| James N. Markels | ||||
|
|
Personal
Information Constitutionalist
Party Political/Policy
Writing Creative
Writing Resume |
by
James N. Markels It is generally agreed that in times of war civil liberties must necessarily give way, and the weight of public policy is favored toward the interests of the State over that of the individual. But originally this adage envisioned a war in which the country was actually at risk of being overthrown by an adversary, wherein the conqueror would institute a new, and potentially worse, replacement. At a time when the very existence of the government that protects our liberties is at risk, such a threat is commonly seen as reason enough to use the means necessary to secure it. After all, if the government falls to an invader, odds are that the new government won’t allow us the same freedom we had before, so the short-term accession of rights in a time of crisis is a long-term protection of those rights. But over time the meaning of “war” has been expanded and the edges made blurry, starting with America’s actions in Vietnam, Iraq, and Korea that were every bit warlike yet there was no declaration of war by Congress. This again has been true for Afghanistan. The deterioration continued in the political sphere, with calls for rhetorical wars on poverty, drugs, and now terrorism. Especially with the war on drugs, courts have been inclined to apply the wartime adage and allow police greater latitude in searches, seizures, and other areas. In an odd way, it seems like the traditional military war is no longer “war” in the modern world, while labeling as “war” an effort against a domestic problem is. The definition has been turned on its head. Some may question the danger of this. After all, no country in the world today stands a threat to America’s sovereignty, so the point of a change in policy during wartime is moot. There won’t be any more “war” against America, but there will be other threats, and it may be useful to adopt the same approach as was taken during traditional wars to combat these new problems. That there conceivably is no end to problems that could be argued requires a restriction of individual liberty to address. Why not a war on child abuse, necessitating continual government monitoring of all parents? Or a war on racism, wherein the government censors any speech that is deemed racist and subjects those guilty of saying questionable things to fines, therapy, and monitoring? Surely any one of us can pick out all sorts of bad things that may deserve a “war.” And how could one oppose a war against child abuse? You don’t like child abuse, do you? Some may say that the potential measures I cited above are absurd, that America would never go so far to combat child abuse or racism as to create such policies, or that courts would allow them. But when the war on drugs first consciously came into being under President Nixon, I doubt that they envisioned that the “war” would grow to allow asset forfeiture to the point that places and vehicles where drugs are found are seized as if they were guilty parties. In a “war” that cannot be inherently won, over time the impetus is to steadily escalate with more effort, more money, and more rights restrained. That is the nature of the rhetorical “war” against drugs, and will also be true for terrorism. The end result of these wars won’t be the eradication of the adversary, but merely the creation of a perpetual excuse to limit rights and increase effort beyond marginal utility. There will always be drugs and terrorism. The question is whether the rhetorical “war” against them will keep us from realizing when we’ve gone too far and our efforts are causing more harm than good. The point of allowing civil liberties to give way during war isn’t that there’s a loophole for the government to use in order to limit individual rights, it’s that there are times when the long-term protection of rights requires a short-term removal of them, with the intention that a time will come when those rights are again fully realized. Wars, in the traditional sense, had a beginning (when Congress declares war) and an end (when the opposition surrendered), after which there was no reason to limit rights. When we replace the original definition of “war” with one that is open-ended and intentionally never-ending, the purpose of the adage has been turned upside-down. It has become a loophole after all. Politicians have been allowed great leeway in framing “war” as it suits them, but the legal community needs to decide whether to adopt the new meaning of the term or stick to the old one. Defining war today would greatly aid courts in how they should approach the rhetorical wars of tomorrow. |
||
