Commentary Magazine


Politics & ACLU

Within the community of liberals the American Civil Liberties Union—now celebrating its fiftieth anniversary—has long occupied a place comparable to that of Dwight D. Eisenhower among Republicans. For half a century it has done more than any other organization to enforce the First, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution of the United States. It has also labored diligently on the Fourteenth, which (as construed by the Supreme Court, with some prodding from the Union’s lawyers) now extends most of the Bill of Rights to state governments. ACLU, spreading the protection of the Constitution to more and more people, has also spread itself like a green bay tree, and flourishes mightily. Its contributing members number 150,000, or one hundred times as many as in 1921, when it was quite feasible to list each and every contributor in the annual report of its founder and long-time head, Roger Baldwin. Its annual cash income, in 1921 an exiguous $20,000 (which nevertheless sufficed for some considerable achievements), has registered an increase still more spectacular—it is now in excess of $2 million. The Union’s resources are in reality much greater, for more than a thousand lawyers, some of them very talented, annually supply, without fee, services which would probably cost private litigants several million dollars. It has state affiliates, or so-called national chapters, in every state save Delaware and Idaho, plus several hundred local chapters.

These are impressive figures for a do-good organization. But the Union has impact and influence far out of proportion to its size and its tangible resources. It is a tireless and often effective lobbyist on Capitol Hill; it issues pamphlets and pressreleases by scores and hundreds. Most of them land on target: in a period of approximately two years, no fewer than 311 stories in the New York Times alone reported the Union’s doings and sayings.1 It would be hard to name another private organization which comes close to matching this record. Nor does the Union rely wholly on propaganda and persuasion; its lawyers actively litigate about a hundred major cases a year. And all of these activities are duplicated in the provinces by the affiiliates and chapters.

As the Union’s Legal Director, Melvin L. Wulf, sees it, all this activity is no more than a desperate stand at Armageddon, with the forces of Evil, under the gonfalons of Richard M. Nixon, John N. Mitchell, and J. Edgar Hoover, threatening at any moment to overwhelm the frail defenses of the Constitution. The best that Mr. Wulf could find to say in 1969 was that “we are not yet a fascist state in general.” There is no evidence that his mood is any more sanguine today; indeed, the suggestion by seven (or perhaps eight) of the Justices of the Supreme Court in the New York Times case that there might be circumstances in which the government could restrain the publication of classified documents, caused him to compose a piece (“Tragedy of ‘The Times’”) in which he virtually despaired of the Republic.

But this dyspeptic view is not general, inside or outside ACLU. A more dispassionate appraisal would be that the Bill of Rights, though its enforcement is far from perfect and its defense requires eternal vigilance, is at least in better shape than ever before in our history. The press, as recently demonstrated, has never been more free. (The segment of the radical press which likes to play at being “underground” is in fact not merely above-ground and visible but downright blatant. Its editors and publishers rarely risk anything worse than harassment by their creditors; its occasional difficulties with the law are caused by its penchant for pornography and scatology rather than its politics.) People accused of crime have more safeguards than they ever had before and probably more than in any other country in the world. The basic democratic principle of one-man-one-vote is approaching reality. Political dissent has reached new heights of loudness and looniness. A stroll around Times Square shows how far we have come since the days when the cops raided Mae West and people who wanted to read Ulysses had to buy a copy in Paris and smuggle it through the customs. As Professor Alan M. Dershowitz of Harvard Law School, until very recently a member of the ACLU’s national board of directors, put it a few months ago, “The long-term trend is clearly in favor of decreased repressiveness and increased democracy.” If this is so—and I think it is—the American Civil Liberties Union deserves a very large part of the credit.

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Despite its impressive record of accomplishment, all is not bliss and harmony, gas and gaiters, within the family of civil libertarians. ACLU in 1971 is probably a more controversial organization than at any time in its long and generally stormy career, which is saying a lot. The Union has, of course, routinely been accused of advocating Communism, pornography, polygamy, and atheism, whenever it defended the right of people who did favor these things to try to persuade others to their way of thinking. But the charge today is that the Union has itself embarked on a series of political crusades which may be moral, or even right, but which have no readily discernible connection with the cardinal political virtue which it is chartered to defend; in effect, that it is being metamorphosed by its present active and activist management into an organism as totally different from the one which Roger Baldwin founded as the Chase Manhattan Bank is from the Manhattan Company, which the State of New York chartered as a water company in 1799. This time, moreover, the accusations come from within the Union, from people who can by no stretch of the imagination be described as enemies of freedom or opponents of social change, as well as from its traditional detractors.

A paradigm of the internecine strife among civil libertarians is the bitter and continuing row within the New York Civil Liberties Union over “community control” of public schools, particularly in the former Ocean Hill-Brownsville demonstration district. The NYCLU, controlled by an “activist” majority and headed by Aryeh Neier (who has since become the Executive Director of the national parent body), plunged into the fray on the side of what it supposed to be the community, thus necessarily involving itself in an envenomed conflict with the United Federation of Teachers, several of whose members the new school board was attempting to expel from the district. The war whoop of the dominant faction was “social and distributive justice,” a phrase having about the same precision of meaning as most slogans, but which was said to be the sine qua non of true freedom. A dissident faction protested that community control, whatever its merits or demerits, was a pure political issue, having nothing to do with the Bill of Rights. It seemed, indeed, to these Mensheviki that the proper issue for the NYCLU was the right of the teachers not to be sacked without the process due them under the law—and that on that issue the NYCLU had not only taken the wrong side, but had accompanied its action with gratuitous, inflammatory, and infuriating rhetoric. The immediate casus belli is no longer an acute problem—“community control” turned out to be something less than a burning issue to the actual inhabitants of the communities, who had not been much consulted by their self-elected champions—but the hostility between “activists” and “traditionalists” is still intense and is reflected in the parent organization, where both factions have partisans.

ACLU itself, as distinguished from its New York affiliate, was not directly involved in the decentralization brawl; its stated policy on community control of schools is pragmatic and carefully hedged and, indeed, insists on the teacher’s access to school employment “regardless of race or ethnic origin.” Although its constitution provides that the affiliates “shall act in accordance with the policies of the Union, with the understanding that the purpose of this requirement is to obtain general unity rather than absolute uniformity,” it is a considerable understatement to say that the rule is not strictly enforced. When, for example, ACLU a couple of years ago issued a very cautiously worded, not to say apologetic, condemnation of campus violence, the staff lawyers of the New York affiliate immediately and indignantly accused it of “joining the repressive forces of society.”2

But the directors and members of ACLU itself are similarly divided between “activists” and “traditionalists.” (The staff seems almost solidly in the activist, or hyperactivist, camp.) The former believe the Union’s mission is to crusade for such political causes as find favor in their eyes. The latter have an aggravating habit of pointing out that the Union’s own constitution provides that its objects “shall be to maintain and advance civil liberties, including the freedoms of association, press, religion, and speech, and the rights to the franchise, to due process of law, and to equal protection of the laws . . . wholly without political partisanship.” Those of the activists who bother to debate the question reply that the Constitution of the United States, read with the eyes of faith, hope, and sometimes charity, mandates Good and prohibits Evil. The draft violates the Constitution; so does the war in Vietnam. On the other hand, the Fourteenth Amendment requires community control of schools (unless, of course, that control is exercised by the wrong people); the Fifth confers on the citizenry the right to live in an unpolluted, if somewhat buggy environment, although not the right to use automobiles, air-conditioners, or insecticides. As phrased by the articulate Mr. Wulf, modestly speaking for “some of us who have some responsibility for the expanding role of the Union,” “the true scope of civil liberties . . can be as broad as the possibilities of the Bill of Rights.” This approach to constitutional law in its essentials differs very little from that which the National Association of Manufacturers used to advance against the National Labor Relations Act, the Securities Acts, and the rest of the seditious innovations of the New Deal. The less lawyerlike activists take the simple and forthright position that “Hyde Park speeches or Tom Paine leaflets” (the quote is from a Vice Chairman of the NYCLU) are very much less important than the struggle for “social justice” (not further defined) and the abolition of poverty, not merely in the United States, but also on the rest of the planet. I am myself in favor of social justice and against poverty, but I suspect that ACLU has a better chance of preserving individual freedom in the United States than it has of curing all the ills of the entire human race.

Despite the evangelistic sermons, most of what ACLU does still bears a reasonable relation to the old-fashioned goals set forth in its constitution. It opposes, for instance, all the ingenious devices for bailing out Catholic schools with the taxpayers’ money; likewise it criticizes tax exemptions for religious property. It challenges the constitutionality of locking up people accused of crime when this is done not because they are likely to flee the jurisdiction (which is the only valid reason for denying liberty to those who have not yet been convicted), but because a judge is persuaded that they are likely to commit more crimes while awaiting trial. It fights unwarranted restrictions of the franchise, such as long residence requirements. Its opposition to censorship, whether of obscene movies or obscene politics, is firm and consistent. Such campaigns occasion no adverse comment by even the most conventional and unimaginative civil libertarians, like me. The new civil libertarians at least tolerate these traditional activities, although they plainly find them about as exciting as Civic Virtue. But they do not regard them as a sufficient excuse for the Union’s existence

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The charge is also made that the Union’s ardor in the defense of dissenters is greater when the dissenter is of leftish persuasion than when his deviation is to the Right. And in fact one is struck immediately by the general homogeneity of the politics of the people ACLU supports—draft resisters, black militants, campus radicals, bellicose peace demonstrators, and the like. Each of these groups has, of course, its own particular cause, but each is in general sympathy with the others; the Weltanschauung of almost all of them is that of the Village Voice and the New York Review of Books. The major difference of opinion among the various sects of the faithful probably concerns the degree of force which is necessary and proper to usher in the millennium The moderates and trimmers are willing to give the electorate a reasonable grace period within which to do God’s will, before being forced to the conclusion that democracy is merely a device of the Establishment for the frustration of Social Justice; some of them are even willing to accept the decision of the majority, although not happily. The ultra-progressives believe that radical reform necessarily and preferably entails a salutary preliminary cleansing with fire and gelignite. These, in the words of Samuel Butler, describing their 17th-century prototypes, “call fire, and sword, and desolation, a godly-thorough Reformation.” The Union, of course, does not advocate any sort of violence; but a good many of its members and staffers undoubtedly view the teriorists as the ordinary law-abiding Catholic Irishman views the murderous fanatics of the IRA. They would not themselves burn banks, shoot policemen, or smuggle guns to imprisoned militants, but they have serious reservations about the propriety of repressing persons whose consciences dictate such forms of protest. Again I quote Mr. Wulf:

. . . The crimes which the government is committing in the name of law and order are tar more grave than the so-called crimes committed by private citizens, for the latter “crimes” consist of a disorganized conspiracy to force the government out of a brutal, aggressive war in Vietnam. . . .

Another of the conspiracy’s objectives is the improvement at home of the condition of the poor and non-white. That objective necessarily requires the reallocation of public and private resources, and it is in defense of the present inequitable status quo that the government commits its crimes.

The Union has in the past on rare occasions gone to court to defend the constitutional rights of dissenters whose political goals were, as it was at some pains to explain, abhorrent to decent people. As recently as four years ago, its lawyers persuaded the Supreme Court to overturn a Maryland court’s injunction against the racist rabble-rousing of the National States Rights party. The only part of that party’s platform (which can fairly be described as a mirror-image of the agitprop of the Black Panthers) which would have been likely, if only in the light of hindsight, to draw cheers at an ACLU meeting was its fervid denunciation of the then governor of Maryland Spiro T. Agnew. But in none of the ninety-odd court cases listed in the most recent report of the Legal Director can it be said that ACLU is representing a right-wing client or cause. (It is involved in a peripheral aspect of the case of Sirhan Sirhan, but his politics, though they took the form of assassinating Robert Kennedy, are of the Palestinian Arab variety and do not really correspond to any color in the American political spectrum.)

In fact, the Union has in recent years had little occasion to concern itself with the liberties of the far Right. The John Birchers and so forth are at the moment conspicuously inconspicuous; the Ku Kluxers, though still responsible for some terrorism, would probably refuse to let the Union’s lawyers represent them, even if such help were needed and offered. Less radical right-wingers, like the Young Americans for Freedom, are unlikely to do anything more seditious than denounce Mr. Nixon as a turncoat; their closest approach to violence is to sport “Nuke the Chinks” buttons—a policy which, however ill-considered, it is clearly lawful to advocate. The rightists’ infrequent requests for help, like the Union’s infrequent offers of help, are intended principally to embarrass the other party—as when, for instance, Governor Williams of Mississippi asked the Union to join him in suits to enjoin de facto segregation in Northern cities, or when Charles Morgan, the Director of the Southern Regional Office, offered to defend Lester Maddox’s right to picket the offices of a couple of Atlanta newspapers. (Since Morgan did not propose to join Maddox’s picket line, and nobody was threatening to arrest Maddox for picketing, it may be suspected that the offer, which was refused, was not intended very seriously.) A more substantial problem was presented by William F. Buckley’s contention that his First Amendment rights are violated by the insistence of the American Federation of Radio and Television Artists that he must pay dues to the Federation in order to conduct his TV program. If Mr. Buckley’s purpose in asking ACLU’s help in his suit was to embarrass it, he plainly succeeded, for the national board took nearly a year to make up its mind to turn down his request.

The political uniformity of ACLU’s clientele is thus not entirely a result of its own political predilections, except to the extent that potential right-wing clients may suspect that their reception in its offices would be somewhat reserved, or even chilly. But a study of its press releases and the comments of its spokesmen on current events does suggest that its views on freedom depend very much on who is interfering with whose freedom of speech or action. Thus, when the Chairman of the House Committee on Internal Security (the contemporary, and on the whole much subdued, avatar of the House Committee on Un-American Activities) proposed to publish a list of Old and New Left revivalists on various campuses, ACLU denounced it as an exercise of Congressional “power to smear individuals and organizations” and brought suit (successful in the District Court) to enjoin the publication. But I am not aware of any such nobly outraged reaction to Wright Patman’s pillorying of the Penn Central Railroad and its officers and directors—some of whose alleged transgressions are, or are likely to be, the subject of litigation. Nor were there cries of “smear” when Representatives Abzug, Dellums, and like-minded statesmen and stateswomen proposed “hearings” to demonstrate that Mr. Nixon and his co-conspirators favor war crimes. I am not at the moment debating the propriety or legality of these Congressional publicity plays; I do suggest that it is hard to see why one is a “smear” and the others are not. Similarly, the New York Civil Liberties Union called on its members to boycott California grapes; but the Wisconsin affiliate denounced an advertisers’ boycott of an “underground” paper. Both ACLU and the affiliates are properly critical of the use by the police of excessive violence on demonstrators; but criticisms of violent demonstrators have been few and gentle, usually being prefaced by tributes to their noble ideals.

The same selectivity is displayed in the Union’s view of foreign governments. When Prime Minister Trudeau dealt (effectively) with the terrorist activities of the Front de Liberation du Québec, by issuing emergency regulations under Canada’s War Measures Act, which for a limited period authorized search without judicial warrant, detention and questioning without the filing of criminal charges, and suspension of the right to bail, the Union reacted promptly and forcefully: “The Board expresses its sympathy with the efforts of the Canadian Civil Liberties Association to resist summary measures of repression, and urges efforts through the International League for the Rights of Man, as well as private efforts in this country, to raise from other sources the funds needed to meet the Canadian emergency”—the word “emergency,” of course, having exclusive reference to Mr. Trudeau’s counter-measures rather than to the FLQ’s campaign of kidnapping and murder. But I am not aware of any similar preachments on the Castro regime, whose far more summary measures of far more severe repression ought to be far more offensive to American civil libertarians.

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As a rule, however, the charge that the Union is a zealous defender of the right to disagree with ideas with which its management also disagrees is based less on its official statements of policy, as expressed in its Policy Guide, than on the statements of its staffers, who are not always careful to distinguish their personal opinions from those of ACLU. Policy Number 234, for example, which deals with military justice, advocates various reforms in the court-martial process (the most important of which has in fact been enacted since the policy was formulated in 1966) but certainly does not suggest that military courts are intrinsically unfair or demand their abolition. But Charles Morgan of the Southern Regional Office has been quoted as saying that “There’s just no point in having any sort of trials conducted within the military. The military is incapable of understanding the Constitution.”

The Legal Director, Melvin Wulf, some of whose remarks have already been quoted, is another staffer with an unfortunate talent, amounting almost to genius, for overstatement. He really seems to see no difference between the President and Vice President of the United States and Hitler and Goebbels. Mr. Nixon favors “The use of violence and brutality against individuals who are portrayed by the minister of propaganda [Mr. Agnew] as depersonalized instruments of revolution and anarchy, who are guilty of ‘philosophical violence.’” Mr. Agnew believes that “crimes of ideology . . . may justifiably be suppressed. He therefore encourages the primitive use of government power—including imprisonment and censorship—against those who would prefer a different order of social priorities from his own.” Mr. Wulf’s style, although not distinguished by clarity or originality, is filled with a verjuiced rancor against people who do not see the light as it is given to him to see it. This makes his pronouncements better copy than the comparatively carefully phrased resolutions of the national board. He is, for example, bitterly critical of the lawyers for the New York Times in the Pentagon Papers case, who seemed to be more interested in winning their client’s case on comparatively narrow (but adequate) grounds, than in insisting on a sweeping construction of the First Amendment which could not have been sold to more than one or two of the Justices. His cast of mind is understandable enough; if you really believe that America stands where Germany stood in 1932, that Dachau and Belsen are ready to reopen for business here in the United States, it is hard to maintain a sense of proportion. By the same token, as the sense of proportion atrophies, it becomes easy to entertain such apocalyptic and apoplectic visions.

The disease of utter humorlessness, it should be noted, is endemic among ACLU activists—a sad change from the days of Roger Baldwin and Ernest Angell—and sometimes produces episodes which have much the same quality of farce-tragedy that made great art of the disasters which used to overwhelm Buster Keaton. Eason Monroe, the Executive Director of the Southern California affiliate, wrote a scholarly eassay on the evils of censorship as an introduction, prominently advertised on the cover, to The Illustrated Report of the President’s Commission on Obscenity and Pornography, published by Greenleaf Classics. The publishers had, however, failed to inform Mr. Monroe that the illustrations were far from scholarly, being largely taken from one of the Danish pornography fairs. (ACLU chastely described them as “sexually explicit.”) When last heard from, Mr. Monroe, whose apparent function was to give the publication what the Supreme Court calls “redeeming social value,” had retained counsel to sue Greenleaf Classics; the question of freedom to publish is viewed from a new angle when an eminent civil libertarian is himself placed in a scandalously false light.

A similar note is struck by the cryptic comment of the ACLU of the State of Washington, which had undertaken the defense of a group of alleged terrorists, on the disruption of the trial including the macing of the Union’s lawyer, the arrest of a number of spectators, and the citation of the accused for contempt of court: “In the wake of the collapse of the trial, a good deal of thinking is being done by people in the Washington affiliate about the ACLU role in major political [sic] prosecutions of radicals.” (In general, ACLU’s thinking about courtroom disruption seems to lead to the conclusion that the prosecutors and judges are to blame; the record is bare of criticism of unruly defendants and their lawyers. Indeed, the Union spent its money to reprint and circulate an article glorifying William Kunstler.)

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Like the Legal Director, other staffers and many of the directors and members of the Union tend to see political persecution in every case in which the defendant is a radical—that is, of course, the right kind of radical. (The Union is unlikely to set up much of a howl about the political persecution of the Ku Klux Klansmen recently collared by the FBI on charges of blowing up school buses.) The Union’s official policy is unexceptionable: the motivation—political, commercial, or personal—of a crime is irrelevant; the question is whether the particular conduct can constitutionally be made criminal. “For us,” says the Policy Guide, “the single question is whether the act involved is the violation of a valid law or one we believe is invalid. In the latter case, we will defend the violation of law; otherwise we will not.”

But the Union’s intervention in some “political” cases is hard to square with its stated policy. Last spring the national board voted 49 to 5 “to provide direct representation to any or all of the six defendants in the Berrigan case who might want ACLU representation.” The first reaction of most liberals is to applaud this decision. Second thoughts, however, leave me wondering what reason, other than warm sympathy for the Berrigans’ doctrinal views, ACLU has for spending its time and cash—of which latter it has none to spare—in defending them and their catechumens. The statutes which they are accused of violating seem clearly constitutional: neither blowing up government property, nor even kidnapping Henry Kissinger, has yet been held to be a protected form of symbolic expression. The Berrigans and their acolytes are certainly not so friendless and unpopular that the Union’s intervention is necessary to secure them due process and competent counsel. They have, in fact, been represented by squads of eager lawyers, some of them competent. Their press notices have ranged from friendly to adulatory; the average Times reporter can scarcely mention their names without genuflecting. There might indeed be a civil-liberties issue if the indictment were so patently unfounded and incredible as to justify the inference that its purpose was not to obtain a valid conviction but simply to harass and persecute. History is, however, full of evidence that there is nothing preposterous, or even improbable, in the proposition that religious zealots, convinced of the righteousness of their particular orthodoxy, may undertake criminal acts ad majorem Dei gloriam. The Brothers Berrigan are entitled to a fair trial, but so are thousands of defendants in whom the ACLU has expressed no particular interest.

The case of Captain Howard Levy, court-martialed for making statements designed to promote “disloyalty and disaffection” among enlisted men and for refusing to obey a lawful order, does present some genuine and important constitutional questions. But the case was not, on its facts, a good one for testing the First Amendment rights of servicemen—the charge of disobeying orders did not, in my opinion, raise any clear and substantial constitutional issue—and it certainly did not justify the extraordinary amount of time and money which the Union’s lawyers devoted to litigating peripheral issues (such as the propriety of Levy’s confinement while his conviction was under review in the military appellate courts) whose connection with the constitutional issue was at best tenuous. Perhaps the finest example of the triumph of zeal over realism was the filing of a petition for certiorari (denied by the Supreme Court) running to 53 pages, including appendices, and signed by no fewer than eight lawyers, after the issue (whether the lower federal courts had erred in refusing to enjoin the Army from even prosecuting Levy) had been made moot by the completion of the trial. The constitutionality of Levy’s conviction could still, of course, be litigated all the way up to the Supreme Court and doubtless will be. It is not easy to perceive a reason for this hopeless and expensive effort—the petition may be described as a reckless hurling of mobs of frenzied but undisciplined adjectives upon the chevaux-de-frise of the Solicitor General—other than infatuation with Captain Levy’s political philosophy.

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ACLU’s actual involvement in the various criminal prosecutions of Black Panthers has been limited to issues of due process, which so far have not proved very serious. More Panthers have been acquitted than convicted, some on evidence which might well have supported a finding of guilt. (The doubts of Yale’s President that a black revolutionary could get a fair trial in the United States may have proved justified, but not in the way he meant. The fact is that the Panthers are likely to benefit from their right to trial by jury in precisely the way Ku Kluxers have traditionally benefited from Mississippi juries.) But some of ACLU’s spokesmen swallowed whole the theory that the Panthers were being persecuted for their political views, not merely by being tried on trumped-up charges of murder and the like, but by being themselves murdered by the cops. The Executive Director of the Illinois affiliate, accepting unquestioningly and even eagerly the story that “some twenty-eight Panthers died in police shootings” in 1968 and 1969, concluded that there was a “nationwide pattern of police action against the Panthers.” He added ominously that the crimes of the police against the Panthers were generating a “police-state atmosphere.” His charges were promptly echoed by the then Executive Director of ACLU, John de J. Pemberton, who accused police across the country of “provocative and punitive harassment” of the Panthers. Mr. Wulf weighed in with a declaration that the state (meaning, apparently, the government of the United States) was “fascist” from the Panthers’ point of view: “The evidence,” he pronounced, “is clear now that there is a government plan to destroy the Black Panthers as an organized political movement.” “Whether or not,” he went on darkly, “there is a memorandum in Washington which sets out the details of the program, or a written or spoken agreement among law enforcement officers to include murder as one of the means of banishing the Party, there is encouragement and support from Washington for murder as an instrument of policy.”

This lie (which, I Should in fairness add, Mr. Wulf did not invent, but merely believed, repeated, and embellished in his own peculiar style) was demolished as thoroughly as such a lie can ever be demolished by Edward Jay Epstein’s remarkable report in the New Yorker of February 13, 1971; Epstein concluded, after a thorough and objective investigation of the alleged twenty-eight deaths, that in only two was there substantial—although by no means conclusive—evidence of police aggression. But the conspiracy-to-murder-the-Panthers lie will probably have as many lives as the Protocols of the Elders of Zion, for it is the sort of lie that fills a large public demand. So far as my research in newspapers and other publications goes, Mr. Wulf still believes it, and I suspect also that in this respect he is not alone among the Union’s activists.

In matters like these much depends, of course, on one’s view of people whose crimes of violence are motivated, or said to be motivated, by ideology. I confess that I like the “political” criminal—and by that phrase I do not mean a man whose “crime” is the nonviolent expression of political ideas, however obnoxious, for that, under our Constitution, cannot be a crime—rather less than garden-variety felons. Muggers, porch-climbers, and securities swindlers do not, as a rule, give themselves airs of virtue. But the “political” arsonist or rapist, if the cops catch up with him, is anything but repentant he glows, in fact, with self-approval. His crimes, he informs the victims (placing both nouns in quotation marks), were inspired by a superior wisdom and a morality too elevated to be comprehended by the dull wits of the electorate. Such an attitude is, of course, contagious; even criminals of lesser intellectual and moral pretensions are very ready to be persuaded that their homicides and robberies were in reality gestures of protest against the repressive System, and that they are, in fact, political prisoners.

In the same manner ACLU rationalizes in terms of civil liberties and the Constitution crusades whose purpose seems to me clearly political. Thus, the national board recently voted to give “top priority” to an end-the-draft campaign, resolving that the Selective Service Act is unconstitutional. But only by a process of self-hypnosis can a lawyer take seriously the idea that the draft will be held unconstitutional. The argument has been made in hundreds of cases since conscription was introduced in 1863; and not since that year (when a state court, which reversed itself a few months later, held that the federal draft was inconsistent with the militia clauses) has any court accepted it. Chief Justice Warren, speaking for the Supreme Court in 1968, said that “the [peacetime] power of Congress to classify and conscript manpower for military service is beyond question,” and the Court is about as likely to hold otherwise in the foreseeable future as Cardinal Cook is to elope with Bella Abzug. As a political matter, it can, of course, be argued that the United States should rely on a volunteer army or even have no armed forces at all; but that should not be the business of the American Civil Liberties Union. Litigation to establish the unconstitutionality of the draft is simply a waste of money and time which its lawyers might better spend on real issues of civil liberty. It is nearly as unlikely that the Court will agree with the Union’s contention that “the present military involvement of the United States in Southeast Asia is unconstitutional.” As a political matter, that involvement may be very unwise, but unless and until Congress exercises its power to withhold men and money, it is sanctioned by the Constitution.

There are, of course, substantial and serious questions, with which ACLU is properly con cerned, about the First Amendment rights of servicemen—whether, for example, a member of the armed forces can constitutionally be forbidden to speak contemptuously of the President and Congress, or to participate in a political demonstration in a foreign country. But in their number, variety, and, in some cases, implausibility and even pettiness, the Union’s lawsuits against the military lead me to suspect that the underlying motivation is not so much to protect the civil liberties of servicemen and civilians from military encroachment as to gratify a political dislike of the armed forces, at least when they are controlled by the wrong civilian politicians It is one tiling to defend the right of servicemen to patronize oil-post coffeehouses established to serve up hot coffee and hotter propaganda or to disseminate “underground” newspapers on the post, it is quite another to litigate the constitutionality of the Army’s haircut regulations. There is probably no connection between short hair and military virtue: the Cavaliers, with their “long essenced hair.” were beaten by the Roundheads; but the longhaired Spartan hoplites (“The Spartans on the sea-wet rock sat down and combed their hair”) were the best disciplined and bravest warriors in Hellas. Yet however weak the military justification for the Army’s regulation, the right to wear one’s tresses in a pageboy bob is hardly of the same magnitude as the right to speak one’s mind, and it is in the last degree unlikely that the courts will interfere with this aspect of military discipline. Likewise, nerve gas is nasty stuff, and, if I lived in Oregon, I would prefer to have the Army dispose of it somewhere else; but when it is reported that ACLU has filed suit to enjoin its shipment from Okinawa to Oregon I am quite unable to see the connection with civil liberty. And how can suits to enjoin underground nuclear blasts be reconciled with the Union’s Policy Number 235, which says that “The ACLU does not believe that any question of civil liberties is involved in the issue of nuclear weapons testing”? Similarly, an effort to enjoin the Army Corps of Engineers from granting permits to drill in the Santa Barbara channel is not convincingly explained by the argument that the drilling would violate the Fifth Amendment by depriving the people of Santa Barbara of property without due process of law. (It may be noted in passing that neither I nor my diligent researcher found any other instance of concern for property rights.) Such crusades seem to suggest that the Union’s management, dissatisfied with its limited role as the watchdog of the Bill of Rights, has decided to diversify by putting it in the business of protecting the environment—a field which is already somewhat crowded.

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All of the crusades which seem to me to be motivated by political ideas other than the protection and promotion of civil freedom are marked by a strong hostility to the government. The degree of hostility varies, of course, with the degree of conservatism of the government in power, but I suspect that even Senator McGovern would not enjoy a long honeymoon. As Mr. Wulf puts it, “Governments, perhaps by their very nature, perceive every threat to the status quo and to their own power as an assault which justifies the use of physical force.” This extraordinary statement recognizes no distinction between the governments of the Third Reich or Soviet Russia and that of the United States. It ought to be too obvious to require saying that in my lifetime, and Mr. Wulf’s, the United States has undergone enormous changes, some of which Mr. Wulf would probably regard as good. Some of these changes were resisted by the governments in power when they were first proposed, but very rarely by jailing or shooting the proposers. I expect that the United States will change as much in the next fifty years as it has in the past fifty, and I expect that it will do so more or less peacefully.

The government of the United States is, in fact, one of that small minority among the earth’s governments which does provide for change by democratic and constitutional means and in which there is no justification for resort to violence to coerce changes in policy. All historical experience tends to show that personal freedom can exist only in a fairly stable and prosperous society. Civil liberty is, in the last analysis, a luxury, although a very great one. The truth—maybe sad but nonetheless true—is that the ordinary specimen of homo sapiens would rather live under an absolutist government, which assures him two or three meals a day and protection against oppression by anyone except itself, than under a permissive and democratic government which does neither; an ordinary citizen of Calcutta would probably, if he could choose, trade his right to a free press (which is largely theoretical, because he hasn’t the price of a newspaper and couldn’t read one if he had), plus his right to damn the Congress party, for the relatively full rice bowl of an ordinary citizen of Canton. A man whose government does not protect him from thieves and marauders is likely to lose concern for criminal due process and to support the first strong man who promises short shrift for criminals. The stability of the government of the United States and the survival of the liberties provided by its Constitution depend on its continued ability to enforce its constitutional laws by constitutional methods—including laws which are unwise, but not unconstitutional.

It ought therefore to be a truism that in this country the public interest and the interest of the government are not always, or even very often, antithetical. But the “activists” within ACLU, who are so strongly represented in its professional staff—i.e., its active management—barely recognize that the public has any interest at all in the government’s preservation of stability and order or in the protection of the United States from internal and external violence. In the New York Times case, the most that ACLU’s brief in the Supreme Court conceded, and that grudgingly, was that the government “could conceivably” prevent publication of secret codes, designs of new military equipment, and plans for military operations—but not if their publication would be “of value in permitting citizens to render an informed judgment on public issues.” This criterion has a fine ring, but it would have permitted publication of the Allies’ plans for the invasion of June 6, 1944 or Israel’s plans for the air strike of June 5, 1967. Knowledge of either of these important government decisions would doubtless have contributed to informed public discussion of many issues, but I suspect that not even Justice Black, faced with such circumstances, would really have held that publication could not be restrained. A few years ago, in United States v. Robel, the Supreme Court struck down a statute which made it unlawful for a member of the Communist party to work in a defense plant, regardless of whether there was any evidence that he was himself likely to engage in espionage or sabotage. Chief Justice Warren said that “nothing we hold today should be read to deny Congress the power under narrowly drawn legislation to keep from sensitive positions in defense facilities those who would use their positions to disrupt the nation’s production facilities.” But the ACLU’s position, when Congress was attempting to draft legislation sufficiently precise and narrow to satisfy the First Amendment, was that “we would of course oppose this section even if it met every standard set down in Robel.” In the eternal process of balancing the public’s interest in security and stability against its interest in personal freedom, it is difficult to think of any recent instance in which the Union has been willing to give any weight at all to the former. The gravestone of the Weimar Republic ought to be a reminder of the fact that there is, after all, some public interest in allowing a democratic and constitutional government to protect itself.

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The Union’s chronic hostility to government is mirrored by its general indifference to assaults on freedom of speech and association by various New Left groups, which on campuses, at least, are a much more serious threat to First Amendment freedoms than are the cops. The Union’s official policy is impeccable: “The ACLU considers it important to emphasize that it does not approve of demonstrators who deprive others of the opportunity to speak or be heard, or physically obstruct movement. . . .” But actions to implement these commendable principles have been few and feeble—an occasional letter to the newspapers expressing disapproval of some unusually outrageous disruption, such as the shouting down of pro-war speakers at Harvard last March. (Many similar episodes seem to have altogether escaped the notice of the Union and its spokesmen.) There have been no interventions, no briefs amici curiae, no press releases supporting authorities who tried to prevent or punish such violence. On the contrary: when the University of Connecticut obtained an injunction against the making on campus of obscene and disruptive statements in connection with demonstrations against recruiters representing corporations with defense contracts, the Union sought to have the injunction overturned in the Supreme Court, and Mr. Wulf lectured the Court severely for its refusal to review the case. The NYCLU promptly and loudly denounced the police for using excessive force in the 1968 Columbia disorders, but had no unkind word for the violent demonstrators—an assessment of guilt which is not supported by the Cox Commission’s Report. Neither, apparently, does the Union support legislation intended to curb such interferences with free discussion, like a bill which would authorize the Attorney General to seek injunctions against “disruptive noise” at public gatherings. But it is very sensitive—properly so—to private interferences with the New Left’s right to express itself: when printers, for example, refused to set type for an issue of Scanlan’s Magazine, which consisted largely of what the printers regarded as a sort of Field Manual for urban guerrilla warfare, including a ho-to-do-it piece on the construction of cheap, simple, and efficient bombs, the Union’s Executive Director announced his intention to sue the printing company. The Union’s policy on disruptive students attempted to salve their sensibilities by acknowledging that they were “moved by conscience to use extraordinary means [a euphemism for violence] in the belief that ordinary means have failed in creating a more, just and equal social order.” Although the printing-shop foreman said that it was “a matter of conscience” for him, and presumably thought that the social order would be none the better for an infusion of pipe bombs and Molotov cocktails, he got no similar encomium from the ACLU.

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Perhaps it is too much to expect any special-interest pressure group to be fair or objective in its attitude to what it regards as the enemy. Moreover, the Union suffers from a problem created by its very success to find new battles and victories its staff seems to think that it must push farther and farther toward, and beyond, the outer limits of freedom (not only of speech, but of action) and must, indeed, become a political pressure group. But the Union’s attitude toward a constitutional and democratic government need not and should not be always, or even usually, that of Ralph Nader to General Motors The Union has done far more good than harm. I think it still does, but the question seems to me much closer than it used to be. The policies of its present management risk a considerable, and I think undesirable, change in its base of support—from a large number of people, having very different political views, but sharing a common belief in the virtues of the Bill of Rights, to a rather smaller and politically homogeneous group whose belief in civil liberties for everybody, including oldthinkers, is in some cases very dubious.

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Footnotes

1 I am indebted to George A. Bermann, a recent graduate of Yale Law School, who spent many hours digging in the Times Index and the microfilms of the Sterling Library.

2 This is as appropriate a spot as any to emphasize the point that it is very unfair, but unfortunately very easy, to judge ACLU by the harebrained harangues sometimes emitted by local affiliates and local staffers over whom the national board has no control and not much influence. The problem is compounded by the frequent failure of the press to distinguish between the national organization and the affiliates; to most reporters they are all ACLU. Some of ACLU's own propaganda contributes to the confusion. A recent circular, signed by ACLU's Executive Director, states that “in thousands of courts across the country, in the state legislatures” and Congress, ACLU is resisting what Mr. Neier calls “a concerted attack on American liberties.” This reference must be intended to include many of the activities of the affiliates and chapters.

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