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However, during war it becomes all too easy to look for convenient ways to disregard even the most important laws.
The first, and most dramatic, effect of war is to increase the general fearfulness of a population. Fear and anxiety rocket way up during wartime, and are fueled by all the myriad effects of such conflicts. But another, less-well-understood reaction to war on the part of a both the individual and the nation (and, again, this is not a phenomenon that is in any way unique to the United States) is a marked increase in binary thinking. Humans are programmed to think in oppositionally defined, polar pairs and this is something that we do all the time.
But during fear-producing times, this tendency is greatly exacerbated. In peacetime, people are likely to find it easier to consider nuances and shades of meaning, but during armed conflict, no such nuance can be tolerated. War underscores and heightens the human biological inclination to see everything in terms of black and white. We see the "other" during war not only as the enemy but as people who are so different from us, It is as if there is visceral recognition of the relationships engendered in war. War brings into the clearest focus a classic binary pair, and that reinforces natural human thought patterns. Indeed, peace can in some sense be seen as being less natural than war.
Not only does war tend to throw the sanest individual into "us-versus-them" polar thinking, it makes the definition of "us" much narrower, and the definition of "them" much broader. During times of state-level violence, only the most powerful and most privileged citizens of a culture get to retain their legitimacy. What is more, everyone who doesn't fit into the newer, more exacting standards of "us" and more and more people get tossed into the pile of "them." And related to this division is the fact that those categorized as "them" during war all too often have their civil liberties denied.
So what specifically does all this mean in terms of civil liberties in U.S. history? In the United States, this tendency to de-humanize the "other" or the "them" during wartime has lead to laws that take away rights from particularity feared groups of people. Secondly, there has is the tendency for laws to give even greater power to those most clearly and easily defined as "us."
Which brings us back to the Japanese-American internment camps. In this case, a feared ethnicity was deprived of a very essential civil right. But that is not the entire story, nor even the most relevant part, politically speaking. Because those unfortunate individual's freedoms did not just go away, they were instead transferred to those who already had much more power. This phenomenon is by no means unique. It is in fact an entirely representative happening: The slave-enemies of Rome, the banished Jews of war-torn Spain, the murdered French in the civil wars of England. All are representative of this horrible inclination on the part of the powerful and the populace alike to blame any handy minority for the vicissitudes of war -- or even for its instigation.
But What Is a Civil Liberty Anyway?
In a general sense, civil liberties are the rights that protect each individual from over-reaching on the part of the government. In other words, civil liberties are the residue of freedoms that people have -- those freedoms and rights that the Tenth Amendment says are reserved to the people rather than claimed by the government. Civil liberties constrain the government from interfering more than is necessary for the protection of the public good in the lives of individuals.
Different nations at different historical moments define different rights as being basic civil liberties. For the United States since its inception, the central civil liberties have been considered to be the following: freedom of expression, freedom of speech, the right to due process and a fair trial, the right to own property, and the right to privacy. Other civil liberties are derived from these and as such are also considered to be fundamental rights. For example, U.S. courts have traditionally held that women have the right to make reproductive choices (including the right to both birth control and abortions and the right to be free of coerced sterilization). This right is derived from the right to privacy -- a right that is itself derived both from common law and from other rights that are spelled out in the Constitution.
Another way of looking at this is to note that traditionally "civil liberties" in the United States have been defined as being primarily those rights and liberties that are enumerated in the First Amendment of the Constitution. It should be noted that while in a philosophical way civil liberties are related to civil rights, there are important distinctions, with civil liberties being more fundamental. (Although it is also essential to note that both civil liberties and civil rights are often abridged during wartime.)
Civil liberties n. rights or freedoms given to the people by the First Amendment to the Constitution, by common law, or legislation, allowing the individual to be free to speak, think, assemble, organize, worship, or petition without government (or even private) interference or restraints. These liberties are protective in nature, while civil rights form a broader concept and include positive elements such as the right to use facilities, the right to an equal education, or the right to participate in government.
It should be clear from the above description why civil liberties are so essential to the vitality of a democracy. But it should also be clear how convenient it might be for governments to be able to set aside these liberties during war. Without these liberties maintained by its citizens, governments have a far easier time in disguising what they are doing -- sometimes a very helpful thing to a government during war.
The Alien and Sedition Acts
One of the greatest ironies of American history is that even as an infant country we were already abridging the freedoms that we were fighting for. In 1796, the U.S. Congress passed a series of laws known collectively as the Alien and Sedition Acts. President John Adams signed the acts into law, using as an excuse the potential for French military action against the United States. The United States was not at war -- and as we know would never go to war with France -- but the federal government used the possibility of war to enact laws that in retrospect cannot be seen as anything but grievous breaches of our constitutionally protected rights.
In other words, Adams (with the full consent and even encouragement of the Congress) used a potential (albeit very unlikely) foreign threat as an excuse to limit freedoms at home. The following description of the Alien and Sedition Acts could in many ways be substituted for a description of the U.S. Patriot Act.
No protesting the government? No immigrants allowed in? No freedom of the press. Lawmakers jailed? Is this the story of the Soviet Union during the Cold War?
No. It describes the United States in 1798 after the passage of the Alien and Sedition Acts.
The most controversial of the new laws permitting strong government control over individual actions was the Sedition Act. In essence, this Act prohibited public opposition to the government. Fines and imprisonment could be used against those who "write, print, utter, or publish . . . any false, scandalous and malicious writing" against the government.
The Federalists took advantage of the laws to send dozens of Republican newspaper (Federalists and Republicans were the two primary political parties at the time) to jail. A congressional representative -- Matthew Lyon from Vermont -- was also arrested when he criticized John Adams for his "unbounded thirst for ridiculous pomp, foolish adulation, and self avarice." His constituents back in Vermont reelected him from jail, demonstrating the fact that they at least understood what the First Amendment said.
It is salutary to remember that while three of the four separate laws that make up the Alien and Sedition Acts either expired or were repealed within a few years of their enactment, one of them remains in force today: The Act Respecting Alien Enemies gave the president the power to authorize the arrest and deportation of resident aliens (even if they were in the United States legally and done nothing wrong themselves) if their home countries and the United States were at war.
The War of 1812
The War of 1812 was relatively free of the kinds of civil liberties abuses that were so rampant during other American wars. Why this should be the case is a little puzzling, since the war was very unpopular, and unpopular wars promote dissent -- which in turn tend to prompt government attempts to restrict dissent. It would be comforting to believe that the nation had learned its…[continue]
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