Problems in the ACLU

...The ACLU was not, in this struggle, solely a defender of civil liber ties...

...Men are indicted for refusing to register for the draft, or to serve when called, or for counseling violations of the law...

...It had little organizational muscle with which to follow up the pathbreaking Supreme Court decisions won by its volunteer lawyers...

...One of the fascinating paradoxes of our society is that its least democratic political institution, the judiciary, has proved essential to the preservation and extension of democracy...

...Are not the soldiers on guard against an announced plan to occupy and paralyze the Pentagon performing a role indistinguishable from that of the Alabama State Police on the Selma overpass...

...Implicit in the separation of powers is the notion of the need for an institution set apart from and, if you will, above the political battle, whose job it is to keep any majority from trampling the irreducible rights of a political opposition...

...The obligation to observe valid laws while trying to change them is removed in a society in which the majority (or a ruling minority) systematically denies or violates those rights and liberties that make the democratic game meaningful for all...

...It can only become "relevant" as the legal arm of the new insurgency...

...3 3 The Southern power structure's open defiance of constitutional guarantees, its willingness to engage in frame-ups, false arrest, perjury, subornation of juries, etc., within the system of Southern justice, and to support vigilante murder and arson outside it—all this changed the rules of the game for ACLU as it did for the "movement" itself...

...But the reporters did sense correctly that underlying this tactical dispute there is a deep-going difference of opinion on the role the ACLU should play in these difficult times, and, beyond that, on the condition and destiny of American democracy...

...The differences may, in part, be an inevitable accompanyment of the very rapid growth of the organization during the past decade...

...A A S THE EXCITEMENT of these dramatic battles in the South gave way to the tensions of the political struggle over Vietnam, there has been a strong tendency to transfer organizational attitudes and practices which were appropriate libertarian responses to the earlier struggle to a different kind of war between different opponents and on a different battlefield...

...This meant, above all, direct representation and a clientlawyer relationship very different from ACLU's tradition...

...It was the Union's duty to try to raise an umbrella of legal defense over every individual in or near the civil rights movement, almost regardless of the nature of the charge against him...

...But other logical skeins may be more difficult to unravel...

...Thus, no disobedience of a valid law was really involved...

...And there is a legal principle that when the government imposes a burden on a citizen, it can be required to show that the harm done the individual is essential to the effectuation of a lawful public purpose...

...But today thousands of members serve on chapter and affiliate committees and boards of directors...

...Such a narrow difference of opinion would hardly seem to warrant sensational publicity...

...The most fruitful role for ACLU cannot really be deduced from one's answer to the question: are you opposed to the war in Vietnam...

...MICHAEL HARRINGTON'S ARTICLE in the March-April DISSENT admirably presents the moral-political issues involved in various forms of "resistance...

...and it can oppose prosecutions of persons for violating laws passed to further the war, no matter how valid or unrelated to civil liberties such laws would otherwise be...

...THE EXISTENCE OF A JUDICIARY with the power to review and overturn legislative enactments and administrative decisions is a deviation from pure democracy...

...Such a posture would mean, of course, that civil libertarians who support the war, or opponents of the war who believe that American democracy requires (and permits) that it be stopped at the polls rather than by a political strategy of civil disobedience or guerrilla resistance, would tend to lose confidence in ACLU's role...

...The special conditions of the struggle in the South was created not primarily by the fact that immoral social practices were institutionalized (Jim Crow), but by the wholesale, systematic violation of civil liberties which was resorted to in the effort to maintain them...

...ACLU's usual stance of defending only those cases which are "on their face" violations of civil liberties was obviously naive if not irrelevant in a society such as this...

...At one time, ACLU lacked the resources to take on any but pioneering "fron tier" issues...

...But clearly a point is reached at which the element of "symbolic speech" in an action may be overridden by other elements...

...Are not the obstacles put in the way of getting new parties on the ballot equivalent to the cynical disfranchisement of Negroes in Mississippi...

...If the ACLU (and especially its Lawyers Constitutional Defense Committee) could serve as a sort of house counsel to the civil rights movement in the South, why not perform the same function for the embattled antiwar movement, and especially for that section of it whose resistance to the draft brings it into direct confrontation with the law...

...After all, I am concerned with ACLU's effectiveness because I think it will continue as an essential instrument in the fight for civil liberties...

...If our democracy is really finished, or if each day the war goes on this country and the world suffer a greater catastrophe than our civilization can bear, then sacrificing the role ACLU might play in future years would be a cheap price to pay, if by plunging it into the political struggles now we could hope to end the war in Vietnam one day sooner...

...Such a proposition was rejected by ACLU two years ago...

...Therefore ACLU should oppose the war, rather than merely defending the right of individuals and parties to do so...

...But, to be perfectly frank, I do not know whether I could maintainthat position if I believed that the war signals the death of meaningful democracy in America...

...freedom of expression in the arts and academies...

...One advantage of a legalistic tradition and training is that court-made law relies heavily on distinguishing the circumstances in which a given act may be banned from similar ones in which it is legal...

...Resistance, insurgency are "meaningful" ways of dealing with the realities of how power is seized and used...

...Which practices should it defend in the courts as constitutionally protected...

...That is, after all, what we mean by "conscience" in the argument over the exemption of conscientious objectors from obligations the government puts on the general citizenry...

...The temptation inevitably arises to use ACLU itself as a politial instrument, rather than as a guardian of the channels through which political change may be won...

...Some go beyond criticism of specifically American political mechanisms to reach generalized conclusions about the failure of the idea of democracy...

...ACLU has defended acts like burning flags or draft cards as "symbolic speech" protected by the First Amendment...

...Or shall it act like a private lawyer ready to defend all persons arrested in the course of expressing themselves, leaving it up to the courts to draw the line of legality...

...One consequence of being too long and too heavily involved with this paradox can be a tendency to cynicism about the political capacities of a nation which requires such a mechanism to save its own freedom from itself...

...All this has happened at a time of a rapid decline of many civil rights organizations, and the absence in American society of a political movement capable of uniting and channeling the drive for social change...

...protected dissent and advocacy in politics...

...Should the ACLU try to propose general criteria or guidelines on the limits of defensible demonstrative actions, limits beyond which it, as an organization, will not seek to defend them...

...In this country the private, nongovernmental, special-purpose organizations also play a unique role in keeping ours a relatively open society...

...But if ACLU itself proclaims the war illegal or unconstitutional, its voice can be joined with its clients' voices in wholehearted denunciation of the war...

...It not only sought the right of Negroes and their white supporters in the South to march, speak, in tegrate schools, register and vote—it shared their objectives...

...and equal protection of the laws for all without distinction...

...But then, on second thought, it does not seem so strange...

...It is perhaps ironic that such views should find advocates in the American Civil Liberties Union, of all places...

...Failure to adopt such a position (or to conduct ACLU litigation as if it had been adopted) exposes the Union to loss of support from sincere members to whom the war is such an overriding threat to democracy that no holds are barred in trying to stop it...

...Much of what the press wrote was faulty, especially the reporting of John Leo in the New York Times and Village Voice...

...Are there some which, no matter how one judges their tactical effectiveness, are properly outside the protection of the law...

...A budget of almost $2 million and the professional staff on national and affiliate levels makes this possible and has greatly increased the organization's effectiveness...

...National publicity was recently accorded to a difference of opinion in ACLU over whether the Union should give direct legal services (full representation in court) to the defendants in the Spock-Coffin et...

...Does it follow from the previous two propositions that anyone who asserts a stubbornly held opinion that a given law is wrong or bad must be exempted from its provisions as a matter of constitutional right, unless the government can prove that universal compliance is necessary to the effectuation of a lawful purpose...

...For an opponent of the war, like myself, can believe that an effective ACLU will serve the antiwar cause best by just keeping the democratic channels open in America...

...Thus the ACLU Board of Directors has re PROBLEMS IN THE ACLU sisted the kinds of arguments that identify the present circumstances with those imposed on the civil rights movement in the South...

...and that to be truly effective, ACLU must preserve its hard-won disinterestedness...

...GORDON K. HASKELL 2 2 The movement's objectives were, in the main, civil libertarian...

...But as the war in Vietnam grinds along, an increasing number of Americans become persuaded that its continuation reflects not only on the wisdom of the Administratoin, but on political processes which seem inadequate to compel it to change its policies...

...Demonstrations, sit-ins, kidnapping navy recruiters, burning down ghettos—who could deny that people who do such things are "saying something" to society...

...What success the ACLU has enjoyed in its chosen field has resulted, in large measure, from its ability to recruit to its leadership people holding widely diverse socioeconomicpolitical views, and to persuade a fairly broad and influential section of American society that its purposes are really limited: to maintain due process in the judicial system...

...There lies much of the difficulty...

...Only pedants could insist on the rigorous observance of abstractly valid laws (on the ground that ultimate vindication was likely in the federal courts) when the day-to-day reality for the movement in the South was a confrontation with brute force hiding behind a transparent screen of formal legalisms...

...In many instances ACLU's legal support would be given on First Amendment, due process, or equal protection grounds...

...The "violations" of law were in the nature of traditional test cases, even if hundreds or thousands of violators had stepped forward to make the tests...

...Which should it support as positive contributions to the democratic process...

...In this sense they are unlike the major political parties on the one hand (who are, in large measure, loose alliances of political jobholders) or the ideological sects on the other (who develop a complete Weltanschauung for their members...

...indictment, or should file an amicus curiae brief in which it would address itself to those aspects of the indictment which endanger First Amendment rights...

...The quicker ACLU sheds its old notions that its mission is to keep the political and judicial processes civilized, the better...

...The seeds of the present tensions in ACLU can be traced back to its defense of civil disobedience and defiance of local laws and practices in the South, even when such actions seemed to exceed the free speech and association doctrines of Supreme Court decisions...

...And that struggle will stretch as far into the future as I can see...

...And one of the essential GORDON K. HASKELL features of such organizations is their willingness to stick to the relatively narrow, pragmatic task each has set for itself...

...Are not the U.S...

...4 4 Finally, civil disobedience (and much . more, up to and including armed selfdefense) in these circumstances was consistent with devotion to democratic ideals...

...The American Civil Liberties Union has recently been compelled to grapple with these same problems from its own special angle...

...In explaining its defense (and, in a sense, support) of such practices, ACLU tended to give a number of different kinds of reasons: Southern laws or local police ukases I. violated by the "movement" were clearly unconstitutional, and would be overturned by the federal courts...

...And there are plausible arguments: the war itself is unconstitutional and immoral, and will constitute an increasing threat to civil liberties if it continues...

...These kinds of comparisons have not proved too persuasive within ACLU...

...This sentiment finds a certain echo in ACLU too: The democratic process, the marketplace of ideas, and freedom of speech have become a snare and a delusion...

...One of the indices of a society's civilization is its willingness to make room for the acting-out of a wide variety of deeply-felt beliefs or stubbornly held opinions...

...It was, in addition, a passionate partici pant in the struggle for equality...

...That is a stubbornly held opinion on the condition and destiny of American democracy...

...Thus the usual relation between the ACLU and its clients was changed...

...Inevitably, in a time like this, the pressure arises to enlist the ACLU in the political battle itself...

...government's actions in Vietnam (and hence the economic, social, and military measures required to support them) as illegal and unconstitutional as Governor Wallace standing in the door...