Beth A. Quinn
Sociology and Anthropology
Montana State University-Bozeman
What this book beautifully, and often humorously, presents is one woman's political and personal journey through local and national politics and rhetoric. Kennedy locates the beginning of her political autobiography with her experiences as a Jewish college kid stuffing envelopes for the presidential campaign of Barry Goldwater. It is Goldwater's The Conscience of a Conservative that brings her into the conservative-libertarian fold and it continues to serve as her political and ideological touchstone. Indeed, this book's primary goal seems to be restating Goldwater's libertarian ideas (albeit in a more personal, biographical context) and is clearly directed at the members of today's seriously fractured Republican party.
After a career in Indiana state politics and private legal practice, Kennedy found herself accepting the executive directorship of the Indiana affiliate of the American Civil Liberties Union, a position she holds today. The book is an attempt to explain her journey and to make sense of what appears, on the surface only, to be a major contradiction in her political stance. It works, at least in its limited scope, because of her witty use of this interesting and odd mix of experiences to illustrate her points. Her writing is clear, personal, and enlivened by her wit. This wit is evident, for example, in the pithy titles of her chapters, such as "A Day at the General Assembly, or What if These People Really Are Representative?" and "It's a Crummy Job but Someone Has to Do It."
Kennedy's career path, from a Youth for Goldwater to an ACLU attorney, appears on the surface to make little sense, and indeed her painful awareness of this serves as the impetus for the book. Yet the contradiction is the product of a myth, one that Kennedy more or less adequately uncovers. Her career is a contradiction only if one accepts the traditional, overly-simplistic understanding of American politics as a unidimensional continuum between the Republican and Democratic parties.
This view sees the former as reflecting "conservative" or right-wing interests and the later as the champion of the left or "liberal" causes. Neither is an accurate description of the rhetoric nor the historic actions of these political parties. What Kennedy, via Goldwater, is attempting to argue is that "Liberal" should be writ large on the Republican party's banner. Americans are indeed an anomaly in the Western world in our use of the word "liberal." In most countries the "liberal" party would reflect Kennedy's ideals: libertarian, free-market economic goals, and an emphasis on negative rights (that is, rights from rather than positive rights which are right to). I struggle with this confusion when introducing "Liberal theory" (that of, e.g., Hobbes, Rousseau, Mill) to my classes. The problem is that in her attempt to convince members of her party of the value of this position, she neglects the ways in which these ideas are also central to the Democrats' agenda. Both parties are rooted in traditional Liberal political theory. It is only in the margins of either party that conservative and leftist principles emerge.
In attempting to make the point to her party's liberals, she covers most of the "hot" topics in today's political milieu: school prayer, gay rights, the right to die, abortion, the death penalty, church and state, free speech, and pornography. Her reasoning is mostly clear and consistent, if limited by the very premises on which it is based. As a statement of the libertarian position on these issues, it is one of the more well-reasoned and accessible examples I have come across in recent times.
Her book is also worthy as a clarification of the historic and contemporary role of the ACLU. Kennedy asserts that three fallacies lie at the base of people's misconceptions about this organization. In her elaboration she clarifies fundamental facts about our system of government, the play of the law, and the realities of politics. The first fallacy is what she called "endorsement confusion." Many people assume that defending someone's rights to act or to speak implies endorsement of the action or speech. This confusion is evident when a Jewish ACLU lawyer represents the Nazis' right to parade or an African-American supports the free speech rights of the Klan. From a civil libertarian perspective, no contradiction is implied for there is a great difference between protecting the right to and agreeing that the action or speech is right. Libertarians rely on their faith in the marketplace of ideas, a salve to those who may find themselves morally queasy in this even-handed support. Rather than suppress or control "bad" ideas, this ideal suggests fighting the bad with the good, and is sure that good wins out over bad in a fair fight. Kennedy asserts that civil libertarians "value the marketplace of ideas, the supreme importance of our ability to communicate with each other, unfettered by government censorship" (190).
While I agree that ignorance of this basic premise does indeed lie at the root of many people's problems with the ACLU, this premise itself is seriously flawed. It blithely ignores the ways in which economic and social inequality make hash of this supposed free market of ideas. I must admit, I really want to believe this, and my historic support of the ACLU is evidence that it is compelling. Unfortunately, the facts speak otherwise. Recent critical and feminist scholarship (e.g., Kairys 199) makes convincing arguments that this ideal is nothing more than that, and indeed may function more as ideological justification of the status quo than as an avenue for social justice and freedom. Yet the problem with much of the critical scholarship on rights is that it fails to offer practical alternatives. In any event, judged as a scholarly work, Kennedy's book fails for it completely ignores these compelling, if limited, critiques.
The second fallacy undercutting support of the ACLU is the belief that the Bill of Rights was "intended to protect us against all unjust treatment" (12). In my own work on the local and everyday application of legal ideology and legal principles, I find a surprising ignorance of this fundamental reality of our government. The Constitution was designed to control the government and the rights enumerated in the Bill of Rights apply almost exclusively to the actions of government. The rhetoric of rights (Scheingold, 1972) is compelling in our nation's culture and reaches much farther afield than any constitutional scholar or judge would want to allow. If Kennedy's book does nothing else, it offers a clear and well-woven discussion of this fundamental constitutional principle.
Finally, Kennedy suggests that support of the ACLU is threatened by the common belief that our system of government is majoritarian. Kennedy relates times when she has been asked to speak to elementary students. She begins by asking the children, "In America, the majority rules, right?" Most children agree enthusiastically. She then asks, "So, you can vote to make me Episcopalian, right?" This, thankfully, causes a great deal of confusion in the children. This exercise illustrates forcefully most people's limited understanding of our form of democracy. The Bill of Rights, as Kennedy points out, is a brake on majoritarian rule, the classic tyranny of the majority. The founding fathers sought to take some things out of the political arena to protect what they saw as rights fundamental to the republic and to personal liberty.
Even if one accepts as valid the premises of libertarianism, there are a couple of points where Kennedy fails in her consistency. She offers one of the more consistent discussions of free speech and censorship that I have read in popular literature, but even she slips on the shoals of its limitations. As Kennedy points out, "censorship" and the First Amendment's guarantee of "freedom of speech" apply only to acts of the government against the people. She offers as an alternative private political acts such as boycotts and letter-writing campaigns. However, she then laments the tactics of a conservative Christian group's pleas for parents to boycott Disney as a purveyor of pornography and "anti-family" values. The group's interpretation of Disney seems quite bizarre to me as well, but their tactics are the very ones she champions at other points in the book. I can only read this slip as the product of the book's main goal: rhetorically wresting the Republican party away from the radical Christian right. The actions of these radical Christian groups are, quite frankly, embarrassing to libertarian Republicans such as Kennedy.
My biggest problem with her argument over free speech is her treatment of feminist critiques of the pornography industry. This is probably because I am very familiar with this. It is also why I am uniquely qualified to critique Kennedy's portrayal of it: I have actually carefully read the arguments. I cannot say the same thing for Kennedy. While she does have practical experience with the infamous MacKinnon-Dworkin ordinance that Indianapolis attempted to pass, and has important insight into the problems of the local application of this tactic, it is obvious that she has not seriously studied the argument underlying this approach. (For example, she does not cite any of MacKinnon or Dworkin's published work.) The only "scholarship" marshaled is Christina Hoff Summers' intellectually disingenuous book, Who Stole Feminism? Thus, Kennedy critiques the logic of the infamous MacKinnon-Dworkin anti-pornography ordinance, but fails to cite any of their work which explicates their approach. While this is an unfortunately common tactic of critics of feminist scholarship, it is nonetheless problematic.
The other major problem the book poses is not so much Kennedy's but one that must be shouldered by libertarianism as a whole. Like all good libertarian conservatives, Kennedy sees government as the big bogey man of history, quoting Goldwater to bolster her point:
Throughout history, government has proved to be the chief instrument for thwarting man's liberty. Government represents power in the hands of some men to control and regulate the lives of other men. And power, as Lord Acton said, corrupts men. "Absolute power," he added, "corrupts absolutely."
This approach effectively collapses all problems of the misuse of power, of oppression and domination, into the public sphere. The singular focus on government ignores the very real ways that we are dominated by corporate capitalism and "private" social structures of racism and patriarchy. One need not look far to find blatant examples of corporations acting not unlike the monstrous governments Kennedy and Goldwater so fear. The forceful takeover of the independent nation of Hawaii was initiated by plantation interests who used the isolated military presence of the U.S. government as their instrument of coercion. The U.S. government later ratified the takeover as legitimate. Most of my students are savvy enough to see the power of corporate interests at work in our nation's move against Iraq in the Gulf War. The line between state and economy are not as clear as libertarian rhetoric would like. While we may rhetorically create the private-public wall in the actuality of lived experience that wall is a largely a chimera.
Her partisan stance and one that would make this book challenging to teach produce a related critique. Kennedy argues throughout the book that the ideals of the ACLU are really Republican ideas and implies that her party has been central in many of these fights over liberties and civil rights. I question her interpretation of history. Granted, this is a partisan piece and her goal is to convince other Republicans, not a skeptical leftist like me, that their party should be concerned with these issues. That is commendable, if historically inaccurate. There is good reason why the ACLU is peopled with many from the left, and that her Republican compatriots are skeptical of her affiliation.
In conclusion, Kennedy offers an easy, fun introduction into libertarian thinking, as well as a fine defense of and justification for the ACLU. This later point, reiterated forcefully throughout the book, is that the ACLU is quite simply a one-issue organization: control of governmental power through the Bill of Rights. Through this discussion she makes perhaps one of her most important points: the Bill of Rights is not self-enforcing. If we are to take our existing legal and political system as the starting point, we all must understand this crucial limitation. "Rights" don't exist simply on paper, they are meaningful only in use. There must be organizations like the ACLU and people who are willing to take jobs that are "unpopular" (167). If no one is willing to insist the government fulfill the promises set out in the Bill of Rights, the promises go unfulfilled and ring hollow.