The American Civil Liberties Union opened its annual membership conference in Washington, DC on Sunday evening. The conference brochure declares: "We must not stand on the sidelines while our leaders in government extinguish the light of liberty. Today, we have an administration that has asserted an unchecked power to eavesdrop on ordinary people, to hold prisoners—including American citizens—without trial or access to a lawyer, to secretly kidnap and torture people have not been charges with any crime, and to repeatedly ignore its duty to enforce laws passed by Congress. It's time to stand up against government abuses of power!"
At Sunday's sessions the 1,500 conferees listened to conversations on civil liberties and ended with a poetry slam and a hip-hop all-female dance troupe. The first conversation was between ACLU president Nadine Strossen and Supreme Court Justice Antonin Scalia.
That discussion was moderated by NBC correspondent Peter Williams, who began by noting that Scalia and the ACLU actually had agreed on a number of cases. Specifically, in the case of Hamdi v. Rumsfeld Scalia argued in his 2004 dissent in that case that the Bush Administration cannot simply declare an American citizen an enemy combatant and detain him indefinitely without charging him. Scalia and the ACLU also agreed on the case of Kyllo v. United States in which the Supreme Court ruled in 2001 that the use of an infrared scanner by federal agents to detect the presence of grow lamps being used to produce marijuana in a house constituted an unlawful warrantless search under the Fourth Amendment. Finally, Scalia and the ACLU both saw eye to eye in Texas v. Johnson in which the court struck down a Texas statute banning the desecration of the American flag as a violation the free speech protections of the First Amendment.
The mutual lovefest came to an end when Strossen noted that Scalia's devotion of the right of privacy did not extend to applying the protections of the First and Fourth Amendments to what mature consenting adults choose to read and with whom they choose to live and share private sexual intimacy. She insisted that the government has no right to criminalize what material we read and certain sexual intimacies.
Scalia asked Strossen where the protections for those activities are contained in the Constitution. He added, "I am in the business of enforcing democracy," arguing that it is his job to decide if the Bill of Rights has taken certain issues out of democratic deliberation. If not , then the proper way for issues to be decided is by debate, persuasion and votes, not by decisions made by unelected judges. Scalia maintained that the framers would never have thought that the Bill of Rights protected homosexual sex and abortion from government regulation. We know that, he claimed, because in fact homosexual sex and abortion had been illegal for 200 years before the Supreme Court decided that homosexual sex was constitutionally protected in Lawrence v. Texas and that a woman's constitutional right to privacy overrode state restrictions on abortion in the first trimester in Roe v. Wade.
Strossen responded that we have a government of limited powers; unless the Constitution specifically gave a power to the government then it is reserved to the people. She added that the United States is not a pure democracy. Some rights are so fundamental that no majority can take them away from even unpopular minorities. With regard to Scalia's appeal to historical understanding of what rights the Constitution protected, Strossen pointed out that the Fourteenth Amendment's equal protection clause prohibiting states from denying any person within its jurisdiction the equal protection of the laws did not stop states from adopting laws against interracial marriage and racially segregated schools. Eventually the Supreme Court ruled that both violated the Constitution. She asked Scalia how he would have decided Brown v. Board of Education, which found that state-mandated racial segregation was unconstitutional. Scalia replied that he found the dissent of Justice Harlan in the Plessy v. Ferguson—the 1896 case that allowed racial segregation on the basis of separate but equal public facilities—persuasive.
Strossen also took Scalia to task for his 2005 dissent in McCreary County, Kentucky v. ACLU in which Scalia argued that posting copies of the Ten Commandments in a courthouse did not violate the establishment clause of the First Amendment. One question from the audience asked Scalia why diversity is not a compelling state interest? The question was referring to the 2003 case Grutter v. Bollinger in which the Supreme Court decided in a split decision that the University of Michigan could use race as a factor in determining whom could be admitted to its law school. Scalia disagreed with that decision and told the ACLU members, "The Constitution very clearly forbids discrimination on the basis of race. It doesn't seem to me to allow Michigan to say we think it's good to discriminate on the basis of race when you want to make sure everyone is exposed to different backgrounds. We cannot use race as the test of diversity."
I will be posting daily dispatches about the ACLU conference. Upcoming topics include "Abuse of Power—Government Intrusion into Private Matters," Your Papers Please—National I.D. Cards for America," and "Torture, Secrecy and Surveillance: Hold Government Accountable."
Disclosure: I have been a card carrying member of the ACLU since 2003.