There is quite an interesting conversation going on at the Volokh Conspiracy concerning the ACLU re: the Manhattan subway searches. I don't know how to put links, but its at www.volokh.com and Eugene Volokh (who is a brilliant writer and scholar) has made some very cogent remarks. The debate deals with the 'legality' of the ACLU's challenges, not just in the subway search instance, but ALL of the time. Some posters over there have argued that teh ACLU is a meaningless organization that damages the fabric of our society and is actively engaged in frivolous law suits that cost tax payer dollars. Professor Volokh has, I think, answered those questions quite neatly. However, seeing as how I just finished writing a brief in opposition to the Indiana branch of the ACLU in a search and seizure case, I thought I'd weigh in on the merits of the ACLU as an organization.
I don't like most of what the ACLU does. I agree with the general sentiment of the right that the ACLU exists to further the ideals of a minute percentage of the population at the expense of the general will of most of America. However, the ACLU serves an important and essential purpose: it represents unpopular clients who were exercising the rights guaranteed them by the Constitution. The biggest problem with the ACLU was expressed by Professor Richard Posner when he came to speak at Columbia Law School last fall. The ACLU takes ALL the cases. They don't pick and choose amongst clients to find situations where they will win, or even to find sympathetic clients. They will (and have done so in the past) defend even the most out of control individual or agency, such as the KKK. I don't want the KKK to be able to march down Broadway screaming hate slogans, but the ACLU will represent them, and do their best to make sure that the KKK has that right.
That said, I'm glad that the ACLU represented the KKK. I hope they would do it again. I don't like a lot of the issues the ACLU stands up for in court, but I like the fact that our government and our constitution allow for them to do so.
Most of the attacks on the ACLU from the right contain snide remarks about how this particular client is so far out of the mainstream that his rights should fall by the wayside in favor of the general designs of everyone else. But those comments are made by people who are in the dominant paradigm. If, all of a sudden, our country encountered a radical cultural flip-flop, and Rush Limbaugh was driven off the airwaves, I have to believe that the ACLU would stand up for his rights as well.
You don't have to like what the ACLU argues for in court. You don't have to want them to win. But if my rights were trampled on, the ACLU would stand up for me, just as soon as it would a left-wing nutjob. I don't like the ACLU. I find them smug and arrogant. But I like the fact that an organization like the ACLU is allowed to exist. And I like the fact that they are consistent enough to represent everyone. Even a right-wing nutjob like me.