Dots

[Allan Ides]

I think the scenario you describe is overdrawn.  The world is no more
dangerous today than it has always been.  Folks have been finding ways to
kill each other throughout history and have done so massively on numerous
occasions.  During the 1950s, when I was in elementary school, the
government had us all convinced that a nuclear attack was on the horizon.
We were diving under desks & building fallout shelters.  So to be honest,
I'm a little cynical about these claims that everything has changed since
9/11.  The only thing that changes is the players.  And we must learn to
accommodate our fears, some of them rational, but many quite irrational,
with the basic principles of a constitutional democracy.  The choice,
therefore, is not between constitutional sanctity and violent overthrow, but
simply involves a bit of perspective and commonsense.  Thus, I simply cannot
assume the choice you posit.

Allan Ides

James Maule wrote:

> Seems to me that there is an underlying question that hasn't been
> directly addressed, on this list or in the courts. It hasn't been
> addressed because the hypotheticals, until now, have pretty much been
> beyond even the academic pale.
>
> The question is the tension between the sanctity of the Constitution
> and the sanctity of the people (and their rights) it is designed to
> protect.
>
> Assume the following choice:
>
> 1. Uphold all Constitutional rights as most broadly construed, creating
> the opportunity for persons (including non-citizens) to avail themselves
> of privacy rights, freedom from internment, freedom from warrantless
> searches, seizures, and arrests, etc, and to plot, plan, and execute a
> plan to set off, simultaneously, a variety of mass destruction weapons
> in several dozen major population centers coupled with more
> conventional-type attacks on key energy, transportation, and food
> distribution infrastructure nodes.
>
> 2. Play very fast and loose with the interpretation of Constitutional
> rights, finding ways to cut through the ostensibly Constitutionally
> protected walls of secrecy created for and by persons devoted to the
> destruction of the United States, its people, and its Constitution,
> pre-empting the efforts of those persons to carry out their plans as
> described in 1, above.
>
> It seems to me that no matter which choice is made, the Constitution
> "loses". Is it simply a matter of choosing the nobler way for it to
> perish?
>
> The historical analogues don't help because at no time (including even
> World War Two and the possibility of Japanese invasion (as to which the
> military reportedly took the view that they'd make it to Chicago before
> being stopped)), was the existence of the nation threatened as it is
> today through means that involve thousands (or tens of thousands) of
> potential enemy actors. Even during the Cold War, which threatened the
> nation's existence, there were nowhere near as many poterntial
> adversaries loose within the country, let alone outside of it.
>
> Or, to put it another way, does principle trump pragmatic or does the
> pragmatic trump the principle? Or is there some way for the two to be
> blended in some negotiated compromise that would indeed resemble the
> animal created by a committee?
>
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> http://vls.law.vill.edu/prof/maule
> President, TaxJEM Inc (computer assisted tax law instruction)
> (www.taxjem.com)
> Publisher, JEMBook Publishing Co. (www.jembook.com)
> Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
> Maule Family Archivist & Genealogist (www.maulefamily.com)