The Patriot Act of 2001 was democratic action par excellence. Passed by overwhelming majorities in both the House (357–66) and Senate (98-1), it was a textbook case of American legislators, led by the President, acting in swift response to the clear needs, and manifest will, of the citizens of the Republic.
Since its inception in 1920, the American Civil Liberties Union (ACLU) has made a name for itself by blocking the actions of the legislative and executive branches of government, especially at the state and local levels.
Most of the ACLU’s wrath has been directed against statutes, i.e., laws that were democratically enacted but (for one reason or another) were deemed unacceptable by the ACLU. Browse through the 100 Greatest Hits slideshow on the ACLU website and you can get a feel for how successful the organization has been in frustrating democratic choices. While some of these laws certainly deserved to be thrown out (one thinks of Jim Crow as the clearest example), most were reasonable democratic decisions made by citizens grappling with the perennial political question — How shall we order our lives together?
Nobody disputes this record, including the ACLU itself. Explaining it, however, is another matter. The ACLU’s own rationale — i.e., that majority rule must be limited to ensure individual rights — is too bland to be of much help. Yet this is a phenomenon we need to explain and understand, especially today when many of the laws and procedures the ACLU is targeting (the Patriot Act, border control, and others) are ones upon which our very survival may depend.
The key to understanding the ACLU lies in a single word — ideology.
Ideology is the attempt to account for the vast complexity of politics and society by using only a few rarified concepts. The ideologue seizes on a handful of abstractions and then claims everything else must somehow conform to them.
The ideology of the ACLU is civil libertarianism. Some of its more famous abstractions are free speech, secularism, and individual privacy. Of course, none of these ideas are intrinsically bad. In fact, each has an honored place in American tradition. Problems arise only when they are seized upon by ideologues and held up as unalloyed goods that automatically trump all other considerations.
Free speech, for instance. Free speech is a value that goes all the way back to the ancient Greeks and Hebrews, and is very much a part of the great Western tradition cherished by all Americans. But unlike the ACLU, most of us do not instinctively equate ‘free speech’ with holy writ. We do not elevate it to the point where it takes unquestioned precedence over everything else. Community prerogatives are also part of our tradition, and most people have no trouble acknowledging that sometimes such prerogatives will win out over free speech, as when local town councils impose standards respecting taste and public decency. Or, more relevant to today’s headlines, when the Federal government forbids the publication of sensitive hydroelectric infrastructure diagrams on the Internet — few Americans have any qualms about abridging this particular instance of free speech.
With some exceptions, American voters also tend to be nonideological. Whatever their party affiliations, whether they consider themselves liberal, conservative, or middle-of-the-road, most voters see a far more complicated world than simple ideological categories can describe. When they go to the polling place to decide on a ballot measure or elect a representative, Americans carry with them a vast array of family traditions, moral and political beliefs, social prejudices, economic interests, civic norms, religious convictions, aesthetic preferences, and — perhaps most importantly — knowledge of the concrete circumstances facing their city, state, and nation. Thus prepared, they draw distinctions and recognize differences that the bare, abstract worldview of the ideologue cannot tolerate.
And it is here that the ACLU’s trouble with democracy becomes apparent.
Take censorship. Members of Congress, acting on behalf of the voters who elected them, passed the Children’s Internet Protection Act (CIPA) in 2002. The act required libraries receiving certain forms of federal aid to install web-blocking programs to filter material that could harm children. The act also provided that librarians disable the software for “bona fide research or other lawful purpose.” The ACLU challenged the law, and was successful in getting the Supreme Court to water it down. Needless to say, the ACLU expressed disappointment that it didn’t get CIPA struck down entirely.
For the legislators who wrote CIPA, and the voters to whose concerns they were responding, the issue was clear. There is a difference between children accessing pornography or instructions for making bombs, and adults doing whatever web-surfing they choose. The former should be restricted and the latter left alone, said the voters through their representatives.
But the ACLU didn’t see it that way. All these real-world, factual circumstances were irrelevant. The ideologues at the ACLU ignored the gaping historical, social, and practical differences between a 13-year-old loner downloading a scanned version of The Anarchist Cookbook and an adult reading the latest edition of The Village Voice online. Those concrete particulars didn’t matter, and they all were stripped away. What mattered instead was the thinnest, most abstract thread of high-level conceptual commonality that one can imagine — i.e., both involved ‘speech,’ and therefore both deserved absolute protection.
If America is to win the war against militant Islam, our intelligence and law enforcement agencies must have effective legislation at their disposal. But like all products of democratic action, such legislation is in constant danger of being sacrificed on the ACLU’s alter of ideological purity.
Ultimately, the best defense against this ongoing assault on democratic sovereignty is democracy itself. The next President will most probably make at least one appointment to the Supreme Court. Depending on who that President is, the Court will either be tipped in favor of those who respect the legislative branch and the democratic traditions it represents, or its old ACLU-friendly habits will be reinforced for another generation.
Mr. Carroll is a former officer in the Clandestine Service of the CIA and a regular columnist for FrontPageMag.com. Email: firstname.lastname@example.org