The 1991 election of Nadine Strossen as president of the ACLU was widely interpreted as an attempt to return to the group's traditional emphasis on civil liberties such as freedom of speech and freedom of the press as opposed to its involvement with modish issues such as comparable worth and government aid to the homeless. Strossen is a graduate of Harvard Law School and a professor of constitutional law at New York University Law School. As a founding member of the National Coalition Against Censorship's Working Group on Women, she has been a leading supporter of free speech; her book Defending Pornography: Free Speech and the Fight for Women's Rights (Scribner), which will be published in October, articulates a feminist case against pro- censorship feminists.
"[The ACLU's] motto has not changed from 'Etemal vigilance is the price of liberty,'" says Strossen. While few libertarians would find fault with that Jeffersonian aphorism, it is clear that the ACLU's definition of liberty differs dramatically from that of most classical liberals. In the following interview with Contributing Editor Cathy Young, Strossen discusses those differences and articulates the logic behind them.
Reason: What are your priorities as president of the ACLU?
Nadine Strossen: My priority is to be a prorninent, visible spokesperson for civil liberties. Recent events have revealed that civil liberties are never going to be secure unless there is public understanding and support for them. The Supreme Court issues decisions that are protective of rights that are not supported by at least substantial minorities of the population. Politicians run against the Court, and you get something like the Reagan and Bush presidencies stacking the Court and seriously endangering some of our most fundamental rights.
Take two examples where there actually was a great deal of success in eroding rights: reproductive freedom and separation of church and state. Despite the fact that overturning Roe v. Wade and school-prayer decisions were major agenda items for the Reagan and Bush administrations, they did not literally succeed in accomplishing those goals. But reproductive freedom has shrunk, in terms of the regulations the court has allowed states to impose. As a practical matter, that makes abortions very difficult to obtain for many women in this country.
And, although the court did not overturn its school-prayer decisions, it has weakened the standard it uses to review religious incursions into governmental involvement with religion. So we are now fighting off a wave of legislative efforts to get prayer into schools in various indirect ways, the likes of which I hadn't imagined I'd ever see again in my lifetime. By last count, we have eight states and the District of Columbia that have passed laws mandating everything from a moment of silence to a prayer.
The most unique and important function that we serve is to be around all over the country to respond to these blatant violations of rights. We have to be sure that the people are going to support basic principles so that demagogues cannot be elected running against the Bill of Rights and the Supreme Court when it supports the Bill of Rights. For that reason, I think public education has to be the organization's most important priority.
Reason: Are there areas in which exercising one fundamental right precludes exercising others? What do you make of the argument, for example, that hate-speech codes represent an attempt to balance guarantees of free speech with guarantees of equal protection?
Strossen: That is the same argument that's made by folks who seek to restrict what they define as "pornography"--that word is always in quotation marks. It's common to say that we have to choose between freedom of speech or equality, that if you really care about equality you can't possibly be devoted to the First Amendment. I absolutely reject that as a philosophical matter and as a practical matter in the hate-speech context. And in other contexts, I think it's insulting to women, racial minorities--to anybody--to say that we have to choose between freedom of speech and equal opportunity.
I think there may be particular situations at the margins where rights might come into conflict. There may be situations where there's a tension between free exercise of religion on the one hand and non-establishment of religion on the other hand. But in the vast, vast, vast majority of cases, I think those rights are mutually reinforcing. It's that understanding that has led the ACLU from its beginning to attempt to consistently defend all fundamental rights for all people precisely because they are indivisible. If the government is given the power to threaten one right for one person, it can and will use that power to erode other rights for other people.
Reason: So why doesn't the ACLU challenge gun-control laws on Second Amendment grounds?
Strossen: We reexamine our positions when people come forward with new arguments. On the gun issue, I instituted a reexamination a few years ago in response to a number of things, but the most important one was an article by Sanford Levinson at University of Texas Law School that summarized a wave of new historical scholarship. Levinson's argument was that in the 18th century context, a well-regulated militia meant nothing other than people in the privacy of their homes.
So we looked into the historical scholarship there and ended up not being persuaded. The plain language of the Second Amendment in no way, shape, or form, can be construed, I think, as giving an absolute right to unregulated gun ownership. It says, "A well-regulated militia being necessary to the security of a free state, the right to bear arms shall not be infringed." Certainly, when you have the notion of "well-regulated" right in the constitutional language itself, it seems to defy any argument that regulation is inconsistent with the amendment.
Putting all that aside, I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty. So the question becomes, What is the civil-liberties argument of those who would say we should be opposing all gun control? What it comes down to is the very strong belief that having a gun in your home is something that can ultimately fend off the power of a tyrannical government. I find that re- ally unpersuasive in the 20th-century context. Maybe it made sense in the 18th century. I would hope that's the kind of thing we do through words rather than through guns and that, to me, is the function that the First Amendment serves, not the Second Amendment.
Reason: Would you support a total ban on gun ownership?