The Constitution is not a suicide pact, folks

Star-Telegram | Allan Saxe:

“Long ago, my constitutional law professor at the University of Oklahoma said many times that national security has always overtaken civil liberties concerns. The federal courts have been very reluctant historically to derail national security concerns. Former Supreme Court Justice Robert Jackson worried in a 1949 court decision that the Constitution's Bill of Rights could be turned into a suicide pact. Another debate now rages over civil liberties vs. national security. The American Civil Liberties Union and other groups have filed suits over surveillance. But one wonders why the ACLU did not sue over the same kind of surveillance carried on for years under President Clinton!”

Ed Cognoski responds:

Mr Saxe's arguments seem to be:

• Other Presidents have temporarily suspended civil liberties in times of war
• The United States survived past crises and is still a free society
• Terrorists will take advantage if Hollywood stars criticize President Bush
• and, the excuse for all offenses, Clinton did it too!

Mr Saxe is an associate professor of political science at the University of Texas at Arlington. I hope his logic is not indicative of what students at that school are being taught.

First, that other Presidents have done it does not make it right. The Alien and Sedition Acts were bitterly contested at the time, leading to Thomas Jefferson's defeat of John Adams for the Presidency. FDR's internment of Japanese-Americans during World War II was a mistake that the government of the United States itself later formally apologized for.

Mr Saxe offers no guidance for judging which actions are legitimate in the name of national security and which are not. He does not explain why current law, requiring judicial review of domestic wiretaps within 72 hours, is not sufficient to uphold both civil liberties and national security. Giving the President a blank check, just because he declares we are at war, is a poor way to preserve our liberties or our national security. The Constitution carefully defines checks and balances, for war and peace. We ignore them at our peril.

That our country continues to enjoy civil liberties today in spite of these historical examples is a poor reason to grow lackadaisical in our defense of civil liberties today. Rather, our continual enjoyment of civil liberties is more likely due to eternal vigilance. Presidential power should be expanded only as little as necessary and for as short a time as necessary to meet national security demands. President Bush is claiming very broad powers as Commander in Chief, powers over not only the military but civilians and their domestic affairs as well. The war on terror could very well become a semi-permanent state for America, and so could President Bush's war powers.

Mr Saxe cites Hollywood stars' criticism of President Bush as proof that our civil liberties are well preserved. The implication is that President can do what he likes so long as he lets you criticize him for it. The argument is false. And it's not just Hollywood criticizing the President. Mr Saxe attempts to belittle criticism by associating it with a group unpopular to conservatives and, presumably, his Texas audience.

Mr Saxe cites Al Gore's criticism of President Bush as hypocrisy because of supposed violations of civil liberties by the Clinton/Gore administration. Mr Saxe does not state his own opinion of these violations, but I assume he's for them. But he doesn't say so. He seems caught in an awkward situation. Defending President Bush requires favorably citing President Clinton's similar actions, which he can't quite bring himself to do.

Mr Saxe is right that national security has taken precedence over civil liberties in our history. But he fails to note that it was always controversial. Successful Presidents managed to find the right balance to preserve both for our posterity. The Constitution may not be a suicide pact, but neither is it a blank check for the President.