American Civil Liberties Union
Libertarians have a love-hate relationship with the ACLU. One reason to love the ACLU is because it defends rights necessary for the maintenance of democracy and the prevention of abuses of government power. One reason to hate the ACLU is because it defends other, unrelated legal principles under the banner of "civil liberties". For example: The New York Civil Liberties Union recently filed a federal discrimination complaint against a Catholic school, charging that it unjustly fired an unmarried teacher for being pregnant. Laws which restrict personal freedom have nothing to do with "civil liberties" as this term was originally defined. After all, the ACLU would probably not volunteer to represent plaintiffs in lawsuits alleging contract fraud, trespass to property, or defamation of character. With regard to anti-discrimination laws related to private situations, one gets the sneaking suspicion that the ACLU would like to trick people into believing that these are part of the Bill of Rights.
posted by modlib at 2:49 PM
5 Comments:
I strongly suggest that you read "The Progressive Assault On Laissez-Faire", to learn about Robert Hale.
One of his key points is that the distribution of rights and liberties is not natural: it is a matter of public policy who bears them.
More directly, there is conservation of liberty. Liberty cannot be created or destroyed. The only thing government can do is to redistribute liberty. Sometimes, the result is pathological, as when liberty is taken from many and concentrated in a dictatorship. Sometimes, the result is beneficial, as in freeing slaves. And other times, the result is more homely, as when the liberty to swing your fist is limited at the beginning of my nose.
That's the case with the ACLU: they are really arguing about who values the liberty more highly. You may value the liberty to have your nose unscathed, and I might value the liberty to swing my fist that extra couple of inches. You likely value that liberty more highly than I value mine, probably because it is fundamental to power relationships as well as bodily integrity. Employer-employee power relationships are also at stake in the ACLU case. If this was a secular case, there would be no question that the school was in the wrong. Now the case is about whether religious accomodation justifies carving out a portion of that right.
Libertarians dislike this simply because they dislike viewing ANY government action in changing rights from their older, also government-originated forms. It probably makes them uneasy about their assumption of particular rights as the bedrock of their ideology.
BTW, your response at your first post helped me to realize that "classical liberal" is simply libertarian newspeak for "modern Austrian libertarianism". Supposedly Hayek invented the term.
In the introduction of "Liberalism in the Classical Tradition", Mises writes: "Nor does it any longer suffice today to form one's idea of liberalism from a
study of the writings of its great founders."
http://www.mises.org/liberal/isec1.asp
In other words, what is called "the Classical Tradition" is his own arbitrary selection.
Oh, and it might be a nice idea to provide an email address.
In case you're maintaining it,I’m not saying that it is necessarily wrong for new laws and standards to be enacted; I am merely saying that it is wrong to say that the Constitution guarantees a right or protection that it does not. On CNN’s Paula Zahn show, Paula Zahn interviewed a representative from a Roman Catholic organization about the case. During the interview, she mentioned the First Amendment in such a way as to infer that the woman’s grievance was covered by it. In fact, assuming that a Constitutional right trumps a statutory right, it would be the Roman Catholic school’s position that would be protected by the First Amendment.
It's not as simple as the school having a first amendment right that trumps everything else. Otherwise there would be no libel or slander law. I don't know enough about law to explain why those carveouts are constitutionally valid, but I think they're analogous to this claim. Just as the school can't hide behind the first to slander somebody, it can't hide behind the first to violate other people's other rights. It might be because the first is only a prohibition to the government's powers, but not to citizen's civil powers in lawsuits.
Mike:
First, you're right that the two clauses have very different jurisprudence. However, there are plentiful exceptions to freedom of religion where government has a compelling interest: for example, prohibition of mescaline in native american religious rites. And I'm sure any lawyer could find plenty of other exceptions.
Second, while I don't happen to have handy any reference to rights of employees, they are abundantly created by both statute law and common law. The constitution is not the only source of rights, you know.
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