"If you went down the list of controversial constitutional decisions of the last forty years - on abortion, criminal procedure, busing, prayer in schools, aid to religious schools, pornography, discrimination on the basis of sex, alienage and illegitimacy, vagrancy control, street demonstrations, and so on almost endlessly - you could not fail to be struckby the fact that in every case the Court's decision adopted and enacted the position of the ACLU. The ACLU opposes prayer in the schools; the Supreme Courtholds prayer in the schools unconstitutional. The ACLU opposes restricting the availability of pornography; the Supreme Court holds most restrictions on the availability of pornography unconstitutional. The ACLU favors busing for school racial balance, the Supreme Court holds that the Constitution requires busing for school racial balance. Isn't the coincidence amazing? Indeed, one could sum up the situation in a word by saying that constitutional law is simply a device for the enactment of the ACLU's policy agenda."
(Syracuse Law Review
Syracuse L. Rev. 631
By Lino A. Graglia)
"It would be only a small exaggeration to say that the American Civil Liberties Union (ACLU), the paladin of far-left causes and paradigmatic constitutional litigator of our time, never loses in the Supreme Court, even though it does not always win. It either obtains from the Court a policy choice it cannot obtain in any other way because opposed by a majority of the American people--for example, the removal of restrictions on pornography or the prohibition of prayer and Bible reading in public schools --or it is left where it was to try again on another day. It took three tries for the ACLU position on contraception, for example, finally to prevail in 1965 in Griswold v. Connecticut, the progenitor of Roe v. Wade.
The Court functions today primarily as the mirror and mouth piece of liberal academia, especially legal academia, and the enacting arm of the ACLU. The nightmare of the American intellectual is that policymaking should fall into the hands of the American people. The American people favor capital punishment, effective enforcement of the criminal law, prayer in the schools, suppression of pornography, restrictions on abortion, and the assignment of children to their neighborhood schools, all anathema to our intellectual elite. It is only the power of the Supreme Court to create constitutional law that prevents these unenlightened views from prevailing. Policymaking by a committeeof nine lawyers with no particular training or expertise relevant to the issues they decide is far from ideal in the view of academia--policymaking by sociologists, anthropologists, and moral philosophers would surely be better-but it is the only available alternative in America togovernment by the people. The self-assigned primary functionof constitutional law professors, therefore, overwhelmingly far to the left of the American people, is to defend and support what the Supreme Court has done and see that this particular system of government continues.
Defenders of the Supreme Court's decision making of the past four decades are, however, faced with a dilemma. On the one hand, it is not possible in the American context for them to come clean and openly defend a system of totally centralized and totally undemocratic government by majority vote of nine unelected lawyers. The only reason this system of government is favored is that it has overwhelmingly pushed and can be relied on to continue to push policy choices to the left, hardly a reason that can be publicly offered in its defense. On the other hand, it has become increasingly difficult to defend with a straight face the Court's rulings of unconstitutionality as the unavoidable dictates of theConstitution--the only ground generally recognized as legitimate. Even the least sophisticated observer must be aware by now that this is not the case; indeed, it is only the most sophisticated who claim to believe otherwise.
The result has been the creation of a law school industry in the production of "constitutional theory."
The task of justifying the Supreme Court's controversial rulings of unconstitutionality to a nation still purportedly committed to representative self-government in a federalist system is not merely difficult, however, but impossible. It is to be hoped that the increasingly apparent deleterious effects of the Court's remaking of our society will ultimately convince the American people that government by judges is not an improvementon the constitutional scheme--that our four-decade experiment in policymaking by the Supreme Court has been a failure. Nothing is more important to our political health and our continued freedom and prosperity than that the American people reassert their most precious and fundamental right--the right of self-government--and find a means to make the reassertion effective."
(Georgia State University Law Review July, 1998
14 Ga. St. U.L. Rev. 767
SYMPOSIUM: Judicial Review and Judicial Independence:
CONSTITUTIONAL LAW: A RUSE FOR GOVERNMENT BY AN INTELLECTUAL ELITE
By Lino A. Graglia)
The ACLU does not protect all controversial speech, perhaps they are too busy defending NAMBLA. (If history is any measure, that did not happen as a random quirk of principle. Given history, there may be pederasts supporting their interests through the ACLU.)
The controversial speech the ACLU fails to protect while protecting NAMBLA:
"In Oakland, California, two anti-abortion protesters were arrested and charged with child pornography for displaying a picture of aborted fetuses. A trial court in New York, until reversed, enjoined anti-abortion protesters from using the terms "murder"and "kill." The Washington Supreme Court upheld an injunction against pro-life protesters carrying signs or otherwise referring to abortionists as "killers" or "murderers" on the ground that such restriction of free speech was necessary to protect any children who might be in the area. Likewise, Denver police arrested two abortion protesters for carrying a sign saying "THE KILLING PLACE." In Milwaukee, a pastor was cited for disorderly conduct for displaying a banner that read: ""Abortion: The Silent Holocaust.'" In Vermont, a pastor was charged with a felony for distributing literature criticizing a judge's pro-choice ruling, and a local printer was charged with violating a Vermont anti-discrimination law for refusing to print pro-abortion material. Contempt findings were issued against anti-abortion protesters who entered a buffer zone created by a court injunction even though the arrested protesters were not named in the injunction. Such blatant disregard for the right to protest would not be tolerated if the protesters were expressing opposition to a war, or to experimentation on animals, or even if they were expressing opposition to democracy or support for racism or totalitarianism. The American Civil Liberties Union (ACLU) would have run to the rescue, press releases blazing. But the suppression of pro-life free speech has been met with nearly total silence of virtually all First Amendment advocacy organizations."
(Albany Law Review 1999
62 Alb. L. Rev. 853
ARTICLE: THE QUANDARY OF PRO-LIFE FREESPEECH:
A LESSON FROM THE ABOLITIONISTS
By Lynn D. Wardle)
An example of the sort of censorship that was practiced against the abolitionists.
Judicial diktat , slavery and the abolitionist view.
Drawing together the parallels again:
(2002 51 DePaul L. Rev. 825
DOUBLE STANDARDS: THE SUPPRESSION OF ABORTION PROTESTERS' FREE SPEECH RIGHTS
By Christopher P. Keleher)