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Taking Liberties with the Constitution
by Daniel Hellinger, Professor of Political Science,
Webster University, St. Louis
“The means of defense against foreign danger historically have become the instruments of tyranny at home.”   —James Madison
The United States has a long history of politicians curtailing civil liberties and whipping up the public’s fear of external enemies for political purposes. Fear of violence by the oppressed was present at the Founding of the Republic. The Declaration of Independence included an article accusing the King of England of having “excited domestic insurrections among us” and bringing on “the merciless Indian Savages, whose known rule of warfare is an undistinguished destruction of all sexes and conditions.” An early draft condemned the slave trade not because it was morally offensive but because southerners feared slave revolts.
Of course, women, black slaves, Indians and (sometimes) property-less white males were excluded from the civil liberties guaranteed in the new Constitution. Settlers and planters regarded the violent resistance of slaves and Indians much as we today think about terrorism. Slave revolts and Indian attacks were viewed as evidence of their savagery, making it easier to dismiss their rights and justify the use of military force. Tactics included deliberately introducing smallpox-infested blankets into Indian communities, an early form of biological warfare.
The word “terrorism” was hardly used politically before the French Revolution, when it was associated with the radical Jacobans. The domestic and international politics of that era led to an early attack upon the Bill of Rights in the new United States. President John Adams, Washington’s successor, was determined to quash unfounded accusations that he was conspiring to establish a monarchy and had sent agents to England to procure mistresses for himself and the Vice President. Agents of the new revolutionary government in France were not above using bribes to induce newspapers to criticize Adams as pro-England and attack his integrity. In those early years of the Republic newspapers depended heavily on the financial patronage of officials who purchased space for official notices, and they were not hesitant to publish slanderous attacks on the reputations of their patrons’ opponents.
…the Alien Act allowed the deportation of legal, resident aliens without judicial process.
This mixture of scandal and international intrigue motivated Adams in 1798 to get Congress to pass the Alien and Sedition Laws. Much like the Patriot Act of 2001, the Alien Act allowed the deportation of legal, resident aliens without judicial process. The Sedition Act allowed federal authorities to jail anyone found guilty of slandering the government. This led to the jailing of some of Adams’ opponents, mostly politicians aligned with Thomas Jefferson’s “Democratic Republicans.” The Acts were allowed to expire by the next president, Jefferson, who pardoned its victims. In 1964, the US Supreme Court finally declared that the laws had been unconstitutional.
Civil wars are hostile environments for civil and human rights, and the American case was not much different from that of “failed states” in our era. In 1861, Abraham Lincoln suspended the writ of habeas corpus, the Constitutional guarantee against indefinite detention. Defying a contrary ruling by the Supreme Court, the president arrested possibly 13,000 draft resisters and Southern sympathizers. Editors, judges, lawyers, and elected legislators were among the jailed. Several newspapers were shut down.
Wilson’s Espionage and Sedition Acts allowed the government to censor the foreign language press and bar it from publishing anti-war sentiments.
States, not just the federal government, have from time to time repressed civil liberties. After the abolitionist John Brown raided Harper’s Ferry in 1859 in an attempt to touch off a slave rebellion, many Southern legislatures attempted to suppress incendiary speech against slavery. After the Civil War, state officials used a variety of conspiracy laws against unions and union organizers. Adams’ Sedition Act was the model for laws aimed at the Industrial Workers of the World (“Wobblies”). The old Armory buildings found in many cities today were constructed after the Civil War not to defend against external enemies but to arm the National Guard when deployed against workers in times of labor strife.
World War I brought yet another new edition of the Sedition Act. Woodrow Wilson’s Espionage and Sedition Acts allowed the government to censor the foreign language press and bar it from publishing anti-war sentiments. In this era of massive European immigration, it is not surprising that some were sympathetic to their home countries, some of which became enemies of the US in the war. But there were other motives for repression as well. The foreign language press was also an important voice for working class views and radical ideologies, like socialism and anarchism. Among the 2000 people prosecuted was the Socialist presidential candidate Eugene Debs, who spent 10 years in prison as a result. Charles Schenck served a similar sentence for authoring a pamphlet claiming the military draft was illegal. The Supreme Court upheld his conviction.
Wilson’s Attorney General, Mitchell Palmer, took advantage of labor violence and anti-Bolshevik hysteria in the wake of the 1917 Russian Revolution to stage a chilling rehearsal of the Cold War and MacCarthyism. Palmer was a Democratic member of the House of Representatives who had supported women's suffrage and trade union rights, but events in Russia and several violent incidents at home were the occasion for him to shift his views. When he was appointed Attorney General in 1919, Palmer charged that Communist agents were planning to overthrow the American government. Much as anthrax letters have exacerbated fears of terrorism today, Palmer’s credibility was enhanced after the revelation that 38 bombs had been sent to leading politicians. An Italian anarchist blew himself up outside Palmer's home in Washington.
Palmer reacted with a campaign to enforce the Espionage Act of 1917 and the Sedition Act of 1918 to persecute radicals and left-wing organizations. He put the young J. Edgar Hoover in charge of a “General Intelligence Division” that carried out the infamous Palmer Raids of November 1919. Six- to ten-thousand people were arrested. Many were held in filthy jail cells or beaten to extract confessions. Whatever his original motivations, Palmer was now whipping up hysteria to improve his chances for the 1920 Democratic presidential nomination. However, after his prediction of a major terrorist attack on May 20, 1920 failed to materialize, Palmer’s chances faded.
FDR set a precedent for President George W. Bush’s recent declaration of intent to try suspected terrorists in secret military courts.
World War II brought on the internment for three years of 120,000 ethnic Japanese, mostly American citizens, under an executive order hastily signed by President Franklin D. Roosevelt. The Governor of California, Earl Warren, who would later become Chief Justice of a Supreme Court that strongly supported civil liberties, supported the internment. Ironically, Hoover, now Director of the FBI, saw no real threat to national security in the immigrant population, and opposed it.
During the war FDR set a precedent for President George W. Bush’s recent declaration of intent to try suspected terrorists in secret military courts. In 1942, eight German saboteurs were caught when two of their number revealed their plot to authorities. All eight were arrested, secretly tried and convicted. Six were executed for crimes that ordinarily would have brought several years in prison. Bush could find another precedent for secret trials in the Clinton administration’s 1996 approval of legislation allowing immigrant terror suspects to be arrested and deported on the basis of secret evidence.
The Cold War (roughly, 1945 to 1991) meant a new round of anti-Communist hysteria and limits on civil liberties. The Smith Act, passed in 1940 but hardly used until then, was the basis for convictions of members of the Communist and Socialist Parties on charges they advocated the violent overthrow of the government. Some people were jailed simply for studying the works of Marx and Lenin. The Supreme Court upheld the convictions.
In 1947, President Harry Truman signed an executive order to root out “infiltration of disloyal persons” in government, leading to 6.6 million investigations of citizens during the next five years. No treason was found, but 500 people were fired after the secret investigations identified them as insufficiently loyal. Things worsened after the 1949 Chinese Revolution. The American political right was convinced that only communist infiltrators in the State Department could have allowed China to be “lost.” Many of our best Asian experts lost their jobs, including many who advocated withdrawing support for French colonialism and recognizing the popular Communist government of Ho Chi Minh, whom they regarded as nationalist and friendly to America.
Some people were jailed simply for studying the works of Marx and Lenin. The Supreme Court upheld the convictions.
The outbreak of the Korean War (1950–1953) brought the infamous era of McCarthyism. Republican Senator Joseph McCarthy’s special Senate Committee and the House Un-American Activities Committee (HUAC) used their investigative powers to identify “enemies” in both the private sector and government. Their witch-hunts led to the blacklisting of Communists and other leftists from jobs in show business, academia, unions, and other arenas where the “Red Menace” was thought to have taken root. Only when McCarthy cast aspersions on the army did politicians and the press, having already purged leftist influence from American politics, turn on the paranoid Senator from Wisconsin.
Some liberals, including Senator Hubert Humphrey, sought to shield themselves from McCarthyism by sponsoring even more aggressive legislation to persecute and imprison communists. When Republicans sponsored the “Internal Security Act” of 1950, which outlawed the Communist Party, Humphrey tried (unsuccessfully) to one-up them with a proposal to establish detention centers where those declared subversive by the president could be held without trial.
Under Hoover the FBI posed a major threat to civil liberties and grew so powerful, with its files on politicians of all stripes, that no president dared challenge the Director. This was the fruit of the Bureau’s cooperation with allies in Congress during the McCarthy period. Its agents also gathered much of the questionable testimony used to convict (in 1950) and execute (in 1953) Julius and Ethel Rosenberg as atomic spies. The trial judge in the case met with prosecutors secretly to determine the sentence, and the Attorney General and justices of the Supreme Court met to discuss ways to minimize the ability of the Rosenbergs to pursue appeals of their convictions.
… abridgement of civil liberties has more often been aimed at suppressing dissent…or boosting the careers of unscrupulous politicians.
In the 1970s, journalists and congressional investigators revealed an extensive, illegal surveillance program, “Cointelpro,” carried out by the FBI, the CIA, US Army intelligence and law enforcement officials. The surveillance, including illegal wire-tapping, was broad (M. L. King was among its targets), but also was an excuse for the FBI and police to attempt to sabotage the activities of various civil rights and anti-war movements. Law enforcement agents harassed and conducted a psychological war against activist organizations, following Hoover’s directive to “expose, disrupt, misdirect, discredit and otherwise neutralize” groups like the NAACP, National Lawyers Guild, United Farm Workers, SANE-Freeze (a disarmament group), and many others.
Investigators (including some FBI agents themselves) of the Watergate scandal exposed much of this activity, which led to legislation in 1974 attempting to limit such abuses. However, since 1980 the pendulum has swung back toward “security,” with the Patriot Act of October 2001 giving it another decided push away from civil liberties.
Already in 1981 under a Reagan executive order, government agents were implementing a plan orchestrated by Lt. Col. Oliver North and the National Security Council to disrupt activities by opponents of the US war in Central America. Hoping to involve American ground troops in a war against the Sandinistas in Nicaragua, and with the lessons of Vietnam fresh in his mind, North made plans to deal with the antiwar movement. He and officials at the Federal Emergency Management Administration developed contingency plans to implement martial law, suspend the Constitution, and prepare detention camps. This was too much even for Attorney General William French Smith, who scotched the plan after he became aware of it. But years later the congressional committees investigating the Iran-Contra scandal refused to take testimony on the matter in public.
Hoover, for all his faults, emphasized investigation over armed confrontation and vigorously maintained a civilian profile for his forces. His successors, beginning in the 1970s, introduced “SWAT” (Special Weapons and Tactics) teams that were trained to carry out domestic operations in a military fashion. During the Clinton administration, the Attorney General’s office instituted a “Troops to Cops” program that subsidized police departments for integrating ex-military personnel into their ranks, further eroding civilian control over the military and blurring the line between military and police functions.
What lessons does this history teach? Violence and international crisis have often raised the question of what balance should be struck between security and civil liberties. However, rather than defend the “homeland” from terrorist attacks, abridgement of civil liberties has more often been aimed at suppressing dissent, advancing some other agenda, or boosting the careers of unscrupulous politicians. When violence or terror has been a genuine threat, its roots have often been found in injustices that cry out for redress. Democrats have nearly as bad a record as Republicans, and liberals often fail to resist repression of dissidents who challenge fundamental tenets of the social and economic system. Our best hope is that over the longer run the American people recognize the chicanery and demand that the balance be restored.