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A conversation on constitutional issues


Ken Falk, legal director, ACLU of Indiana - MARK LEE
  • Mark Lee
  • Ken Falk, legal director, ACLU of Indiana




In discussing the significance of the ACLU of Indiana's six decades of work, Ken Falk, the group's legal director, addressed many aspects of constitutional philosophy worth highlighting.

NUVO: What's your take on strict constructionist, literal interpretations of the Constitution versus more organic readings?

Ken Falk: A number of years ago, the Supreme Court had a case, I think 15 years ago now, and it dealt with thermal imaging and the question was: I'm on a sidewalk, I have a thermal imaging camera so I can "see" (by heat). So I can look inside your house and see if you're growing pot, for instance, at least there's a hot source. But I can also see if you're on the toilet, if you're cooking, I assume when you're having sex, I can do all that. The question is: Does that violate the Fourth Amendment? Is that an unlawful search and seizure?

Now, James Madison was obviously a brilliant guy but I don't think he was thinking about that.

So whether we call it an organic Bill of Rights or whether we pretend that we're somehow bending over backwards to say, "Well, if James Madison was here today, this is what he would think," we have to adapt the Bill of Rights. See, that's the difference between the Bill of Rights and the Constitution. You look up Article I of the Constitution, it says word for word what the president says when he or someday she is sworn in, right? It's explicit: This is what the oath is. There's no organicity ...

The Fourth Amendment says you have a right to be free from unreasonable searches and seizures. What does that mean? You have to interpret that, and what I think really concerns people like Justice Scalia is when you take a concept like due process to expand this notion of liberty to include things like the right to privacy, the right of family integrity ... Where does that come from? Those are perfectly valid debates, but we have to start off with the proposition that somehow we have to interpret this incredibly nebulous document, the Bill of Rights, in a way that means something to us today. And once we agree that there has to be an interpretation, then I think we need to admit that's what we're doing and try and figure out what it means, keeping an eye on basically what the original purpose was, but knowing that that purpose has to be applied for today.

NUVO: How has the War on Terrorism and the desire for security in an increasingly technological world influenced your thinking on these issues?

Falk: I think the interesting thing after 9/11, what we heard was: We all have to basically give up some of our rights for the common good ... look at Thomas Hobbes Leviathan, about the fact that without society, life would be nasty, brutish, and short. The whole idea is, of course, that we come together and we give up part of our rights and we have society.

But realistically, if you look at what happened after 9/11, what we really were saying was: If you look like you are an Arab or an Arab-American or Muslim, you had to give up your rights. It didn't affect me. My life didn't change. I'm always really wary when people are saying we have to give up someone else's rights. If people want to tell me I should give up my rights, then we have a discussion as to why that is and what are you giving up. But when I hear we should make sure that we give up someone else's rights, that's very disconcerting to me. I think a lot of our post-9/11 discussion was directed towards that and I think that the notion of privacy, which is really the animating notion behind much of the Bill of Rights, I think that's a very important both individually and societally. And the idea that we should give that up and let the government look at the emails we send overseas or get access to the videos we rent is really disconcerting because I think it is more than just the spot invasion of our rights.I think it's a general degrading of what is important to us as Americans.

NUVO: Why do you think that the ACLU's quest to protect personal liberties and rights is so often portrayed as Communist or as being rabidly liberal?

Falk: ACLU is frequently characterized by (the positions of) its clients.

We try and keep the (Constitution's) establishment clause meaning what we think it means, which is that government should not establish religion. But we represent religious groups who are being denied their free exercise.

The other thing ... is this notion of majority rules in America; most people's understanding of our civic life ended around 3rd grade.

Years ago we did a lawsuit challenging religious prayer in the General Assembly, and ... someone (wrote) a letter to the editor saying something about, "Well, if the legislators don't like having prayers with Christ in them, they should just not be legislators."

Unfortunately, it's religion cases that I think I am most upset about just because whenever we file a case like that there are all these people around the state who say, "Well, the ACLU is trying to take away your religion." And there are people generally who know that that's not true ... they know the difference between establishment and free exercise, but there's very little effort made to educate the public. I'm more than happy to have a discussion about the establishment clause with someone, about what it means. Obviously there's disagreement about (its) reach ... but don't try and tell the public that if the governor cannot put the Ten Commandments on the Statehouse lawn that somehow impacts your ability to worship.

NUVO: Has it ever happened to you so far, that something that you've fought against as unconstitutional has ended up becoming a part of the constitution, either on the state or federal level?

Falk: The closest it's come to is I did a lawsuit challenging as unconstitutional the same-sex marriage bill in Indiana, but that has not become part of the Constitution.

NUVO: What will that be like if it does?Would you then have to defend it?

Falk: If I lose a case in whatever's the last court I can lose it in, in this case the Supreme Court, then it's over; I've lost, that's not an issue anymore. If the Constitution's amended, assuming the state Constitution doesn't conflict with the federal Constitution, then that's the end of it. But I just feel really strongly that, and this is not a political issue because I know there are a lot of very conservative people who feel the same way, that our knee-jerk reactions to the problem should not be to amend the Constitution. The Constitution is supposed to be there saying basically the same thing many years after we're not around.

NUVO: What do you think of the call for a constitutional convention?

Falk: When you talk about a Constitution, you have to think about two different things. One is a structural constitution: This is how the president is, this is how Congress is, this is how courts are, this is the blueprint of how we're going to do things.

Now, there may be times when we want to adjust the blueprint. We don't like the electoral college, so we fix that (although we still haven't). We obviously changed the fact that African-American slaves were five-eighths of a person. Those are structural things, and there are lots of reasons to change the structural things if, for whatever reason, in our current society things are not working just in terms of the rigid structure.

When you talk about the Bill of Rights, my position is when you're amending the Bill of Rights, you should be doing so only to expand rights. It doesn't make sense to send 19 year-olds into combat to die when they can't vote; we should give them the right to vote. Women should have the right to vote. In the past, when we experimented with the idea of restricting rights through the Bill of Rights, i.e. no one can drink, that hasn't worked out so well.

The expressing of rights is not a generational document, it's a multi-generational document. So we don't say, for instance: We're really scared today of same-sex marriage; even though our kids don't think it's a problem, we're going to enshrine that in the Constitution. My general position is that you shouldn't be amending, you should never be amending the constitution willy-nilly ... And you should certainly not be doing it to somehow encapsulate restrictions of rights.

If, on the other hand, society believes there should be a major change in something structural, that's what the constitutional conventions are for. But I don't really see the need for one.


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