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Article Excerpt
INTRODUCTION
At 8:48 a.m. on September 11, 2001, the first of two hijacked planes crashed into the north tower of the World Trade Center in New York City. By 10:28 a.m., the worst attack on American soil had ended, but the nation had not yet begun to react. (1) Four flights had been hijacked that day: two crashed into the World Trade Center, one into the Pentagon, and one into a field in rural Pennsylvania. (2)
Almost immediately, officials placed the blame on Osama bin Laden (3) and the al-Qaeda network. (4) This was not the first time that bin Laden and his associates had demonstrated their hatred for the United States. (5) But this attack differed from previous terrorist incidents. Before September 11, 2001, Americans cared little about terrorism. (6) Yet because the attack was on American soil, many Americans feared further terrorist attacks by people living within U.S. borders. (7)
In a speech delivered on September 20, 2001, President George W. Bush suggested that, despite the crisis, all efforts would be made to safeguard constitutional liberties: "We're in a fight for our principles, and our first responsibility is to live by them. No one should be singled out for unfair treatment or unkind words because of their ethnic background or religious faith." (8)
President Bush's remarks, however, do not represent the sentiment pervading the country since the attacks on September 11, 2001. (9) His remarks have not calmed the fears of thousands of people living in the United States who are concerned that their rights will be infringed upon by legislation purporting to eliminate terrorism. (10) This Comment addresses how the United States should respond to the threat of domestic terrorism while continuing to safeguard civil liberties.
Part I of this Comment describes three classic theories of democracy. Constitutional democracy entails an active role for the judiciary as part of a counter-majoritarian effort. Representative democracy, in contrast, protects the will of the majority and focuses on judicial restraint. Deliberative democracy focuses more on active participation by the citizenry to uphold the values of the Constitution. Part II examines how representative and constitutional democracy have been applied in another episode in our nation's history--the Japanese internment during World War II. Part III compares the crisis following the September 11 attacks to the Japanese internment and examines how the different branches of government should protect civil liberties. Part IV suggests that a theory of deliberative democracy should be applied to best balance the competing interests of national security and civil liberties.
I. THREE THEORIES OF DEMOCRACY
In times of national crisis, the government must respond effectively, while at the same time preserving constitutional liberties. (11) The Supreme Court has traditionally deferred extensively to Congress in times of crisis. (12) In so doing, many laws and rights have been silenced. (13) Yet hindsight has often left the Court regretting its past decisions. (14) The questions of how to interpret the Constitution and who has the responsibility to do so are at the core of the tension between deferring to lawmakers and preserving civil liberties.
How the Constitution is interpreted determines how our nation responds to crisis. Some theorists contend that the Court should affirmatively safeguard constitutional rights. This theory is commonly called constitutional democracy. Others espouse a representative democracy, which entails deference to the majority and the political process. This is commonly called representative democracy. Finally, some believe that our system of government was set up to require an active citizenry--a deliberative democracy. Though all three theories agree that citizens have rights against the government, (15) each differs on how those rights should be protected.
A. Constitutional Democracy
Constitutional democracy embraces the idea that the judiciary is primarily responsible for interpreting the Constitution, even though it shares this task with the president and Congress. (16) While it may not be the province of the Court to save the country from ruin, constitutional democrats believe the Court should take an active role especially during times of crisis. (17)
Constitutional theorist Ronald Dworkin envisions the Constitution as a protector of individual rights and rejects a simple majoritarian theory of government. (18) Reliance on the political process would yield a "majority rules" approach to civil liberties, and minority groups might suffer as a result. (19)
Dworkin opines that the political process alone cannot safeguard our constitutional rights. (20) Members of the judiciary are not elected officials and have an obligation to the Constitution, not to the public. (21) Dworkin's theory of judicial activism assumes that citizens have certain moral rights against the government and that these rights are best protected by the judiciary. (22)
Another proponent of constitutional democracy, Justice William Brennan, Jr., advocates that it is the Court's role to resolve public controversies to safeguard constitutional freedoms. (23) Brennan rejects the idea that controversial issues should be left to the political process to resolve. (24) He argues that, despite its apparent appeal, resolving controversial issues through the political process is not suitable for a democracy. "It is the very purpose of a Constitution--and particularly the Bill of Rights--to declare certain values transcendent, beyond the reach of temporary political majorities." (25) This prevents judges from injecting their own views into their opinions. (26) Instead of a set of rules, Brennan sees the Constitution as a composition of abstract principles, to be interpreted by every generation. (27) "We current justices read the Constitution in the only way we can: as Twentieth-Century Americans." (28) The greatest strength of democracy and of the Constitution, Brennan insists, is the ability of justices to adapt the principles embodied in the text to current situations. (29)
According to Brennan, justices cannot "avoid a definitive interpretation" (30) of controversial statutes or situations; they are responsible for advancing and protecting our rights and interests. (31) Brennan warns that as the government increasingly encroaches upon citizens' private lives, it becomes ever more necessary for the judiciary to actively protect individual rights. (32)
Constitutional democracy calls upon judges to use the Constitution to limit what the majority can do. (33) The Court safeguards the principles embodied in the Constitution for all citizens, not just the majority of them. (34)
Constitutional democracy urges that individual rights be protected even in emergencies. (35) In a speech delivered in 1987, Justice Brennan, emphasized that civil liberties should not be sacrificed during times of national crisis. (36) Brennan cited several historical examples of the Court's validation of legislative attempts to sacrifice civil liberties in response to a crisis. (37) Brennan emphasized the importance of judicial activism during such times: "A jurisprudence that is capable of sustaining the supremacy of civil liberties over exaggerated claims of national security only in times of peace is, of course, useless at the moment that civil liberties are most in danger." (38)
According to Brennan, the only way to protect citizens' rights is to rely on the fundamental aspirations embodied in the Constitution, and not on the impulses of representatives. (39) The time may come, Brennan warned, when elected officials will use their power in ways that are contrary to our notions of democracy. (40) The judiciary should intervene in these situations to ensure that the goals of the Constitution are enforced.
Hindsight has caused the nation to regret the times it sacrificed civil liberties for national security. (41) It has not yet, however, established a way to deal with similar future problems. (42) Brennan criticizes the judiciary for not taking responsibility when a situation calls for review. (43) There is no question that total deference to elected officials has been detrimental to the civil liberties of citizens. (44)
B. Representative Democracy
In contrast to constitutional democracy, representative democracy, urges the judiciary to defer to the representative process. (45) Proponents of the theory contend that the legislature and executive have the primary authority to interpret the Constitution. They presume that legislative actions are constitutional so long as they are rational. (46)
James Bradley Thayer maintains that people are "wise, virtuous, and competent to manage their own affairs." (47) As such, it is not the duty of the courts to overrule what people do through elected officials. (48) The majority rules, and whatever the majority sees fit to do should be the rule of the land. (49)
According to Thayer's doctrine of clear mistake, (50) courts should ask whether the act of the legislature or executive clearly conflicts with the duties of these branches as granted by the Constitution. (51) If the answer is negative, then the Court should simply affirm the legislative action. (52) Even if it turns out that elected officials have failed to perform their duties, the Court should still be deferential because constituents will simply vote them out of office. (53)
Thayer acknowledges that the Court is the "ultimate arbiter of what is rational and permissible." (54) But, it is first and foremost the duty of the legislature to determine the meaning of the Constitution. (55) The Constitution was written by the people and the legislature is elected by the people. (56) The legislature, and not the courts, therefore, is the "lawgiver." (57)
Thayer rejects the contention of constitutional democracy theorists that the Court is the protector of rights. (58) He argues that a limited role of the judiciary is built into the structure of our democracy. (59) Because the judiciary is given only "incidental and postponed control" (60) over acts of the legislature, it should not have the authority to interpret the Constitution as broadly as the legislature. (61)
Further, excessive judicial review will encourage the legislature to act based on the constitutionality of laws rather than on their collective wisdom. (62) Consequently, people will remove themselves from the political process as they see that courts, rather than the legislature, shape and affect policy. (63)
Not surprisingly, the jurisprudence of the Court during times of crisis under a representative democracy is different from that which constitutional democracy theorists such as Brennan advocate. (64) In accordance with this theory, Chief Justice William Rehnquist emphasizes the necessity of our Constitution to adapt to wartime. (65) The emergencies in our nation's history have resulted in Inter Armes Silent Leges--silence of the laws. (66) Chief Justice Rehnquist recounts incidents where the Court found it necessary to protect the integrity of the country by curtailing the civil liberties of a select few. (67) Though he does not always agree with the outcome of the cases, (68) Rehnquist recognizes the need to balance constitutional liberties with constitutional safeguards. (69) The Chief Justice quotes Justice Learned Hand as saying that "a society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few." (70)
Another theorist, Alexander Bickel, has suggested that the judiciary remain silent when political questions arise. (71) The judiciary should reserve judgment on such issues rather than rule on what appear to be imminent cases. (72) Only ineffective judgments (73) will result if the judiciary acts too often or too quickly. (74)
Though Bickel ultimately justifies judicial review on the ground that the judiciary must enforce the will of the people, (75) he argues that judicial review is a "deviant institution." (76) Judicial review is undemocratic because, when the Court declares an act unconstitutional, it does so against the will of the prevailing majority. (77) Representative democracy rests on the theory that citizens can be trusted to elect wise men to positions of power, in both the legislative and executive branches. (78) Bickel argues that because these two branches need each other to make the law, there is an inherent check on the overwhelming power of the majority. (79)
According to Bickel, when the judiciary uses its power to interpret the Constitution, it renders the legislative branch powerless. (80) This, in effect, nullifies the votes of the citizens. (81) Bickel further contends that judicial review creates distrust of elected officials. (82) Even if people do vote, they conclude that their voice may not matter in the end. (83) Bickel is concerned that excessive judicial review will damage the political process; rather than becoming active citizens, people will rely on the Court's decisions as definitive. (84)
Bickel believes that how the country should respond to a timely issue is best resolved by the political process, rather than a panel of nine justices. (85) Bickel questions the authority of the Court to supervise this process and contends that the legislature is better able to respond to the changing needs of society. (86)
C. Deliberative Democracy
Deliberative democracy attempts to blur the dichotomy between constitutional democracy and representative democracy. (87) Cass Sunstein's theory of deliberative democracy rests on the assumption that the founding fathers intended to spur substantive debate among government officials and the citizenry. (88) Sunstein's position is that law is created by the people and should be upheld by the people. In defending that position, Sunstein challenges the traditional understanding of status-quo neutrality. (89) Status quo neutrality is the concept that anything that disturbs existing legal entitlements in society is unjust, and anything that reinforces these distributions is neutral and just. (90) However, because these existing distributions are primarily a product of law, and because law is created by and for the people, this theory is inherently misconceived. (91) People are afraid to actively interpret the text of the Constitution for fear that they may disturb some natural force that does not really exist. (92)
As a result, Sunstein seeks to abandon the baseline of status quo neutrality and replace it with one that requires an active citizenry. (93) In this way, Sunstein's theory of deliberative democracy is similar to representative democracy. (94) Sunstein believes that although judicial review should not be used frequently, when it is used, it should be used aggressively. This will only be necessary in two instances: when rights that are central to the democratic process are at stake or when groups are unlikely to receive fair treatment in the legislative process. (95)
In conjunction with this argument, Sunstein argues that the Constitution should be interpreted outside the courts. According to Sunstein, the Founders created the Bill of Rights in an effort to appeal to the citizenry. (96) Sunstein emphasizes that the Constitution was written for everyone, "not simply the judges." (97) As such, it should be actively interpreted by everyone. (98)
A court-centered constitutional scheme is unfavorable for several reasons. First, reliance on the judicial system may distract attention from other more effective strategies. (99) Though taking away attention from the judiciary may result in a focus on politics, Sunstein views this as a positive result. (100) He criticizes Dworkin's insistence that the court is the "only principled institution" (101) and maintains that the other branches of government better reflect the tradition of "principled deliberation." (102) Sunstein also advocates an interpretation of the Constitution outside the courts because judicial decisions are often ineffective. (103) Finally, elected officials and ordinary citizens should bear part of the burden of social reform. (104) Because judges...
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