RUTHFULLY YOURS

Alas, when it gets down to brass tacks, even those two beacons, liberty and law, are as much in tension as in mutual need. It is by law that society restricts our freedom. On the other hand, as Burke observed, without the order that a just legal system ensures, there can be no liberty worth having. We would descend into anarchy, into the law of the jungle.

Times of true security crises — war, natural catastrophes, or the sudden spread of a potentially deadly disease — have a remorseless way of reminding us about some brute realities.

It is all well and good for libertarians to say that the Constitution is not suspended in emergencies, and that are our rights are never more essential than when government’s tyrannical tendencies rear their head. But then real emergencies happen. Inevitably, unavoidably, our rights get restricted — sometimes dramatically.

This is not because government tends to tyranny, though it does if unchecked. It is because people crave security and community. They are willing to sacrifice their individual liberties, at least to a degree and for a time, to preserve them. This does not make them craven. It makes them rational.

There would be no union, and no constitutional system protecting our liberties, if Abraham Lincoln had not persevered in defending them. Yet, in 1861, Lincoln suspended habeas corpus, the right against arbitrary imprisonment. The Civil War was raging and, with it, secessionist terrorism.

In response, Supreme Court Chief Justice Roger Taney (he of Dred Scott infamy) presumed to issue a writ of habeas corpus in favor of John Merryman, a Maryland militiaman detained by Union forces after he burnt bridges to stall the movement of troops. In spurning the court, Lincoln rhetorically asked, “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?”

History is romantic. The lesson it most often gushes is that Lincoln’s impetuous order was unconstitutional. So devoted are we to the rule of law, you are to understand, that we cannot abide the notion of an arrested American being denied due process, including a prompt court hearing at which the government must show probable cause.

This very nice story elides a few inconvenient details.

Taney did not rule that habeas corpus could not be suspended. He ruled that it could be done only by Congress, not by the president — the authority to suspend being spelled out in Article I, which enumerates legislative power. See, it is overwrought to speak of “suspending the Constitution” in times of emergency. It is not that the Constitution is suspended; rather, the Constitution explicitly provides for the restriction of some rights so that the government can effectively confront emergency conditions. No surprise there. The Framers realized that the survival of the United States was no sure thing in 1787. We needed a government capable of quelling threats.

Lincoln was justified in suspending a right fundamental to liberty, for if the government were to collapse out of unreasonable deference to it, all of our rights would perish. Indeed, there remains a good argument that Lincoln did have the unilateral authority he claimed at the time. The Constitution’s habeas provision (Article I, Section 9) specifies only when the right may be suspended (when required for public safety in cases of rebellion or invasion), not by whom (the president or Congress) it may be suspended. Plus, unlike today, Congress was not easily called into session in the 1860s. And in any event, Congress in 1863 endorsed Lincoln’s suspension of habeas corpus. It was the right thing to do, even if there is legitimate quarrel over who should have done it.

As we consider this episode amid the coronavirus outbreak, we should bear two things in mind.

First, because dread for our safety naturally elevates security over liberty in our minds, we are susceptible to indulging measures that are too draconian. It might, for example, have been sensible to monitor Japanese aliens, and even detain at least some of them, during World War II. After all, it has been the law of the United States since the late eighteenth century that nationals of a hostile power may be detained during a formally declared war. Nevertheless, the government’s internment of American citizens of Japanese descent is one of the most shameful blights on our history.

When we permit restrictions in emergency conditions, we must remember these are fundamental rights that are being limited. Restrictions should be no more extensive than the threat reasonably demands.

Second, we tend to give a wide berth to the authorities while a crisis ensues — sometimes, too wide a berth. It is simply a fact that true emergencies do not afford the luxury of extensive deliberations. Bad things happen. It is the history of the United States that abuses are eventually addressed by courts and legislatures, but only after the emergency has subsided. This, of course, is cold comfort to the people who have been harmed. It does, however, establish norms of behavior for the next crisis.

The good news is that we do learn. The bad news is that we learn from our mistakes.