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Why Do I Keep Blogging About Unsound Criticisms of the ACLU?

Two reasons. First, people and organizations that are wrongly criticized deserve to be defended, even if on balance these are people and organizations with whom one disagrees on many matters. That's especially so if the wrongful criticisms come from people who are at some broad level of generality in one's own political camp. If liberals are wrongly faulted by conservatives, we conservatives should correct those errors. (Don't argue please that liberals don't do the same when the shoe is on the other foot; some do and some don't, and in any case their failings wouldn't excuse our failings.)

Second, as I've said before, I often disagree with the ACLU, and I sometimes even condemn it with some force for its actions. I want to have company in such expression, and many readers of this blog are natural sources of well-founded condemnation of the ACLU.

But we'd both open ourselves up to making false allegations (which is bad itself) and look foolish (which is bad instrumentally) if we fall into a visceral hostility to the ACLU that clouds our judgment, and leads us both to ignore the correct positions that the ACLU takes and to misstate the ACLU's supposed errors.

Kipli:

If liberals are wrongly faulted by conservatives, we conservatives should correct those errors.


I assume that 'liberals' here refers to the ACLU, as distinct from 'conservatives'?

So I'm curious: in what way is the ACLU to be considered a 'liberal' organization?

I ask that in all seriousness---I've always thought of the ACLU (at the national level) as neither liberal nor conservative (even though a majority of its members may call themselves liberal). However, my notions of what qualify as either have been shaken in the last couple of years, so maybe I'm off.

So what properties that would define a group 'liberal' also apply to the ACLU? What positions taken by the national ACLU qualify as liberal? And on the flip-side, are there ways that the ACLU is conservative?
1.14.2006 3:07am
Dustin (mail):

I assume that 'liberals' here refers to the ACLU


He didn't say that. Though the ACLU does take positions that are radical, and radical is on end of liberal (and reactive is conservative)

For example, to defend Minor children having Abortions in secret or to defend NAMBLA is very radical.

The ACLU has done things that can be desribed as Conservative, and they usually are just classically liberal, something that (many members of) both sides claim to represent today.

However, usually if the ACLU is provoking a headline, they are doing something that self identifying liberals will like more than self identifying conservatives.

So in that way the ACLU is liberal. But My. Volokh certainly didn't say that. The ACLUE takes what some consider Token cases to avoid being called libera, and they may not have 'policies' that identify it, but in practice they make self identfied libs happier than cons.

I think they are a critical organization, even when they occasionally levy cases I disagree with, they are asking questions I think need asked in court.
1.14.2006 3:26am
Dustin (mail):
I'm sorry about all my typos, I am using the most ridiculous keyboard setup ever conceived.
1.14.2006 3:27am
Defending the Indefensible:
Is the ACLU performing a valuable service in disclosing this kind of thing, or does anyone want to claim that this harms national security through effects on troop morale, public acceptance and foreign resistance?

In my opinion, the abuses that the ACLU reveals here should not happen, and when they occur they should not be covered up but rather, prosecuted to make clear that we don't tolerate it.
1.14.2006 3:51am
KMAJ (mail):
The ACLU has lost its non-partisan and independent label. That can be evidenced by its leadership and it has been corrupted by special interest money. It's biggest individual financial supporter is Peter Lewis, George Soros is also one of its large contributors. The biggest institutional financial support mainly come from foundations on the left of the political spectrum. That does not mean they ocassionally do good work, but even a broken clock is right twice a day. It cannot be denied their agenda is preponderantly secular driven.

My problem with the ACLU is that it often wins cases through financial intimidation or bullying. Often those they target do not have the money, or cannot afford the financial burden, to mount a challenge in the courts. When they take on school systems, the money spent to defend those lawsuits is money that cannot be spent on our children's education. That is not to say our public education system isn't bloated and inefficient on its own.

Until recently, the ACLU had no organizational challengers to take them on. I think it is good for the country that organizations like ACLJ and ADF have started to confront the ACLU and help the targets of ACLU lawsuits. No organization should have the monopoly that ACLU has enjoyed to further an agenda. Nor should any organization like the ACLU, ACLJ or ADF get any funding from the federal government to line their pockets.
1.14.2006 3:52am
Defending the Indefensible:
KMAJ:
You cannot seriously be suggesting that the ACLJ (Pat Robertson's organization) is non-partisan and independent.
1.14.2006 4:03am
KMAJ (mail):
DtI,

I would never suggest any of them were non-partisan, if they are challenging a partisan ACLU, than they would be the other side of the partisan coin. Certainly if the ACLU can represent the secular position, you would not want to deny those who do not share the secular agenda equally well funded representation. And none of them should get ANY federal funding.
1.14.2006 4:50am
Brett Bellmore (mail):
If the ACLU weren't a partisan leftwing organization, their recruiting literature would be substantially different. I'm not the only person to find it's "no threat from the left" silence about left-wing attacks on civil liberties offensive. They may defend you if a left-wing organization attacks your freedom of speech, but they won't brag about it when trying to get people to join. 'Cause they don't want to offend potential left-wing members, or encourage possible right wing ones.

Then, of course, there's this whole business of refusing to defend or even admit the existance of civil liberties such as the right to keep and bear arms, or property rights, which are more approved of by the right than the left.

They've got a few token Republicans, like Sheila Kennedy, but they ARE predominantly a left-wing, Democratic organization, and go to considerable lengths to remain so.

However much the ACLU deserves to be attacked, though, they deserve to be attacked accurately.
1.14.2006 8:22am
anon) (mail):
One of the reasons that I rarely talk to non-lawyers is because they don’t define their terms. In the NAMBLA case, I will never understand why the lay people go crazy about it. The issue of whether an organization or publisher can be held liable for the actions of its members or readers is quite old, very theoretical, and usually comes up in the context of gun-rights, ironically. Maybe NAMBLA isn’t the most popular client, and it sure makes political hay to call them “liberal” but the issues involved usually come up outside the child-molestation context, and inside the context of “conservative” cause celebs like “gun rights.”

To me, regulation of abortion, and the ability to be left alone is simply about limiting the power of government. So, just as the government should not be able to take your home, they shouldn’t be able to regulate your womb.


But, there are far too many people that talk about the ACLU without reading all of its briefs. These people do far more damage to the country than any terrorist or an army of child molester ever could.

“National Security” is used to justify doing or doing all sorts of things. As is “troop morale.” None of this stuff is ever proven or disproven. None of it is really proven (nor do people try.) Moreover, nobody who really served that I know of (myself included) will ever tell you that some piece of political action hurt their morale. It is cheap rhetoric, but a nation that talks about legal positions without reading them deserves cheap rhetoric.

KMAJ, All donations to any group that lobbies or litigates are from “special interests.” Indeed, special interests seem only to be ones that that the speaker disagrees with. Indeed, I suspect that you, and most people have some connection to some special interest group (e.g. the AAA, NRA, or even a pension fund).
1.14.2006 8:33am
Steveo987 (mail):
"We conservatives."

Nice to know Eugene is totally giving up any pretense of being a libertarian. "Libertarian-leaning" conservative, perhaps, but . . . .
1.14.2006 9:10am
lralston (mail):
I am familiar with 'local' politics in several states. In general State Representatives can 'afford' to be a moderate Democrat, achieving office because of tradition, local importance and so on.
They are unlikely to progress to the State Senate and on to State administration or Federal positions. Why? They cannot pass the 'litmus test' imposed by the ACLU, the bar association, and the 'old line pros'. Two strikes and you are out. Take your pick - death penalty, abortion, affirmative action, labor (read the State Federation of Teachers, in MI add the UAW)and so forth.
The ACLU is a monopoly, its dominent members are anti-capitalism, anti-religion, anti-conservative and proud of it!
1.14.2006 9:33am
SKlein:

They may defend you if a left-wing organization attacks your freedom of speech, but they won't brag about it when trying to get people to join.

Consider the possiblity that this speaks more about the failings of the right than of the ACLU. Accepting the factual assertion, the simplest explanation is that the ACLU acts consistently with its civil liberties principles, but finds that the right is uninterested in joining in or financially supporting those principles. The contrary explanation has the movement of the trees making the wind blow.
1.14.2006 9:59am
von (mail) (www):
The ACLU has lost its non-partisan and independent label.

One can't lose what one never had. The ACLU has always been accused of being an offensively leftist organization -- that is, when it wasn't being accused of being a simply offensive organization (e.g., the march on Skokie). Moreover, as Anon) points out, many of the ACLU's positions are distorted in the more popular criticisms.* The ACLU deserves criticism on occasion in my view, but one had better be sure what they're criticizing -- i.e., what legal principles are driving the case. An apparent victory for NAMBLA today may very well turn into a real victory for the NRA tomorrow.

Anyway: Professor Volokh is characteristically reasonable and right. And, to borrow a well-turned remark regarding Joe Biden at the Alito hearings, it's starting to get hard to tell where the real Clayton Cramer ends and the SNL parody of him begins.

*I don't know what to make of Anon)'s "rarely talk to non-lawyers" spiel, however. Until that glorious day in which a majority of people are lawyers -- which, frankly, can't be far off -- it seems impossible to avoid speaking with nonlawyers.
1.14.2006 10:05am
anon) (mail):
Lralston, I am wondering how the ACLU is anti-capitalism ? This seem strange. Can you provide specifics? If you can’t cite to any actual position taken by them in a brief in which they deride capitalism as a legitimate form of economic organization, you are committing a terrible sin – making stuff up.

How is the ACLU a monopoly? There are lots of similar organizations? I think you are making this up. The damage that making this stuff up does to the country is quite great.

Von: To answer your question. My family is all lawyers. My friends are all lawyers. My coworkers are either lawyers or people who work only for lawyers.
1.14.2006 11:03am
Porkchop (mail):
I'm so-o-o confused about who my friends are here.

I'm a lawyer. I like amendments. I like the First Amendment in all its splendor, so I belong to the ACLU. I like the Second Amendment, so I belong to the NRA. I like the Third Amendment -- well, no one really worries about that one, but I'm a veteran, so my wife kind of puts up with me being "quartered" with her in our home, and I belong to the American Legion, even though I think they are wrong on a number of issues, including flag burning. I like the Fourth, Fifth, and Sixth Amendments, even though those pesky warrant and subpoena requirements get in the way of my doing my job more efficiently. (I work for the federal government in a law-enforcement-related capacity.) I kind of like the idea that my daughters have a choice over their reproductive futures, too. One of them is in a military school preparing for a career as commissioned officer. Personally, I think that invading Iraq was a major strategic blunder, though, and I'm not particularly keen on seeing her head off there (. Oh, and we aren't religious in the least.

So, in the stark, one-dimensional, black-and-white, right-left world that seems to prevail in some of the comments here, where does the "anti-war" father of a gun-toting, atheistic, pro-choice, patriotic, militaristic feminist (and proud of it!) get to pull up a chair? Whose stereotype can I fit into?
1.14.2006 11:11am
claritas:
Two points.

First, the claim that the ACLU is an "atheist" organization is simply false. In Tabbaa v. Chertoff, a case pending in the W.D.N.Y., the ACLU is currently representing a group of Muslims--all American citizens--who were detained for hours at the border solely because they had attended a mainstream Islamic conference in Canada (where, among others, the Prime Minister of Canada spoke). To those who would question why the ACLU does not represent Christians who are similarly singled out, I would ask: when is the last time you heard of a Christian being singled out for bad treatment by the government in a country where 80% of the citizens are Christian?

Second, to the extent the ACLU gets termed an "atheist" organization because of its involvement in the Scopes Monkey Trial, this is unfair. It is well known that, although the ACLU was nominally representing Scopes and helped foot the bill, the infamous atheist Clarence Darrow took control of the proceedings and drastically changed the substantive legal claims. The ACLU originally filed it as an educator-free-speech case, and Darrow of course turned it into a much fluffier case on religion and science. The ACLU, which protested the change, should not be tarred with Darrow's reputation.
1.14.2006 11:16am
Tim DeRoche (mail) (www):
well said, Eugene.
1.14.2006 11:39am
Richard Aubrey (mail):
Claritas: You may regret your rhetorical question.
I hope the good professor's bandwith can handle the strain.
1.14.2006 11:40am
Richard Aubrey (mail):
Oops. Claritas. See Matt's comment in the thread following this one. He has three cases. They make the ACLU look good, but they do answer your question.
1.14.2006 11:44am
lralston (mail):
I am not a lawyer, briefs are beyond me! I am definitely a late bloomer (age 64), I got an MBA (Toledo University) in 1989. I have been semi-web literate for less than two years, love this site but have only posted a handful of times. I certainly don't know how to 'define my terms'. I was expressing a general viewpoint, and should not have used 'anti-capitalist' as a shortcut. I am not sure I will be confortable expressing my 'opinions' again. To prove I my gender compatibility with Alito's wife, I got teary typing the previous sentence.
My post was as a person who is interested in who gets ahead in local and state politics. My experience is with the partisan politics of ACLU activists and with their anti-moderate, anti-conservative effect in that arena.
1.14.2006 11:48am
Bruce Hayden (mail) (www):
I think to understand the ACLU, you need to read Conspirator David Bernstein's book "You Can't Say That!"

Part of what appears to be a totally scitzoid philosophy is a result of the decentralized nature of the organization. Some chapters put the 1st Amdt. above all else, while others put other competing liberal interests above the 1st Amdt. I belonged for awhile, until the cases that emphasized liberal orthodoxy over anything else (including the 1st Amdt.) seemed to start predominating. And as a conservative, I won't fund the "enemy", when much of what they seem to do here in CO seems to be attempts to overrule the people voting through the courts in furthering a liberal agenda.

That is not to say that I think that a lot of what they do is bad. I agree with much of it. These days though, in Colorado, I just see them more on the (IMHO) wrong side of issues than on the right side. If and when they start pushing the 1st Amdt. more than liberal orthodoxy, I will rejoin - which is to say that I would probably be happy to contribute to at least some of their chapters today.
1.14.2006 12:05pm
Brett Bellmore (mail):
Nah, SKlien, the simplest explaination is that, being a pack of leftists, they don't want their tree house invaded by uncouth rightwingers who'd insist that the 2nd amendment not be written out of the Bill of Rights.

Look at the relative sizes and budgets of the ACLU and NRA. Have you got any idea just how much clout the ACLU has sacrificed on the altar of gun control? How much more secure our liberties would be, if they, the self-proclaimed defenders of ALL civil liberties, had really been such, instead of forcing a simple organization for sportsmen to take up the burden of defending a tenth of the Bill of Rights?

There are more principled civil libertarians in the NRA than in the ACLU, and we're not in the ACLU because we ARE principled.
1.14.2006 12:23pm
Huh:
KMAJ

While I agree the ACLU is probably "preponderantly secular" I'm not sure how being secular necessarily means the organization is also partisan.

As some of the posters here indicate, the ACLU has defended persons affiliated with various religions. That doesn't make them either religious or secular. Just as conservatives aren't necessarily religious or secular. In short, I'd suggest that your party affiliation and orientation as conservative or liberal stand quite apart from your religious beliefs. Indeed, I would doubt that either mainstream party today would identify itself as religious (as opposed to secular). In fact, I'd guess if the Republican party identified itself as non-secular, it would have some interesting questions to answer.

Similarly, I would think a secular organization could also be non-partisan. I'm not saying that the ACLU is de facto "non-partisan". But if it is partisan, it's not because it's secular organization.
1.14.2006 12:26pm
anon) (mail):
Lralston, I don’t care where you went to school. The briefs are not hard to read. You never even tried to read them. Instead, you just made stuff up that you thought appeared in them because someone told you to hate the ACLU. In making this stuff up, you have done incalculable damage to the USA. In my family if you commented on an issue without doing the reading, you would get sent to bed without dinner. Sure, it is harsh, but this kind of intellectual discipline is what made America great, and by not doing the reading you have helped our enemies.

As a practical matter, the ACLU doesn’t vet candidates for state or federal office. The ACLU has sided with people of both political parties, and when it does lobby such lobbying, as is the nature of lobbying, is towards legislatures from both parties. However, since you made up everything you said about their litigating positions, I think that you made it all about their legislative positions as well. Perhaps if you could provide specifics you would have more credibility.

I don’t care about you and Alito’s wife.
1.14.2006 12:53pm
therut (mail):
Until the ACLU defends the 2nd amendment they have my wrath as a dishonest and left leaning organization. What is really sad is how gun control and attacking the 2nd amendment HAS become a lefty liberal position. It was not until recentally that way. I wonder why?????????????? I do not trust them. Find them offensive to civil liberties. CLARITIS------------WACO. Not only a odd Christian sect but gun owners.
1.14.2006 12:55pm
trotsky (mail):
Dustin,

I'll take a flyer and assume that when you talk about minors having abortions "in secret," you mean without their parents' knowledge or consent.

Well, this "radical" practice has been the law in California since the 1950s, and was reconfirmed at the ballot box just last year by a slim but statutorily satisfactory majority of the voters.

That "radical" agenda was also backed by such leftist front groups as the California Medical Association, the League of Women Voters, the California Nurses Association and the American Academy of Pediatrics.

What does "radical" mean these days, precisely?
1.14.2006 1:37pm
trotsky (mail):
By the way, whatever happened with the ACLU gag-order request in Nebraska?
1.14.2006 1:39pm
von (mail) (www):
Von: To answer your question. My family is all lawyers. My friends are all lawyers. My coworkers are either lawyers or people who work only for lawyers.

As a fellow lawyer, I don't know whether to be comforted or fearful.

Look, it is true that there are a lot of unfair criticisms of the ACLU out there -- just like there are unfair criticisms of the Republican party, George Bush, John Kerry, your local weatherman, and Bob the guy who stocks shelves the local Home Depot. It goes with the territory. Thus, I think it's a massive overreach to label those who unfairly (or ignorantly) criticize the ACLU "enemies" of the national good. The whole idea of the marketplace of ideas is to get folks to express their ideas, and then let other folks make corrections or agree or tweak or reject.

Or, shorter von: Until the Constitution and laws of this great land apply only to lawyers, they're open to criticism by everyone. That includes criticisms that are ill or only partially informed.
1.14.2006 1:41pm
Fishbane (mail):
So, in the stark, one-dimensional, black-and-white, right-left world that seems to prevail in some of the comments here, where does the "anti-war" father of a gun-toting, atheistic, pro-choice, patriotic, militaristic feminist (and proud of it!) get to pull up a chair? Whose stereotype can I fit into?

I don't know the answer to that, but a chair at my table and a cold beer are waiting for you in Brooklyn. Aside from not being a father, that looks like a rant I could have written.
1.14.2006 1:59pm
anon) (mail):
While the ACLU, to my knowledge has never brought a direct 2d amendment challenge (e.g. stating that a statute conflicts with the 2d), they have defended the rights of people to bear arms in, for example, their car. However, for that matter, the NRA has, for the most part a rather reserved litigating position. For a first-hand account of their lobbying efforts, see here. Likewise, the have defended the rights of individuals to voice their support for the NRA and the safe use of guns in Newsom v. Albemarle County School Bd., 354 F.3d 249 (4th Cir. 2003).

I appreciate the fact that you like to shout political slogans, because it is fun, but in this time of global terror and fear, doing so without doing research is a bit dangerous. Don't you think ?
1.14.2006 2:02pm
anonymoose (mail):
Just one point - the criticism referenced in the previous work is, in some way, one of omission, which is, in fact, an example of a valid charge that the the 'CL' in ACLU is, in fact, false advertising.

In the past 20 years, when has the ACLU ever defended a 2nd Amendment encroachment? Defended the religious expression of a Christian (compared to how many times they've done the exact opposite)? Defended a Catholic Church against unconstitutional state interference? Defended the school board's right to set their policies if those policies aren't leftist? Defended a property claim against the state, like Kelo?
1.14.2006 2:59pm
KMAJ (mail):
anon),

KMAJ, All donations to any group that lobbies or litigates are from “special interests.” Indeed, special interests seem only to be ones that that the speaker disagrees with. Indeed, I suspect that you, and most people have some connection to some special interest group (e.g. the AAA, NRA, or even a pension fund).

The perspective I look at things from is that there is no 'non-partisan' or unbiased individual or organization. Every individual and every organization has some bias. Individuals are shaped by their life experiences and peers, organizations are formed for a particular reason usually framed around the individual traits and beliefs of the individuals who start the organization. Some may be better at stepping outside their their inherent biases, but no one can totally escape them. They creep into the choice of words used in expressing opinions, whether deliberately or subconsciously, and that choice of one word can translate into a totally different meaning than another similar word.

To a person, we are all propagandized in this country by linguistic manipulation. The media helps propigate this as they present palatable terminology instead of a truth in packaging vocabulary. To whit:

- we call them Medicare, Medicaid, Universal Healthcare when they are really socialized medicine

- unemployment and food stamps are social welfare

- entitlements is a big one that would have the Founding Fathers rolling over in their graves, I challenge anyone to find any where in the original Constitution anything that would even hint at people being 'entitled' to other peoples' property, remember, income is property

- the infamous misuse of 'cuts' in spending, the left uses it to demonize, the right uses it to claim spending restraint. Unless there is a decrease in spending from the previous year, it is not a cut, it is a decrease in the proposed increase, but it is still an increase and not a 'cut'.

- affirmative action is legalized discrimination, using reverse discrimination to correct past discrimination, a modern day equivalent of the Code of Hammurabi's 'eye for an eye'.

That is just a cursory list, and the legal community probably has a long list of similar linguistic obfuscation. Nor does it address 'political correctness' or 'multi-culturalism'. Nor does it address the use of the descriptive adjectives liberal, conservative, right wing, left wing, etc. or the frequency of their use.

Yet, the media and educators continue to feed us this manipulative and misleading linguistic propaganda. It is almost as if it is taboo to utter the word socialism or describe programs as socialist or socialistic.
1.14.2006 3:03pm
dk35 (mail):
anon)

Thank you for bringing some actual research to this discussion!

Excellent pointer to Newsom v. Albemarle County School Bd. case. For all those on here polemicizing against the ACLU on here, I would definitely recommend looking at this. The NRA acted as lead attorneys for a boy who wanted a preliminary injunction against his school which wanted to prevent him from wearing an NRA t-shirt. The Virginia ACLU filed an amicus brief in support of the NRA's position (as did Volokh's own Dave Kopel).
1.14.2006 3:39pm
KMAJ (mail):
dk35,

Providing examples of exceptions to the rule, does not erase the prevalence of the rule. I don't think anyone has claimed that the ACLU has 'never' advocated for causes with a conservative or Christian bent, but the vast preponderance of their advocacy leans in the other direction.
1.14.2006 3:50pm
Robert Schwartz (mail):
"leads us both to ignore the correct positions that the ACLU takes and to misstate the ACLU's supposed errors."

I suppose that a stopped clock is right twice a day, but that is no reason to hang it on the wall. Although the ACLU always strikes me as an organization that is more like a clock that gains 2 minutes, is only right about once every two years and is way off most of the time.
1.14.2006 3:51pm
Michael B (mail):
Great post, or at least a solid post on an important set of themes: baby vs. bath water themes. Generalizations, presumptions about an individual's or group's motives vs. less presumptive assessments about concrete results, what actually manifests itself, well proportioned and evenly tempered assessments and counter-actions - all that is, essentially, what is being addressed. More thoughtful initiatives and counter-initiatives are needed than what often occurs. True on both, or all, sides of the divide, but true as regards this topic no less than any other.
1.14.2006 4:00pm
Michael B (mail):
Hmmm, in retrospect I'm certainly more aligned with KMAJ's and R. Schwartz's recent posts, but as a general statement E. Volokh makes an appreciable point, one which needs to be heeded within centrist/conservative circles in a more conscientious manner than it sometimes is. That doesn't deny the ACLU's s.o.p. and pronounced ideological investments, it more simply frames some particulars in a manner which should not go unappreciated.
1.14.2006 4:49pm
anon) (mail):
If the ACLU was wrong, they would lose in court. However, since they only take cases that they are pretty sure that they can win, they will have a wonderful record. This is life.

If you disagree with the ultimate result achieved in the courts, you can feel free to seek a constitutional amendment. But, most people are opposed to such a thing and the only recent proposed constitutional amendment that got anywhere involved taking the power away from the states to recognize homosexual marriages. So, the people have spoken.

While the ACLU might “strike” people as doing one thing, unless you know what positions they have taken, then you probably shouldn’t talk, because you are just repeating the press releases of whoever found themselves on the losing side. (But maybe this is the best that non-lawyers can do, because they prefer soundbites.)

KMAJ, When the ACLU takes on school systems, the school system can avoid the fight by seriously analyzing what the law is – not standing on some vague “principle” – and concede the point. Far too many school boards will stand on some principle, despite the fact that everyone tells them that they are going to lose, and end up costing the taxpayers millions in legal fees, both to the district and under 42 USC 1988.

It is hardly the exception to the rule to see the ACLU supporting Christians or gun-t-shirt-wearers. These positions actually pretty typical. (And if you would bother to read their briefs you would see this.) Their position regarding the First Amendment is based not on the validity of the message itself, but rather on the ability of others to communicate that message. What is so difficult to understand about this?

Anyway, far too many people talk about the ACLU without reading its briefs. (All available, for free, online.) This is not acceptable. This kind of analysis hurts America, and makes us no better than the terrorists who chant slogans rather than attempt to understand others. How can we expect Arabs to understand the nuances of American culture and law, when we, ourselves analyze everything with just a few soundsbites. Americans should set an example for the Arabs and never speak about anything without extensive research.
1.14.2006 5:10pm
Wintermute (www):
I don't need anyone to hate, I don't want anyone to hate. Hate obstructs the operation of intelligence.
1.14.2006 5:11pm
Porkchop (mail):

I don't know the answer to that, but a chair at my table and a cold beer are waiting for you in Brooklyn. Aside from not being a father, that looks like a rant I could have written.

Thanks, Fishbane. I like beer almost as much as I like amendments -- or maybe the other way around. :)

Do you think maybe that was a (shudder) "moderate" rant? We don't seem to see a lot of them around here.
1.14.2006 5:45pm
KMAJ (mail):
anon)

You do not address the preponderance issue nor do you address the many out of court settlements that are not settled necessarily on the merits but because of the financial constraints. There is no recovery of legal fees in these cases. I think it would be legitimate to attach to these cases the chance to recover legal fees and you might see a far different percentage of cases settled out of court. It has already starting to be seen now that the ACLJ and ADF are stepping to the plate, bringing their financial and legal wherewithal, to help defendants in ACLU cases. The ACLU's success rate is declining. Reading of their briefs, in toto, will not change anything, if you accept their point of view, you will support them, if not, you will oppose. I do not think any individual has the time, nor inclination, to do a full review of every brief ever filed by the ACLU. It is just as legitimate to look at the leadership and representatives of the organization and the leading special interest contributors, individual and institutional, to decipher the leanings of the ACLU. You can go to their homepage:

http://www.aclu.org/index.html

And their political leanings and bias are blatantly apparent. Their Congressional Scorecard lends further evidence to their bias. But because your politics agrees with their positions, you seek to lay claim to non-partisan status for them. While it is definitely your right to do so, it does not make it so.
Don't get me wrong, you have every right to defend and believe in the ACLU and their partisan point of view
1.14.2006 5:59pm
Bob Van Burkleo (mail):

Providing examples of exceptions to the rule, does not erase the prevalence of the rule. I don't think anyone has claimed that the ACLU has 'never' advocated for causes with a conservative or Christian bent, but the vast preponderance of their advocacy leans in the other direction.
When Christians have been treated unconstitutionally the ACLU has stepped in on their side, when they have behaved unconstitutionally, they have been resisted. But when they are the predominate religious cult in the US doesn't that mean there are just more of them to make mistakes that need correcting?
1.14.2006 6:02pm
dk35 (mail):
Quoting KMAJ:


My problem with the ACLU is that it often wins cases through financial intimidation or bullying. Often those they target do not have the money, or cannot afford the financial burden, to mount a challenge in the courts. When they take on school systems, the money spent to defend those lawsuits is money that cannot be spent on our children's education. That is not to say our public education system isn't bloated and inefficient on its own.


So, does that mean that the NRA should not have brought the NRA-T Shirt case, since Albermarle County presumably had to spend money on the suit that they therefore couldn't spend on its children's education?
1.14.2006 6:04pm
lralston (mail):
Is the following accurate? Germane to the discussion?
From Point of Law:
"ACLU appeals Castle Rock v. Gonzales to International "human rights" tribunal

Reaffirming the general deference paid to state sovereign immunity, and following in the footsteps of its 1989 decision in DeShaney v. Winnebago County, the Supreme Court this June in Castle Rock v. Gonzales declined to create a constitutional right to sue a Colorado town for damages for its failure to enforce a restraining order against an estranged husband who wound up murdering a couple's children. The ACLU, which saw its arguments rejected in the 7-2 decision, isn't taking it quietly. On Dec. 27 its Women's Rights Project filed a petition with the Inter-American Commission on Human Rights (IACHR) claiming that the police department violated international law by not responding properly to Gonzales's requests for help. (New Standard; CBS 4 Denver; ACLU release). The panel, it argues, should order Ms. Gonzales monetarily compensated and should promulgate standards on handling of domestic violence cases intended to bind law enforcement agencies around the U.S.

Conservative commentators have been warning that the proliferation of international human rights law might some day pose a threat to our national sovereignty and right to govern ourselves according to our own Constitution. If the ACLU wishes to fan these fears and hasten the emergence of a critique of this novel sector of law, it should go right ahead and keep pressing cases like this one."
1.14.2006 6:09pm
anon) (mail):
Nobody has yet explained how the ACLU is a “monopoly.” I think whoever made that claim made it up because of a mental condition that requires them to smear the ACLU, or their brain will melt.

KMAJ, Show me how the ACLU’s success is declining. Also, your statements regarding out of court settlements were without any proof, so I suspect you are just repeating things you heard on the internet.

Everyone has political leanings and “biases.” So what?

Lralston, I don’t see your point. The US is a signatory to many treaties that place some adjudicative power in certain courts. Whether or not their judgments are binding varies. I don’t think you are aware of the law on this point, because you don’t even know what treaties the ACLU was invoking. Instead, you are just repeating things you read in some newspaper and not even bothering to read the briefs that were filed. This would get me disowned from my family.


My fear is that Arabs that hate America will read this board and be comforted by the fact that rather than engage in serious analysis Americans shout slogans.
1.14.2006 6:27pm
Michael B (mail):
"When Christians have been treated unconstitutionally the ACLU has stepped in on their side, when they have behaved unconstitutionally, they have been resisted. But when they are the predominate religious cult in the US doesn't that mean there are just more of them to make mistakes that need correcting?"

Without the least bit of exaggeration, this is a trite and trivial tautology and additionally is sneeringly condescending. When egoistic forms of political "discourse" reach such cult-like proportions, they need to be acknowledged, with some exactness, for what they are. This is particularly noteworthy since the original post in the thread seeks mediation and evenly tempered comprehensions, proportionate weightings.

Argumentum ad Ego ex Nihilo: first declaim self-righteousness, then follow with arrogations and scoffs of dismissiveness, often little or nothing more than a tout court dismissiveness at that. The ideologically invested "Harrumph!" forwarded as a substantive argument; indeed, righteously declaimed as such from the pulpit of self-regard.
1.14.2006 7:15pm
therut (mail):
Defending the Indefensible---------Of coase the ACLJ is biased and partisian based on its major founder that is what many have been saying about the ACLU and its Founder a communist. Pot Kettle Black.
1.14.2006 7:41pm
Brian G (mail) (www):
The ACLU's name outside of the legal world is complete mud. Inside the legal world, it's name is almost complete mud. In their view, the Christian is the devil, the heterosexual is the abnormal, the flag-burner is the Patroit while the flag-saluter is jingoistic scum, and they only defend free speech they agree with. (Please don't bother with the Oliver North and Rush Limbaugh examples: they are just smart P.R. stnuts so they can run to that card when they defend NAMBLA. Don't believe me? Read their press release defending NAMBLA for yourself).

One other thing: Someone find me a poor ACLU lawyer who isn't a law student or a first-year associate idiotically working for them for slave wages. You can't. Their is no organziation better versed in how to obtain statutory fees better than they are. They are money-grubbers who get paid by finding like-minded liberal judges, no different than the "evil" corporate lawyers they act like they hate so much.

The ACLU is a disgusting organization. Pure and simple.
1.14.2006 8:04pm
anon) (mail):
Brian, You seem quite intelligent.

If your assertions about the legal positions of the ACLU are based on anything than reading their briefs or pleading, you are damaging the USA.

The ACLU’s name is the ACLU – not “mud.” You seem to be just asserting that you don’t like something, but you can’t give specifics. This is very bad for the country. Worse than 9/11.

You need to provide specific references to the text of press releases in order to be taken seriously. You also didn’t seem to address the ACLU’s argument, so it is questionable whether you are a lawyer. (If you are not, the hard truth is thus: you don’t matter.)

Also, your characterization of an organization based on statement that your conclusion is correct is “pure and simple” is strange.

Finally, and I don’t want to be the one to break it to you, but all litigators know how to get their fees via statutes that provide them or any fee-shifting doctrine. Large firms do it. Small firms do it. Public interest firms do it. In fact, even some prosecutors do it (when they in the context of forfeiture proceedings). But since you don’t seem to be a lawyer, life must be awfully confusing.

Anyway, as I said, but for your comments on here and your lack of a law degree, you seem quite intelligent.
1.14.2006 8:53pm
Bob Van Burkleo (mail):

this is a trite and trivial tautology and additionally is sneeringly condescending.
And you think your reply isn't? While I have no need to confuse clarity and obfuscation, my statement stands - we have seen in previous notes that the ACLU has on many occasions supported people of the Christian faith. And notably you didn't respond to the speculation that they end up on the side against them more because there are so many Christians with resultant more transgressors than any innate bias.

If you had nothing to add why reply at all?
1.14.2006 9:24pm
Noah Klein (mail):
Anon,

I agree with many of your points and I like the fact that you are countering people who are unfairly maligning an organization without facts or sometimes even a logical argument. Their failure to provide coherent reasoning for their position, even if they might be or might think they are justified, forces any logical person to either ignore or dismiss them.

Yet with all this, I fear that you are falling into the same trap they are. They reject an organization due to hearsay and bias. You reject them though not soley for their foolish statements, but because they do not have a law degree. Many an intelligent person does not have a law degree. To name a few historical examples: Benjamin Franklin, Theodore Roosevelt and Harry Truman. All these examples from the past dealt with and helped to make law. Furthermore, there are many who can make a legal argument or at least understand one without a law degree. It is when you dismiss a whole group without facts to demonstrate that those you are debating are a good sample of the non-lawyers who come to this blog that you fall into their own trap.

Thank you though for making your arguments to counter ignorance.

Noah
1.14.2006 10:04pm
anon) (mail):
It isn’t that I reject them because they were too lazy to get a law degree. Their contentions for the reasons we agree with fail on the merits. But, if they had been lawyers they would have at least tried to attack the ACLU on the merits, providing specific references. But, because they are lawyers they are not the least bit embarrassed to engage in such rhetorical acts.
1.14.2006 11:33pm
Andy (mail) (www):

If your assertions about the legal positions of the ACLU are based on anything than reading their briefs or pleading, you are damaging the USA.

The ACLU’s name is the ACLU – not “mud.” You seem to be just asserting that you don’t like something, but you can’t give specifics. This is very bad for the country. Worse than 9/11.


Uhhh, Anon),

As much as I like the idea of vigorously defending the ACLU, I've got to say (in the spirit of Prof. Volokh's original post) that some of your overhyperbolized language seriously detracts from your arguments (and, to be honest, is rather tasteless and offensive.)

The critics who unfairly denigrate the ACLU are not "damaging the USA", and they are certainly not "Worse than 9/11."
1.15.2006 12:18am
Brian G (mail) (www):
Anon said,


You also didn’t seem to address the ACLU’s argument, so it is questionable whether you are a lawyer. (If you are not, the hard truth is thus: you don’t matter.)


I am not a lawyer, I am a mere lowlife 2L at what the US NEWS calls a "2nd tier law school." If I don't matter, well all I can say is boo hoo for me. Somehow, I'll try to find the courage to carry on after discovering my existence is meaningless.

Yet, my opinion on the ACLU, whether you want to believe it or not, is the majority opinion in this country, and that majority is huge. (I assume you are a liberal, so you don't know what it is like to comprise part of a political majority in the USA).

I've read ACLU briefs, I've heard their arguments, and I have even seen their lawyers in action at the appeals court, which is conveniently located at my law school. Their positions are a joke. If there weren't a slew of like-minded liberal judges to support them, they'd have been out of business a long time ago.

Perhaps you should read up on them a little, Mr. Anon. They have a data-mining operation in order to smoke out donors that rivals the NSA. They threaten to fire board members who dare dissent from the company line.

I do not care for the ACLU one bit. That is my First Amendment right. If that doesn't matter to you, well then that is your right as well. God Bless America!!!
1.15.2006 12:47am
KMAJ (mail):
anon),

While you eschew the lack of documentation in statements, sometimes documentation is not necessary where common sense and logic can prevail. Prior to the ACLJ and ADF and groups like Stop the ACLU, they had no organized opposition. Just as you cited one case about NRA T-shirts, should I cite the 6th Circuit Court of Appeals case in Cincinnati, where they lost a Ten Commandments case and were chastised in the opinion, ACLU v. Mercer County . The ACLJ and Falwell's Liberty Fund played a major role opposing the ACLU. Or Books v. Elkhart County ? Should I cite the Supreme Court Ten Commandment case VAN ORDEN v. PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al ? In the past they had not lost cases like these.

Their site alone shows their bias and the bias of their interpretation of the Constitution. The fact they took a position on Alito, instead of remaining neutral, speaks to their bias.

I don't think anyone will deny Christians the right to have their view represented in court if they feel the ACLU is against them. I am not a Christian, so I have no stake in that opinion other than being a strict constructionist with the Establishment Clause.
1.15.2006 2:28am
Noah Klein (mail):
Brian:

You say: "If there weren't a slew of like-minded liberal judges to support them, they'd have been out of business a long time ago."

This does not make much sense since over 60% of the bench were appointed by Republican presidents. Furthermore, an interesting article by Cass Sunstein and David Schkade demonstrate how these judges are more conservative than previous appointments by Nixon. The bench is becoming more conservative, yet the ACLU is still winning cases. This would thus appear to contradict your whole point. Finally, calling briefs or legal arguments a joke without presenting any evidence of their foolishness makes your arguments a joke.

KMAJ:

Here you cite, as many who adopt your reasoning have cited, an establishment case to show that the ACLU would not defend Christians' rights to free exercise and speech. I'm going to try to explain this to you. The ACLU has adopted a philosophy, first put forward by Thomas Jefferson, that there should be no connection whatsoever between religion and government. I will not say whether this is the right reading of the amendment, but it is most certainly a legitimate one since it can be shown to have the support of some of the writers of the constitution and the bill of rights.
The free exercise and free speech clauses are different from the establishment clause. The ACLU, as far as I know, has never argued against a person's right to use the mass-media to spread their beliefs or to speak about these issues in public. Nobody has shown me any evidence that the ACLU has argued against these rights, but instead highlighted the ACLU's attempts to eliminate religion from government as an attack against Christians. As others have pointed out, the ACLU has defended Christians and the NRA's and other such groups right to freely exercise their religion or speak. The government is not the only public forum for speech and thus the ACLU's attempt to divide these two segements of society is not an attack on Christianity. Whether this is the correct reading of the Establishment Clause or whether this takes it too far is up for debate, but making this argument does not make the ACLU a joke, evil or anything thing you wish to sling at them.

Noah
1.15.2006 3:38am
KMAJ (mail):
Noah,

I respectfully disagree with your assessment of Jeffersonian philosophy. His letter to the Danbury Baptists was not meant to construct an impregnable wall but to assure them that they would not be treated unequally with another Christian religion. The Establishment Clause was clearly intended to prevent a state sponsored church like the Anglican Church of England. As such, any attempt to separate with an impregnable wall, which was clearly not intended, is viewed by Christians as an attack on Christianity. The first publication distributed by the government to public schools was the Bible. Everson is to Christianity what Dred Scott was to slavery. The claim that there is a 'Separation of Church and State' in the Constitution is agenda driven, when such language does not exist. I won't get in to an exchange of quotes because there are many that show views from them on both sides. But if you look at the historical time and society in which they lived, today's interpretation of the Establishment clause is a bastardization of its intent. The attempt to minimize and marginalize Christianity is a neo-Marxist construct right out of the Manifesto.

I don't mind if you believe such a wall should exist or if you are an atheist, but any claim to it being the intent of the Founding Fathers as justification does not mesh with history or the society as it existed back then. While it can be claimed this is a secular country, it is a country with a predominantly Christian society, the secular intent of the Founders was squarely focused on preventing one sect of Christianity being government supported and dominant over the others, it was never intended to prevent all interaction between the two.
1.15.2006 5:46am
anon) (mail):
Kmaj, Of course their site shows bias in favor of “their interpretation” of the constitution. So does everyone’s. This is axiomatic. Indeed, I don’t even think I could run a website like Oyez.com consisting of opinions, or a database of famous briefs without being “biased” in favor of my interpretation. So, unless you are going to claim that they filed one brief in court and posted another to your website, you have no point.

There is nothing wrong with taking a position on a particular nominee. They don’t need to be neutral. You don’t need to donate to them.

You don’t know if they would have lost a particular case but for participation of a few groups. Indeed, the cases you mention, the groups only submitted amicus briefs, and, I am sure that the attorneys for the state were perfectly capable of representing themselves.

The specific facts of the case differ from earlier ones. What kind of Christian or Scientologist iconography is permitted on government property is a difficult question, and, for better or worse, a coherent criteria will only be found in litigation.

Of course Christians can be represented in court.

Finally, KMAJ, not everyone wants to interpret the establishment clause the way you think “Jefferson” intended it to be written. Some think it should be interpreted based on an understanding of the meaning of the terms in it, as used by lawyers, at the time of the ratification of the 1st. Some at the time of the ratification of the 14th. The proper mode of interpretation of a text goes to the merits of the issue which will ultimately be resolved by a court, and is a very deep philosophical matter which doesn’t lend itself easily to a blog of general readership.
1.15.2006 6:49am
Medis:
I think Professor Volokh does not quite understand (or is pretending not to understand) how important things like this are to "movement" conservatives. If there is a "Culture War" going on, there have to be Enemies, and the ACLU is on the Great Enemies list.

And trying to be "reasonable" about all this just means the good Professor is being "squishy"--and therefore a bad conservative--because he is not taking the side of the Good Guys.
1.15.2006 9:01am
von (mail) (www):
I've read ACLU briefs, I've heard their arguments, and I have even seen their lawyers in action at the appeals court, which is conveniently located at my law school. Their positions are a joke. If there weren't a slew of like-minded liberal judges to support them, they'd have been out of business a long time ago.

In advocacy, "show" beats "tell" every day of the week (and twice on Sunday). Would you provide an example of a position taken by the ACLU that you found to be a joke, and explain why you found it to be a joke?

Incidentally, from one non-top-tier law grad to a future one: Don't ever apologize for where you went to school. Just excell at what you do today and tomorrow.
1.15.2006 9:34am
therut (mail):
I think it is amazing that the ACLU takes as a basis for their strict idea of separation of church and state a personal letter written by Jefferson and slings that about as though it was the written Constitution. Even in doing so misinterpretating that letter. But they are somehow BLIND to the Federalist Letters as speaking on the 2nd amendment. If they actually did LOOK they would have no doublt honestly to the meaning of that amendment and could in no way deny the individual right inherent in it. But since the 2nd amendment really speaks TRUTH TO POWER and it is a truth they do not like as it could be used to revolt aganist their world they are trying to create they as scared and hate the idea of a right to own firearms. They do not fool me at all.
1.15.2006 1:51pm
KMAJ (mail):
anon),

I don't mind if you support the ACLU's philosophy, everyone is free to support organizations that fit their beliefs. One thing that has not been addressed is the ACLU getting federal funding, as a partisan group that takes political positions, they have no right to get money from the public coffers.
1.15.2006 3:13pm
Hattio (mail):
anon
I agree with you in general, I think the attacks on the ACLU are by and large unfair. But I have to say (as a lawyer) that your attacks on non-lawyers, and insistence that lawyers would stick to the facts both strike me as wrong and non-sensical. There's an old saying about law. If the law's on your side argue the law, if the facts are on your side argue the facts, if neither is on your side, get up and bang your shoe on the table.
I've seen lawyers with lots of years experience completely ignore the controlling statutory provisions and try to argue irrelevant fact because they made my client look bad. Worse, I've seen them do it when they had legal/statutory arguments. Every lawyer has been in the position of trying to gloss over particularly bad facts or law, but even experienced lawyers occassionally lapse into the notion that their opponents are evil and if they just repeat that enough, the judges will rule for them. The truly frightening thing, is how often they're right.
1.15.2006 3:23pm
Owen Hutchins (mail):

One thing that has not been addressed is the ACLU getting federal funding, as a partisan group that takes political positions, they have no right to get money from the public coffers.

Untrue. The ACLU recieves no Federal funding.
1.15.2006 4:00pm
anon) (mail):
Kmaj, Lots of groups with political biases get money indirectly from taxpayers, so I don’t see your point about what is or is not a “right.”

For example: government contractors. Did you know that government contractors are usually corporations whose interests differ from those the country as a whole. Their boards of directors are not even popularly elected!

The ACLU isn’t a government contractor. (If you think it is, then you have to show me one of those government contracts.)

Congress decided, in enacting 42 U.S.C. 1988, to provide victorious plaintiffs in civil rights cases with attorneys fees. The president signed it. So, for whatever reason, the majority has spoken, and you lost. The ACLU therefore has a right. You are free to attempt to change the law.

But there are other fee-shifting statutes. I am sure that you are against them, as well. What about 26 U.SC. § 7430 ? Are you against that one as well?

Therut, I am glad that the second amendment is your favorite amendment. If you had your act together you could litigate in favor of the sportsmen and home-protectors who had their guns taken from them. But you don’t. You would probably have to explain why your offered mode of constitutional analysis is the only one that the courts should adopt, rather than just declaring that someone else has it wrong.

(Also, if you did have your act together I would expect you to advocate on behalf of thugs, gang-members, Saddam Hussein, and the mentally retarded that want to bear a nice shiny gun.)


Hattio, Well, I will take your assertions at face value, and I will note that when a lawyer knows that he is ignoring binding precedent, he knows he is doing a bad thing. (Though, some government entities with litigation authority seem to be notorious for this.) Lay people don’t seem to even know that it is wrong.
1.15.2006 4:07pm
Michael B (mail):
"It isn't that I reject them because they were too lazy to get a law degree. Their contentions for the reasons we agree with fail on the merits. But, if they had been lawyers they would have at least tried to attack the ACLU on the merits, providing specific references. But, because they are lawyers they are not the least bit embarrassed to engage in such rhetorical acts." anon)

Yes, and speaking of a lack of embarrassment, we are now reassurred that lawyers would never stoop to mere "rhetorical acts". Thank goodness for that diktat. We may now, humbly and thankfully, move on to our petty and obscure ideological hovels while our betters handle the more important issues concerning our lives. And though lazily foregoing a law degree, we can be thankful, ever and humbly thankful, that our betters are kind and considerate enough to beneficiently look over - and down - upon us, from the heights.
1.15.2006 4:46pm
Michael B (mail):
"And you think your reply isn't?" Bob Van Burkleo

Yes, that's what I think. You offer literally nothing more than a tautology posing as an argument. I describe it as such, no more, but certainly no less.

"... my statement stands ..."

Yes, as previously described and without any improvement.

"If you had nothing to add ..."

You do grant your assertions pride and privilege of place. You assert - others are expected to formulate the most detailed and well documented forms of argumentation? Too, what I added was an apt description of your assertions. Also, back at ya: if you had nothing to say in the first place, beyond the tautology, ...

Or put differently, hold yourself to the same standards you wish to apply to others. With all this self-regard, remonstrance and protestations of inherent, not-to-be-questioned superiority, this anemic and solipsistic appeal as "argument" - then followed up with more of the same, a suggestion: hole + shovel, quit digging.

Can also recommend You Can't Say That, previously recommended in this thread. It's not at all comprehensive vis-a-vis the ACLU, but it does tackle it head-on and unflinchingly in the final chapter.
1.15.2006 5:03pm
therut (mail):
No I would litigate in favor of the US citizen and the BOR in particular. Something the ACLU does not do consistently. I have no pet Amendment unlike the ACLU. I just fell a certain sadness that the 2nd and I would note the 10th is almost completely overlooked and infringed. I know why do you? While some above seem to find themselves superior cause they are lawyers is not surprising in the least. The problem however will always come down to WE THE PEOPLE not WE THE LAWYERS. The Law is nothing if WE THE PEOPLE do not support your pet theory of the day.
1.15.2006 5:11pm
anon) (mail):
Everyone that raises a constitutional issue is just “litigate[s] in favor of the US citizen and the [usually] BOR in particular.” The fact that you think that your potential clients are more moral doesn’t make you better. However, since you are talking about what you will do, you are just talk.

The ACLU seems to have several “pet” amendments. But, there is nothing wrong with this. Heck, I have a few “pet” statutory sections, because this is what I am best at litigating. Since you have never litigated any constitutional challenges to anything, I don’t know how you think that, unlike the ACLU, you can give effect to every constitutional provision.

I am unsure if this is a question, “. I know why do you?” So I can’t answer it.

While it is quite cute that non-lawyers think that they can handle constitutional issues, most of the time they lose interest because they lack the patience and discipline to follow-through with anything. This is why the lay people have their lives controlled by lawyers.

Anyway, your argument seems to be that at some point in the future you will do something. In my family, we were taught to never say you will do something. You either did it, or you are all talk, and would lose your allowance for a week. (Or be disowned.) This is why our character is better than yours.

Finally, nobody has presented a specific instance of the ACLU receiving government funding, other than under a specific fee-shifting statute adopted by Congress. I guess they made it up.
1.15.2006 5:24pm
Public_Defender:
The Institute for Justice fights for its view of property rights, but it has a policy not to get involved in criminal cases.

As someone who represents people who want to protect their property from illegal police invasion, that disappoints me, but I wouldn't say that the organization is hypocritical, evil, or dishonest.

Like the ACLU, Th IJ just has limited resources. The IJ also probably compromises its beliefs somewhat to satisfy its more conservative (as opposed to libertarian) backers.

All organizations have priorities. All organizations compromise to satisfy competing factions.
1.15.2006 7:17pm
Bob Van Burkleo (mail):

"And you think your reply isn't?" Bob Van Burkleo

Yes, that's what I think.


Then you are wrong. I made a simple assertion by example that the ACLU does support Christians when their civil liberties are being assailed and is against them when they infringe on other's. Supported by many examples in this thread which you then complain is a 'tautology' a specious analysis as actions of support and opposition for two different situations are hardlly the same thing stated twice. I then speculated that the apparent 'persecution' of Christians is more due to their numbers rather than any bias.

That you would think that simple statements of opinion and a question about possible etiologies of complaints is somehow a statement of superiority or even worthy of a discussion point itself makes a statement more about you not me. I do hold myself to the standards I expect from others - I would have expected an intelligent counterpoint but got nothing but a mistaken assessment of 'tautology' and no opinion on the speculation (yes it was a speculation - hence it being framed as a question). Please, if you all you want to do is have a metadiscussion about the discussion take it to private email - this is not the appropriate place for it.
1.15.2006 7:18pm
Noah Klein (mail):
KMAJ:

I don't see how you think the ACLU has misinterpreted the Jefferson letter. Jefferson was a deist. He actually wrote a new bible excluding all miracles and other religious reference and simply emphasizing the morals. In the letter he clearly says "religion is a matter which lies solely between Man &his [G-d]." And he also of course makes the statement after quoting the relevant portion of the amendment "thus building a wall of separation between Church &State." Here is a cite where you can read the letter yourself. If you can show me where in that letter he shrinks away from this broad statement, then I will agree with you that the ACLU's posiiton has no authority from the Founders.

As to your point about the public schools, you should know, as a student of history, that the schools were wholly under the state government's authority both then and now. Furthermore, the Federal government made no law respecting K-12 education until the 20th century. Thus the public schools giving bibles to students in the 19th century has nothing to do with the establishment clause. Also, it wasn't the first book given to students or schools. The first books were spellers, such as Noah Webster's American Spellers. These spellers though did contain religious messages and bible references.

I would also like to say that the ACLU's position has not been adopted by the Supreme Court. The Supreme Court has stated clearly that funding for religious institutions is fine as long as the funding is for a secular purpose. A good example of this is the Everson case, where the state was able to provide busing to religious schools because it was providing busing to all educational institutions. The standard now used by the Supreme Court is the Lemon Test. This is notw what the ACLU and similiar organizations want. They do not want the state to offer any funds to religious institutions and thus to follow Jefferson's philosophy on the "wall."

I would like to say to my critics and those who agree with me that THIS IS A CHRISTIAN NATION. This nation has over 80% of its population who identify themselves as Christian. Not only that but the percentage of those who attend church regularly is above 60%. This nation has become more religious in the past two centuries, while nations with state churches or a state promoting one religion above others have become less religious. Most of Europe, Asia and Canada have become less religious partially due to their state's support for one religion over others. Not only that, but since the Supreme Court has eliminated religious messages being given to students in school this trend has continued without any significant change. This country can and will remain a religious Christian nation, but that does not mean that the government is the proper forum for religious expression. I am not an atheist nor do I subscribe to the "wall of separation," I just look at history and feel that one's G-d is one's own business.

therut:

I will give you one reason that people pay more attention to Jefferson's letter to Danbury Baptists than Federalist #29. Jefferson's letter to the Danbury Baptists was written 10 years after the First Amendment was ratified. Madison used the Virginia Bill of Rights as a template for writing the U.S. Bill of Rights. And guess who wrote the Virginia Bill of Rights? That's right, it was Jefferson. Finally, Jefferson was writing his letter while President of the U.S. and thus while it was his duty to execute the law. For all these reasons, I believe Jefferson is a good source on what was meant by the establishment clause.

Federalist #29 was written prior to the adoption of the Second Amendment. In fact, Federalist #29 was written at the time that the Federalists were still advocating against an amendment. You would be right if you responded to the above statements that they were already being pressured to write a Bill of Rights and they had a sense that a concession on this point would be required to obtain ratification of the Constitution. Yet, even if that were so, they did not have a form and they especially did not have a final version of the amendment. Finally, the most relevant retort to your "observation" is that Federalist #29 was not addressing this issue at all. It was addressing the Article I Section 8 powers given to Congress concerning militias and not an individuals' right to keep and bear arms.


Noah
1.15.2006 7:23pm
Bob Van Burkleo (mail):
I have "You Can't Say That" on hold at the library (not a long que) but I think you would find me in agreement with you on many of its assertions judging from the notes about it at Amazon.

But even if the ACLU is on the 'wrong' side of these attempts at expression control, my first inclination would be that the problem is that we have stated it is alright to control expression and behavior from the first civil rights legislation. The discussion isn't really about 'should we', its about 'how much' control. Does freedom of association extend into public accomodations? Does civil liberty mean I have the right to discriminate with who I do business with and hire based on any criteria I choose, or does it mean that every citizen has a right to access to the public parts of society? The civil rights legislation would indicate the latter and so faulting the ACLU for merely advocating this stance seems to be complaining about the wrong thing.

Do they sometimes try to go to far? Sure, especially with the "enforcing PC language' attempts of the 90's. I mean if someone says something silly I do want the right to point and laugh and think they should have the same liberty. But the fact that they push isn't their fault - its what they're supposed to do. If they want too much the courts are supposed to turn them down. Condeming them for asking for things that are logical extensions of the status quo again seems to me to be missing the mark.
1.15.2006 9:18pm
anon) (mail):
Speaking of limited resources, I wonder why most prosecutors don’t enforce laws against assault if it happens in a high school. For my money, anyone who takes a swing in a highschool at another kid, should spend 2-3 years in jail because it is a crime. Instead, they compromise. They allow kids to beat each other up, and concentrate on drugs.

But somehow the ACLU has to enforce every commiestitutional provision.
1.15.2006 9:51pm
Smithy (mail):
Make no mistake: the ACLU are enemies of the state. There must be a way to use the Patriot Act to shut these traitors down. They have no respect for traditional values or the American way of life. They have all but taken away Christmas and soon they will take away Easter too.
1.15.2006 10:20pm
therut (mail):
The ACLU is an enemy of the Constitution. They love the STATE in their own image.
1.15.2006 10:43pm
Noah Klein (mail):
Therut:

How do you expect people to accept your position if you make such ridiculous statements? You just say that "the ACLU is an enemy of the Constitution." This is, of course, the same Constitution which they have countless time upheld against majorities attempting to dismiss the rights of people, even the most despicable people that they disagree with like the Nazis of Skokie.

I must assume therefore that you don't expect to convince people of your position, but instead use this blog as means to express your fierce distress that the world is not the way you saw it in the past. I am truly sorry that you are thus made to understand the true nature of the world, but this is part of living. Please make reasoned arguments.

Noah
1.15.2006 10:58pm
Smithy (mail):
Noah, the ACLU is destroying the constitution by reducio ad absurdium. By making the constitution look like a suicide pact, they hope to undermine it.
1.15.2006 11:09pm
TruthInAdvertising:
Looks like the cranks have invaded the comments section.

"the ACLU is destroying the constitution...."

Really? Please provide us an example of the constitution being destroyed? Last time I checked, my constitutional rights seemed to be doing OK. Sure, they could use a tweak here or there but I'm generally free to say what I want, even be an idiot posting on a weblog like some people here.
1.15.2006 11:39pm
Brian G (mail) (www):
For the record, I certainly don't apologize for going to a "second-tier" law school. I am proud of my law school. I know all the Professors, they know me. I have had small classes, and have learned quite a bit. I already passed the MPRE after my first year (quite easily, thanks to a great Professor in a small Ethics class), and have written quite a few winning briefs for private attorneys and even have a contributing author credit for a law book. I don't think I would have half of what I have at some of the so-called top law schools.

Oh, and two ridiculuous ACLU cases was their efforts to remove the Soledad cross and the Boy Scouts in Balboa Park, both in San Diego. Both are s pure disgrace that served no purposes other than to forward the ACLU's anti-America, Christian, and heterosexual worldview. And they were able to have success thanks to like-minded liberal judges and gutless politicians.

Outside of law school, the university setting, and the legal profession, the ACLU is despised. Whether the legal minds that read this site want to accept that or not is another matter entirely.
1.15.2006 11:44pm
Smithy (mail):
Brian, you have nothing to be ashamed of in terms of having gone to a "second tier" law school. I went to Stanford, which is considered "first tier" and having read your comments here, I would say that you are the equal or better of the vast majority of my former classmates.

You are certainly right that the ACLU has an anti-American, anti-Christian agenda. I would argue that it is more pro-homosexual than anti-heterosexual, though. I cannot think of any cases where they espoused a position that could be described as "anti-heterosexual".
1.15.2006 11:56pm
KMAJ (mail):
Noah,

First, Jefferson wasn not even at the Constitutional Convention, he was in France, so his letter to the Danbury Baptists is NOT speaking with any authority for those who wrote the Constitution. Second, Madison is not the author of the Bill of Rights, George Mason is the Father of the Bill of Rights. So if you are looking for who is responsible for the Bill of Rights, it is Mason, not Madison. Mason refused to sign the Constitution because it did not include a Bill of Rights. Also, it was George Mason, not Thomas Jefferson, who wrote the Virginia Bill of Rights. If the Founders had intended your interpretation they would never have published Bibles and had them distributed to all the public schools.

I will not get in to exchanging quotes, because there are quotes from Jefferson and others that can be used for both sides of this debate.
1.16.2006 1:07am
KMAJ (mail):
Noah,

As far as your Second Amendment argument, you could not be more wrong. There are numerous quotations by the Founders and a definitive linguistic analysis by Prof. Copperud that says you are wrong. If you want to try to challenge Copperud's credentials, you will have trouble.
1.16.2006 2:00am
Noah Klein (mail):
KMAJ:

You could not be more wrong on who wrote the first ten amendments to the constitution. The author of the amendments have been made clear through various sources throughout our history but I will direct you to this site. George Mason did object to the constitution on the grounds that it did not have a bill of rights, but that was not his only objection and thus he did not sign the constitution. Biographical information about George Mason that will demonstrate the facts above are at this site. Mason was not even a member of the House of Representatives, thus it would be difficult for him to have been the author of the U.S. Bill of Rights. I am using Birth of the Nation: The First Federal Congress 1789-1791 as my authority on the representatives in Congress.
I was wrong about the author of the Virginia Declaration of Rights that was George Mason and not Jefferson. Jefferson just used Mason's ideas in his Declaration of Independence. Now Jefferson was Secretary of State and confidant of Madison at the time of the writing of the Bill of Rights who convinced Madison to propose the Bill of Rights, so I would say he has some influence into our understanding of the document. But that being said, I think we should understand what were Mason's thoughts as to religious freedom and the establishment of religion. I will direct to a site that will expand your understanding of this. George Mason was a deep believer in the idea of the government not establishing a religion. This is why he opposed Patrick Henry's 1785 Bill for the Support of the Teachers of the Chritian Religion and supported Thomas Jefferson's Statute for Religious Freedom.

Thus it is hard to establish that Jefferson's and the ACLU's reading of the first amendment is outlandish and crazy. It is clear that the authors and the supporters of the Bill of Rights had similiar beliefs as Jefferson. Yet it is false to say that all supporters of the Bill of Rights were of the same mind. George Washington was a big believer in the importance of religion's influence on democracy. So was John Adams and Benjamin Rush and others. But to say that the ACLU is trying to destroy the constitution because they offer this position is ridiculous. Disagree with the idea, but don't act the fool and say the ACLu is evil, because they offer an interpretation of the Bill of Rights that was accepted by the authors of the amendments.

As to your point with reagard to the second amendment, I made no statement so far in this thread as to my interpretation of the second amendment. I responded to another person who questioned both the importance of and my reading of Jefferson's Letter to the Danbury Baptists as opposed to the importance of Federalist #29 to the Second Amendment. First, as to the letter, I am glad you no longer dispute what Jefferson says since it is pretty clear. Second, as to Federalist #29 and second amendment, all I said is one reason that it might not be applicable to the second amendment was that it was written before the second amendment. Do you dispute this? The other reason I said it might not apply to the second amendment is that it was written to address a specific part of the Constitution (Article I Section 8). Do you dispute this? If you dispute those two facts, you will have a hard time backing up your position with historical evidence.

I know many of the founders wrote on all the amendments, including the second one. Furthermore, I do not at this moment dispute Prof. Copperud's statements. Mostly because I have no desire to read them and partially because I have pretty good authorities for my interpretation of the amendment. I'll leave the specific countering of his opinion to my betters.

Noah
1.16.2006 3:16am
randal (mail):
I like Porkchop the best.

Well, and Medis, but Medis, given that you own every thread on Volokh - ever thought about your own blog?
1.16.2006 5:33am
randal (mail):
I do have a question. For my fellow "liberals". What is up with gun rights? We seem to be on the wrong side of that one. I can't figure out how it's liberal to be anti-gun.
1.16.2006 5:46am
Porkchop (mail):

I do have a question. For my fellow "liberals". What is up with gun rights? We seem to be on the wrong side of that one. I can't figure out how it's liberal to be anti-gun.

Welcome to the club. I've been trying to figure that one out for decades.
1.16.2006 6:06am
randal (mail):
They have all but taken away Christmas and soon they will take away Easter too.

I like this quote. The argument, as far as I understand it, is that secularists are attempting to undermine Christmas by making people say "holidays" instead. In stores and the coupon pages. So apparently stores and the coupon pages are the natural bastions of Christmas. That's real great considering the guy who's birthday we're celebrating was fairly anti-commercial when it came to religious matters.

I'm not particularly religious, but I fail to understand why it's the religious types who are fighting against the separation of church and state. The whole point of the separation was to allow religion to thrive. If I was ever at a church service where the sermon was about who to vote for, my faith would be well shattered. Tie religion up with politics at your own risk.

I would add pop culture to that as well. All these Jesus-boy bands aren't going to help the Christian cause. People are fickle about politics and pop culture. There's nothing I'd like to see more than a huge wave of pop-Christianity. As with every fad, it'll get old in about two years. After that, Christianity will be so turn-of-the-century.
1.16.2006 6:09am
KMAJ (mail):
Noah,

First, let me dispell one allegation you made, I have never said the ACLU was evil, I have said they are partisan and biased. Second, you are quibbling in semantics, George Mason is recognized as the Father of the Bill of Rights, your link did not take you to this page from the same website that contains these observations:

Some of Mason's phrases appear in the U.S. Bill of Rights that passed 15 years later.
---
Nearly 50 years later, Jefferson added, "the fact is unquestionable that the Bill of Rights and the Constitution of Virginia were drawn originally by George Mason."
--
James Madison introduced a bill of rights that was essentially based on Mason's to the first session of Congress.


To try to divorce Mason from the US Bill of Rights is wrong, when it was his Virginia Bill of Rights that provided the framework. And to waterdown the claim that no Bill of Rights was the main reason he did not sign the Constitution is misleading. Also, Fisher Ames is given credit for the final wording in the First Amendment.

To quote Fisher Ames:

"“Should not the Bible regain the place it once held as a school book? Its morals are pure, its examples, captivating and noble. In no book is there so good English, so pure and so elegant; and by teaching all the same book, they will speak alike, and the Bible will justly remain the standard of language as well as of faith.”

Using a pro Separation of Church and State site to make a point does not make for a solid foundation, as they make observations based upon selective quotes and opinions. If I wanted to make a longer opinion piece to the contrary of the one you cite, it would be built around quotes like these:

"The laws of nature are the laws of God, Whose authority can be superseded by no power on earth." (George Mason, before the General Court of Virginia, 1772.)

"All human laws which contradict His laws, we are bound in conscience to disobey" (George Mason, 1789)

Or use the words of the words of John Jay:

"Providence has given to our people the choice of their rulers, and it is the duty as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers."
- John Jay The First Chief Justice of the Supreme Court

I am not saying I would write such a piece, I do this to show how using a site that supports one position is giving you a biased picture and should be taken with a grain of salt and why I am generally skeptical of any site that claims proof of such a position. Much like sites that claim Jefferson was a deist. That is patently false, at best, he could be called a 'theist', because he believed in God playing a role, deists believe in a hands off God.

I would hope you are not relying on court cases as gospel for your interpretation, SCOTUS is not a supreme being that creates perfect rulings or interpretations. I would definitely take the word of someone familiar with the language of the time and their parsing of the structure and meaning in grammatical context over emanations and penumbras divined by a court. If you are not interested in the real meaning, than you will accept something more supportive of your beliefs. Copperud's specific and detailed analysis leaves no room for doubt.

You might find this article by Daniel Dreisbach interesting:

George Mason's Pursuit of Religious Liberty in Revolutionary Virginia
1.16.2006 6:41am
Smithy (mail):
The whole point of the separation was to allow religion to thrive.

The words "separation of church and state" appear nowhere in the constitution. Nowhere.
1.16.2006 8:30am
raj (mail):

I do have a question. For my fellow "liberals". What is up with gun rights? We seem to be on the wrong side of that one. I can't figure out how it's liberal to be anti-gun.


I'm not sure where this came from, but I have two responses.

One, your question is imprecise. Some claim that the 2d amendment should be restrict (or eliminate) state and federal (and local) restrictions on RKBA (right to keep and bear arms). But in their 2d amendment analysis, they essentially read the introductory clauses relating to the militia out of the 2d amendment. It should be clear from other provisions of the US constitution that the militia is a creature of the state, as regulated in part by the Federal Government.

Two, other than the 2d amendment issue, there may not be a particular reason not to allow particular jurisdictions to issue licenses relating to RKBA. But for those jurisdictions that do not allow for KBA, there is no R, and they can provide limitations as they see fit. The people should keep their A's at home.
1.16.2006 11:12am
TruthInAdvertising:
Smithy sez "The words "separation of church and state" appear nowhere in the constitution. Nowhere."

I love these kinds of comments. Guess what else doesn't appear in the Constitution:

"Separation of Powers" - every time those lawyers start yakking about the "separation of powers" between the Executive and Legislative branch, tell them "The words "separation of powers" appear nowhere in the constitution. Nowhere."

Did you say you were a lawyer??
1.16.2006 11:36am
Hans Bader (mail):
As an agnostic, I like separation of church and state, but not the way the ACLU misuses it to attack religion using the power of the state. It often attacks, rather than defends, free speech when the victim of censorship belongs to a traditional religion or conservative group.

In the Lubbock case, the ACLU argued, and got a federal appeals court to agree, that totally private, non-coercive religious speech was banned by the Establishment Clause, because purely private student speech on religious matters was overridden by "sensitive establishment clause" concerns. Censorship for the sake of the offended feelings of intolerant fellow students who overheard the religious speech.

Lubbock was only abrogated after the Supreme Court's decision in Mergens upholding the Equal Access Act. It resulted in student religious speech, such as student-initiated bible studies, being banned for years by hundreds of school districts.

In the Meltebeke case, the ACLU argued that religious speech by a private employer (whose actions did not even implicate the Constitution under the Supreme Court's venerable state-action doctrine, which holds that the constitution only binds state actors, not private individuals) violated the Establishment Clause, a patently frivolous claim accepted by a state judge but rejected by a state supreme court that disagreed with the ACLU.

The ACLU has also sought to use the Establishment Clause to prevent religious employers from considering religion in whom they select to work or speak for them, something that may violate the Free Exercise Clause. The Supreme Court rejected this position in the Amos case, which vindicated Congress's exemption of religious employers from Title VII's religious-discrimination prohibitions.
1.16.2006 12:09pm
anon) (mail) (www):
Therut, Doesn’t everyone that participate in a democracy “love the state in their own image”? Seems kind of strange that you fault the ACLU for this, but since you don’t even know what their positions are (beyond reading a few things on the web) I doubt that your thoughts on this are well-formed.

Nobody here has presented any specifics of the ACLU suing a store or other private entity for saying “Merry Christmas.” They allude to it, but because they don’t provide specifics, I must conclude that they are lying. (I do have a personal relationship with Jesus, however, and he told me that capitalism is good, and that he only approves of his name being used by stores if the bargains are “really good.” He also doesn’t like non-lawyers.) While Jesus loves good bargains, he hates liars. So, you need to prove to Jesus that you didn't lie.
1.16.2006 1:02pm
Michael B (mail):
Looks like the cranks have invaded the comments section.

... tell them "The words "separation of powers" appear nowhere in the constitution. Nowhere."

Did you say you were a lawyer??" TruthInAdvertising (sic)

Unlike the principle you're juxtaposing it to, the separation of powers principle inheres to virtually every aspect of the constitution, it's part of the very fabric of the constitution.
1.16.2006 1:24pm
TruthInAdvertising:
My point is that the fact that the words "separation of church and state" never appear in the Constitution proves nothing more than that. Yet people like Smithy trot this argument out like it's the final word on an issue that is very much open to debate and interpretation. Plus, I doubt that Smithy and others like him are so literal when it comes to interpreting the First Amendment's admonition "Congress shall make no law...". Does Smithy follow the words of the Constitution precisely and literally or only when it allows him to think he's being clever and outwitting the rest of the lawyers?
1.16.2006 2:33pm
Noah Klein (mail):
KMAJ:

At least, I supplied cites for my information. You so far have not, except to provide me with some random article. Furthermore, the quotes you use from Mason do not refute what his opinion on the Establishment Clause are.

"The laws of nature are the laws of God, Whose authority can be superseded by no power on earth." (George Mason, before the General Court of Virginia, 1772.)

"All human laws which contradict His laws, we are bound in conscience to disobey" (George Mason, 1789)

The idea that government should not subject establish a religion or favor one religion above another or even pursue something with religious purposes does not deny that "the laws of nature are the laws of [G-d]" nor that "all human laws which contradict His laws" should not be obeyed. The establishment clause does say that people cannot propose or reject a law based on their religious beliefs. It says that the purpose behind the law must not be specifically religious in nature. George Mason's support for Thomas Jefferson's Statute on Religious Freedom and his opposition to the Patrick Henry bill are telling even without any quotes.

Finally, I never said that no founder believed in reading the establishment clause as you do. I said that the ACLU's position is legitimate due to the founders who have stated a similiar position. Also, could you please provide some kind of cite or documentation for your quotes and your claims, such as Jefferson was not a deist? I think you will have a hard time finding it, but if you can I would really like to see it.

Noah
1.16.2006 4:20pm
Michael B (mail):
"My point is that the fact that the words "separation of church and state" never appear in the Constitution proves nothing more than that." TruthInAdvertising

Your point is misbegotten and it's misbegotten in a manner which is fundamental to the entirety of the debate.

In comparing and contrasting these two principles vis-a-vis the U.S. Constitution, the separation of powers principle** does in fact inhere to the Constitution - i.e., it is an elemental and guiding principle throughout the document, both implicitly and explicitly.

By contrast, and it is decidedly both a qualitative and quantitative contrast, the extra-constitutional principle of separation of church and state does not inhere to the document. The first Article begins: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." (emphases added). But that's literally all the Constitution says on the subject. As such, that hardly serves to support your point, indeed, rather to the contrary. Legislative initiatives and sustained judicial interpretations are (presumably) what you're thinking of. But those are, certainly so in explicit terms, extra-constitutional considerations, formative on the basis of statutory acts and subsequent sustained interpretations.

(** considering the separation of powers and balance of powers principles as a unified principle herein)

Also, for a well documented and well researched account of the Founding Fathers, their progenitors and how they interposed the faith/reason nexus, Michael Novak's On Two Wings is substantial and articulates this dualism in an even-handed manner, emphasizing aspects which are more typically elided. Ample references to Jefferson, Madison, Mason, Adams, Washington, Witherspoon, also Locke, Montesquieu, Aquinas, and others who were formative both in terms of philosophical and social thought as well as early communitarian praxis.
1.16.2006 4:24pm
Noah Klein (mail):
Hans:

When you cite cases like the Lubbock one and the other one, it would be very helpful if you could provide links or the full name of the case so that we can independently verify the information you provide. I did a search of Lubbock case and the Lubbock v. ACLU and I did not find a case relating to the specifics that you named. Could you please provide more info?

Noah
1.16.2006 4:26pm
dk35 (mail):
Michael B.,

I'm not certain it's as simple as that. After all, one could argue, and I believe many have, that the absence of the word "god," and any other references to religion in the Constitution (excluding the First Amendment) is immensely significant in understanding the entire document. In other words, the absence of "god" in the constitution could be seen a monumental decision to embrace the Enlightenment ideology of the time in rejecting the influences and imprint of religion and religious figures on the actions of the nation state.

Read in that context, the relationship between religion and the state is not a narrow concern.
1.16.2006 5:25pm
KMAJ (mail):
Noah,

The Religious Affiliation of Third U.S. President
Thomas Jefferson


Jefferson was born into an Anglican family and was raised as an Anglican. He would later be considered an Episcopalian, after the Episcopal Church was officially founded as a separate province within Anglicanism in 1789 (after the Revolution and independence from England).

Later in his adult life Jefferson did not consider himself an Episcopalian, or a member of any other specific denomination. Later in life Jefferson held many clearly Christian, Deist, and Unitarian beliefs, but was not a member of any congregation or denomination. Today, many Unitarians sincerely believe that Jefferson should be "counted as" a Unitarian, just as many Christians point to Jefferson as a Christian, and many of the small number of Americans who identify themselves as Deists believe Jefferson should be classified a Deist.
---
Adherents of other religious groups, including atheists and agnostics, also point to various writings of Jefferson which are in harmony with their positions. The difficulty in classifying Jefferson using a single word for religious affiliation does not stem from a lack of information, but rather a wealth of writing -- which can be interpreted differently depending on a person's perspective. Jefferson left a considerable amount of writing on political and philosophical issues, as well as writing about religion, including the "Jefferson Bible."

In a practical sense, classifying Jefferson as a "Deist" with regards to religious affiliation is misleading and meaningless. Jefferson was never affiliated with any organized Deist movement. This is a word that describes a theological position more than an actual religious affiliation, and as such it is of limited use from a sociological perspective. If one defines the term "Deist" broadly enough, then the writing of nearly every U.S. president or prominent historical figure could be used to classify them as a "Deist," so classifying people as such without at least some evidence of nominal self-identification is not very useful.



It gives you a history of Jefferson's religious affiliations, from childhood throughout his life, and cites many different opinions of his religious affiliation or lack thereof. His last words reveal he believed in an afterlife, which would lend more credence to being a theist than a deist. I do not claim that he was necessarily a Christian, what I claim is that trying to label him with any specific religious attribution, such as deist, is fraught with accepting others labeling of him, and not what he himself necessarily believed.
1.16.2006 6:40pm
Noah Klein (mail):
KMAJ:

Thank you for providing cites to this article. I am going to agree with you in part and disagree with you in part. Labeling a historical figure something that they have not admitted is a tricky thing. For example, many have named Dr. King a communist or some such label. This entirely inappropriate not only because he does not claim to be a communist, but also because he never asserts beliefs that are communistic. Yet, if you now claim that labeling someone who has not admitted to such things is wrong or inappropriate, then you didn't believe that before. Remember, in response to me, you said: "That is patently false, at best, he could be called a 'theist', because he believed in God playing a role, deists believe in a hands off God." Is that not labeling someone who did not say that he was a theist?
Jefferson, I think is a different kettle of fish than the MLK-communist nonsense. Jefferson many times adopted beliefs that were clearly deist. The "Jefferson Bible" is an excellent example. What is more deist than eliminating the miracles from the bible? Once again, you have failed to cite something in your post. You did not even say what Jefferson's last words were. As a review of Jefferson's religious beliefs I suggest you look at this site. This is the discredited site Wikipedia, but looking through a google search it appears to be the most complete and accurate collection of his statements. At this site, I saw that the last words of Jefferson were "I shall resign my spirit to G-d. My daughter to my country." Yet, I disagree with you that belief in an afterlife is not deist. Deism is the belief of as you said a "hand-off" G-d or using the most prevalent analogy as the "clockmaker" who builds the clock and then sets it down. This does mean that in part of his creation is not a place for the rest of souls.
Yet, either way, if he was a deist, theist, or christian, he still believed that religion was between oneself and one's G-d. He expressed often the belief that government and religion were two separate things. The whole point of this course, which I choose to remind people of Jefferson's beliefs was a means to demonstrate that the ACLU's position is not evil or any other such ridiculous statement. Since you agree with me on that point, I think perhaps after you answer me, if you decide to we should let it pass and continue on the subject of ACLUDS or unsound criticism of the ACLU.

Noah
1.16.2006 11:56pm
Some Guy (mail):

First, people and organizations that are wrongly criticized deserve to be defended, even if on balance these are people and organizations with whom one disagrees on many matters.

Like Al Qaeda? Because that's who the ACLU is really stepping up to the plate for, nowadays.

It seems you are saying it's a GOOD thing that the ACLU has become Al Qaeda's outside counsel, because Al Qaeda is an "unpopular" group deserving of a good defense so that we all have our constitutional rights protected. Hmmm. Would you be able to say that with a straight face to a child whose father was murdered on September 11?
1.17.2006 9:08am
Michael B (mail):
dk35, you seem to have misunderstood. I moved the subject from the literal to what is nonetheless overtly stated in the text, without drawing any conclusions; you moved it further still into the speculative and additionally seem to have interpreted what I stated as drawing conclusions, once a movement is made into the speculative and stating conclusions then obviously things won't be as simple, though "simple" is not a term I would have used in ther first place. The corollary for the speculative, within the areas being discussed, is the legislative/judicial arena, which was addressed btw when I indicated: "Legislative initiatives and sustained judicial interpretations are (presumably) what you're thinking of. But those are, certainly so in explicit terms, extra-constitutional considerations, formative on the basis of statutory acts and subsequent sustained interpretations. "
1.17.2006 1:05pm
Michael B (mail):
Oh, and yes I understand you were speculating vis-a-vis the U.S. Constitution per se as well, but again I was refraining from conclusions and was more simply describing, albeit in general terms, what's in the text.
1.17.2006 1:09pm