In one of the most provocative opinion articles of recent times, Security Comes Before Liberty (Wall Street Journal, October 23, 2001), Jay Winik argued (1) that in previous national emergencies, U.S. presidents took strong repressive measures against citizens and other residents of the country, (2) that the repressive measures implemented so far by the Bush administration are comparatively mild, and (3) that notwithstanding the more Draconian measures taken during previous crises, normalcy returned, and so too did civil liberties, invariably stronger than before. Hence, Winik concluded, even if the Bush administration deems it necessary to enact more restrictive steps, we need not fear.
Several commentators quickly took issue with Winiks argument. Most important, the critics challenged the claim that despite these previous and numerous extreme measures, there was little long-term or corrosive effect on society after the security threat had subsided. In fact, each episode of national emergency left the liberties of Americans not stronger than before, but severely maimed and weakened.
During World War I, the Wilson administration took sweeping actions to suppress not only individuals freedom of action but even their freedom of expression. The 1918 Sedition Act must be read to be believed. Under it, one might be, as some 2,000 persons were, prosecuted for daring to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United Sates into contempt, scorn, contumely, or disrepute. Nor was this all the statute forbade!
When convictions under the Sedition Act were challenged in the courts, the U.S. Supreme Court upheld the statute. To his eternal shame, Justice Oliver Wendell Holmes, Jr., wrote: When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right. This decision and others upholding unconstitutional measures undertaken by the Wilson administration might strike the proverbial Man from Mars as odd, because the Constitution itself makes no provision for its own evisceration during wartime or other crisis, yet time and again during national emergencies the justices have allowed the legislative branch and especially the executive branch of government to transcend their constitutionally enumerated powers and to nullify individual rights proclaimed in the Constitution.
The Wilson administration conscripted some 2.8 million men70 percent of those who served in the army. The Supreme Court could find no constitutional infirmity in that involuntary servitude, and its ruling has been a decisive precedent for judges ever since. The government also intervened massively in economic affairs, setting prices, allocating raw materials, and even going so far as to nationalize the interstate railroad, ocean shipping, and telecommunications industries. Those measures established precedents that would return to haunt subsequent generations and undercut their liberties in later crises-economic depressions as well as warseach time entering more deeply into the fiber of American life, with malign effects on the traditional American devotion to liberty.
World War II became the occasion for unprecedented repressive actions by the U.S. government. More than 10 million young men-about 63 percent of all those who served in the armed forces during the war-were drafted to fight, and hundreds of thousands of them died or suffered serious wounds. The government imprisoned nearly 6,000 conscientious objectors, most of them Jehovahs Witnesses, who refused to obey the conscription laws. Totally without due process of law, the government confined some 112,000 innocent persons of Japanese ancestry, most of them U.S. citizens, in concentration camps in desolate areas of the west. Perceived enemies of FDRs administration came under surveillance by the FBI, whose special-agent ranks mushroomed from 785 to 4,370 during the war.
The government built a massive apparatus of economic controls between 1941 and 1945 and displaced free markets for the duration. No one should pooh-pooh the wartime economic controls because they entailed a sacrifice of mere economic liberties, as opposed to precious civil liberties. Men were sent to prison for violating price controls, and people were displaced from their homes to make way for military construction projects. Wartime taxation itself was no trivial assault.
To pay for the gargantuan munitions production, the government imposed new taxes and raised the rates of existing taxes to unprecedented heights. Payroll withholding of income taxes was instituted, as portentous an action as any, because it created a virtually automatic means of snatching peoples earnings and thereby greatly facilitated the governments subsequent financing of its ever-growing expenditures. Despite the vastly increased taxation, the government had to borrow most of its wartime revenue, and the national debt swelled by $200 billion (equivalent to roughly ten times that amount in todays dollars), or about fivefold, creating liabilities that would hover over taxpayers ever afterward.
World War II gave a tremendous fillip to the federal governments reputation as a can-do organization, which helped to sustain various wartime economic controls, most notoriously New York Citys never-abandoned rent controls. Moreover, as economist Calvin Hoover observed, the war conditioned [American businessmen] to accept a degree of governmental intervention and control after the war which they had deeply resented prior to it.
During the prolonged Cold War emergency, an apprehensive nation grew accustomed to extensive domestic surveillance, government infiltration of dissident political groups, and even the murder of persons perceived by the government as threats to national security. In the light of these and countless other facts, one wonders how Winik managed to conclude that our democracy can, and has, outlived temporary restrictions and continued to thrive?
Winik would have us believe that, even if the government should adopt much more repressive measures to fight its declared war on terrorismand indeed it has done so since his article appearedwe shall ultimately get past them, back to our glorious democracy, with the dangers surmounted and our freedoms undiminished. Vice President Dick Cheney, however, sees the matter in a different light. The present war may never end, Cheney said on October 19. Its a new normalcy.
In the weeks that have passed since the Vice President uttered those ominous words, the government has continued to act in ways that confirm the worst fears of those who cherish a free society. Many of the measures being taken will have little effect on terrorism but much effect on ordinary Americans, and many of those measures will surely persist even when the present crisis has passed.