A few days ago, I wrote an open letter to the American Civil Liberties Organization, a group I have admired, about their abandonment of civil liberties in favor of civil rights and partisan goals. Politicizing fundamental civil liberties, enshrined in the Constitution, places these liberties in jeopardy. Today, I read an excellent Twitter thread essentially making the same claim about the National Rifle Association – that politicizing gun rights has rendered these liberties just another part of the culture wars. I agree with that sentiment. The NRA should not have advanced its cause only on one political front, but should also have argued that police brutality harms minorities’ ability to exercise open carry, for example.
A deep cynicism has undermined the view that civil liberties should be neutrally applied. This cynicism permeates our advocacy groups and our educational systems. I understand this cynicism, but now is the time for its opposition. We can all hold each other accountable for a more even-handed, consistent appreciation of our liberties.
There is a strong, increasingly entrenched basis for the cynicism about liberties neutrality. There is no such thing as neutrality, the legal realists and critical legal scholars have, at least to some extent, convincingly argued. Neutrality favors the status quo, according to many who wish to change the unfair aspects of our society. Government inaction is always government action in favor of someone, contend those unconvinced by the state action doctrine or the omission/commission distinction. These arguments are valid in many contexts, but are woefully incomplete.
The aspiration of neutrality is a necessity for rule of law values and the only feasible way of thinking about our civil liberties. When it comes to the government, not taking action is the only way to preserve civil liberties, even if this results in results we dislike politically. When it comes to application of the Constitution, neutrality is the only way to preserve the rule of law, even if this creates some unfairness based on background status differences between people. Politics is the area where we, if the democracy is so inclined, redistribute wealth or yield other substantive outcomes. Civil liberties, the protection against overreach in the political realm that preserves individual rights, demands a formal equality of application, even if substantively, we may not like the distribution of results.
The First Amendment, for example, requires that the government be viewpoint neutral when enacting speech restrictions. This protects us against the government (via the people) deciding which speech is and is not acceptable for our consumption. So long as the government does not discriminate on the basis of speech’s viewpoint or the speaker’s identity, we individuals can remain arbiters of what we say and what we hear. This means the government cannot “redistribute” speech, choosing to diminish the speech of some to enhance the speech of others. Under that regime, of course, wealthier individuals will have greater resources to speak, but the only way to preserve the free speech right against political erosion is to apply it neutrally. (Here is a paper arguing that the First Amendment, a libertarian right, cannot be used to advance progressive goals, which should be championed through the political process.)
That said, there is room for arguments that our civil liberties are not being applied neutrally. Certainly, the NRA should be taken to task for seeming to represent only some demographics (although, now that it has engaged in more minority outreach, it is also being criticized for that). There is a place for arguments that the Supreme Court’s interpretation of the Fourth Amendment illegitimately favors those who are wealthier and live in houses as opposed to apartment or mobile homes. If the current interpretation flouts text and history, it should be abandoned and rendered more neutral. But if you believe the current interpretation is a legitimate reading of text and history, the fact that the wealthy receive better substantive outcomes under a fair reading of the Amendment should not affect one’s reverence for our protections against unreasonable searches and seizures. To use the Constitution to achieve political outcomes – separate from the underlying ideologies of the Amendments – is to subject it to partisan weaponization and ultimate erosion.
Yesterday’s March for Our Lives was a brilliant exercise of First Amendment rights, granted to both the supporters of gun control and those who fear incursions into their Second Amendment rights. The hashtag #NeverAgain, used to support the march, reveals an extremism of those who have not been properly educated in the importance of civil liberties. The actual platform of the March respects the Second Amendment, but calls for not “one more child to be shot at school.” This is beautiful goal, but a simple examination of the school shootings of the 1800s demonstrates that it is impossible to achieve without basically securing a police state and trampling upon civil liberties.
Using a slogan appropriate for denouncing a government’s genocide to seek more governmental intervention, even sensible gun control, shows how little some students have been educated in civil liberties, and how low their risk tolerances are – risk tolerances that are necessary for a free (and a flourishing) society. The “right” to be safe is often undermined by our civil liberties — just ask those who want unconstitutional racial profiling or increased government surveillance in response to terrorist attacks. This does not mean we shouldn’t protect our students, or do much more so students can feel safe in schools, but the framing of these issues reflects a poor civil liberties education.
A well-rounded education supports the expansion of a student’s (and teacher’s) mind. We should all be constantly learning and changing our views. Education should also strive for some measure of neutrality, teaching students to learn more about the world before hardening on a position about the proper (and proper amount of) governmental regulation. In addition to reading great literature and learning abstract mathematics for pure intellectual edification, students should read Rawls and Nozick, should study market capitalism and Marx, and should learn both the vices and the great virtues of civil liberties neutrality.