While people in Tunisia and Egypt have taken to the streets in attempts to gain their liberty, Americans are losing their liberty with minimal protest. Even the American Civil Liberties Union seems unfocused. At a time when we are being surrounded by a police state and the federal judiciary is being taken over by the Federalist Society and unitary executive theory that places the president above the law, we need a heightened appreciation of civil liberty and the Constitution on the part of the American people. The American people need to come together and to take a united stand against the police state and unaccountable executive branch power.
During my many years of
writing in defense of law as a shield of the people instead of a weapon in the
hands of the state, I have identified two important reasons that Americans are
losing the protection of the legal principles that made them free. One reason is
that a significant portion of the population, especially among those who think
of themselves as conservative, there is indifference and even hostility to civil
liberties. The other reason is that Benthamite thinking has made inroads into
the Blackstonian conception of law that is the basis of the Constitution. Jeremy
Bentham argued for pre-emptive arrest before a crime is committed, for torture
in order to obtain confession, and for subverting the attorney-client privilege.
Bentham's views, fiercely hostile to those of our Founding Fathers, are now
represented on the federal bench (federal appeals court judge Jay S. Bybee, for
example) and in prestigious law schools (John Yoo, UC Berkeley, for
example).
In chapter 3 of The
Tyranny of Good Intentions, Larry Stratton and I contrast Bentham's views
with those of William Blackstone and our Founding Fathers. This article is about
the division of the American public on the matter of civil
liberty.
Court decisions by
"activist judges" in behalf of criminals, abortion, homosexual rights, and
against school prayer, all in the name of constitutional rights and civil
liberty, have resulted in many Americans identifying civil liberty with
procedures that provide protections and immunities for criminals and with
judicially created rights that are destroying morality. All the fights over
Supreme Court appointments have to do with "social issues" such as abortion. The
enumerated rights in the Constitution, such as habeas corpus, due process, free
speech and association, long ago receded into the background and play scant role
in Senate confirmations of Supreme Court appointees.
As a member of the ACLU, I
look to that organization for the legal defense of our enumerated rights. The
ACLU does stand up for the enumerated civil liberties spelled out in the
Constitution. However, reading the current issue of the ACLU newsletter, I found
myself wondering if the ACLU is unconsciously contributing to the public's
indifference and hostility to civil liberty. The newsletter's list of legal
highlights for 2010 presents the ACLU's activities as being concentrated in
efforts to legalize homosexual marriage, to protect abortion from curbs, and to
end the promotion of religious beliefs in public schools.
These are all issues that
infuriate conservatives, and these are the issues that conservatives identify
with civil liberties. Therefore, much of the public is not the least bit
perturbed to hear that civil liberties are under attack when many understand
civil liberties to consist of criminal rights, prayer bans, abortion, and
homosexual marriage. This is dangerous, because in the public's mind, civil
liberty can easily morph from procedures that coddle criminals into procedures
that coddle terrorists. Should this occur, all would be lost. Defense of the
enumerated rights would become "giving aid and comfort to
terrorists."
It is not my purpose to
argue the validity of the ACLU's position on abortion and homosexual marriage. I
am sure that the ACLU is convinced that homosexual and abortion rights are
somewhere in the Constitution, but they are not enumerated rights, and the
conservatives know it. When the Constitution and Bill of Rights were written, I
don't know if abortion and homosexual acts were the statutory offenses that they
were during much of my lifetime, but they were not socially approved behavior
that the Founding Fathers thought worthy of Constitutional protection. The
separation of church and state means no state church or taxpayer support. It
does not mean no prayer in public schools. Ironic, isn't it, that today with
faith-based initiatives we have taxpayers' money going to religious
institutions, but no prayer in school.
When the issue is raised
that perhaps the Constitution, like common law, can change as people's mores
change, conservatives reply that if the Constitution can change, anything can be
put into it or be taken out, such as the civil liberties that I am complaining
about Bush taking out. As for abortion and gay marriage, these are things that
conservatives think activist judges and the ACLU put into the Constitution.
Strictures against abortion and homosexuals should have been overturned
legislatively, not by inventive interpretations of the
Constitution.
The unintended consequence
of the judicial branch exercising the legislative function in the name of Constitutional rights has been the alienation of a large percentage of the
population from civil liberty concerns. Today much of the population views the
ACLU as a threat to society comparable to terrorism.
With the police state
destroying protections against searches, the First Amendment, habeas corpus, due
process, and the right to an attorney, with grand jury subpoenas issued to war
protesters, with lists of American citizens to be assassinated, with ongoing war
crimes committed in wars based in lies and deceptions, with the executive
branch's seizure of the power to violate statutory laws against torture and
spying without warrants, should the ACLU refocus, stop alienating conservatives,
and bring the people together against the police state?
Should the ACLU be
devoting its scarce resources to convincing courts to legalize homosexual
marriage when the executive branch can declare people to be suspects and throw
them into a dungeon? Reproductive rights and homosexual marriage will not stop
people from being thrown into dungeons. If the enumerated rights are lost, no
other rights are meaningful.
Dr. Roberts is coauthor
with Lawrence Stratton of The Tyranny of Good Intentions, a book that documents
the erosion of the legal principles that protect
liberty.
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