The Feld-Blog

At what point, in sacrificing civil liberties for security, do we forfeit the advantages of being American for want of freedom? At what point, in sacrificing security, are our lives so endangered that we are unable to enjoy the liberties we sought to protect? To stand staunchly by and advocate that the government can wantonly intervene in its citizens’ lives is as dangerous as averring that our civil liberties are so sacred that no circumstances exist under which the government can violate them. Richard Posner, in his essay “Security vs Civil Liberties,” also argues that a balance must be struck. However, because he frames the debate in terms of protecting civil liberties for their own sake and not in terms of legal boundaries, he identifies a problematic ideal equilibrium.

Posner claims, “[Civil libertarians] treat our existing civil liberties… as sacrosanct…. The basic mistake is the prioritizing of liberty. It is a mistake about law and a mistake about history.” Posner oversimplifies the argument for preferencing civil liberties. Few would claim that such liberties are absolute. The Fifth Amendment stipulates that citizens cannot be “deprived of life, liberty or property without due process of law,” but the implication remains that the government can deprive its citizens of such liberties so long as they follow “due process of law.” The constitution even gives the power to legitimately suspend the right of Habeas Corpus to Congress. These are legitimate exercises of power. Civil libertarians object when government oversteps its bounds or circumvents the law to suspend civil liberties. The President cannot suspend Habeas Corpus. Congress cannot create laws ex post facto.

If we allow government to overstep these boundaries we risk rendering impotent the very structures that prevent our leaders from exerting tyrannical force. The framers of the constitution recognized that people are self-interested beings. They created the system of checks and balances so that the self-interests of each branch would stymie the forceful exertion of powers not delegated to other branches. Federalist #51 states, “The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others… Ambition must be made to counteract ambition.”

When Abraham Lincoln unconstitutionally suspended Habeas Corpus, political executives at various levels of government abused this newfound power by detaining political dissidents. Today, capitalizing on this dangerous precedent, President Bush has claimed the authority to indefinitely detain both American and foreign citizens by designating an undefined label: “enemy combatant.” Taken to its logical end, Bush could imprison any American citizen indefinitely with no evidence, merely by suspecting him or her of terrorism. This would violate Habeas Corpus, the prohibition against bills of attainder, and establish the Presidency as an effective dictatorship.

Posner argues that clauses such as “due process” or “unreasonable search and seizure” are too ambiguous to place definite restrictions on the exercises of governmental power. He claims the constitution does not clearly define these terms and so the courts must weigh the relative threat level facing the nation and confer or withhold rights accordingly. According to Posner, “This fluid approach is only common sense.” Though he may be somewhat correct, the limitations implied by this doctrine push the bounds of the appropriate exercise of governmental power. “Unreasonable search and seizure” may be ambiguous, but it certainly does not condone domestic spying without a warrant. “Due process of law” may be ambiguous, but it certainly does not condone the internment of hundreds of thousands of Americans during World War II solely on the basis of their race. These are the lines that cannot be crossed without forfeiting what it means to be American. When Congress or the President oversteps the boundaries delineated by the constitution, they step outside legitimate authority. Since this legitimate authority stems from a popular ratification of the constitution, a single violation undermines our republican form of government. Civil liberties must be protected, not for their own sake, but because adherence to constitutional doctrine is how a free government remains free.