In Defense of American Liberties, by Samuel Walker, New York: Oxford University Press, 479 pages, $24.95
There they were: Presidential candidate George Bush was trashing the American Civil Liberties Union in an attempt to tar opponent Michael Dukakis as soft on crime and pornography, while at the same time in Wayne, Michigan, the ACLU was defending a woman's right to post a Bush sign on her front lawn.
The episode was classic ACLU: championing civil liberties even to the extent of defending its own enemies. This commitment to principles above all else is the secret of the ACLU's remarkable success in shaping 20th-century American jurisprudence. The ACLU's noble lineage is the subject of Samuel Walker's In Defense of American Liberties. Walker presents an extensive, well-researched chronology covering the organization's 70 years. "The story of the American Civil Liberties Union," he declares, "is the story of America in this century."
Walker is not a dispassionate observer, and he says so at the outset. The former president of Nebraska's ACLU chapter and a member of the national organization's board of directors since 1983, Walker admits that he is "deeply committed to [the] organization." Beyond this "truth in labeling," Walker asserts that "I have not shied away from covering in detail the less attractive episodes in ACLU history."
In one sense this is true. Walker's book is replete with discussions about internal ACLU turmoil, highlighting both internal and external pressures to abandon or compromise principles. Walker concedes these pressures sometimes proved effective.
But overall, the book is a puff piece for the ACLU, overlooking or downplaying the organization's recent departures from its traditional principles. For in the past two decades, the ACLU has slowly but steadily transformed itself from an organization devoted to civil liberties into an increasingly reliable and militant voice in the chorus of left-wing special-interest groups.
Walker hints at this transformation, but he attempts to rationalize it. "The ACLU is an ongoing experiment, with an agenda that constantly changes," he observes. But is it the agenda that changes, or the principles themselves? "We define what civil liberties are," Walker quotes one ACLU official as saying. Yet Walker ignores the ACLU's shift from an organization that tailors its agenda to its principles to one that modifies its principles to fit its agenda.
Walker quotes The Encyclopedia of the Constitution's definition of civil liberties as "those rights that individual citizens may assert against their government," adding that in the Unites States these are embodied in the Bill of Rights. "The essential feature of the ACLU," he argues, is the organization's "professed commitment to the nonpartisan defense of the Bill of Rights." It is "precisely this absolutist approach," Walker emphasizes, "that arouses the hatred of its opponents, causes despair among many would-be friends, and inspires its members."
This absolutist commitment to individual liberties has led the ACLU consistently to champion the rights of people outside the mainstream. "Defense of the unpopular," Walker explains, "has always been the ACLU's touchstone, its proudest principle, and the cause of the most bitter attacks on it."
The ACLU grew out of the pacifist movement during World War I. Its predecessor, the Civil Liberties Bureau, had 12 of its pamphlets banned as subversive in 1917 by the United States Postal Service. One of the pamphlets, War's Heretics, by Norman Thomas, argued for an inviolable zone of individual conscience, a concept to which the ACLU would later commit itself.
In 1919, the U.S. Supreme Court made clear that it would not protect such liberty against government abuse. In a trilogy of opinions, the Court sustained convictions based on various forms of antiwar speech. But in one of the cases, Abrams v. United States, Justices Oliver Wendell Holmes and Louis Brandeis articulated in a dissenting opinion the free-speech principles that provided the foundation for contemporary First Amendment jurisprudence.
Ten days following the 1920 Palmer raids, in which communists were rounded up for deportation, the ACLU was founded by Roger Baldwin and feminist leader Crystal Eastman. Supporters included both social activists and conservatives who supported the Bill of Rights. At first, since the courts were hostile, the group focused on educating the public, but before long it embarked on a litigation crusade that evolved into the ACLU's principal strategy.
Early on, the ACLU faced a crucial crossroads: whether to fight Boston mayor James Curley's ban on Ku Klux Klan meetings. Though its decision antagonized its allies in the NAACP, the ACLU challenged the ban, choosing a principled route that quickly became the organization's hallmark.
By 1925, the ACLU had achieved its first major victories. Its involvement in the Scopes trial, defending the teaching of evolution, attracted public attention to the organization and shifted sympathies in favor of civil liberties. That same year, the Supreme Court ruled that the Bill of Rights, whose scope previously was restricted to the federal government, was applicable to the states under the 14th Amendment. This provided the ammunition necessary for the ACLU to fight its war on behalf of civil liberties.
With the election of Franklin Roosevelt in 1932, the ACLU soon found more friends in both the executive and judicial branches. But some in the ACLU feared the growth of government power under the New Deal. In 1937, the ACLU split over whether to defend employers' rights against union organizers. Though it came down on the side of Henry Ford's freedom of speech, it declined to challenge worker sit-down strikes in automobile factories. Declaring that the ACLU "is not organized to protect the rights of property," the group made perhaps its earliest decision to pick and choose among liberties.
The ACLU often aligned itself with communists, even joining the "Popular Front" in the early 1930s. But as anticommunist passions increased during the decade, the ACLU moved away from the communists, finally adopting in 1940 a policy barring from official positions anyone who supported totalitarian movements. Walker pronounces this episode "the one great deviation from principle in history"—a conclusion that is far short of the mark.
The ACLU was the only major organization to defend Japanese-Americans who were incarcerated in internment camps during World War II, but even in that case the group compromised its principles. With a number of ACLU officials backing Roosevelt, the organization challenged the internment orders not as inherently unconstitutional, but merely on procedural grounds. In this way, the ACLU implicitly sanctioned the power of government to suspend civil liberties during wartime. Walker describes the internal debates in detail but draws no conclusions about the ACLU's ultimate compromise.
As the judiciary grew increasingly liberal, the ACLU pursued a more ambitious litigation strategy. In the 1950s it fought loyalty oaths and sided with the NAACP against racial segregation. The organization's golden decade, from 1954 to 1964, witnessed a remarkable series of triumphs in the areas of free speech, civil rights, and due-process rights for criminal defendants. It later successfully advocated a constitutional right to privacy, which led to the Court's decision protecting the right to abortions. As Walker accurately concludes, the "ACLU can claim much of the credit…for the growth of modern constitutional law."
But during the past two decades, the organization has moved beyond—and in some instances, away from—its original objectives. The turning point appears to be 1977, when the ACLU endorsed the concept of racial quotas in Alan Bakke's lawsuit against the University of California. It also established a 50-percent quota for women and 20-percent minority quota for its own paid staff and board positions, for the first time making factors other than devotion to civil liberties primary in determining who would run the organization.
At the same time, the ACLU has pursued a social agenda that places it at odds with such liberties as freedom of contract, freedom of association, and sometimes even freedom of speech. The Southern California ACLU has endorsed every person's right to a "safe, meaningful, and socially useful job that pays a fair living wage," and in 1988 the national organization recognized the government's "affirmative obligation" to provide housing.
Walker ignores the ACLU's recent outright departures from principle, most notably its support for the federal "Fairness Doctrine," which dictates speech requirements for broadcast television. Likewise, Walker does not mention the ACLU's efforts to compel owners of private property—particularly shopping malls—to allow people to engage in speech-related activities on their property. And while Walker notes that the ACLU has opposed codes on university campuses that ban "offensive speech," some ACLU chapters are actively backing such efforts to suppress speech. (See "The First Shall Be Last?," Oct.)
In each of these cases, the ACLU has abandoned its commitment to protect individuals against abuses of government power, seeking instead to use government power to achieve its own social agenda. This shift, which Walker largely ignores except to say that it reflects "a tentative step into uncharted and controversial waters," is a crucial one, for it places the ACLU for the first time in a rigid ideological camp.
Walker notes that the ACLU traditionally has been composed mainly of liberals. But what "distinguishes ACLU members from mainstream liberals," he contends, "is their skepticism of government power and a willingness to challenge extensions of that power justified in the name of social betterment." Where once that was consistently true, today it is not. The ACLU is no longer a haven for champions of civil liberty.
Walker's book is a useful history of most of the seminal events in the ACLU's history. But he overlooks the organization's metamorphosis from a group that always supports individual liberty into one that frequently subverts it. As a result, In Defense of American Liberties induces a nostalgia for the good old days when liberty was liberty and the ACLU was there to defend it, but it fails to recognize that the ACLU no longer always serves that vital function. The second half of that story remains to be written.
Clint Bolick is director of the Landmark Legal Foundation Center for Civil Rights.
This article originally appeared in print under the headline "Late Departure".