“Why Jews Should Support the A.C.L.U.” by Burton Caine

Reference: Sh'ma: A Journal of Jewish Responsibility

Long before George [H.W.] Bush engaged in bashing the American Civil Liberties Union, there were others. Maybe not with the same venom and maybe not from a platform as high as a candidate for President speaking on national television and maybe not with a purpose so transparent, but there were others— including Jews. But experience has convinced me that one major difference between, say, George Bush and Ed Meese (“ACLU is the criminals’ lobby”), and Jewish critics of the Civil Liberties Union is that the Jews I have known have felt the need to apologize for their opposition. It was as if they knew they were on the “wrong side,” and they had to “explain” their opposition lest one might misunderstand.

Even when Jews were resigning in droves in opposition to the ACLU defense of the Nazis’ right to
march in Skokie, it was with the sad farewell as if to say when the hurt passes they shall return.

Jews have been in the forefront in the constant battle for liberty. So much so that when they are not, it is a case for mourning. As has been observed many times, Jews in disproportionate numbers have been involved in the major civil rights battles. I would like to believe that the passion for justice and freedom comes from the Bible itself. Elsewhere I have argued in more detail that fundamental principles of law and liberty, which Americans trace to the Constitution, have clear antecedents in the Bible. That the American Constitution was “law” was decided in 1803 in the famous case of Marbury v. Madison, but Torah was also a self defined law and it proclaimed in Exodus 12:49 “There shall be one law for the citizen and the stranger who dwells among you.”

The idea of a nation with a destiny of freedom was already dramatically portrayed in the Exodus saga of the liberation of Hebrew slaves from Egyptian bondage and their transformation into an independent nation.

The Ten Commandments, although normally considered to be a moral and religious code, depicts God as liberator, and it was divine intercession that enabled Moses to provide the model for the George Washingtons of the earth. National liberation is a recurring premise in the modern world for constitutions and declarations of independence.

American Law and its Biblical Base

The sacred and majestic Biblical ideal that found its way into the American Constitution was that
justice is the cornerstone of society, and rulers — even God himself—must measure up to its standards. When God set about to destroy Sodom and Gomorrah for their unspeakable transgressions, Abraham confronted the Supreme Magistrate, “Shall not the Judge of all the earth deal justly?” (Genesis 18:25). The prophets showed a distaste for kings because absolute power inevitably breeds evil and oppression. That sentiment had a clear echo on the American Charter which divided power to protect the people against tyranny. God, through the prophet Elijah, inveighed against King Ahab for seizing the vineyard of Naboth (1 Kings, Chapt. 21), an act of injustice that brought disaster upon the King and his evil wife, Jezebel.

That story, in my view, is not the simple tale of overreaching royalty. Even without explicit  adumbration of inalienable rights of ordinary people, that is clearly the unstated quintessential premise. Why else would King Ahab sulk and whine when his offer to buy his neighbor’s vineyard was so saucily spurned? Don’t kings have the power to seize what they want? Are Biblical monarchs stripped even of the right of eminent domain? Why did Queen Jezebel have to go through such elaborate machinations to plot a trumped-up trial against Naboth which eventually resulted in his execution?

Perhaps the entire concept of inalienable rights is traced back to the Bibical story of creation, “And God created man in his image”(Genesis 1:27). The idea that everyone is a divine creation requires that government must respect, not violate the human personality. In political terms, it emphasizes that the most important words in the Constitution are: “We the people,” meaning that people are the masters and government is the servant. In my view, the most elevated term of the Constitution is the word “person,” a concept which that document makes sovereign.

It was inevitable therefore that clarion Biblical phrases would become banners in the fight for American freedom and independence. “Proclaim liberty throughout the land for all its inhabitants” (Leviticus 25:10) was inscribed on the Liberty Bell and undoubtedly was a major element in moving John Adams to declare, “Hebrews have done more to civilized men than any other nation.”

The Once Enslaved Love Liberty

Reason besides tradition also explains why Jews have been stalwarts in the battle to protect  individual liberty. As a minority which has faced persecution, Jews like other minorities must take refuge in the Bill of Rights which offers protection against the majority.

There are two conflicting principles in our Constitution: First, the principle of democracy, that is,
the majority rules; and second, equally precious, is the principle of individual liberty, that is,  protecting individual rights against the majority. Alexis de Tocqueville in Democracy in America expressed the view that the crowning jewel in the American diadem was judicial review which enabled the courts to guard individual and minority rights against “the tyranny of the majority.” This anti-majoritarian provision of our Constitution may even have proven to be the more important principle. In the United States, we do not vote on whether individuals have the right to freedom of conscience, religion, speech, fair trial, and the right to be treated fairly. Those rights are  guaranteed as against the majority. The assurance which they provide should be crucial to Jews, who have been persecuted, expelled, and even exterminated in practically every country on earth in which they have lived with the exception of the United States.

Jews would have no hope of winning an election to vindicate their rights and must seek redress through courts which were designed in the American system to be bulwarks of freedom especially in times of repression.

Defending All Means Defending Each One

The American Civil Liberties Union is the only organization I know of in the United States which has
as its sole agenda the protection of individual rights for all persons regardless of race, religion, creed or nationality. Many sectarian and partisan groups protect their own members. But the program and history of the American Civil Liberties Union in protecting the rights of all gives the organization a cachet, which no other group can claim. In addition, its vigorous and vigilant defense of individual liberty has earned ACLU the reputation as the one sure address where all persecuted persons can turn for assistance.

Many Jews felt injured that ACLU defended the right of the American Nazi Party to march in
Skokie, a town of holocaust survivors. But viewed in a wider context, that was a proud episode in the history of ACLU. Jewish lawyers were willing to defend the precious right of freedom of speech no matter how despicable and scurrilous the Nazi ideology especially for Jews. And the fact is that most free speech cases taken by the ACLU are not for miscreants like the Nazis, but for ordinary persons deprived of their right to speak because some government official, high or petty, didn’t like the message, or perhaps even the messenger.

But Jews should not shy away from defending free speech for Nazis. Aryeh Neier, the Executive Director of the American Civil Liberties Union during the Skokie events, in his book Defending My
Enemy, explained in detail that freedom for hateful thoughts is necessary to guarantee free speech for lofty ideals. Neier’s parents were Hebrew teachers in Germany who escaped from Hitler, and he obviously understood the virulence of Nazi doctrine.

A Jewish Lawyer for the Jews’ Enemies?

On a personal note, I tried the case on behalf of the American Civil Liberties Union in Philadelphia when the American Nazi Party was granted a permit to march in front of Independence Hall and the Liberty Bell with posters, “Kill the Jews,” “Finish the Job which Hitler Started,” and similar odious messages. Suit to cancel the permit was filed by an array of municipal authorities and Jewish organizations. Holocaust survivors testified to Nazi atrocities which they had witnessed, and that the appearance of Nazis in uniform with the swastika caused them severe emotional distress. I brought my students to witness the trial so they could understand emotionally as well as intellectually the raging controversy over free speech for purveyors of hate. One student stood up in the courtroom wearing a tallit and a white kippah announcing that this is how Jews are buried and that his professor was arguing for the death of the Jewish people. Photographs of Nazi atrocities were circulated in the courtroom and whispers of “shame,” and worse, were heard as a choral background to my arguments of free speech.

But the real confrontation came in the corridor of the courthouse. Even if somebody had to represent these beasts, does it have to be a Jewish lawyer? A survivor of Auschwitz shouted, “If you were there you couldn’t have made an argument like that.” I picked up the question and readily agreed—but not for the reasons intimated.

Calmly, I suggested that destruction in the extermination camps was not only physical —the bulk of European Jewry was murdered —but also the ability of survivors to reason. Jews are a minority in the United States, I explained, and the firmest protection one has in our blessed land is those absolute rights guaranteed in the Bill of Rights. Jews and other minorities cannot rely upon a majority vote for even the most elemental of rights, rights which are guaranteed as against the majority.

Take not from Others what You too Desire

Jews should be among the first to understand this because throughout history nowhere in the world have those rights endured no matter how well the Jews were ensconced in society. In the United States, 200 years of history is still too short to say how secure these minority rights will be. But Jews should surely not be the first to abrogate fundamental freedoms because they are so offensive to the majority. It is more to the interest of Jews that society understands that unpopular views of all kinds must be tolerated, not suppressed. As Justice Brandeis said in the 1927 case of Whitney v. Californiathe answer to speech is more speech, not to suppress the speaker.

Perhaps Jews need ACLU most when it comes to religious liberty. The very first clause of the Bill of
Rights does not deal with freedom of speech, or even freedom of religion. It mandates the  separation of church and state. The ACLU has been a fierce fighter to preserve the wall of separation between religion and government. And it takes that position not out of any partisan interest, but because the separation principle, unique in the world, is certainly one of the crowning glories of the American experiment.

In 1963, in Shempp v. Board of Education, ACLU sued to ban the reading of the Bible and the recitation of The Lord’s Prayer in public schools. In Lemon v. Kurtzman in 1971, ACLU was successful in probably the most important separation case ever decided by the United States Supreme Court. The Court outlawed state aid to parochial schools, but more than that, formulated the test used almost universally by the Supreme Court in determining whether state action violates the principle of separation. Based on that principle, ACLU successfully sued the City of Philadelphia to prevent the expenditure of hundreds of thousands of dollars of taxpayer’s money to construct a platform in front of the Cathedral of the Archdiocese upon which Pope John Paul II would say mass.

Perfect, No; Indispensable, Yes

Litigation has not always been successful. In Lynch v. Donnelly, ACLU lost in the Supreme Court by a vote of 5-4 lower court decisions preventing Pawtucket, Rhode Island from sponsoring a creche
in celebration of Christmas. In 1988, however, ACLU was successful in having declared unconstitutional the affixing of both a creche and a Chanukah menorah at the Pittsburgh municipal
buildings. The Supreme Court has granted review which instilled fear in the hearts of civil libertarians. Here ACLU’s adversary is not only Christians, but Jewish religionists, as well.

When it comes to freedom of religion, ACLU has also been most active. In Goldman v. Weinberger,
ACLU as amicus curiae argued unsuccessfully that an Orthodox rabbi in the Air Force should have the constitutional right to wear a yarmulke because his religion required him to do so. It goes without saying that not everything ACLU does should command support from Jews. It doesn’t
even command support among its own members. The Bible reading case, one of the most important in American constitutional history, was approved by the Philadelphia Board of the American Civil Liberties Union by a vote of 7-6. Free speech for the Nazis and the KKK has also produced dissenters within the organization. In the Williamsport school case, the question whether student-initiated prayer was protected or prohibited by the First Amendment produced a direct conflict between the Philadelphia ACLU and the Pennsylvania ACLU, and the Supreme Court never resolved the conflict because it disposed of the case on procedural grounds.

Perilous times lie ahead for constitutional liberties. Make no mistake about it, the ACLU was only a vicar for civil liberties in the recent assault by the President-elect. The attack was aimed at civil liberties themselves, and it was designed to stir up the majority against the rights of minorities. The campaign against minority rights this time will come in the form of “patriotism” and other jingoistic phrases. Justice Brandeis said in his famous dissenting opinion in Olmstead v. the United States in 1929: Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

ACLU understands these dangers and is well schooled in the tactics of misguided majoritarians.

In summary, ACLU vigorously defends turf which Jews find sacred. Paraphrasing Jeremiah 31:17, it is time for Jews to return to the defender of that territory.

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Reprinted with permission from Sh’ma: A Journal of Jewish Responsibility (shma.com), Vol. 19, No. 372.