Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

An Uneasy Relationship: Constitutional Rights and National Stability

Ryan McIlhenny


March 16, 2012

While the relationship between the interests of the nation and of the citizen has always been a bit uneasy in American history, it was not until 1917 that the U.S. government was largely successful in suspending the guaranteed rights of citizens.  As part of its effort to create a herculean propaganda machine to convince the general public of its “duty” to support the Great War in Europe, the government restricted the freedoms laid out in the First, Fifth, and Fourteenth Amendments—arguably the three most precious.  In the same year, Congress passed the Espionage Act (18 U.S.C. §792), targeting those opposed to America’s war effort.  A year later, the legislature passed the Sedition Act, which made it illegal to “utter, print, write or publish any disloyal, profane, scurrilous, or abusive language” about the government’s efforts in the war.  In reality, however, the Espionage and Sedition Acts were used to neutralize those in the way of an emerging nationalistic—and not to mention culturally divisive—“100% Americanism”: radical labor activists, new immigrants, African American intellectuals and even a few female suffragists. 

America’s involvement in the Great War ostensibly legitimized, like no other period before, a new political habit: the nation’s periodic efforts to ride roughshod over the Constitution. 

It seems as though the U.S. is once again returning to a time wherein the nation trumps constitutional rights.  The Obama administration has come under fire in recent days, not only for invoking the Espionage Act more times than any other previous administration—prosecuting journalists who expose U.S. military and CIA operations—but also for threatening citizens’ right to due process.  Last week at a gathering at Northwestern University in Illinois, Attorney General Eric Holder came out in full support of the use of “lethal force” without due process for U.S. citizens involved—or suspected to be involved—in acts of terror.  He offered these statements to justify the drone killings of al-Qaeda cleric Anwar al-Awlaki and al-Qaeda editor Samir Khan, both American citizens, months earlier. 

Holder’s position is both broad and dangerous.  Critics argue that it reflects the current Administration’s lack of transparency (al-Awlaki’s teenage son, also an American citizen, was killed in a drone strike a couple weeks later, but no explanation has been given as to the reason why he was targeted), especially its swift efforts to bypass judicial review, allowing the President and his Administration to determine when to suspend due process and ignore First Amendment rights, especially in the area of speech and print. In the words of Hina Shamshi, director of the American Civil Liberties Union’s National Security Project, killing Anwar al-Awlaki and Samir Khan “amounted to a broad defense of the chillingly expansive authority that the United States claims to be able to kill people, including its own citizens, far from any battlefield, without judicial review or oversight of the legal standards.” 

Such criticism should not be dismissed as leftist gainsaying; even Republican presidential candidate Ron Paul has come out against Holder. Instead, citizens should be brave enough to stand above party faction to address this issue.  In its Guidelines for Government and Citizenship, the Center for Public Justice speaks to the current situation and outlines the parameters of what lawful governments entail. Lawful government does not mean that administrators can do whatever they please; rather, they must act “within the boundaries of the political community’s constitution, laws, and court rulings.”  Likewise, governments are “held accountable to their citizens.”  Justice, due process (via the justice system) and accountability cannot be separated. 

Indeed, one could argue that justice is universal, an integral part of the created order.  If the rights articulated in the first ten Amendments to the U.S. Constitution reflect creational ordinances and thus contribute to the health and stability of this nation, then they should also contribute to the health and stability of other nations.  The Center intimates this in its Guideline on Security and Defensenamely, that the U.S. “should take the lead in helping to strengthen international law and institutions,” doing so “for its own and the world's security.”  The U.S. is bound to defend the rights of citizens, regardless of its current national situation.

If the government suspends the rights of even the most despicable citizens, the rights of law-abiding citizens are endangered. The way to keep from continuing down this road is for citizens to exercise their lawful First Amendment rights, to speak, print, assemble, and redress the government for grievances.  Without the exercise of these rights, unlawful activity would never be exposed and, thus, never addressed.               

 —Ryan McIlhenny, Ph.D., is Associate Professor of History at Providence Christian College in Pasadena, California. 

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”