Posted on February 15, 2007

by

Daniel Clark

There's a reason it's called the American Civil Liberties Union, and not the American Constitutional Rights Union. The ACLU and other liberal organizations like to say that they're defending the Constitution, but since the language of that document seldom coincides with their agenda, they've needed to devise a rhetorical fallback position. Hence the term "civil liberties," a concept whose definition is essentially a matter of individual choice.

Take a look at the controversy surrounding the NSA surveillance program. Critics charged that it violated the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," as guaranteed by the Fourth Amendment. The flaws in that argument are both vast and plentiful. Electronic communications do not fit into the categories of "persons, houses, papers, and effects." Furthermore, the monitoring of those communications cannot be characterized as a search or seizure, and few people would consider the surveillance of phone calls and e-mails from known members of al-Qaeda to be unreasonable.

Still, the program's opponents contend, it is a violation of our "civil liberties." Pinning them down on just what they mean by that can be like trying to bail water with a butterfly net. Our founding documents do not employ the term "civil liberties," nor has any attempt been made to legally define it.

Taken literally, a civil liberty is a freedom that belongs to the people. One might think, then, that the Second Amendment right of the people to keep and bear arms would be a chief concern among civil liberties enthusiasts. One might also expect the ACLU and like-minded groups to be stalwart defenders of the people's free expression of religion. To the contrary, our self-appointed civil liberty watchdogs have been active participants in the suppression of those basic freedoms. What's more, they've stood by and watched state and local governments impose themselves upon nearly every facet of people's lives.

A New York state senator recently proposed to make it illegal to wear an iPod while walking through town. The California assembly is considering a ban on incandescent light bulbs. Through much of the country, restaurant and bar owners are forbidden from deciding whether to allow smoking in their own establishments. Hardly a peep about issues like these is heard from those who are so dedicated to securing the privacy of terrorist chatter.

Property rights have traditionally been excluded from the realm of "civil liberties," also. Local governments often prohibit homeowners from building fences on their own property, and tell them how short they must keep their grass. Some even regulate which colors they may paint their houses. Federal regulations deprive people of the use of their own land, in order to protect rats or mosquitoes, or sometimes to preserve a potential habitat for a species that's not even known to be in the area. The guardians of civil liberties couldn't care less. The ACLU didn't even file an amicus brief in the Kelo v. New London eminent domain case, in which private property was seized for use in an urban renewal project. If only the Kelo residence had been a known al-Qaeda safe house, things might have turned out differently.

If you asked somebody what he meant by "civil liberties," his response would probably be something along the lines of, "If you don't know, there's no use in my telling you -- you fascist!" Up to a point, that answer would have some merit, because the definition is so subjective as to defy any concise explanation. It is not meant to be descriptive, but is used only to lend a facade of authority to one's own policy preferences. Thus, so-called civil liberties carry the rhetorical weight of constitutional rights, without needing to have been ratified into law by the representatives of the American people.

This way, all someone needs to do is declare his concern for civil liberties, and he becomes a miniature Supreme Court justice. If he wants to marry his dachshund, for example, he can simply claim that interspecies marriage is a civil liberty. Since the elasticity of that language makes it impossible to disprove his claim, in his mind he'll have created a new right.

Since we don't live in that man's little world, we don't have to respect any rights he decides to invent. What's alarming, however, is the thought of how many people like him are part of the liberal legal establishment that has created the anti-constitutional, morally confused dreamworld in which we must live.

Return to Shinbone

 The Shinbone: The Frontier of the Free Press 

 Mailbag . Issue Index . Politimals