even ballot initiatives on specific civil liberties issues. But how about building a growing number of voters to rally around these issues and not just relying on those who have already been converted to the faith?
Yes, some value is derived from sharpened advocacy on key issues. That is what the ACLU appears to be planning. But my preference is to look for ways to broaden the base of support. This means strategies to convince people that it is in their interests to support civil liberties and civil rights. It is not just to mobilize the core of activists to be more visible in their righteous condemnation of the bad guys but rather to find a way to get the bad guys, or at least their supporters, to embrace the good causes. Don’t corner your opponent but instead find a way to get him (or her) to join you. This is the reconciliation model dating back in my own personal memory to Mahatma Gandhi, adapted to the civil rights movement in the US by the Rev. Martin Luther King and refined as well by Nelson Mandela in South Africa.
Maybe the self-righteous culture of true believers that has predominated in the ACLU does not adapt well to this kind of outreach strategy. They appear to be more embroiled in the after-effects of the decision to protect the free speech rights of the America First organizers of the rally in Charlottesville, debating whether to screen the unpopular or extremist groups where there is a potential for violence. While I remain duly impressed by the intellect and vision of the likes of Ruth Bader Ginsberg, I personally prefer an inclusiveness approach, focusing on how to bring people together in search of a common strategy for the good rather than a strategy of mobilizing the righteous to be even more confrontational against the rest. That said, I do wish the ACLU well in its new campaign – and will at least continue to be a member.