Dots

[James Maule]

The world is more dangerous today because for the last 50 years the
species has had the ability to wipe itself out. That's a far cry from
individuals, groups, or even entire tribes being wiped out. The notion
of an atomic clock set at a few minutes before midnight isn't found
throughout history.

A lot has changed since September 11, in terms of the pressures on the
Constitution and the rights and privileges it affords. This nation's
existence (and thus the whole arena for its ground-breaking
Constitution) has been in jeopardy for only two periods, the Cold War
and the War of Terrorism. I leave out the Revolution because that
conflict by defiinition was creating the nation. Even the Civil War
threatened the size of the United States, as there never was any genuine
risk that the Confederacy would "conquer" the Union.

Yes, people were diving under desks in the 50s, but the difference, in
terms of the pressures on the Constitution, was that the number of
instances in which Constitutional rights would be advocated in favor of
those opposed to the nation's existence were limited to a few spies and
perhaps infiltrators (and probably some saboteurs). The situations were
handled quietly, for the most part (there being several notorious spy
cases to catch the attention), and whether or not that was correct, it
escaped public attention because decision makers saw no need to alert
the pubic.

Now, however, those who oppose the nation's existence are within its
borders as well as outside of it. The decision makers cannot help but
let the public know when one or another of these folks is apprehended;
or perhaps they are compelled to do so on account of the media. Because
the numbers are huge, and will grow even more, the issues being
discussed are now staring the nation in the face. And ultimately, it
comes down to the choices I presented.

Technically, you are correct. The War of Terrorism did not begin on
September 11, just as World War Two did not begin in 1939. September 11
is when the nation collectively woke up to what had happened during the
90s while the nation partied on Wall Street, argued about "is," and
deluded itself into thinking that the end of the Cold War was some sort
of end of endgame.

I remain unconvinced that the Constitution, as drafted and amended, as
interpreted by the courts, and as upheld and ignored over the years by
public officials and private citizens, is a guaranteed eternity, a
collection of concepts that can withstand its own internal
inconsistencies, or a document that provides all the answers regardless
of the world in which Constitutional provisions apply.

Someone (I forget whom) once said that the disadvantage of a pure
democracy (which is not what exists in the United States) is that it
carries within itself the seeds of its own destruction. So, too, it can
be said that the Constitution carries within the rights that it protects
the possibility that it protects the rights of those who seek its
destruction.

After all, what is it that "they" hate about us? The fact that under
our Constitution we the people have created a form of government that is
unacceptable to the "they" that abhors the principles for which it
stands. "They" are learning to exploit the weakness, taking advantage of
rights for the wrong reason. It remains to be seen if the Constitution,
as interpreted and applied, is sufficiently supple to dodge this
long-term attack during a war that is not only military but political in
ways no previous war has been.



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)




>>> allan.ides at LLS.EDU 10/29/02 06:19PM >>>
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)