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Hope lies in Americans standing up for law and liberty, says the ACLU’s David Cole at the U

“I have never seen in my career as a lawyer the kind of citizen engagement around civil rights as we have seen since November of 2016,” said Cole at the University of Minnesota.

Children are seen at a tent city set up to hold immigrant children separated from their parents or who crossed the U.S. border on their own in Tornillo, Texas.
Children are seen at a tent city set up to hold immigrant children separated from their parents or who crossed the U.S. border on their own in Tornillo, Texas.
Courtesy HHS/Handout via REUTERS

President Donald Trump is doing a great job.

Allow me to clarify.

If Trump took office with a secret plan to more than quadruple the membership of the American Civil Liberties Union and drive the circulation of the New York Times and the Washington Post to record highs, he’s doing a great job.

Yesterday, the University of Minnesota’s Center for the Study of Politics and Government hosted former Vice President Walter Mondale and David Cole, national legal director of the American Civil Liberties Union for a panel before a small but appreciative audience that included your humble and obedient ink-stained scribe.

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CSPG Director Lawrence Jacobs and Mondale both contributed excellent questions and comments, And Cole gave interesting replies to various questions that arose after his opening remarks. All of which I’m going to ignore in this post because I was so taken by Cole’s opening remarks that I’ve transcribed them as faithfully as I could manage. And that will more than fill up my claim on your attention for one Thursday morning. Take it away, Director Cole:

“It’s a testament to the strength of our democracy and a testament to the wisdom and the vision of the Founding Fathers that they built a structure full of checks and balances, including checks and balances that don’t rely entirely on the formal governmental structure.

“Most of the checks and balances in the Constitution that we focus on when we talk about separation of powers do reside in government. The notion is that we have within the government a separate judiciary, a separate executive, a separate legislative branch; and that they are each given a certain set of powers that allow them to check the abuses that the other branches may commit.

“In addition we have a federal system in which there are state and local powers with their own powers and their own ability to check the federal government, and the federal government has the power to check state and local governments as well, and that is a critical part of our constitutional system.

David Cole
David Cole
“But that’s not all there is. And we’re fortunate that that’s not all there is.

“Because when you have an election like 2016, and you come out of that election with one party essentially in control of the executive, the legislative and judicial branches, and, two-thirds of the states — where are the checks and balances going to come from.

“We haven’t seen very much in the way of checks and balances by the Congress vis-à-vis the president, or from the Supreme Court vis-à-vis the president.

“But another incredibly important place where the Constitution protects checks and balances is in the First Amendment.

“We often think of the First Amendment as about individual rights, and individual liberties: my right to say what I want, associate with whom I want, listen to what I want, read the press that I want, worship how I want. But the First Amendment is also a critical part of the system of checks and balances because what it protects is civil society.

“It protects the right of citizens to come together in opposition to government abuse. It protects the right to criticize the government. It protects the right to associate with like-minded individuals so that you can be more effective in criticizing the government. It protects the right to demonstrate, to petition the government. It protects the right of the press to report on the government, and on abuses by the government. It protects the right of citizens to worship in communities that are separate from the government and can be a source of criticizing the government.

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“And it protects, as we see here, the academy, a critical place for critiques.

“If you look at authoritarians who have risen to power in other countries, this is where they focus their attacks. They seek to control the media. They seek to limit academic freedom. They seek to close down citizen-centered nonprofit organizations, because they understand the critical part they can play in checking the government.

“What we have seen since November 2016, is, on the one hand, the election of a man who poses a wide threat to civil rights, to civil liberties, and constitutional norms. Whether it’s freedom of the press, in his recent attacks on Jim Acosta of CNN, or whether it’s freedom of religion, in his invocation of a Muslim ban, or whether it is LGBT equality and his rescinding many Justice Department policies that protected gays and lesbians, whether it is a woman’s right to choose, the array of threats has been wide and amazing.

“But the response of the American people has been remarkable. I have never seen in my career as a lawyer the kind of citizen engagement around civil rights as we have seen since November of 2016.

“Y’know, I wish it had started on Nov. 8 of 2016 [that was Election Day], but it started on Nov. 9. And if you think back two years from now, we had the women’s march, the largest march ever put together in the United States, and it came together in less than two months. We then we had the demonstrations in airports in response to the Muslim ban, issued on a Friday afternoon, he initiated it. And that Saturday, tens of thousands of Americans across this country rushed out to airports to protest what was going on. And that’s remarkable in at least two ways.

“One is, whose rights were they speaking up for? Not their own. This was a measure targeted at foreigners and foreigners from particular Muslim countries.

“So they were out there advocating for the rights of others.

“The second thing is they were doing it at airports. I don’t know about you, but the last place I want to be, unless I need to fly somewhere, is at an airport. It’s a soul-crushing atmosphere. And yet people were rushing out to airports to demonstrate.

“Then you had the effort to repeal the Affordable Care Act, which was met by legions of citizens coming out to town halls to make clear to their representatives that they did not want them to repeal the ACA.

“Trump and the Republicans, with majorities in both houses of Congress, tried repeatedly to repeal the Affordable Care Act. And they failed.

“And then we have the ‘me too’ moment/movement. Sexual harassment and sexual assault have been with us, I venture to say, since Adam and Eve. But it was only after a man became president who bragged about his ability to assault women that a movement took off.

“And then we had the ‘March for Our Lives.’ Again, we’ve had mass shootings, at high schools, for far too long in this country. And yet it was after Trump’s election that the mass shooting at Parkand launched a teenager-led national movement, the ‘March for Our Lives,’ which sponsored the actual initial march, but also led to a whole series of get-out-the-vote drives.

“I think that if, in any two-year period, any one of those movements had risen up, we would say: ‘That’s pretty remarkable.’ Think back to before this period and a lot of the complaints were about the apathy of young people. The apathy of citizens, who were not engaged. Well, I don’t think you can say that anymore.

“We [the ACLU] have seen that activism in that, before Trump was elected, we had 400,000 members. That’s pretty good. We were probably the largest civil rights/civil liberties organization, with 400,000 members.

“But since Trump’s election, we are up to 1.8 million members. We quadrupled our membership, and that’s because I think people understand the critical importance of civil society and engaging with civil society to defend liberty when it’s under threat.

“You’ve seen the same phenomenon with newspapers. The Washington Post and the New York Times, the leading national papers of record, have never had higher subscription rates. Why? Because people understand that the free press, and its ability to engage in serious investigative reporting is a critical part of the checks that we need, when we have an abusive government in power.

“And when people come together in this way, you get an expansion of liberty. I’ll give one example, and that’s the tactic of family separation.

“We brought a lawsuit challenging the policy of family separation when we heard about a woman who had come here with her 6-year-old son and had had her son forcibly removed from her while she waited for the immigration system to determine whether she was entitled to asylum or not.

“And we then learned after filing that lawsuit that this was not an isolated instance, the administration, with the support of Jeff Sessions in particular, had devised a strategy of ripping children from their parents in order to deter people from coming to the United States to apply for asylum.

“We have laws that allow people to apply for asylum. Trump is now seeking to limit those opportunities, but we have those laws and if someone faces persecution abroad they have a right to not be returned to that country. But in the interest of deterring people from pursuing that lawful remedy the administration decided they would separate children from their parents.

“And they were taking children as young as 1 year old from their parents. And they were locking the parents up, in say Texas, or San Diego, and sending the children off to, say Chicago or New York.

“The Ethiopian mother was allowed to have, I think, four phone calls with her child over a four-month period. And in every call, the child asked ‘why would you abandon me? When can I come home?’”

“Children that age think their parents are all-powerful. They’re not. But their children think so, so they can’t understand why their parent has seemingly abandoned them.

“No, the Trump administration forcibly separated children from their parents to try to send a message.

“But when we filed that lawsuit and turned it into a national class-action case, we didn’t just engage in legal arguments in court. We also used our communications arm to spread the word about this policy. We used our grass-roots arm to encourage demonstrations to bring attention to this policy. We told the stories of individuals who had seen their children taken away from them. And it struck a nerve. People across this country started speaking out. You even had Laura Bush writing an op-ed condemning the policy.

“Ultimately, because people stood up against a cruel inhuman policy, when the court enjoined the policy, the Trump administration essentially abandoned the policy.

“More than 3,000 children were separated. We’ve now managed to reunite about 2,800 of them. There are still 200 outstanding. The reason we were able to do that was in part because of courts, but in significant part was because people standing up to object made it impossible for Trump to continue doing what he was doing. Trump is not someone who likes to back down. Yet here he was forced to do so.

“So I’ll close with a quote that I’ve always found very perceptive … [It comes from a speech by the famous Judge Learned Hand, delivered in Central Park in 1932.]

“It comes from a ceremony when 150,000 immigrants to this country stood up and took the oath to become citizens. And we celebrated that fact. And we asked him speak and in his remarks he said:

“‘Liberty lies in the hearts of men and women. When it dies there, no court, no constitution, no law can save it. While it lies there, it needs no court, or constitution, or law, to save it.’

“Now like many great quotes, this is an overstatement. We do need courts and a Constitution and laws. They remind us of our better selves. But it has a core insight, which is that, at the end of the day, if liberty doesn’t lie in the hearts of individual men and women, the institutional structures will not save it.

“And that’s why the First Amendment is so important. That’s why civil society is so important. And that’s why I see hope in the way that Americans, as citizens, have responded to the threats that this administration poses to the law and to liberty. Thank you.”