Speaking to an audience at a Cleveland university, Supreme Court Justice Antonin Scalia recently said that individual rights can and will likely be curtailed in wartime. In explaining his position, he said that the Constitution just sets minimums and that most of the rights that [Americans] enjoy go way beyond what the Constitution requires. The Iraq war will probably mean that [rights] protections will be ratcheted right down to the constitutional minimum.
It is true that the Constitution sets minimums, but Scalias unspecified view of where those minimums reside is unsettling.
The Constitutions prescribed minimums of personal freedom emerge from its enumerated maximums of government power. If Scalia were to read the Bill of Rights properly, he would understand that the freedoms Americans currently enjoy do not go way beyond what the Constitution requires. In the absence of any specific constitutionally authorized government powers that can legally interfere with these freedoms, everyday American liberties are guaranteed under the umbrella of the ninth and tenth amendments, which protect rights not specifically guaranteed in the Constitution and reserve to the states and people all powers not granted to the federal government.
Indeed, there are a number of rights mentioned in the Constitution currently not respected in full because the government has acted beyond what the Constitution requires. Freedom of speech, the right to bear arms, freedom from unreasonable search and seizure, and the right to a jury trial have each suffered fundamental and severe erosion over the years, and to this day.
That Scalia thinks the freedom we currently have is above and beyond the Constitutional mandate is disturbing enough. His prediction that those freedoms will decline in wartime to that mandate wherever he imagines it to be is downright terrifying.
History shows us what happens when politicians ratchet American freedoms down to the [perceived] constitutional minimum.
During the War Between the States, Abraham Lincoln suppressed and closed down over a hundred Union newspapers, implemented conscription, deported political enemies, and suspended habeas corpus, jailing thousands of dissenters without trial. The Supreme Court objected, but Lincoln simply ignored them.
During World War I, Woodrow Wilson drafted 2.8 million Americans, the German language was barred from public schools, and Congress passed a number of nasty laws including the Sedition Act, which made simple criticism of the U.S. government, its flag, its military uniforms, or its allies a highly punishable offense.
The law was brutally enforced: socialist activist Eugene V. Debs went to prison for ten years for an antiwar speech he made, and movie producer Robert Goldstein was sentenced to ten years in prison for his patriotic movie, Spirit of 76, about the American Revolution, in which he characterized Britain U.S. ally in World War I, American enemy in the Revolution in a bad light. The Supreme Court upheld these absurd violations of free speech, explaining that war made such extreme measures necessary.
During World War II, the draft returned to take hold of ten million young men. This time, the Supreme Court not only upheld the draft but argued that pretty much anything else the government wanted to do must also be constitutional because such exercises of power were clearly more benign than the authority to force Americans into combat. American civil liberties hit an absolute low point in World War II when Franklin Roosevelt signed Executive Order 9066, which forced 110,000 Japanese Americans into internment camps an order the court also went along with.
Incidentally, conservatives who consider such encroachments on civil liberties to be justified in times of war should look at where their pet nuisances high taxes and big government originated. The War Between the States saw the beginning of fiat money and the income tax. World War I brought massive nationalization of industries and maximum income tax rates of 77 percent. World War II meant even more central planning, maximum income tax rates of 94 percent and the birth of Income Tax withholding.
The Constitution and especially the Bill of Rights was established for the precise purpose of restricting the government from interfering with absolute rights, especially in the most precarious of times for liberty, such as wartime.
One must wonder whether Scalia could justify all the above mentioned historical examples of erosions of liberty as fitting within the minimums of freedom set in the Constitution, as he reads it. If so, and if any of the new and increasingly freedom-threatening War on Terrorism measures goes to the Supreme Court, hopefully Scalias eight robed colleagues will have more of a strict constructionist interpretation and understanding of the Constitution.
|Anthony Gregory is a Research Fellow at the Independent Institute and the author of American Surveillance: Intelligence, Privacy, and the Fourth Amendment (University of Wisconsin Press for the Independent Institute). His previous book, The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror, won the 2013 PROSE Award for Best Book in Law and Legal Studies.|
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