Extra Chapter 7
The Social Activist
Brooklyn-born Ira Glasser was a Phi Beta Kappa straight A math major. Two weeks after graduating from Queens College, he married at age twenty-one. He might have applied to an Ivy League grad school had he not taken so many philosophy, history, and literature courses, but because he did and didn’t have as many math credits as he should have and needed financial assistance he was strongly advised to apply to less prestigious schools. When Ohio State offered him a teaching fellowship which only required him to teach one course, he and his wife packed up and drove to Columbus, Ohio.
To start their married life, they had planned a seven-week, nine thousand mile trip across the country ending around Labor Day. His wife Trude had taught public school on Long Island, and since her income was their only income, they decided to stop in Columbus and nail down a secure place in the school system before they took off on their trip.
It was 1959, and Columbus was as segregated as the rest of the country. Columbus’s schools were completely segregated, and when Trude was told the only current opening was in a black school, she took it – much to the chagrin of the administrators. What she didn’t realize at that time was that only black teachers were hired to teach in black schools, and her appointment was costing a black teacher a job.
There were other interesting ramifications. She had to take a medical exam administered by the school doctor, and not knowing any doctors in a brand-new town, she went to a black female doctor who was a parent at the school but had never examined a white person before. Trude thought nothing of it, but it was awkward for the doctor. Once school began, the Glassers befriended a black teacher and her husband and invited them back to their apartment. The black couple had never done that before, and they were nervous. Their neighbors were not pleased, and although they remained friendly, they were not invited to their new friends’ home. Interracial friendships in 1959 were not easy. These were new experiences for the Glassers.
Living in Columbus, Ohio, Brooklynite Ira Glasser suffered from culture shock. Not only could he not find rye bread, but Jews and Catholics, he found out, were not the majority. White Protestants were. And the Protestants, he saw, often felt the same way about the Catholics that the non-Jews in Brooklyn felt about the Jews: they said they were miserly, cheap, and they were feared. A year later, when John Kennedy ran for President, the fear would be voiced with the phrase, The Pope will be coming to America.
While at Ohio State, the Glassers got to watch Woody Hayes football, the major religious event of Columbus, and on the basketball court Larry Seigfried, Joe Roberts, John Havlicek, Jerry Lucas, Mel Nowell, and Bobby Knight led the Buckeyes to a National Championship.
But Ira Glasser hated living in Columbus. The civil rights movement was beginning to heat up, and his interest in mathematics was waning, and after spending a year getting his masters, he returned to New York He got a job teaching math at Queens College during the day and went to graduate school at night, switching from math to a doctoral program in philosophy and sociology. They lived in North White Plains, because his wife was teaching in nearby Valhalla. The next year he moved on to Sarah Lawrence College where he was able to teach math as a liberal art instead of vocationally. Glasser wanted his students to know that Descartes invented analytic geometry as part of his attempt to prove the existence of God.
Restless, Glasser was determined to find an entree into the world of social issues, and he gave up graduate school and applied to become an editor of various magazines. He was hired as an associate editor of a new reprint magazine of public affairs called Current. The job entailed reading dozens of magazines, books, and journals and educating concerned citizens with the latest new thinking on public policies. Glasser found his new job “an intellectual feast,” and after a year gave up teaching math entirely. It was a year before the 1964 Civil Rights Act was passed, and he was studying such issues as affirmative action, reapportionment, racial justice, making democracy work, foreign policy and nuclear disarmament.
At Current magazine Glasser met another young associate editor, Aryeh Neier, and they became friends, and in the middle of an economic downturn, Neier was laid off, and he ended up working for the American Civil Liberties Union, a much smaller and more marginal group than it would later become, committed to the Bill of Rights. After editing Currens for five years, Glasser watched as circulation shrank to under twenty thousand subscribers, and he thought, If nobody reads it, what’s the point? It was 1966, and both Vietnam and the civil rights movement were heating up, and what Glasser really wanted was to work in politics. Young and brassy, he contacted Bobby Kennedy to try to convince the New York senator to run for president and hire him to help. After six months of trying, Glasser received a private interview from Bobby Kennedy. The meeting, held in January of 1967, would change his life.
Ira Glasser: “Why Kennedy talked to me I’ll never know. I sat in his office, and I tried to convince him to run for president and expand his staff and hire me. He said he was not sure he was going to run, at least not at that point, so he didn’t have anything for me. But he seemed interested in me, gave me the name of his secretary, and told me to keep in touch, which I was only too happy to do. Then he said to me, `So what else are you thinking of?’ I had told him all the reasons I was ready to leave the magazine, that I wanted something more active, that I was looking around.’ He said, `Do you have anything else you are thinking of doing in the meantime?’ I had received an offer from Aryeh Neier to come work for him at the American Civil Liberties Union. He had become executive director of the ACLU’s New York affiliate, and in late 1966 called me up and asked if I’d be interested in becoming associate director. I said, `I don’t know. The ACLU is a legal organization. I’m not a lawyer.’
“So when Kennedy asked me, I told him about this job, and I said it hesitantly, because I knew the ACLU had a left-wing reputation and Kennedy was a centered, mid-stream politician who had once worked for Joe McCarthy. But I didn’t say that; I just told him the real reason I was hesitant. I said, `I think the job’s too narrow, too legalistic for me. I’d like to find a much broader range of political and public policy issues.’
“Kennedy looked at me and said, `Take the job, and I’ll tell you why. First of all, the ACLU is a unique institution in America. It’s based on radical premises – radical in the sense of going to the root of things – as to what values the country is based on institutionally. Yet it operates right in the mainstream of Congress and the courts.’
“He said, `It’s not too narrow. It will get you into all the issues you’re interested in. You should take it.’
“Years later I remember thinking, What an astonishing thing for a guy like Bobby Kennedy to know about the ACLU in 1967. I came from a pretty liberal social justice background, and I had no idea. He was a guy who came from anything but a liberal background, and he knew. That he could have said that and meant it I thought was amazing! If we hadn’t met, I think I might not have taken the job seriously. But after he said that, I thought, Maybe he’s right. If he thinks it’s a good thing, and I want to end up with him, then maybe I should do it. So I reopened the discussion, and I accepted the job as associate director of the New York Civil Liberties Union. I was Aryeh’s deputy. I started on May 1, 1967. I was through with math for good. I left the magazine, and I thought I was going into politics. I saw the ACLU as a way-station. I still hoped to end up working for Bobby Kennedy. And between May of 1967 and February of 1968 Gene McCarthy runs in the New Hampshire primary and finishes astonishingly well, and the next month Lyndon Johnson quits, and Bobby Kennedy, who didn’t have the balls (or maybe the strategic vision) to do what McCarthy did, gets into it. This was ten months after I started at the ACLU, and I got back in touch with his staff, and I’m hoping I’ll get a job when his staff expands, and I’m following the primaries, and in June 1968 Bobby Kennedy is killed. I remember thinking, What the fuck do I do now?”
Glasser hadn’t thought about working at the ACLU as a career, but he had found it exciting. Bobby Kennedy had been right. Glasser was dealing with the sort of issues he cared about, learning that political influence could be very effective through a voluntary organization like the ACLU. For the first time he realized: This is a form of politics. The following fall Richard Nixon was elected President, and so when getting into politics was no longer an option, he stayed for the next thirty-three years with the ACLU, running the New York office from 1970 through 1978 and then replacing Aryeh Neier as national director. One time he awoke in a San Diego hotel room, and he realized, My God, I have been at this job for twenty years. He hadn’t planned it. But no one is able to explain the importance of the Bill of Rights and the ACLU’s role in upholding it like Ira Glasser.
Ira Glasser: “When you grow up learning words like `liberty’ and `democracy’ you tend to think of them as synonymous. They actually are in tension with each other. Democracy is the principle that the majority rules through an election, and that’s a great advance over kings and dictators, but what do you do when the majority is repressive? You then have an imprimatur of democracy doing the repression, which in many ways is more dangerous than when a king or dictator does it, because it has a veneer of legitimacy because it’s what the majority wants.
“Liberty is the idea that though the majority rules, there are things it can’t do because in order to have rights, you have to have protection against the majority. So the First Amendment reads, `Congress shall make no law abridging free speech or association. What that means is that even if all five hundred and thirty five members of Congress decide that you cannot criticize George W. Bush, they may not do that. It’s not permitted because it invades your rights, and rights are always a limit on majority rule. The government may not come into your house and search without a warrant. The warrant has to be approved by the court, and the approval has to be based on some credible evidence that there is cause to believe you have evidence of a crime in your house. Every single element of the Bill of Rights says what the majority may not do, while the rest of the Constitution confers power.
“Mostly through my experiences at the ACLU I have come to understand that the protection of the values we say America is based on is best protected not through reliance n democracy and majority rule, but through reliance on the limits of majority rule. Yet if you go into a third-grade class at any school in this country, they already understand voting. They expect to vote. They have it in their bones, but nobody understands the rights of the outvoted. Nobody understands liberty.
“The interesting thing about the Bill of Rights was that it was not part of the original Constitution. There was a huge argument at the time among the heroes who wrote the Constitution, James Madison, Thomas Jefferson, John Adams, all of them. Most of them decided against having a Bill of Rights. Even Madison, who historically is known as the Father of the Bill of Rights, opposed its inclusion for a variety of reasons. He and Jefferson, who was then the ambassador to Paris, had a long and interesting correspondence. The response got there by boat, so they had a long time to consider what each other wrote. Madison said that no matter how many rights you list, there will be an implication that other rights not listed are not rights. So the advocates of the Bill of Rights put in a clause called the Ninth Amendment, which says, `The listing of these rights does not preclude other rights which people have.’ They don’t define what they are, but it becomes an escape clause. The key thing Madison argues is that the Bill of Rights in a democracy will be unenforceable at precisely the time when it is most needed, when the tyranny of the majority becomes hysterical over something. Madison says it will be unenforceable, and Jefferson argues that you can enforce it, but the way to enforce it is to create an independent judiciary which is not elected, where you have judges appointed for life who cannot be thrown out by the majority and whose job it will be to act as a check against the times when the majority exceeds the powers granted to it and limited by the Bill of Rights.
“Jefferson loses the argument, and the Constitution is proposed without the Bill of rights added to it. Three quarters of the states have to ratify it for it to become law, and a counter movement develops called the Anti-Federalists in which people like Patrick Henry and Tom Paine and others argue publicly against the Constitution because of the lack of the Bill of Rights, and at the end of the day they have enough power so that ratification seems threatened. They don’t have enough states, and they are forced politically to promise as a condition to getting ratification that they will include a Bill of Rights immediately after ratification.
“And Madison becomes convinced of that for a very interesting political reason: Madison ran for the Senate from his native Virginia, and he loses, and the issue over which he loses is the Bill of Rights. His opponent wanted it, and he didn’t. So Madison then runs for the House, and he is in danger of losing again, and so he changes his position. He gets elected to the House, and as soon as the First Congress is in place, Madison proposes, and the Congress passes, the ten amendments to the Constitution which become known as the Bill of Rights. This was a political struggle right from the start. If it were to be put to a vote today or during the Nixon era or the McCarthy era, it never would have passed, but it passed in 1791 because the violation of rights was so fresh and endemic. And the source of those violations was not the King, but the legislature -- Parliament. Everybody knew the King was a threat, but until Parliament created the Stamp Act, allowed unwarranted searches, and trials and courts without juries, everyone assumed Parliament was a democratic institution designed to check the power of the King, where what it became was an instrument of suppression in the Colonies. As a result the Colonists came to understand something which nobody had ever understood before, which is that even in a democracy, rights can be threatened if the source of power is not sharply limited by some kind of super law. For the first time in history, Parliament was seen as a source of tyranny. It’s why the First Amendment says, `Congress shall make no law…’ So what happens, the independent court system is created, as Jefferson had proposed, but it does not work to prevent abuses of rights. Madison wrote to Jefferson that the Bill of Rights would be what he called a parchment barrier – merely a piece of paper which will be unenforceable when it’s needed most. And unfortunately history vindicates Madison’s view, despite the fact that he was the person who proposed it.
“Three amendments were defeated, including one which would have applied the Bill of Rights to state governments. Madison understood that if the federal government couldn’t limit free speech but the state of Virginia could, then people who lived in Virginia would be as repressed as they ever were, because they were more vulnerable to local power than to federal power, which was so far away. The amendment was narrowly defeated, particularly in the Senate, by the Southern states, and the reason it was defeated was slavery. The slave states were fearful of federally imposed rights. As a result of that defeat it was not until the 1960s after a series of Supreme Court decisions, that the Bill of Rights was serially applied to state and local government. Until then, the FBI might not be able to search your house without a warrant, but the local constable could.
“Another reason the Bill of Rights didn’t work was that by custom, if not explicitly, it excluded huge groups of people. It excluded blacks, of course, who were not defined as people in the Constitution. It excluded women, who did not have the right to vote or the right to sue or the right to do anything, who were basically viewed as a form of property, and American Indians as well. So what happens, the only people who are protected are white men who own property, who are also the only ones who can vote. But the more fundamental and structural reason it continues not to work is that the very remedy Jefferson argued for and had created, the power of the independent court system to trump and strike down oppressive rules passed by the majority, is off-limits to those who need the protection of the courts the most. All those Bill of Rights limits that create rights, which the courts are empowered to protect, cannot work, not so much because the courts are conservative, which they were for decades and decades, but more fundamentally because the people whose rights were violated could not get into court. Why? Because they didn’t know the Bill of Rights even existed, or they needed a lawyer to get into court and couldn’t afford one, or because lawyers in private practice didn’t want to waste their time taking on an unpopular cause and hurt his business.
“Madison, we found out soon enough, knew what he was talking about when he called the Bill of Rights a parchment barrier. In 1789, only seven years after the First Amendment was passed, Congress passed the Alien and Sedition Act. These were largely the same people who had voted to include the Bill of Rights into the Constitution. But it looked like the country was going to go to war with France, and John Adams, who was a revolutionary war hero and was the President, declared in the foreign affairs struggle that anyone who opposed that war and his foreign policy became an enemy. Benjamin Franklin’s grandson, who edited a newspaper and who was severely critical of Adams’ government, was arrested and died in prison of yellow fever. It was an astonishing period of oppression that focused on recent immigrants as a special source of hostility and danger, and they became a proxy for the repression of the content of the dissenting views, and so Irish and French immigrants were rounded up, and the culmination was the passage of the Alien and Sedition Acts, which in combination targeted recent immigrants and non-citizens in a variety of ways, lengthening the period of time to fourteen years before a person could become a citizen, deporting anybody who wasn’t a citizen, and also making it a federal crime for anyone – not just immigrants -- to criticize the President. And for anyone who understands American history, the question always is raised: How they hell can this happen when they have just passed the First Amendment?
“What happened, it never got challenged, not even by those who were arrested under it, including a couple members of Congress. There was no tradition of going into court. There was no tradition of litigation. The courts had no independent authority to issue advisory opinions. The only way the court gets its authority to rule is from what lawyers call a case of controversy. Somebody has to go into court and make a complaint that his rights have been violated, that the government has done something to him which is illegal, and force the court to make a decision. That never happened.
“Instead, the Alien and Sedition Acts became a political issue, and it was around the opposition to it that Jefferson became a candidate and defeated Adams in his re-election. And when Adams is defeated, the Alien and Sedition Acts are repealed, and that’s the end of it. It never got tested. The remedy was political. A substantial number of people, if not the majority, became sensitive to the importance of rights, and they voted out the proponent of the Alien and Sedition Acts. Through the exercise of democratic rule, the Alien and Sedition Acts were defeated in exactly the same way the Bill of Rights was adopted seven years earlier. They were defeated by politics and debate and democracy. So Madison was vindicated. At the precise moment when the Bill of Rights was needed, it succumbed to Congress passing exactly the kind of law the First Amendment said it cannot pass.
“Now fast-forward to the World War I period, where in 1917 Congress passes, for the second time in our history, the Sedition Act. That produces cases that wend their way toward the Supreme Court, and in most of the cases, the Sedition Act gets upheld, but it does present the first time when the First Amendment begins to be discussed in cases by Oliver Wendell Holmes and other people. But the law is not overturned.
“And so, if you look at the history of the Supreme Court cases from 1791, when the First Amendment is made into law, until 1920, when the ACLU was created – a period of one hundred and twenty nine years – you will find no cases where the Constitution is invoked, no cases where the First Amendment was ever used to strike down anything. Despite the fact that during all that time the First Amendment was violated pervasively.
“Let’s take the Palmer Raids that took place under the Wilson administration. Palmer was doing basically what President Bush has been doing. Palmer was dealing with suspected aliens, as he called them. He didn’t use the words terrorists. And his suspicions were not based on actual hard evidence of criminal activity, but were based on what today we would call `racial profiling,’ except the racial back then had to do with swarthy Italian, German, and Jewish immigrants who were literally seen as a different race. Thousands of people were identified, rounded up and deported without any due process at all. Homes were broken into without warrants. Literally thousands of people were searched illegally and secretly without any kind of legal process at all and deported in the dead of night. What Bush is doing today with `enemy combatants’ and his issuing of wire tapping rules and orders without warrants, and the abduction of people and sending them to foreign countries to be tortured, all of that stuff Palmer did. Over the years the Constitution found that what Palmer did was unconstitutional, but here Bush is, doing it again.
“So why was the ACLU founded? It was not the direct result of the Palmer Raids, although they were part of the political context at the time. A very small group of people, thirty or forty, were in a fringe minority of political activists. They had no capacity to do much of anything except make noise, what my father used to call tummeling. This group of people came together primarily around their opposition of the entrance of America into World War I and the opposition to the draft. They were anti-militarists, and a lot of them were pacifists, and it started out as a group called the American Union Against Militarism. They held meetings, distributed leaflets, did all those kinds of things we regard today as core First Amendment activities. And when they did, they were always arrested, and there was virtually no recourse. There was no recourse in 1916 when Margaret Sanger was arrested for distributing birth control information. Despite the fact the First Amendment had been around since 1791.
“Their protests were continually getting busted up, and they were getting beaten up, and their handing out of leaflets was stopped by arrests, and they began to see that their ability to engage in political activity was made impossible by the fact that they could not enforce their rights to do so. They had to come to grips with the fact that, wait a minute, the Constitution says we have freedom of speech, that we have the right to protest and picket, but they keep getting arrested, and they don’t know what to do.
So they create a little unit within the American Union Against Militarism called the Civil Liberties Bureau. This was in 1915, and to my knowledge it was the first time in the history of our country that the term `civil liberties’ appeared in the title of an organization.
“The head of the Civil Liberties Bureau was a young St. Louis social worker by the name of Roger Baldwin. He was a Boston Brahmin, an upper-class guy – all the founders were upper class – who else could afford to do this? And the purpose of the Civil Liberties Bureau was to organize the defense of their own members whose political activities were getting interfered with by the police.
“They were only minimally successful, because they didn’t have many lawyers. They can’t get into court. There is no case law. There’s no tradition. The Supreme Court in 1915 has never struck down anything on First Amendment grounds. They make noise, but they are not very effective, but what they did was convince themselves that no political activity that is unpopular and in dissent – activity for the right to vote, to meet and organize, to distribute leaflets – can function is you can’t protect the right to do so. That became a conscious part of the social justice movement for the first time in history.
“After World War I ends, the handful of people at the Civil Liberties Bureau, this little unit within this little organization, decide that they should function as a permanent body to try to protect the civil liberties in America, by which they mostly mean the First Amendment, because that’s where so much if focused on, but they understand the First Amendment is related to the Fourth Amendment, that they are linked, and so these people want to fight for women’s rights and racial justice too.
“The majority of the American Union Against Militarism don’t want to do this because its unpopular and they think it’s going to hurt the cause of pacifism, and so the Civil Liberties Bureau splits off and forms a separate organization called the National Civil Liberties Bureau. National? They were seven people in New York. The American Union Against Militarism fades into obscurity, and no one ever hears from them again. A couple years later, in January of 1920, a group of about forty people get together in a New York hotel room in January, and they create an organization which they rename the American Civil Liberties Union. Roger Baldwin becomes its first executive director, its only executive director until 1950.
“Baldwin lived to be almost a hundred. He was nearly ninety eight when he died. What an astonishing thing for him to see! He started the organization as what most people would have considered a delusion – a few people who themselves were on the outs, way out beyond the boundaries of what most people believed or accepted, set themselves the task of protecting the Bill of Rights for everybody in the whole country. They had no money. How were they going to do this? It was a testament to the force of vision. If you had subjected their goals on the day the ACLU was founded to any kind of rational cost-benefit analysis, you would have given up. It would appear to be impossible. It can’t happen. It’s crazy. You’d have said, Nothing is going to come of this.
“But Baldwin was an incurable optimist. He started out in 1920 at a time when the U.S. Supreme Court had yet to make a single decision on First Amendment grounds, when women couldn’t vote, much less have reproductive freedom and employment opportunities, when blacks were getting lynched every day, when the notion that Jim Crow could ever end was really unthinkable, and when none of the rights – none – which today everybody wakes up and takes for granted were real.
“And when Baldwin is 97 years old in 1980, he sees the ACLU as a powerful organization, where civil rights laws are enforced and respected, where women’s equality is moving, where free speech and freedom of religion is enforceable and respected to a degree so far beyond prediction in 1920 that despite all the difficulties and all our hand-wringing, and despite all out yelling and screaming that the sky is falling when Reagan gets elected and when Nixon is in power, nobody who looks little beyond the limits of his own life can fail to be optimistic about the course of the struggle for liberty in America.
“Of course all this happened very slowly. I don’t think there was optimism until somewhere around the mid-1950s, shortly after the defeat of McCarthyism, but it was what people refer to as The Sixties when the Bill of Rights awoke from its long Rip Van Winkle dormancy and literally exploded in exponential increase in individual rights and liberties and in the realization at last of the effectiveness of the Bill of Rights that Madison and Jefferson had first launched so many years ago.
“The reason things start to change in 1920 is the ACLU becomes the first institution in America that exists outside the government that is committed to bringing these cases into court at no expense to the litigants. At almost the same time, in 1909, the National Association for the Advancement of Colored People is created, and though at that juncture it’s not a litigating organization, it becomes the same kind of engine on the issue of race. The third force outside the government to do that are the labor unions, which begin to bring the first First Amendment cases in context of their right to picket and distribute leaflets. So at the beginning of the Twentieth Century there begins a collective force outside the government through which people who otherwise could never get into court, get into court.
“In the case of Brown v. Board of Education, the plaintiff was Oliver Brown and his daughter Linda. Oliver Brown was an itinerant railroad worker and part-time preacher. Do you think he has the resources and knowledge to litigate a case that begins in 1950 and ends in 1956 in the Supreme Court? Can you imagine that case being brought by a private law firm? It would cost millions. No way. If the NAACP does not exist, if Thurgood Marshall is not on its staff, that case can’t be brought.
“Before the NAACP and the ACLU and the labor unions there were no ways for Oliver Brown and other ordinary citizens to assert their rights, to get into court, so it wasn’t that the courts were bad. It was that the cases never got there. And the significance of the ACLU is that it becomes the engine outside of government. I used to say that the Bill of Rights was a powerful engine for liberty for which nobody had the ignition key – and that the ACLU was the ignition key.
“And when that happens in the Sixties, the success of the NAACP and the ACLU becomes infectious. Women start to say, `What about us?’ Gays start to say, `What about us?’ And children in foster care and prisoners and mental patients and the disabled and soldiers in the military and students in public high schools. And suddenly you get a proliferation of copycat civil rights organizations, ninety percent of which didn’t exist before 1950. The National Organization of Women, the Mexican-American Legal Defense Fund, the Asian-American Legal Defense Fund, gay rights groups, environmental groups, none of these organizations existed until the Sixties. And so as the success of the NAACP and the ACLU begins to happen in the context of the Warren Court, the optimism that `Oh my God, the Bill of Rights can apply to us,’ becomes infectious, and all these organizations grow, and as they do, the proliferation of these cases go to court, and that fuels what the Warren Court is doing, and the cause becomes effect, and the effect becomes cause, and the thing results in an exponential explosion of rights during those two decades.
“What happened, you can mark the period roughly from 1954, when Brown v. Board of Education was decided, to 1973 when Roe v. Wade was decided – virtually every major constitutional rights decision in this country that accounts for ninety percent of the rights people take for granted today, were established as enforceable rights rather than paper rights in those two decades.
“Most of it starts with the civil rights movement. The First Amendment rights were established within the context for social justice in the context of Martin Luther King organizing demonstrations and marches and parades, and all of those cases occurred in the context of race.
“The one thing you have to understand about the Supreme Court in terms of Jefferson’s faith and dependence on the courts is that with the exception of the twenty-year period from the mid-1950s to the mid-1970s, when the Warren Court and its legacy prevailed, the Supreme Court has not generally been an institution that has expanded liberty. The one time the Supreme Court had the chance to rule on the constitutionality of slavery, it upheld it. The one time the Supreme Court had the chance to rule in the early 1920s on the constitutionality of wire tapping without warrants, it upheld it. When it had the chance to deal with the constitutionality of federal and state sedition laws in the early part of the twentieth century, it upheld them. The right of women to vote did not come because the Supreme Court said they had a constitutional right to do so. It came because women made a pain in the ass of themselves for years in the streets and finally forced a constitutional amendment. It didn’t come from the court. Most of the civil rights gains didn’t come from the court. They came through the politics of the movement. The same thing is true of gay rights.
“The credit for the winning of rights goes to the people who struggle for them at personal risk. The birth control movement was built on the back of Margaret Sanger’s arrests. It was not built on the back of court rulings or Congressional acts. Those all came later. The same was true of the World War II internment, where Japanese-Americans were rounded up without cause and put in concentration camps. The only time the Supreme Court ruled on these cases, it upheld the internment, which now looks embarrassing to people. When Ronald Reagan signed the law compensating the surviving victims of that internment, he called it an act of racism and war hysteria. At the time I issued a press release saying, `We are glad to have Ronald Reagan say that in 1988. We said it in 1942.’ It is important to denounce and resist violations of rights when they occur, not just decades later. It was yet another example of the ACLU being prematurely right.
“Every war has been an occasion for outrageous violations of the Constitution, which are accepted by most people and usually ratified by the court. James Madison turned out a long time ago to be right.”