Political Activism and Constitutional Law with David Cole – Conversations with History
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Political Activism and Constitutional Law with David Cole – Conversations with History

September 18, 2019


– Welcome to a conversation with history. I’m Harry Kreisler of the Institute of International Studies. Our guest today is David Cole, who is the national legal
director of the ACLU and a professor at Georgetown
University Law Center, a volunteer attorney for the Center for Constitutional Rights, the legal affairs
correspondent for The Nation, and a regular contributor to
The New York Review of Books. He is the author of 10 books, and his books have
received multiple awards, including the American Book Award for Enemy Aliens: Double Standards and Constitutional Freedoms
in the War on Terrorism. His first book was No Equal Justice, and his most recent book
is Engines of Liberty. He has litigated many
significant constitutional cases in the Supreme Court and he is Berkeley’s
2018 Jefferson Lecturer. David, welcome to Berkeley. – Thanks for having me. – Where were you born and raised? – Well, I was born in Princeton, raised outside of New Haven, Connecticut, and then in Evanston, Illinois, but I’ve been on the East
Coast ever since college. – And looking back, how did your parents influence your thinking about the world? – Well, my parents were deeply
interested in education. My dad was an English professor, first at Yale and then at Northwestern. My mom was a public school teacher. They were also deeply Catholic and deeply liberal, and so, I think, taught
me to care about ideas and to care about education, but mostly to care about the vulnerable and to care about social justice. – And what got you interested
in law and civil liberties? – Well, I kinda backed into
law and civil liberties. I went to Yale undergraduate, and was an English major. When I graduated, I thought I
wanted to become a journalist, but I hadn’t written for
the school newspaper. I had written lots of
papers as an English major, but I’d been on the swim team, so you spend most of your time underwater. So I thought, I’ll try freelancing, but I have to justify my existence while I’m freelancing,
and one of the options was continuing my liberal arts education by applying to Yale Law
School, which I did. It was the only law school I applied to, ’cause I had zero interest
in being a lawyer, but I liked being in New Haven and I heard that Yale Law School was a way to continue a
liberal arts education, really. I got wait-listed and I made other plans, and then the very end of the summer, August 1980, I guess, I got a call, I was actually in Colorado, got a call from my mom, saying, “The Yale Law School just called. “If you can be there in a week, “you have a space.” So I was clearly the last
person to get into that class. Somebody at the last minute
must have pulled out, they said, “How are we
gonna fill this slot?” And then I went and I still didn’t really, I still had the view I
wanted to be a journalist. I started writing for the Yale Daily News, covering and doing theater reviews and music reviews and film reviews, ’cause that was my passion. I was interested in the classes, but I didn’t really think
I wanted to be a lawyer. I took time off from law
school because I thought, oh my God, I’m gonna graduate, I’m gonna have to become a lawyer, and I interned at the Atlantic the first semester I took off, and then I was gonna intern at The Nation the next semester that I took off. But in between that
time, I worked at a place called the Center for
Constitutional Rights, a non-profit law firm in New York, and it transformed my view and I said, “I wanna be a lawyer.” I called The Nation and said, “I’m not gonna come and be your intern. “I’m gonna stay and work “for the Center for
Constitutional Rights,” and indeed, that was my first job after graduating and clerking. – Well, you’ve just explained to us why your 10 books are
so beautifully written. – [David] Aw. Well, thank you, thank you so much. – Yeah, no, it’s really true, because for a layman, it leads you into some really
important ideas in the law. I like to ask my guests what they think is a skillset and temperament required for the kind of work they do, in your case a lawyer, civil
liberties lawyer, and so on. – Tenacity is important, because these are long battles. I never forget I took a case on in 1987, a group of Palestinian immigrants who were rounded up in early dawn raids and locked up in high-security, and alleged to be deportable, not for having engaged
in any kind of criminal or terrorist activities,
but for their affiliation with a PLO group. And I got involved in
the case at the outset, and that case lasted for 21 years. So it started under Ronald Reagan, Ed Meese was the attorney general, and it continued under George H.W. Bush. It continued under Bill Clinton. It continued under George W. Bush. And ultimately in 2008 the
government finally gave up and allowed our people to remain here. So you gotta kind of keep
your eye on the long ball. You also, I think, have to be… Willing to see the other
side of an argument, because to be effective,
either as a professor or as an advocate, you
really can’t just preach your view of things, you have to understand
what the opposing view is and be able to meet its arguments. And you only meet those arguments if you take them seriously. And so to be a good professor you have to force your students
to meet the other side, other side’s arguments, and
to be an effective advocate, either in the courts or in the legislature or in the court of public opinion. I think you have to take the other side’s arguments seriously and really grapple with them. – In your book, Engines of Liberty, you say, describing the people who are involved in political activism which we’ll talk about
in a minute, you say, “There are defined by
principled commitment “to particular ideals, and
they defend those ideals “whether popular or not.” So that’s another quality. – Exactly. And now, at the ACLU, in some sense, we’re
known for that, right? We defended the rights of
the Nazis to march in Skokie. We defended the right
of a white supremacist to hold a rally in Charlottesville that ended in terrible, terrible tragedy. But we defend the rights
of all human beings. We think they are human rights. They vest in us because we are human. They’re not owned only by
people who we agree with. And if you hold that view and you hold that view
in a principled way, then I think it’s incumbent upon you to fight for those principles whether you agree or
disagree with the client. We recognize this all the time with criminal defense lawyers, right? We don’t think criminal defense lawyers are advocating in favor of
murder, robbery, assault, rape. They are defending individuals who are accused of those
kinds of activities, even many times when the individual has actually committed those activities, in defense of a certain set of rights, rights that are owned to everybody regardless of what they do and regardless of their belief systems. And the same thing is true
of the First Amendment. So yeah, I’ve represented many people with whom I don’t agree, but I think one of the fortunate things I’ve had as a constitutional lawyer, as a public interest
constitutional lawyer, is that I have always been advocating for values that I believe in. Now, a lot of lawyers
essentially are hired guns. They do the work of the
client who pays them and their job is to advance those views whether or they agree with them or not, whereas I’ve had the luxury of essentially being able to advocate for free speech, for due process, for equal protection, sometimes on behalf of
people I don’t agree with, but I always am committed to
the values that I’m advocating. – One other aspect of your
writings that comes out that relates to this skillset is kind of an understanding of the law in the context of the
broader political context. Where does that come
from in your background, and talk a little about that. – So where does that come
from in my background? I’m not sure. I mean, my parents, as
I said, were liberal. They were not particularly activists. My mom was a kind of, well, in some sense, she was an activist in the sense of she always volunteered for get out the vote drives. The first time I saw a Barack Obama sign was when he was running for
state senate in Illinois. I came home and there it was. I had never heard of this guy. Who is this guy? You got a sign up. So she was active in that way, but they weren’t demonstrators
or activists of that kind. You know, I think I
really came to this view, I guess through a sense of, first of all, I was a lawyer that argued mostly in court. But as I became a professor, I became an advocate for
constitutional rights and civil liberties in a variety of forms. I was doing it in speeches and lectures, like I’m doing here at Berkeley at the Thomas Jefferson Lecture. I was doing it in the courtroom in continuing to litigate cases. But I was also doing it in
the field of public opinion, writing op-eds, writing
columns for The Nation, for The New York Review of Books. And then, several years ago, I decided to take a look
at how constitutional law really works in this country, and that’s what led ultimately to the book Engines of Liberty, which is an argument that in order to understand constitutional law, you can’t just read the cases and focus on what the courts have said and what the lawyers before
the courts have argued, which is basically what we
do in constitutional law when we teach it in the classroom. But that’s a really
restricted understanding of how the law develops, and in fact, when you see any serious
development in constitutional law, most of the work that is
done to reach that result is done outside of the courtroom, sometimes by lawyers but
often just by citizens, citizens committed to a particular idea and willing to work in
a variety of forums, whether it’s state
legislature, state courts, city councils, universities,
religious groups. I mean, one of the great
things about America is, robust as democracy as we have, is that there are so many forums. And so if your argument
is not gonna prevail in the Supreme Court of
the United States today, then you don’t bring a case
to the Supreme Court today. But there’s lots of other
forums you can choose. – So before we talk
about your three books, talk a little and briefly
about your role at the ACLU. You’ve given some sense
of what it’s doing, but tell us a little about your role as the chief attorney. – Yeah, so I was hired to be
the national legal director in the summer of 2016. The national legal director
oversees all of our work. We have 300 attorneys,
100 in the national office and then 200 in the affiliates. The ACLU has an affiliate
in every state, essentially, in the United States, so we
have people on the ground at the local level, but we also
have subject matter experts at the national level. And I oversee them all, in some sense, but particularly the national legal staff. Anything that goes to the Supreme Court from the ACLU, a petition
for Supreme Court review or opposing another side’s
petition for Supreme Court review or a merits case where
we represent a client or an amicus brief, where we file a brief in support of another case in which we’re not the principal lawyers, those all come through my office. I have to sign off on them, I edit them, I strategize about what they ought to say, approve them, and the like. But the job has changed dramatically from what I thought it was gonna
be when I accepted the job. So think back to the summer of 2016. I was recruited to this
job by Anthony Romero, the executive director, who said to me, said, “David, I’ve got an
offer you can’t refuse. “You’ve been practicing
constitutional law for 30-some years “under a conservative
majority Supreme Court. “Just think what it would be like “to help run the ACLU and
run its Supreme Court docket “under a liberal majority Supreme Court.” Because at that time of course we all knew Hillary Clinton
was gonna win the presidency, she was gonna name Justice
Scalia’s successor, and for the first time in four decades, the court would have a liberal majority. So I thought, wow, that’s
a great opportunity. I signed on the bottom line. Didn’t put in any what-if because nobody thought
there’d be any what-if. Obviously the job changed
dramatically on November 8th, when President Trump was elected, but in many ways it’s a
much more important job now. It’s more defensive than it is offensive. We are now putting out fires as much as advancing new concepts of constitutional rights and liberties. But that’s part of what we
are supposed to be about. We are the ACLU, we
defend the Bill of Rights. When those rights are
attacked, we are most needed. I think one of the things
that I find really… Buoying about this period is the incredible citizen engagement around civil rights and civil liberties from the women’s march to the people who went out to airports to demonstrate against
the Trump muslim ban to the town halls about
the Affordable Care Act and the like, and we see that at the ACLU. So before Trump was elected,
we had 400,000 members. Today we have 1.75 million members. – That’s quite a change and quite a change in the environment. Let’s take you on a journey through some of these ideas in your books. Your first book was the one on
the criminal justice system, No Equal Justice, and in that book you raise an important
argument about structure. In a way it’s a theoretical explanation of the old French saying
that the law is equal, both the rich and the poor
can sleep under the bridge. Explain why structure means that a system that helps us understand a system in which equality before the law, even when attempts are
made to implement that, comes out with different outcomes because there’s a privileged
part of the society and then there’s the very poor. – Yeah, yeah. So yeah, I took the
title, No Equal Justice, from a quote from a Supreme
Court opinion that said something like, there
can be no equal justice as long as the kind of trial a man gets depends on the amount of money he has. And that is a core ideal of
our criminal justice system. Everybody has the same rights, the rights of criminal defendants. Whether Fourth Amendment rights with respect to investigations and searches and seizures, or Fifth Amendment rights with
respect to interrogations, or Sixth Amendment rights,
which are the rights that cover your right to a fair trial, your right to a lawyer, in that trial your right to
confront witnesses against you. Those rights don’t apply to the rich. They apply to everybody. They are across the board rights. And, as the court said,
there can be no equal justice as long as the kind of trial a man gets depends upon the amount of money he has. But of course, we know that
the kind of trial a man gets depends upon the amount of money he has because if you’re poor, you
rely on a public defender who often is very committed
and often very good, but very overextended. If you’re rich, you can hire
the best lawyers in the country and you can hire a big team and they can spend incredible
resources defending you, and you just get a very
different kind of justice. So the argument of the book is essentially that in name
these rights are equal, but in practice, in the way they work, we have adopted rules and systems that have the effect of
securing these rights to the privileged, but saving on the costs of these rights by denying them, effectively,
to the underprivileged. And what I mean by saving
on the costs of these rights is that all these rights have costs. Most of ’em, there’s a cost
between protecting rights and protecting our safety. If we got rid of the
Fourth Amendment tomorrow, if we said the police
could search your house or your backpack or your car without any probable cause,
without a warrant from a judge, the police would have an
easier time catching criminals, and they might keep us
more secure from criminals. But we would be very
vulnerable to the state. So there’s a balance to be struck there. The more you protect privacy, the more you make it hard for
the police to do their job in the interests of
protecting Americans’ privacy, the greater risk that
there will be more crime that is not captured
and brought to justice. And what I argue in the book is that liberals tend to favor rights and conservatives tend to favor
protection of public safety. But in fact what we
have done in our system is we have struck two balances. The rich get their rights protected, but we save on the costs
in terms of public safety that extending those same
rights across the board by denying them, effectively, to the poor, to minorities, and the like. And so you see that in things like the right to counsel, where, yeah, everybody
has a right to a lawyer and you have a right to a
lawyer paid for by the state if you can’t afford one, but in reality, the kind of resources that we put behind engines of defense are so limited that public defenders and lawyers who defend the poor are just incapable of
doing the kind of work that they would need to do
to provide equal justice to the kind of trial a man gets when he has the money to pay for a lawyer. – And you go on to argue that remedies, one of the remedies
that one would look for is building the communities
that the poor come from so there could be
penalties such as shaming that would be enforced by the community, and thereby make the law more legitimate to those communities. – Yeah, well, I think, and I guess I think two things. I did talk about the
Japanese model, essentially, which is to involve the community in the punishment of someone
who has committed a crime, and by the community they
mean the person’s family, the person’s teacher or teachers, the person’s coach or coaches, the person’s religious minister, anyone who plays an important
role in that person’s life. Involve them in sort of
the collective punishment and condemnation of the individual
for what he did as wrong, of the act he did as wrong, but at the same time,
commit them to reintegrating and helping this individual
move beyond that crime. Whereas in our country, we
don’t involve the community, and we don’t do much at
all to try to reintegrate, and we just lock people
up and throw away the key. And then once they get out, ’cause they do eventually get out, they have no resources and nobody to hold them up and support them. I talked about that as one possible way of responding. I now believe, I guess, that
it’s so much broader than that, that really we ask the criminal
justice system too much if we ask it to solve these problems. ‘Cause these problems don’t come from the criminal justice system as such, they come from the circumstances
into which people are born, the vast disparities in
wealth and opportunity that we have in this country, and so if you grow up in a part of town where most of the people don’t have jobs and where most of the people
don’t have intact families and where there’s tremendous
drug and gang activity, it’s gonna be really
hard for you to make it. And asking the criminal justice system to solve that problem I
think is a real mismatch. – In your book on Engines of Liberty, you are looking at the
broader political context in which the Constitution
changes over time. And there are two case studies in there that are quite different and
remarkable in their own way, with both following the same journey. One is gay marriage and
the other is gun rights. Both involve significant individuals who saw the problem from
their personal experience and then went on this journey over time to touch all the political bases in a way to then change the Constitution. Talk about gay rights first. – So the basic idea of this book was: how do you explain the fact that marriage equality
went from unthinkable, which is what it was 25, 30 years ago, to inevitable, which
is what it was in 2015 when the Supreme Court
heard argument in the case? There was no question
it was gonna come out in favor of marriage
equality at that point. How did that happen? And similarly with gun rights, Warren Burger, who was the
conservative Republican chief justice of the Supreme Court, said in 1991 that he thought the notion that the Second Amendment protects an individual right to bear arms was one of the greatest frauds perpetrated on the American people by a special interest
group in his lifetime. That was 1991. Conservative Republican chief
justice of the Supreme Court. The notion that the Second Amendment protects the individual right
to bear arms is a fraud. 2008, the Supreme Court recognizes an individual right to bear arms. So how did those changes come about? And in many respects, one is a right as a conservative cause and
the other is a liberal cause, but they’re both, they share quite a bit, in that they were driven, I argue, not by clever arguments
in the Supreme Court. I mean, the people who
argued in the Supreme Court were very good in both cases, but it wasn’t that they came
up with some new argument and the court recognized, oh,
we were wrong for a long time. They did tremendous work
outside of the Supreme Court, outside of the federal courts, essentially to shift public opinion, elite opinion, political opinion, so that an argument that
was unthinkable in time one became thinkable in time two. So on marriage equality, 1972, a gay couple sued for the right to marry. Their argument was considered so frivolous that when it went up to the Supreme Court, the Supreme Court rejected
it with a single sentence, saying, doesn’t present
any serious question. We’re not even gonna consider it. 1972. Their arguments were it
violates equal protection, denying same sex marriage. – That is, the people bringing the case. – The gay couple’s arguments were that it violates equal
protection and due process to deny same-sex couples
the right to marry that opposite-sex couples have. Rejected out of hand, right? 2015, those arguments went. The same arguments, the legal
arguments didn’t change, and the court, you say, well
maybe the court changed, right? Well, the court in 2015
was different from 1972, but if anything, the court
in 2015 was more conservative than the court in 1972, which was sort of the
tail-end of the Warren Court, the most liberal court
in American history. So the justices, the court
didn’t become more liberal, the arguments didn’t change. What changed? Well, the world changed. And how did the world change? It didn’t just happen to change, it changed because of a group
of committed individuals who came together in organizations like Lambda Legal Defense Fund or GLAAD, which is a gay and lesbian advocates and defenders in Boston, or the ACLU’s Gay and
Lesbian Rights Project. And they worked together to advance the ball in
an incremental fashion using forums other than the Supreme Court, because they knew they’d
lose in the Supreme Court, using forums other than the Supreme Court. Going to city councils, going
to progressive universities and trying to get them to recognize domestic relationships,
domestic partnerships, whether they were
same-sex or opposite-sex. Getting anti-discrimination laws enacted in progressive cities
and then progressive states that included discrimination on the basis of sexual orientation. Getting family law to be amended
in various incremental ways to recognize the validity of gay families. And only then did they go to courts, and they went to state courts, and they picked their states,
so they went to Vermont, the most liberal state in the country. Not saying anything about
California, but Vermont. And they made arguments based only on state constitutional law
that there was a right to marry, because if they made an argument based on federal constitutional law, that could be reviewed
by the Supreme Court and they knew they weren’t ready
to go to the Supreme Court. And they won civil unions,
which is not entirely marriage, but it’s a big step, in Vermont, and then they took that same tactic and went to Massachusetts, got a right to marriage under
Massachusetts state law there, took it to Connecticut, got it there, Iowa, California, got it there temporarily until Proposition Eight. So it was a state-by-state
incremental strategy, and only once there was a significant critical mass of states that
had recognized this right did they seek to make the
argument in the federal courts. And the NRA did the same thing. Not starting in Vermont and Massachusetts, but Florida and Alabama on the individual right to bear arms. – Let’s take the case of the
gay marriage equality decision. All this political work
at different levels in different forms, it
ultimately impacts ideas, the idea of what is appropriate. And you trace in there how the notion that we shouldn’t have gay marriage because we don’t like it,
we morally disapprove of it, that gets dropped by the wayside. But it’s over time, as people come to see that that’s not a good argument. And then the argument about love. Two gay persons can love each other. So as all this political
activity is going on, ideas and thinking are changing, and those ideas are
coming from a groundswell in different forms and
in different places. – Absolutely. It was very much affected
by gay people coming out. As long as gay people felt so oppressed that they hid their sexual identity, then many people didn’t even know that they knew anyone who was gay. But once you protected
gay people sufficiently that they could come out and they started to come out and it became accepted to come out, then suddenly almost everybody
knew somebody in their family or in their neighborhood
who was gay and out. And it’s much harder to demonize. So the groups supported
those kinds of activities, coming out, the politicization
of sexual identity was an important part of the fight. Public education was an
important part of the fight. One of the groups that
I feature in the book is an organization that all they did was put pressure on Hollywood
and the television industry and the news media to portray gay people in a positive light, not to portray them as sort of some weird sexual
perverts or something, but to portray them as
normal human beings, which is what they are, after all. And that was important also to the evolution of an understanding, the normalization, essentially, of different sexual orientations. I also talk about the way in which the organizations learned
that in order to be effective at communicating and
persuading the persuadables, it was not so effective to talk about this as a civil rights issue. It was much more
effective to talk about it as a love and commitment issue. Because if you talked about
it as a civil rights issue, then sort of the implicit message is if you’re against us, you’re like those racists and
those anti-immigrant people, and that’s not a message that’s
likely to pull people on, whereas if you’re talking about it as, these are people who love each other, who are willing to make
a lifelong commitment, shouldn’t they have the same right to have their relationships recognized that two people of the opposite sex have? Marriage is not about a right, it’s about love and commitment. And that turned out to be a very effective rhetorical strategy to get people over. And eventually popular opinion was significantly in support
of marriage equality. – The other chapter in
the book that struck me is the NRA’s effort and success in winning
Second Amendment rights for the individual, and their luck on the political system that emerges over time, which in the present environment, with the gun murders in
Florida just recently, really helps us understand how once a constitutional
right is recognized, how difficult it is to
change the political system. – Well, yeah. The NRA is a fascinating study, and for me, that section of
the book is in some sense the most interesting. They understand. I think that the power of
the NRA is they understand the democratic underpinnings
of constitutional rights. We tend to think of constitutional rights as being counter-democratic, right? They’re in the Bill of Rights. Even if the majority wants to
tread on the First Amendment, the courts are there and lawyers are there to defend the unpopular. But in fact, in fact, if you can get the people
to support your right and to understand your conception as a right that’s worth protecting, you’re in much stronger hands. And what the NRA did was
use the power of democracy to advance what they view
as a constitutional right under the Second Amendment. So for 100 years the courts had said, there is no individual right to bear arms under the Constitution. But the NRA knew, we’re not gonna be able to file a case in federal
court and change that, because the courts have said
the same thing for 100 years. They don’t tend to reverse
themselves very easily. So instead they went to the states and they went state by state. They started off in Florida, ironically, given what’s
going on in Florida right now in the wake of the high
school shooting there, but they started in Florida, which was very supportive of gun rights, and then they take the victory there to Alabama, to Mississippi,
all the way around the country, so that by the time 2008 came around and the Supreme Court was
actually taking up this case, should the federal constitution protect the individual right to bear arms, the NRA had already made sure that virtually every state in the country recognized an individual
right to bear arms by virtue of their own
state constitutions, which had been amended or
interpreted to that effect, or by virtue of state laws. And the NRA didn’t even stop there. It also got Congress to enact laws that recognized an
individual right to bear arms and they got the executive
branch under George W. Bush and under Attorney General John Ashcroft to reverse its position of many decades that there was not an individual right to bear arms and to reverse its position
so that it was recognizing a Second Amendment individual
right to bear arms. So by the time it went
to the Supreme Court, the NRA had gotten the states,
Congress, and the executive on board with the idea there’s an individual right to bear arms. Well, at that point it’s not that hard for the Supreme Court to
come along for the ride. But even so, even after
the court recognized that, I argue that the most effective protection or protector of gun rights in this country is not the Second Amendment. It’s not the court. It’s the NRA. Because they’re able to stop
laws from getting enacted that clearly would be constitutional, and they’re able to get
gun rights laws enacted that are clearly not
required by the Constitution. And they do it through their members. They have five million members. They have 15 million others
who say they’re members but don’t pay their dues. What one guy from the NRA told me was, “We’d love to have their dues, “but what we really want
is their identification “with the NRA so that when we say act “on this bill or that bill, they will.” And that’s why, even in
the wake of horrific, horrific mass shootings, we see so little action
in the political branches. – In a way, the NRA is
a movement, basically. – Oh, absolutely.
– With clubs and so on, and the notion that you’re
gonna take something away that I have mobilizes those people when they get the word from the NRA or when they read what’s going on in the newspaper. There’s another point that you make, which is very interesting, and that is that there is something
in the American ethos, the political construct, the
myth of the frontiersman, the individual, that in a way
the gun issue caps on that. So it’s almost a default
benefit, so to speak, that they have when
they’re making their case. – Yeah, I think they’re
appealing to the notion of the rugged individual, the homesteader, the person who goes out on the frontier, takes a plot of land, grows some things, and those people didn’t have
anybody to protect them. There wasn’t a police chief in town, and so they protected themselves. And the gun is a stand-in for that notion of rugged individualism, self-protection, self-defense, really. And that does play into, I think, a particularly American
conception of the individual. And again, particularly,
still today on the frontier, in rural areas, much more
so than in urban areas, where the populations are overwhelmingly in
favor of gun control, and understandably. They don’t feel that they
have to defend themselves, because the police are there. They’re patrolling and hearing
the sirens all the time. If you’re out in the middle of nowhere in Utah or Wyoming, the police
aren’t gonna protect you. So you feel like, I’ve
gotta protect myself, and there gun rights
are very, very popular. – So the question is,
can a social movement, and we’re seeing a new
kind of social movement with high school students, not only in the high school where this horrific incident occurred, but linking to other
high schools in the state and maybe nationally, can we hope, or what is your perspective on how that might change things? Because this lock that the NRA has, it’s literally, they can target a politician who votes against them. – Yeah, so I think, look. If you had asked me in 1991, will the Supreme Court recognize an individual right to bear arms, I would have said, no way. Because for 100 years they hadn’t, and the conservative Supreme Court justice said the idea was a fraud. That’s not just, we won’t recognize it, but it’s a fraud. And yet 18 years later, the Supreme Court recognized it. And if you had asked me in 1985 or ’90, will the Supreme Court
recognize marriage equality, I would have said, no, there’s no way. It’s not thinkable. And yet in both instances what was unthinkable became thinkable by virtue of exactly what those high school
students are doing now, which is political action
around a conception of a right, of a sense of justice. The question will be,
can that be continued? Can it be multiplied? Will it grow? Right now it’s got a lot of support, and I think because it’s high school kids who can speak for themselves
and who are very sympathetic, it could well grow. And I also think because, I would say Americans generally are much more primed to
engage politically now than they were before Trump’s election because of what Trump’s
election signifies. So the women’s march on the
first day after the inauguration was unheard of. National, came up out of the blue. National demonstrations
across this country, in all kinds of cities and states, even internationally. And I think there’s some
blend-over to this issue. But gun control folks have a lot of work to catch up to the gun rights advocates. While the NRA was doing
this work all along and doing it in the
states at the local level, the gun control folks were
focused in Washington, only focused on Congress, not fighting the local
battles, and so they lost. Mayor Bloomberg’s Everytown for Gun Safety is an attempt to mimic
what the NRA has done and to build a local movement, nationally coordinated local movements, in favor of gun control. And I think this could be
the beginning of that effort. How successful it will be will depend on to what extent people continue to fight and to what extent the NRA fights back. – One thing I would suggest is that your book Engines of Liberty be adopted by all the high
schools in the country. – Oh, there you go. A prescription for action, exactly. – So in this last segment of the program, you’ve described to us the job
you thought you were taking. Hillary was gonna get
elected, so on and so forth. We’re now in a world
that’s strangely different, and it’s kind of a transition to a plutocracy in a way, it appears generally. And then there are all kinds
of social forces at work. I listed some of them here. Nationalism, which then says, well, why should we pay
attention to international law? Which is a linchpin of your book on the rights of accused terrorists. Libertarianism. Dismantle the welfare state and privatize prisons, basically. So putting more and more people in prison is a profitable undertaking. Money and politics. Thereby controlling the legislatures with programs like ALEC, where legislation is written in advance. And then the whole issue of technology. What is freedom of speech in the context of Facebook’s platform and the intervention by external actors to corrupt what we
think of as free speech? How are you thinking about the big picture now that your job description was wrong with regard to what aspect, which was the environment
you would be operating in? – Right. Well, that’s a big question,
and a great question, and one we ask ourselves
every day at the ACLU and many other organizations as well. I guess my sense is, there are many troubling indicators, and you’ve listed a bunch of them. I think the vast disparity between the rich and the poor today, it’s the second Gilded Age, is
a driver of so many of them. But you see it in the
hyper partisan character, you see it in the divided media, you see it in the turn to populism. You see it in the fact that there is a sizeable
percentage of the American people that are not embarrassed by Donald Trump, but actually like Donald Trump. These are troubling indicators, but I guess I think what we need to do is really twofold. The first thing we need to do is we need to defend the values that
this country was based on. And those values are, among them, basic human rights for all people, which is a concept that
says everybody’s equal. There is not one set of
rights for rich people, one set of rights for poor people. That was my critique of the
criminal justice system, is we’re not living up to our ideals. But at the ACLU, we fight to ensure that our system does live up to its ideals as best as we can. And when a president
like Trump is in office, many basic rights and
liberties are under attack. Voting rights, reproductive freedom, immigrants’ rights, due
process, LGBT rights. And he’s chosen to attack all of these. The first thing we need
to do is defend them, and we are. We told President Trump,
if you go down this road, we’ll see you in court,
that’s our tagline, and we have sued him in case after case, and for the most part thus far the courts have ruled with us. They’ve enjoined the travel ban directed at muslim countries. They’ve enjoined the
transgender military ban which President Trump
put in place by Twitter without even consulting the
leaders of the military. They’ve enjoined the ending of, the termination of DACA, the
program for the young people who came here, their parents
brought them here illegally and are undocumented. They have enjoined the Trump
administration’s efforts to block access to abortion of young undocumented women that they have in federal custody. So in some sense we’re
winning in the courts. We’re defending those
basic rights and values, and that’s part one,
but part two, I think, is you gotta move beyond defense and you have to appeal
to a positive vision. And the positive vision, I think, is that we are not a country that has to be driven by partisan divide, that has to be driven by hatred and treating the other as
somehow less than human or illegitimate. We are a country at our best that recognizes a set
of universal principles, that recognizes that we are a community, that recognizes that
we have an obligation, not just to better ourselves, but to protect others. And that’s what the
Bill of Rights reflects. It reflects that conception. And so we’re trying to put
forth a positive vision that people can come together and support, people from the right as well as the left, to move beyond this kind
of bitter partisan divide. You know, whether we’ll succeed I think depends entirely
on the American people and to what extent they continue to engage in the defense of these
values at this time. And so far I’ve been
encouraged by the real energy. I mean, I haven’t seen in my lifetime this kind of civic engagement ever before. I think the last time you saw
this kind of civic engagement in America was the Vietnam War, and that was in a time
when every young man had a self-interest. Now, it’s not necessarily self-interest. When people go out to
advocate for the DREAMers, or when they go to the airports to demonstrate against
the Trump travel ban, they’re not defending their own rights, they’re defending the rights of the other. They’re saying, these
rights are important enough that we think they should
be extended to other people, and we’re willing to defend
the rights of other people. I think that move is critically important to offset the kind of self-interest, pure private self-interest
which I think Trump embodies. His narcissism embodies the extreme limit of this kind of private interest pursuit with no conception of public consequences. – What about the extent
to which the judiciary is being packed by people selected by the Federalist Society? Do you think that the power
of the ideas that will emerge in the context of this
political opposition you’ve just described, do you think that when
they’re in their seats they will be impacted by it, so the law will not go as far to one side as one might expect if we’re packing so many conservative
justices on the court? – The judicial appointments are a concern because they last beyond
the administration. If Trump does all kinds of things by unilateral executive action, which is mostly what he’s done, those can be reversed
by the next president if the political will is there. But if he puts people on the courts, they’re there for the rest of their lives, and that can be generations. That’s definitely a concern. A strong showing in the midterms, supporting those who
believe in civil rights, civil liberties, separation of powers, the rule of law, could lead to a Senate
that will put a check on his putting in place
ideologues on the courts. And that would be an important first step. But I guess I would say, sort of consistent with my
book Engines of Liberty, don’t focus solely on the courts. We need to focus on the people and on the power of movements, and if those movements are powerful, they will constrain the courts. Historians have looked at
the Supreme Court’s decisions over time and correlated them to public opinion on various issues, and what they find is that
the court rarely departs very substantially from public opinion, and when it does, those
decisions tend not to last. And so yeah, I’m very concerned
about court appointments, but I think that just
underscores the importance of people who care about civil
liberties and civil rights engaging, engaging in the midterms, but also engaging for the longterm. – Let’s talk a minute about
the free speech issues that are raised in the
election, the use of technology, of internet platforms,
to spread fake news. It’s not a question so much of defending the right of
a Nazi to speak their piece as it is a question about the
discourse is being corrupted by untruths. Not that I don’t believe
in somebody else’s truth, but the whole purpose is to disrupt. – Yeah. This is a very vexing problem, obviously, and we’re only at the very beginning of trying to figure out how to solve it. I think were the will there to disable bots, these sort of automatic spreaders, fake people, that would be one way of checking, of checking the reach of
these kinds of things, ’cause they rely very heavily
on this automated spread. Because if you’re sending something out that’s blatantly false, the likelihood that it’s gonna
be spread by normal people is not very high, but if you can spread
it through automation, then the more people hear it, the more they’re gonna believe it and then it will affect the debate. So that seems to be one way. Another thing that people talk about is the extent to which, how do you control fake news? Should Facebook be in the business of determining whether
your post is true or not, in the same way that the New York Times does fact-checking on its articles? I’m not sure that that’s
possible for Facebook to do. If we’re worried under the
First Amendment generally about one concentrated
authority, the government, having the power to determine
what’s true and what’s false, and we are, and that’s why we don’t let the government do that, the government can’t say, you
can’t engage in falsehoods, because we don’t trust
the government to define what’s true and what’s false, then shouldn’t we also be
worried about Facebook, giving Facebook that power? But at the same time it seems inadequate to just say, let a thousand flowers bloom. We’ll rely on the marketplace of ideas. Because the marketplace
has been so corrupted by money, by automation, and the like. I think it’s a real challenge for democracy and for
civil society going forward to get a handle on how we
think about social media as distinct from organized media. – Well, on that note, David, I want to thank you for helping us think through some of
these thorny problems, some of which we’re still working on, but others that have been
worked on in the past you’ve given us an account
of how that was done. I feel a responsibility to
show at least one of your books to your audience. This is the Engine of Liberty book. I want to thank you very much
for being on our program. – Thanks for having me. It’s been a delight. – Thank you. And thank you very much for joining us for this conversation with history.

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  1. God Bless PRESIDENT Trump..!!!
    And where are the cnn fakenews cameras showing the happy laughing children gratefully enjoying the clean water, nutritious food, shelter comfort & safety, education & toys, Love & Kindness after PRESIDENT Trump's border patrol agents rescue the innocent endangered children from the abusive exploitative negligent evil phoney "parent/guardian" drug mule coyote human traffickers that callously endanger them across deathly deserts & criminal trespass? 
    Where are the cnn fakenews maggots to show the little dried out corpses rotting in the mexican desert -the ones who didn't make it to the Safety & Security of being rescued from their malicious abusers by PRESIDENT Trump's kind caring border agents?
    david cole is a typical immoral fiberal duplicitous leftwing supremacist enemy of decent moral western civilization.
    FACTS, NOT FAKE NEWS FIBERAL FICTION..!!!

  2. Oh look… another #TDS triggered and proud assclown. David Cole.. theres was no Muslim Ban. The hypocrisy that goon spews is disgraceful.

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