Safety and freedom: common concerns for conservatives, libertarians, and civil libertarians.

• Author: Strossen, Nadine
• Position: Twenty-Fourth Federalist Society Student Symposium, Law and Freedom

I am happy to address this Symposium, and to be a regular speaker at many Federalist Society forums. I always start such presentations by reminding all Federalist Society audiences of your organization's libertarian founding principles, which could come straight from the ACLU's Policy Guide, and which are directly relevant to this panel's topic. Your mission statement's opening words proclaim: "The Federalist Society ... is founded on the principle[] that the state exists to preserve freedom.... The Society seeks ... reordering priorities within the legal system to place a premium on individual liberty...." (1) Also key to this panel's topic, your mission statement declares "that the separation of governmental powers is central to our Constitution...." (2)

In 1994, I was on a Federalist Society panel with one of your founding gurus, Irving Kristol. As usual, I recited these libertarian tenets of your group, and it sent him into a state of shock. Our discussion was published, so let me read you his exact response:

I am shocked to discover that the Federalist Society seems to have said somewhere that the State exists to preserve freedom. The Federalist Society should call a meeting immediately and change that.... You say that and you get yourself in the kind of trap that Ms. Strossen has now sprung. (3)

I periodically re-read your brochures and website with trepidation, worrying that you might have heeded Kristol's advice. So far, though, you have not done that. Therefore, you are again "trapped" when it comes to the topic of the present panel. And remember, it is not me who said that, but Irving Kristol!

Even putting aside Kristol's consternation over the libertarian tenets of the Federalist Society, which describes itself as "a group of conservatives and libertarians," (4) there would still be much common ground between our two organizations. Many conservatives, as well as libertarians, have agreed with the ACLU on this panel's topic: that too many post-9-11 measures have unjustifiably sacrificed our freedom without sufficiently advancing our security. Therefore, the extraordinarily diverse partners in our Safe and Free campaign have included individuals who are allied with both the libertarian and the conservative wings of the Federalist Society. (5)

As the Federalist Society's Twenty-Fourth Annual Student Symposium brochure states, members of this panel were invited to discuss our "legal and policy prescriptions for ... balancing security concerns ... with the protection of civil liberties." (6) Federalist Society leaders regularly profess fidelity to the Constitution's text. (7) I should think, then, that this text would provide the governing standards for Federalists in assessing how to "balance security concerns ... with the protection of civil liberties." The Constitution's text has certainly guided civil libertarians' answers to these questions.

Concerning the scope of individual rights in national emergencies, the Constitution contains only one express limitation, on only one right, in only two specified types of national emergencies: its provision empowering Congress to suspend the writ of habeas corpus. (8) This "Suspension Clause" imposes a heavy burden of justification before Congress may suspend the writ, limiting the suspension power to "Cases of Rebellion or Invasion," and even in such cases authorizing suspension only "when ... the public Safety may require it." (9) Beyond the limited circumstances in which Congress may suspend the writ of habeas corpus, the Constitution provides no textual warrant for any further limits on rights just because the national security may be in peril. In the post-9-11 context, this crucial point was stressed by the staunch Federalist Society stalwart Justice Antonin Scalia in his Hamdi dissent. (10) This key point also has been emphasized by influential judicial opinions arising from various national emergencies throughout U.S. history, from the Civil War (11) to the Great Depression (12) to the Korean War. (13)

In short, apart from the writ of habeas corpus, the Constitution affords the same strong protection to individual rights during national crises as during any other time. For example, the government's power to invade individual privacy and freedom through any type of search and seizure, including any surveillance, should be subject to the Fourth Amendment's key requirements of individualized suspicion and judicial review. (14) Likewise, the government's post-9-11 restrictions on other fundamental rights--including its many restrictions on First Amendment freedoms (15)--should be subject to strict judicial scrutiny. This means that the government bears the burden of demonstrating that the restriction is narrowly tailored to promote a purpose of compelling importance.

The government easily can satisfy the "compelling interest" aspect of strict scrutiny by showing that the purpose of any rights-restricting measure is to protect national security. It is, however, harder for the government to satisfy the appropriately heavy burden of demonstrating that the measure is sufficiently narrowly tailored: specifically, that the measure is necessary and that it is the least restrictive alternative. If the government could promote its national security concerns through alternative means that are less restrictive of fundamental rights, then it must do so. (16) This rights-protective approach to civil liberties post-9-11 is consistent not only with the Constitution's text, but also with the Federalist Society's own tenets of maximizing individual freedom and minimizing government power.

In the ACLU's post-9-11 Safe and Free campaign, the ACLU and its ideologically diverse partners have analyzed each touted security measure to ensure that it really does maximize security, with the minimal possible cost to liberty...