Constitutional Crisis?
Sunstein, Cass R.
COLLOQUIUM HAS THE BUSH administration properly balanced security and liberty? Let's address this question through two routes. 1. When national security is threatened, any nation is likely to...
...It has not attempted to restrict speech or the democratic process in any way...
...During World War I, Congress restricted freedom of speech, prohibiting any expression "advocating or urging treason, insurrection, or forcible resistance to any law of the United States...
...In the interest of freedom itself, Roosevelt proposed "a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed...
...Taken as a whole, the record of the Bush administration isn't at all bad by historical standards...
...Consider the distinctive approach of an American president the last time that national security was threatened...
...One of the Bush administration's low moments was its August 2002 memorandum, from the Department of Justice, suggesting that the president has the authority to torture suspected terrorists—authority that Congress has no legal power to override...
...What's meant by "security" and "liberty," and what do we mean when we speak of seeking a "balance" between them...
...On January 11, 1944, Franklin Delano Roosevelt, with victory in World War II in sight, insisted that "The one supreme objective for the future can be summed up in one word: Security...
...CASS R. SUNSTEIN teaches at the University of Chicago and is author, most recently, of Why Societies Need Dissent and The Second Bill of Rights: FDR's Constitutional Vision...
...2. But let's step back a bit...
...By historical standards, the Bush administration has acted with considerable restraint and with commendable respect for political liberty...
...his administration has worked hard to prevent discrimination against Muslims...
...The real disappointment of the Bush administration lies not in its approach to civil liberties, but in its refusal to treat the risk of terrorism as a reason for an appreciation of human vulnerability in all its forms...
...To say the least, President Bush has failed to speak in these terms...
...DISSENT / Fall 2004 n 17...
...Recognizing that the second Bill of Rights was entirely continuous with the war effort, he said, "America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens...
...Some immigrants have been inconvenienced or worse...
...The muchreviled and poorly understood Patriot Act, at least as administered, has done little to restrict civil liberty as it stood before its enactment...
...While constantly invoking both "liberty" and "security," the Bush administration has failed to see that these ideals call not merely for protection against bullets and bombs but also against hunger, disease, illiteracy, and desperate poverty...
...Abraham Lincoln suspended habeas corpus...
...These included • The right to a useful and remunerative job in the industries, shops, farms, or mines of the nation • The right to earn enough to provide adequate food, clothing, and recreation • The right of every farmer to raise and sell products at a return that will provide a decent living • The right of every business, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad • The right of every family to a decent home • The right to adequate medical care and the opportunity to achieve and enjoy good health • The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment • The right to a good education Roosevelt added that these "rights spell 'security'"— the "one word" that captured his overriding objective for the future...
...16 n DISSENT / Fall 2004 The government has not engaged in large-scale discrimination against any group of American citizens...
...Purely as a technical matter, this was a weak and unconvincing analysis...
...But Roosevelt argued that security "means not only physical security which provides safety from attacks by aggressors" but "also economic security, social security, moral security...
...Fortunately, the U.S...
...Of course the record is not perfect...
...Supreme Court has required such procedures, repudiating the Bush administration's legal claims and concluding that detainees have a right of access to federal court to challenge their detentions...
...The detentions at Guantanamo Bay have been especially troubling, above all because of the absence of fair procedures to ensure that those who are detained really are enemy combatants...
...Much worse, unconscionable abuses of foreign prisoners have not been adequately controlled...
...During World War II, Franklin Delano Roosevelt supported the internment of JapaneseAmericans on the West Coast...
...To his credit, the president has spoken eloquently about the need to respect people of all religions and nationalities...
...For unless there is security here at home there cannot be lasting peace in the world...
...There has certainly been no serious attack on political liberty or constitutional democracy...
...1. When national security is threatened, any nation is likely to reduce liberty in some way...
...COLLOQUIUM HAS THE BUSH administration properly balanced security and liberty...
...The Bush administration has also asserted the right to detain American citizens as enemy combatants, and here the SuCOLLOQUIUM preme Court has again replied that fair procedures are required...
Vol. 51 • September 2004 • No. 4
