While Rome burns, the ACLU rebuilds

The Constitution is important. Full stop. It does many things, chief among them being defining and protecting the rights of people in the United States. So, what happens when America elects an executive that doesn’t fairly apply the constitution because he either doesn’t understand it or doesn’t respect it (the jury’s still out on which is worse)? The American Civil Liberties Union starts getting busy.

The inauguration of Donald Trump in 2016 was a watershed moment for civil liberties in the United States. Since the Warren Court, our constitution has been interpreted in a way that has made speech more free and rights more universal. Tinker v. Des Moines paved the way for student speech, Brandenburg v. Ohio protected inflammatory speech that doesn’t incite violence, Roe v. Wade extended a woman’s right to privacy to reproductive healthcare. Both Republican and Democratic presidents have encountered rulings they’ve disagreed with, but for the most part with some notable exceptions (Bush activities after the Patriot Act) they’ve accepted the norms that make our democracy work. Whenever a President did try to skirt the constitution and curb our civil liberties they at least made noises about “national security”. But there has perhaps never been a President so willing to abandon dog-whistle rhetoric and explicitly state his intentions to undermine our constitution.

“I would bring back waterboarding, and I’d bring back a hell of a lot worse than waterboarding”

“Nobody wants to say this, and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice.”

“We’re going to open up those libel laws, so when The New York Times writes a hit piece which is a total disgrace … we can sue them and win money”

“I’m calling for a total and complete shutdown of Muslims entering the U.S.”

“When somebody comes in, we must immediately, with no judges or court cases, bring them back from where they came.”

“We’re rounding them up in a very human way, a very nice way.”

“Regardless of recommendation, I was going to fire Comey.”

President Trump’s public statements rival those of Richard Nixon who famously declared “When the president does it, that means that it is not illegal.” But the institutions of 2018 seem to lack the intestinal fortitude of the institutions of 1974. Even with the intervention of a few state attorneys general and the 9th circuit court of appeals, we appear to be witnessing a rapid erosion of constitutional norms that has been exacerbated by recently emboldened state governments. That’s why there’s a necessity for non-profits that exist independent from government, enter the ACLU.

We asked the Executive Directive of the ACLU of Missouri, Jeffrey Mittman, how he views the role of his organization and he said, “Our job is to be a check on the government, we are the only organization whose absolute responsibility is to protect every American, every Missourian against government overreach, against violation of constitutional civil rights.” When Mittman says every American, he really does mean every American and it has not been without controversy.

Last year, the ACLU filed a lawsuit against the city of Cape Girardeau on behalf of the Ku Klux Klan because the city considered it a crime for that group to leave handbills on windshields. For many people, it’s head scratching that the same group that has been integral in the expansion of minority rights should also defend a hate group that is diametrically opposed to those rights. Mittman told us “We will defend any right as strongly as any other, so we have to defend free speech rights, but we also have to defend the right to racial equality to ends of restrictions on racial … restrictions on voting, to school the prison work, the unfair treatment of African American students…When hate crimes laws came up that said…if you say something bad, or think something bad, or write something bad, we will punish that. The ACLU said, “Wait, nope.” We can’t punish speech, we can’t punish thought. Our friends in the LGBT community, and the African American, and minority racial communities were not happy, but understood. What we said is if you commit a crime, and in the commission of that crime you say you are doing it because of that person’s race, or religion, or sexual orientation, we can as a community say, because of that history of discrimination there will be an extra penalty because of that. But to simply punish thought, or speech, or writings is not permissible.”

The ACLU is perhaps the most consistent advocacy organization in America, and it’s operated under its mission statement “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” essentially without fail for nearly 100 years. It’s put them at odds with a number of Presidential administrations, but maybe none more than the Trump administration whose policy directives continue to challenge the limits of the constitution. Mittman detailed to us the work that’s been done on behalf of DACA students, Muslims that have been targeted due to the travel ban, and transgender soldiers whose ability to serve is in jeopardy to name a few. But listening to Mittman, who has been in Missouri since 2014, it’s clear that maybe the nature of his work hasn’t changed but rather the public has become more aware of problems that have existed longer than we’d like to admit.

Mittman went on at some length about racial disparities in this state, especially as they relate to education and law enforcement. There’s a “school to prison pipeline” which is essentially the disproportionate way minority students eventually become incarcerated adults that is likely related to school disciplinary policies. Mittman talked about a specific case that’s emblematic of similar experiences around the country. “In 2015 that Missouri had the highest differential between rates of discipline of white students and black students in elementary school. We represented a young, seven-year-old boy who was handcuffed. Less than four feet tall, weighed less than 50 pounds, was crying his classroom, was handcuffed, was taken to the principal’s office and left in handcuffs in the principal’s office. So, we’re working on the issue of police and schools.”

The ACLU is in the middle of a multi-year program to address this, and Mittman says the struggle is “How do we say that under third grade you should never have an out of school suspension?” he continued, “It’s just not necessary, these are young people, these are students, these are children. These are not criminals. These are not people who need to be dealt with by police officers.” Currently the ACLU is starting with five school districts in a partnership to help them look at their policies and “help them educate themselves, help them look at implicit bias training for schools, for teachers. Whatever it takes to lower those differentials.”

Now back to the President, who not only dominates media conversation but a significant portion of the National ACLU’s casework. We asked Mittman, who knows quite a bit about constitutional law, if the President can pardon himself. It seems more relevant now as the Mueller probe has progressed and many of his associates have been indicted including his former campaign manager and national security advisor. Mittman had an interesting answer “My own fundamental belief, and I think it’s fairly what ACLU would say, is going back to our earlier question, we are a system of laws not men. So, the fundamental principal will be the Constitution applies to all of us. The president is not above the law. So, if we agree on that starting point, I would hope and trust that any opinion, whether a trial court, whether the Supreme Court, would strongly ascribe to that idea that the president is not above the law.”

The ACLU is doing something that every citizen should be doing, and that’s ensuring the continued existence of liberal democracy. Whatever freedoms we have and rights we acknowledge only exist because they were fought for. The ACLU has done much of the heavy lifting in shaping how we view free speech, and it’s been a net positive for our country. Mittman said of his organization, “What people don’t know is before the 1920s, nobody would’ve said first amendment. There was a first amendment to the constitution, but it hadn’t been enforced. ACLU started around the time of World War I. Wilson was having people jailed for opposing the war. ACLU said wait a second, we have free speech right. We went to court, and now we’ve built a body of law. We’re that follow-through on what the federalists said. We’re the follow-through on the constitution…the challenges in Missouri are going to be different than the challenges of New Hampshire … [but] we know what goes on here, we are part of what goes on here, and we have the expertise in national to make it happen. They listen to us, we listen to them.”

The constitution is not a partisan issue, it’s literally above politics. It’s patriotic to support the constitution, it’s sycophantic to make excuses for its degradation. As Americans, now is the time to come together and make it known that we believe that government has to work for the people and do that work within the bounds of the people’s document.