September 11, 2001: the Constitution during crisis; a new perspective.

• Author: Sachs, Lori

INTRODUCTION

At 8:48 a.m. on September 11, 2001, the first of two hijacked planes crashed into the north tower of the World Trade Center in New York City. By 10:28 a.m., the worst attack on American soil had ended, but the nation had not yet begun to react. (1) Four flights had been hijacked that day: two crashed into the World Trade Center, one into the Pentagon, and one into a field in rural Pennsylvania. (2)

Almost immediately, officials placed the blame on Osama bin Laden (3) and the al-Qaeda network. (4) This was not the first time that bin Laden and his associates had demonstrated their hatred for the United States. (5) But this attack differed from previous terrorist incidents. Before September 11, 2001, Americans cared little about terrorism. (6) Yet because the attack was on American soil, many Americans feared further terrorist attacks by people living within U.S. borders. (7)

In a speech delivered on September 20, 2001, President George W. Bush suggested that, despite the crisis, all efforts would be made to safeguard constitutional liberties: "We're in a fight for our principles, and our first responsibility is to live by them. No one should be singled out for unfair treatment or unkind words because of their ethnic background or religious faith." (8)

President Bush's remarks, however, do not represent the sentiment pervading the country since the attacks on September 11, 2001. (9) His remarks have not calmed the fears of thousands of people living in the United States who are concerned that their rights will be infringed upon by legislation purporting to eliminate terrorism. (10) This Comment addresses how the United States should respond to the threat of domestic terrorism while continuing to safeguard civil liberties.

Part I of this Comment describes three classic theories of democracy. Constitutional democracy entails an active role for the judiciary as part of a counter-majoritarian effort. Representative democracy, in contrast, protects the will of the majority and focuses on judicial restraint. Deliberative democracy focuses more on active participation by the citizenry to uphold the values of the Constitution. Part II examines how representative and constitutional democracy have been applied in another episode in our nation's history--the Japanese internment during World War II. Part III compares the crisis following the September 11 attacks to the Japanese internment and examines how the different branches of government should protect civil liberties. Part IV suggests that a theory of deliberative democracy should be applied to best balance the competing interests of national security and civil liberties.

1. THREE THEORIES OF DEMOCRACY

   In times of national crisis, the government must respond effectively, while at the same time preserving constitutional liberties. (11) The Supreme Court has traditionally deferred extensively to Congress in times of crisis. (12) In so doing, many laws and rights have been silenced. (13) Yet hindsight has often left the Court regretting its past decisions. (14) The questions of how to interpret the Constitution and who has the responsibility to do so are at the core of the tension between deferring to lawmakers and preserving civil liberties.

   How the Constitution is interpreted determines how our nation responds to crisis. Some theorists contend that the Court should affirmatively safeguard constitutional rights. This theory is commonly called constitutional democracy. Others espouse a representative democracy, which entails deference to the majority and the political process. This is commonly called representative democracy. Finally, some believe that our system of government was set up to require an active citizenry--a deliberative democracy. Though all three theories agree that citizens have rights against the government, (15) each differs on how those rights should be protected.

   A. Constitutional Democracy

   Constitutional democracy embraces the idea that the judiciary is primarily responsible for interpreting the Constitution, even though it shares this task with the president and Congress. (16) While it may not be the province of the Court to save the country from ruin, constitutional democrats believe the Court should take an active role especially during times of crisis. (17)

   Constitutional theorist Ronald Dworkin envisions the Constitution as a protector of individual rights and rejects a simple majoritarian theory of government. (18) Reliance on the political process would yield a "majority rules" approach to civil liberties, and minority groups might suffer as a result. (19)

   Dworkin opines that the political process alone cannot safeguard our constitutional rights. (20) Members of the judiciary are not elected officials and have an obligation to the Constitution, not to the public. (21) Dworkin's theory of judicial activism assumes that citizens have certain moral rights against the government and that these rights are best protected by the judiciary. (22)

   Another proponent of constitutional democracy, Justice William Brennan, Jr., advocates that it is the Court's role to resolve public controversies to safeguard constitutional freedoms. (23) Brennan rejects the idea that controversial issues should be left to the political process to resolve. (24) He argues that, despite its apparent appeal, resolving controversial issues through the political process is not suitable for a democracy. "It is the very purpose of a Constitution--and particularly the Bill of Rights--to declare certain values transcendent, beyond the reach of temporary political majorities." (25) This prevents judges from injecting their own views into their opinions. (26) Instead of a set of rules, Brennan sees the Constitution as a composition of abstract principles, to be interpreted by every generation. (27) "We current justices read the Constitution in the only way we can: as Twentieth-Century Americans." (28) The greatest strength of democracy and of the Constitution, Brennan insists, is the ability of justices to adapt the principles embodied in the text to current situations. (29)

   According to Brennan, justices cannot "avoid a definitive interpretation" (30) of controversial statutes or situations; they are responsible for advancing and protecting our rights and interests. (31) Brennan warns that as the government increasingly encroaches upon citizens' private lives, it becomes ever more necessary for the judiciary to actively protect individual rights. (32)

   Constitutional democracy calls upon judges to use the Constitution to limit what the majority can do. (33) The Court safeguards the principles embodied in the Constitution for all citizens, not just the majority of them. (34)

   Constitutional democracy urges that individual rights be protected even in emergencies. (35) In a speech delivered in 1987, Justice Brennan, emphasized that civil liberties should not be sacrificed during times of national crisis. (36) Brennan cited several historical examples of the Court's validation of legislative attempts to sacrifice civil liberties in response to a crisis. (37) Brennan emphasized the importance of judicial activism during such times: "A jurisprudence that is capable of sustaining the supremacy of civil liberties over exaggerated claims of national security only in times of peace is, of course, useless at the moment that civil liberties are most in danger." (38)

   According to Brennan, the only way to protect citizens' rights is to rely on the fundamental aspirations embodied in the Constitution, and not on the impulses of representatives. (39) The time may come, Brennan warned, when elected officials will use their power in ways that are contrary to our notions of democracy. (40) The judiciary should intervene in these situations to ensure that the goals of the Constitution are enforced.

   Hindsight has caused the nation to regret the times it sacrificed civil liberties for national security. (41) It has not yet, however, established a way to deal with similar future problems. (42) Brennan criticizes the judiciary for not taking responsibility when a situation calls for review. (43) There is no question that total deference to elected officials has been detrimental to the civil liberties of citizens. (44)

   B. Representative Democracy

   In contrast to constitutional democracy, representative democracy, urges the judiciary to defer to the representative process. (45) Proponents of the theory contend that the legislature and executive have the primary authority to interpret the Constitution. They presume that legislative actions are constitutional so long as they are rational. (46)

   James Bradley Thayer maintains that people are "wise, virtuous, and competent to manage their own affairs." (47) As such, it is not the duty of the courts to overrule what people do through elected officials. (48) The majority rules, and whatever the majority sees fit to do should be the rule of the land. (49)

   According to Thayer's doctrine of clear mistake, (50) courts should ask whether the act of the legislature or executive clearly conflicts with the duties of these branches as granted by the Constitution. (51) If the answer is negative, then the Court should simply affirm the legislative action. (52) Even if it turns out that elected officials have failed to perform their duties, the Court should still be deferential because constituents will simply vote them out of office. (53)

   Thayer acknowledges that the Court is the "ultimate arbiter of what is rational and permissible." (54) But, it is first and foremost the duty of the legislature to determine the meaning of the Constitution. (55) The Constitution was written by the people and the legislature is elected by the people. (56) The legislature, and not the courts, therefore, is the "lawgiver." (57)

   Thayer rejects the contention of constitutional democracy theorists that the Court is the protector of rights. (58) He argues that a limited role...