Constitutional Flexibility in a Fearful World


In Tuesday’s Boston Globe, Professor Charles Fried compares the departures from the Constitution by Lincoln and FDR to the warrantless wiretapping and rendition of the Bush administration and bemoans the loss of “prudence and reasonableness” as a guide to legal action in emergency situations. Fried is correct that the law requires flexibility to solve the problems that the world demands it to confront. But Fried’s belief in a modern democracy’s ability to engage in prudent and reasonable debate amidst a 24-hour news cycle of fear-mongering is surely misplaced, as is his implication that the War on Terror is an emergency of similar gravitas to those faced by Lincoln or Roosevelt.

The grip of fear is tightened by the seemingly endless nature of the current emergency. Lincoln and Roosevelt’s emergencies were traditional battles with traditional enemies. The current emergency is far different. During the 2004 Presidential Campaign, President Bush declared, “I don’t think you can win it [the war on terror].” While the outcome of the Civil War or World War II was unknown to contemporary observers, one certainty was that the chaos of war would come to an end. Today’s conflict, if we are to take the President at his word, does not allow for such a luxury.

In addition, there can be no true comparison between the War on Terror and the emergencies faced by Lincoln and Roosevelt because the Civil War and World War II posed far different and more serious consequences for America and the World. While the attacks of September 11, 2001 led one combat veteran of the Vietnam War to state, “I don’t know what the gates of hell look like, but it’s got to be like this,” the world was not ending on 9/11/01. To say otherwise is to give Osama Bin Laden and the radical ideology of Al-Qaeda far more credit than they deserve. During Lincoln’s time, the Union had been fractured in two and there was serious doubt that the experiment in democratic government was ending. When Hitler’s troops began their diabolical march through Europe, the World was confronted by a powerful leader of a First-world nation intent on the slaughter of millions of innocents and the ethnic “purification” of the planet. Over 70 million people died as a result.

As devastating as the 9/11 attacks were, they pale in comparison to these prior conflicts. As John Mueller stated in Foreign Affairs, “The massive and expensive homeland security apparatus erected since 9/11 may be persecuting some, spying on many, inconveniencing most, and taxing all to defend the United States against an enemy that scarcely exists.” Indeed, a secret 2005 FBI Report leaked to ABC News stated that the Bureau had not identified any true ‘sleeper’ agents in the US. We are winning the War on Terror and our victory has nothing to do with wiretapping, rendition, and torture. We are winning because the intoxicating elixir of freedom, diversity, and democracy remains far more powerful than the suicidal radicalism of a fringe group, even for the world’s most destitute.

Of course, the flexibility of a “politics of reasonableness” rationale is enticing. Defending the Constitution for the Constitution’s sake makes little sense at any point in history, including emergencies. The law and our adherence to it must mean something more than merely paying homage to the words of the Founding generation. We protect the Constitution because we have believed and do believe that it is the blueprint for the emancipation of humanity from the scourges of this world. The law promises an escape from pain, poverty, inequality, hunger, hopelessness, and stereotype.

Thus, while flexibility is required if law is to achieve all that we believe it can, the debate over whether Constitution must yield to the exigencies of our time or any time must be an informed one. We must ask ourselves difficult questions-how serious is the threat that Al-Qaeda poses, and how much of our Constitution are we willing to give up in order to neutralize it?

In so answering, we cannot allow political correctness to guide our Constitutional jurisprudence. And if the murderous and suicidal ideology of Al-Qaeda is truly a grave threat to the Republic, one cannot help but wonder if the experiment of the Founders is living on borrowed time.

Andrew L. Kalloch is a 2L.

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