DP 15: Popular Constitutionalism & ACLU

Popular Constitutionalism and the ACLU

• Examines how the ACLU moved from extrajudicial constitutionalism to relying on courts, due to its increasing unpopularity and the impossibility of extrajudicial politics.
• The ACLU's shift to litigation suggests political actors cannot always make constitutional arguments without courts.
• Litigation may encourage popular deliberation about constitutional meaning by publicizing and dramatizing constitutional arguments.
• The state isn't a neutral arena, and political actors aren't always free to pursue their constitutional visions through majoritarian processes.
• Courts facilitate, instead of hinder, popular deliberation about constitutional questions.

Arguments for Popular Participation

• Legal scholars have argued for greater popular participation in determining the meaning of the U.S. Constitution.
• Kramer emphasizes popular conclusions about the Constitution.
• Tushnet stresses congressional deliberation
• These authors claim courts' active involvement discourages and distorts the participation of nonjudicial actors.
• They argue that American politics would be more democratic if courts played a limited role in determining how Americans understand their fundamental law.

The ACLU's Use of Courts

• The study focuses on why the ACLU might seek to use courts to examine empirical assumptions of Tushnet and Kramer's normative arguments
• Groups may be unable to use political institutions other than courts, given historical circumstances
• The ACLU, now a litigation-based interest group, initially demonstrated a commitment to constitutionalism outside the courts.
• In its first decade, the ACLU litigated largely to counter its rising unpopularity within and outside the government
• Constitutional activism without courts may work for some, others cannot pursue their visions without courts
• Empirical assessment of the challenges unpopular minorities face when pursuing constitutional politics is needed.

Constitutionalism Outside the Courts

• The existence of constitutional debate outside the courts has gained scholarly attention.
• Formal political institutions other than courts can decide the Constitution's meaning and implications for politics.
• Pickerill describes how Congress grapples with the Constitution in response to Supreme Court decisions on federal legislation's constitutionality.
• Whittington's study of constitutional politics outside courts focuses on debates among elected officials and members of formal political institutions.
• While courts interpret the Constitution, nonjudicial actors construct meaning from parts of the text that are otherwise indeterminate.
• Neither Pickerell nor Whittington argues courts should stop engaging in these debates.

Tushnet's View

• Tushnet sees Congress as a potential site for constitutional deliberation.
• He argues for constitutional interpretation inside institutions like Congress and the undesirability of judicial review.
• Judicial review hinders elected representatives' abilities to deliberate about the Constitution's meaning.
• Tushnet is concerned that democratic bodies interpret the Constitution's sweeping statements of principle.
• Judicial review denies legislators the incentive to think seriously about the Constitution’s content
• Legislators haven't assumed their proper roles as the arbiters of constitutional meaning because the Supreme Court's prominence in determining that meaning makes voters think they ought not hold their congressional representatives accountable for doing so

Popular Capacity

• Ackerman argues that in certain circumstances, the citizenry as a whole will consider and decide constitutional questions, registering their decisions primarily through the election of political representatives
• Siegel demonstrates that social movements have significantly impacted judicial interpretations of the Constitution
• Siegel sees the exchange between judges and advocacy groups as a vital and productive mechanism shaping constitutional meaning.
• Like Ackerman and Siegel, Kramer emphasizes popular capacity to interpret the Constitution
• Kramer argues that the courts’ exercise of judicial review is destructive to the people's capacity to interpret the Constitution.
• Tushnet and Kramer are disturbed by the assertion that court rulings ought to trump populist or popular constitutional interpretations.
• Kramer argues ordinary citizens must claim responsibility for interpreting their highest law instead of emphasizing the role of the legislature

Curbing the Court's Power

• Kramer calls for citizens to make a renewed effort to curb the court
• Citizens could reclaim their capacity and fulfill their obligation to determine the Constitution's meaning.
• People should resist constitutional interpretations they dislike through political means.
• Kramer emphasizes people's interpretations of the Constitution, while Tushnet stresses congressional interpretations.
• These authors claim active involvement is damaging to democracy, advocating constitutional politics without the courts.

Flawed Empirical Assumptions

• The normative arguments of Tushnet and Kramer rely on often unfounded empirical assumptions.
• Tushnet's argument for constitutionalism among elected representatives assumes neutrality, but the ACLU's experience suggests otherwise.
• Tushnet's and Kramer's calls for popular constitutionalism assume litigation stifles popular debate.
• The ACLU's early use of litigation suggests litigation may actually stimulate such debate

ACLU Founding and Early Commitments

• Despite its future in litigation, the ACLU was founded by activists committed to institutional and grassroots constitutionalism outside the courts.
• In 1914, Americans debated entering the European war, and opponents formed antiwar organizations.
• Crystal Eastman, Lillian Wald, and Paul Kellogg founded the American Union Against Militarism (AUAM) in 1915
• Roger Baldwin, a young social worker, became associated with the organization
• The AUAM was well-respected nationally and wielded considerable political clout due to its members
• Congress declared war in April 1917 and instituted a draft in May, despite the AUAM's efforts.
• Baldwin organized a special bureau of the AUAM to defend those choosing not to fight on the day after Congress passed the Selective Service Act
• The bureau referred to its charges as "conscientious objectors" and to itself as the Conscientious Objectors' Bureau
• It prepared to defend men from the legal consequences of refusing to comply with the Selective Service Act
• The Conscientious Objectors' Bureau argued that draft laws were unconstitutional from the outset
• The mission expanded in July 1917 to the wartime defense of all personal liberties and renamed itself the National Civil Liberties Bureau (NCLB)
• ACLU's early commitments were influenced by the Progressive movement's aims and experiences
• Progressives generally were skeptical of individual rights and associate the protection of civil liberties such as free speech with concerns about economic and social justice
• The AUAM's Executive Committee tied liberties to improved working conditions in June 1917 when first discussing establishing a bureau "for the maintenance of American liberties in wartime"

Government Regulations

• Progressives emphasized the need for government regulation to protect society from the moral and physical consequences of industrialization and capitalism.
• An AUAM press release said the maintenance of liberty is the preservation of labor laws
• The release specifically cited the eight-hour law, a full crew law, a child labor law, a Sherman Act, and other things
• These things are more than fine phrases about freedom; they are democracy made real in the lives of the people
• The NCLB devoted most of its wartime energies to advocacy for and defense of conscientious objectors
• The organization's tactics reflected its leaders' orientation toward constitutional deliberation outside of the courts
• Members of the ACLU´s executive committee tried to coordinate letter-writing campaigns and petitions, stage mass meetings and protests, and sponsor lecture tours by intellectuals
• ACLU also published a large volume of pamphlets, aimed at creating support for conscientious objection and civil liberties.
• They also made constitutional arguments to elected representatives because progressives argued governments should play a strong role in regulating industry and improving living conditions
• The fact that they were weary of courts and judges, lead them to doing this
• The ACLU attempted to make constitutional arguments in Congress's state action and labor legislation instances, but when the Espionage Act was being debated in Congress, it put effort into lobbying, sending lobbyists to Washington

ACLU's Role and Relationship With the Government

• The ACLU described itself as a friend and advisor of President Woodrow Wilson's administration, even in helping people whom the government had forced into military service
• Eastman explained the plan to "endeavor at every point (through advising the War Department at Washington) to aid the President in so administering the law that it may become in effect merely an efficient organizing of the fighting forces of the nation, not as a means of forcing men into the army against their conscience"
• Baldwin wrote to the Secretary of War, Newton Baker, saying, "We are entirely at the Service of the War Department," and told Baker's assistant, "We don't want to make a move without consulting you"
• Throughout its early years, the ACLU continued negotiating with government officials about the meaning of civil liberties
• The NCLB was also active in the courts, also affiliated attorneys defended conscientious objectors at their trials and before their draft boards
• Willrich describes Progressive lawyers and social workers who convinced municipal legislatures to establish new courts to remedy social ills
• Deriding lawyers legal protection, Baldwin viewed these courts primarily as a site of contact and engagement with the juveniles
• Like Baldwin, many members were quite skeptical about the usefulness of courts; thus, the NCLB/ACLU did most of its work on behalf of conscientious objectors by raising awareness of their plight and by leveraging its members' status as political insiders
• The early Executive Committee also contained moderate and conservative lawyers who believed legal arguments could be made to safe other liberties.
• In its first years it gave greater emphasis on extrajudicial methods of interpreting and applying the Constitution.
• Baldwin summarized the group by saying, "The methods the [NCLB] has followed have been almost exclusively those of a protesting and petitioning group. Together with the legal aid work in particular cases"

ACLU's Embrace of Litigation

• Despite early commitment to constitutionalism outside of courts, the ACLU placed increasing emphasis on the value and judicial interpretations its founders had once derided over the course of the 1920s
• Movement scholars have noted that the transformation of ideas was based around free expressions.
• With this shift also comes a shift in thinking about of the support for courts and judges
• Domestic politics convinced liberals of individual liberties and the guarantees of liberty
• The NAACP also used courts to promote its agenda almost from conception and developed a legal committee to review and recommend relevant cases.

ACLU and the NAACP

• The NAACP achieved a legal victory at the Supreme Court level in Guinn v United States by 1915.
• The connection between the ACLU and NAACP may have helped the ACLU develop it´s own legal strategies with various members involved with the NAACP.
• It is difficult to chart this shift in thinking, however, I attempt to demonstrate the shift through two ways. first, employs from the minutes of the executive committee's weekly meetings, and second points to the shift in archival documents
• The ACLU´s executive committee made all decisions on the organization to discuss tactics and propose future plans
• Meetings consisted of tactical and administrative concerns.
• An alternative, statewide approach was also discussed but it was agreed that a small campaign was preferable instead. and authorized as part of a work

Minutes From Weekly Meetings

• The minutes from weekly meetings (captured) reflect the organizations time and resources allotment
• Tactics coded are outside courts, inside courts, or administrative details
• Each entry does not represent a discrete ACLU activity
• The relative amount reflects certain types of tactic relative amounts of time and energy that the organization dedicates towards that style
• Many entries in minute describe tactics designed to publicize ACLU´s, some publicity tactics could be a tactic from constitution outside of the courts The members began to use more and more court related tactics as time goes on
• ACLU actions maybe one to different publicity activities

Arthur Garfield Hayes and Morris Ernst

• Another view of the shift and changes energy remains fairly unchanged.
• Treating publicity as a means to get the committee's clear direction towards strategy
• Arthur Garfield Hayes and Morris Ernst appointed at times
• Early years ACLU focused mostly towards actions courts and after did civil rights things in court (The civil court used as their best and most impactful place).
• Early members are really focused on people with individual rights and not what the society thinks
• Those involved began to not work as great since there were issues in doing it

Obstacles

• In attempting to use popular constitutionalism practices, people were against direct replies towards radi- cals since they were trying to direct actions by the Constitution
• Members of the public were extremely violent back then, more than 800 members/people being directly harmed
• Many groups would face hostile behavior and that is very noticeable.
• They really liked those ideas even though they were facing very opposing opinions

Disconnect With Wilson

• ACLU existence wanted to be friends with the Wilson but the relationship was not the best
• NCLB after the Walker The government had given Wilson a Liberal type cast, but got bad after things happening with war
• Most did not like what the ACLU do and or believe in the people involved In his verbal or written history, Baldwin had expressed violence made him very bad towards the government

Empirical Assumptions Underlying Calls

• It is important to realize that the state what the members considered it was like, an active agent its agenda.
• With the ability to tell others (coercive). Yet that view is mostly to stop judic review. As Tushnet declared, wisdom that the weaker less organized get safety
• Despite many things the ACLU did it was very hard to bargain for themselves

Bargaining

• Tushnet says for disadvantaged and smaller people should say we are going to put our people on this, in writing
• The ACLU early on showed they have interest and professed it.
• Tushnets says bargaining assumes there should be smaller people who work well .
• Government banned political expression especially on groups.
• Banned political expression and high amounts of peoples violence

The Government

• This is were Tushnest shows the state where the state is set
• In the real world, the ACLU and its radicals fought and met
• State to get citizens Wasn't a great idea to focus on court free ideas with out using the courts

The Discovery

• The discovered that litigation gave the ability to change that
• Those for court free assume law will cause all types of problems
• If you can´t do anything or be open with what you believe, things become extreme
• In the early on ACLU ,many of the early ACLU

Public Opinion and Court Proceedings

• They took some things back and was like what they should do
• This opinion if you are with then stay ,they had power to take what'ever
• There can be things put with in court procedures.
• In what Baldwin said, those meetings was staples for the process of getting something out
• People need it and it helps educate
• The job ,the job, should get done

The Double Standard

• Court's can leave things pretty hope less at times
• Was good due the fact that many and more and bigger members came from
• In short it had became difficult for ACLU´s to make a change with out going to court
• Court in many case made the ACLU seems like what they should be
• And seemed progressive to a big degree during that time
• Can the court come to the ACLU aid is that it gives all something back for what they do .
• No longer does the constitution allow ACLU and NAACP
• It´s good because it gives one an ability to change things

Conclusion

• The legal strategies of groups such as the NAACP and ACLU are often described as examples of "disadvantaged constituencies making direct appeals to constitutional principles
• The idea that courts ought to protect unpopular minorities has been expressed much.
• Kramer and Tushnet aimed at discouraging groups those on the left from believing that conviction in 1925 in the case of gitlow
• To test the ability and to know better if and to what degree there are different issues for different parts
• There weren't many minorities in the Wilson at the time
• There were federalist concerns, it makes for what it is now and the present
• They can’t do litigation or the likes
• They should make their view different and better.
• As you keep improving there better your views can become
• Very interesting and good things to learn
• People should still pick and fight for what´s bad especially with what is going on now.