The Constitution in Crisis Times

• Author: Jack N. Rakove
• Position: Coe Professor of History and American Studies, Professor Political Science, Stanford University
• Pages: 11-20

Jack N. Rakove - Coe Professor of History and American Studies, Professor Political Science, Stanford University; visiting Professor New York University School of Law

Page 11

On September 11, 2001, the United States and its Constitution entered a brave new world. The extent and duration of this world appear ominous in at least two respects. First, the attacks of September 11 made manifest a threat unlike any the nation has previously faced. A small network of terrorists, acting outside the established framework of international relations and international law, demonstrated a capacity to inflict extraordinary damage upon the citizens and society of the world's sole superpower. Second, the duration of this threat could prove indefinite. Terrorism on a massive scale has become, in effect, a condition that arguably will persist as far as we can see. This condition rests upon the capacity of a small number of ideologically committed individuals to exploit the horrifying wonders of technology in order to threaten the security of modern society. Crushing Al Qaeda would end only the most urgent manifestation of this threat. But the condition would persist insofar as it depends solely upon the probability that small bands of fanatics could always wreak havoc on open societies that can never adequately defend their multiple points of vulnerability.

Under these circumstances, the idea that the United States is waging a war on terror amounts to a misrepresentation that makes sense only metaphorically but not analytically. To begin with, success in quelling terrorism will depend much more upon effective police action than on the deployment of military force.¹ But the metaphor of war is problematic for other reasons. War, as conventionally understood, involves either conflicts between nation states, or between insurgencies aspiring to become nation states and the existing politics that dominate them. Such conflicts have finite beginnings and endings, through the surrender or dispersal of one side's armed forces, the occupation of its territory, the collapse of its governing institutions, or the negotiation of a peace.

Page 12

Terrorismo shadowy nature enables its agents to lie dormant and undetected for prolonged periods. Terrorism lacks a home territory to protect, organized armed forces to disperse, and political authority to dislodge. Thus, the idea of war has no analytical value here. A war against terror, like a war against cancer, is mostly a metaphor. One negotiates with enemies, but rarely, if ever, with terrorists.

When Americans go to war, they recognize that the full array of constitutional rights and liberties may require modification in the interest of security. This recognition is discomfiting. To play on a once-familiar bumper sticker: "War is harmful to civil liberties [children] and other living things." It is easy to discover in the American past a litany of iniquities wreaked upon civil liberties in wartime. The hounding and prosecution of opponents of American interven tion in the Great War of 1914-1918, and the Palmer raids that followed, come readily to mind. So does the gross injustice imposed on Japanese Americans during their mass internment of 1942-1945. The Cold War licensed other violations of freedom of speech and association, while eight years of open conflict in Indochina after 1965 gave the FBI, CIA, and police "red squads" across the country new incentives to harass critics of the nation's foreign policy.²

As disconcerting and alarming as this may be, it is not surprising that civil liberties contract in wartime. As important as the preservation of fundamental rights should be, it would be the rare society indeedeven a democratic one-that would enter a major conflict and say that the shortterm maintenance of civil liberties in their prewar condition outweighed attaining the objectives for which the war is being fought. Nor is it surprising that courts and legislatures, for reasons of prudence and politics alike, defer to the executive in times of war and national emergency. One hopes for vigilance, but one should also expect deference and acquiescence.

From the vantage point of deep history, however, two further observations on the relation between war and civil liberties are in order.

Page 13

The first requires recalling, or perhaps realizing, that modern thinking about rights begins with the recognition of the essential importance of personal physical security. The right to life that is the first element of the Declaration of Independence's trinity of natural rights is just that: a right of individual self-preservation against the palpable danger to personal security that exists in both the state of nature and the condition of misrule known in the seventeenth and eighteenth centuries as arbitrary government. This is what both Thomas Hobbes and John Locke recognized as the right of preservation, and though these two luminaries diverged on the source of danger and the requisite remedies, both grounded their ideas of rights on the concept of security. As Montesquieu later observed, "political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety."³ It is true that Montesquieu introduces this definition in the context of his famous discussion of the separation of powers, where he examines the danger that citizens face from a government where tyranny is possible because the three forms of power have not been adequately divided. But the underlying psychological point may be stated more broadly. The right to exercise one's liberty means little whenever a sense of physical insecurity is pervasive. That is why the senseless acts of random violence that terrorists inflict on open societies are so threatening and enervating. They do not challenge the territorial viability of the nation state and can only embarrass, not destroy, the authority of its institutions. But they do disrupt daily life, making citizens fear the conduct of ordinary activities that we take for granted as concrete expressions of our liberty. Under such circumstances, the memory of liberty may become more precious, but its exercise becomes less practicable.

The relationship between security and civil liberty, then, cannot be regarded as a zerosum conflict. Security is fundamental to our concept of rights. This is not to deny that the quest for security can often prove inimical to liberty. Nor does it require blindly endorsing every claim for enhanced authority to regulate and monitor our liberties that government may advance. It merely...