Fear, Terrorism, and the ConstitutionAuthor(s): Anthony LewisSource: Public Administration Review, Vol. 62, Special Issue: Democratic Governance in theAftermath of September 11, 2001 (Sep., 2002), pp. 61-62Published by: Wiley on behalf of the American Society for Public AdministrationStable URL: http://www.jstor.org/stable/3110171 .

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Anthony Lewis New York Times

Fear, Terrorism, and the Constitution*

The world after September 11 presents a particular challenge to all of us. We have to deal with a shadowy enemy that lets nothing, not even human life, get in the way of its terrifying aims. It is a cliche to say that now; we know it too well. But the challenge of dealing with terrorism includes another aspect that we may not under- stand so well: We have to fight an unprincipled enemy without losing our principles.

I say we may not understand that because of what hap- pened at a commencement at California State University in Sacramento. A newspaper publisher made a speech there about how we should be sure, under the stresses of the fight against terrorism, to preserve the rights to free speech and fair trial. Rather, she tried to make that speech. She did not finish because she was booed, heckled, and shouted down. Many in the audience did not want to hear about, or think about, civil liberties. They wanted to fight the terrorists with- out worrying about such niceties.

But they are not just niceties. The right to say what we believe, to disagree with officials, is what we Americans are all about. That, and the right to be treated fairly when officials try to put us in prison-the right to have a lawyer, to be confronted by any evidence against us, and so on. Those strands are woven into our Constitution and into our system of belief. Moreover, they are a powerful part of America's influence in the world. It is bound to impress the world that U.S. weapons can so quickly rout the Taliban regime in Afghanistan, freeing the Afghan people from its cruelties. But over many years, millions of people have admired our freedom, and the constitutional system that protects it.

Shortly after September 11, an Israeli friend of mine, paraphrasing James Madison and the others who invented our system, said American democracy is an experiment in government based not on fear but on freedom. Then, speak- ing of the anthrax attacks, my friend said, "It is the spread of fear, much more than germs, that can undermine America as a democracy."

On this issue, as on so many, we need to know some his- tory. For the fact is that fear has driven us away from the path of the Constitution again and again in American his-

*Adapted from a commencement address at American University (Wash- ington, DC), January 27, 2002.

tory. And right from the beginning. The First Amendment, guaranteeing free speech and free press in the broadest terms, was added to the Constitution in 1791. Just seven years later, Congress passed the Sedition Act, which sent editors to prison for criticizing President John Adams in their news- papers. How could that happen? The reason was a war scare. The terror that followed the French Revolution, the bloody march of the guillotine, led Americans to fear a French at- tack on us. Adams's party, the Federalists, played on that fear to pass a law that was really intended to suppress critics in the run-up to the presidential election of 1800.

The Civil War became the occasion for another incur- sion on a precious liberty: the right, explicitly guaranteed in the Constitution, of any person taken to prison to chal- lenge the lawfulness of the imprisonment by seeking a writ of habeas corpus in court. President Lincoln simply sus- pended habeas corpus.

During World War I, President Wilson sought and Con- gress passed the Espionage Act, which, among other things, made it a crime to object to military conscription. Eugene Debs, who had been the Socialist Party's candidate for president, expressed sympathy for men jailed for oppos- ing conscription. For that passage in a speech, he was con- victed and sentenced to 10 years in prison. He ran for presi- dent in 1920 from a federal penitentiary.

During World War II-I do not think I have to tell you- Americans of Japanese ancestry were forcibly removed from their farms and homes on the West Coast and held in detention camps in the deserts of Utah. No individual was charged with disloyalty or had a chance to contest the suspicion.

The Cold War produced a pervasive fear. Fear of Com- munism cost numbers of Americans their jobs, not just in government offices but also in Hollywood movies. And again, there was little, if any, opportunity to contest what some nameless person had said about possible disloyalty.

Now, there is one striking thing about all of those his- torical examples of what fear can do in this country.

Anthony Lewis is a Pulitzer Prize-winning author and former columnist for the New York Times. He is well-known to many PAR readers as the author of Gideon's Trumpet (1964), the classic study of the Supreme Court's decision in Gideon v. Wainwright (1963) securing defendants the right to counsel in all felony cases.

Fear, Terrorism, and the Constitution 61

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America, in time, faced up to the injustices that had hap- pened, and it regretted them.

The Sedition Act of 1798 boomeranged on its sponsors, the Federalists. The supporters of Thomas Jefferson, who ran against Adams in 1800, charged that the act was de- signed to create a dictatorship-and they convinced the voters. Jefferson was elected, and the Federalist Party dis- appeared.

Eugene Debs and the others prosecuted during World War I have been justified in history and in what has hap- pened in law since then. One of those prosecutions brought the first great statement in the Supreme Court of the case for free speech, a dissenting opinion by Justice Holmes. He wrote:

When men have come to realize that time has upset many fighting faiths they may come to believe ... that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market.... That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.... While that experiment is part of our system, I think we should be eternally vigi- lant against attempts to check the expression of opin- ions that we loathe and believe to be fraught with death.... (Abrams v. United States, 250 U.S. 616, 630 [1919])

Those great words of Holmes, dissenting, have become the majority view in law. Judges across the legal spectrum now protect the most critical speech. As for the Japanese Americans, we have officially apologized for what was done to them in a time of fear, and we have offered the survivors modest compensation.

What that history tells me is that this is an extraordinar- ily resilient country. We are subject to excesses of zealotry in times of fear. But, in time, we turn back to our better angel-our constitutional angel.

Other countries may have cultural traditions or symbols that hold them together: a monarchy, say. We have law and the Constitution. Forget them, and we are in real danger. The framers of the Constitution were worried about the tyranny of the majority-worried about what could hap- pen to individuals if majority passions were not constrained by law. That is why I was worried about that graduation in Sacramento, California.

Men and women have invented no better system of government than constitutional democracy-that is, ma- jority rule with protections for the rights of individuals. For all the troubles in the world right now, that system is more widely accepted on earth than ever before. And even where it has not taken hold, millions long for it. Wher- ever you are going now, you will have a chance to help preserve or secure that freedom. Just remember what

62 Public Administration Review * September 2002, Vol. 62, Special Issue

Benjamin Franklin said: "They that can give up essen- tial liberty to obtain a little temporary safety deserve neither liberty nor safety."

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