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On Jan. 8, 2014, a hOmeless man named alexander Baxter made
a bad decision. A suspect in a burglary, he ran from the police and then
compounded his error by entering a home that was not his. He made a
mistake, but he did not deserve what came next. After police threatened
to release their dog if he didn’t surrender, Baxter did not answer at first.
Then, after the dog found him, he sat down and put his hands in the air,
yet the police unleashed the dog again. The dog attacked and inflicted in-
juries that required emergency medical treatment.
Baxter sued the police and lost. A court of appeals ruled that the ar-
resting officers enjoyed immunity for their actions. The officers violated
Baxter’s civil liberties, but he had
no recourse against the men who
harmed him. On behalf of Baxter,
in October, the ACLU filed a peti-
tion with the U.S. Supreme Court,
asking it to reverse the decision.
Why bring up the plight of
Alexander Baxter? Because it
goes to the heart of whether all
Americans can enjoy the ben-
efits of our nation’s most basic
social compact: the fundamen-
tal freedoms guaranteed by the
U.S. Constitution. As our nation
fractures upon religious, politi-
cal and cultural lines, there still
remains a distinctly American
ideal, articulated in the Declara-
tion of Independence and oper-
ationalized in the Bill of Rights.
“We hold these truths to be
self-evident,” says the Declaration, “that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.” This is an aspirational
statement. It has no legal force. The Bill of Rights, however, does have the
force of law, and the rights it articulates—including freedom of speech,
free exercise of religion, and rights to due process—spell out (to quote the
14th Amendment) the “privileges or immunities” of American citizenship.
I’m politically conservative, but I’m also a civil libertarian. In plain
terms, that means I’ve dedicated a large segment of my career to defending
the civil liberties of people who strongly disagree with my politics. And in
that career—which has included defending people of different faiths, dif-
ferent cultures, different sexual orientations and different ethnicities—I’ve
discovered that a shared defense of civil liberties ties us together in both
fellowship and interdependence.
The fellowship can be easy to see. Defending the rights of otherscreates a tangible bond of friendship and under-
standing. Conversely, it is difficult for liberty to
survive enmity. America’s darkest days have tied
together dehumanization and oppression. It has
denied liberty to those men and women it de-
spised. But the defense of liberty itself creates a
lasting communal bond.
The interdependence, however, is often obvious
mainly to lawyers. We see how the victories of con-
servatives and progressives alike protect the social
compact for all.
Take, for example, a recent Arizona case in which
a federal judge reversed criminal convictions against
four progressive religious activists for providing hu-
manitarian supplies to migrants in a federal wilder-
ness. The court held that the activists were protected
by the Religious Freedom Restoration Act, and one of
the cases it cited was Burwell v. Hobby Lobby, the con-
troversial 2014 decision that protected the religious-
freedom rights of a conservative company to refuse
to comply with Obama care mandates to cover cer-
tain kinds of contraceptives for its
employees. The victory of conserva-
tive believers helped keep progres-
sive believers out of prison.Our legal system has made
great strides in extending the bless-
ings of liberty far beyond the most
privileged populations in Amer-
ica’s founding. Our Constitution
was once a dead letter for African
Americans, meaningless to Native
Americans and observed mainly in
the breach for many other margin-
alized groups. Slowly, painfully, this
has changed. But there is work yet
to do.
Our nation is still too protective
of public servants who violate the
fundamental freedoms of Ameri-
can citizens. It is still too focused
on outcomes—who wins—rather than on the health
of our Bill of Rights.
At its best, the American social compact vindi-
cates the rights not just of those on the left and the
right, but also of those who are marginalized and
powerless. This brings us back to Alexander Baxter,
a homeless man surrendering to the agents of the
state, sitting with his arms in the air. The American
social compact reaches us, yes, but it also reaches
him, and if the Supreme Court can vindicate his
rights, it will take yet another important step to-
ward the fellowship and interdependence that can
help heal a polarized nation.French is a TIME columnistTHE FELLOWSHIP
OF LIBERTIES
In defending our shared rights, Americans can
find common ground By David FrenchJOE
RA
ED
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GE
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