By John Weston Parry, J.D.
Precedent, which allows the Constitution to reasonably change in order to keep pace with social evolution or unexpected events, also can be a legal conceit with unintended or unjust consequences. Or precedent can be both unintended and unjust simultaneously, as it has been with court decisions expanding what are called “emergency” powers of federal and state governments. For over one hundred and fifty years, prejudice, fear, and hate have driven a vast expansion of these extraordinary government powers in ways that have diluted, skewed, and abridged the rights of unpopular groups in the United States. In the intensely partisan political environments that such raw emotions tend to create and fuel, due process, which is suppose to temper governmental excesses, too often is bypassed or unfairly diminished.
Those who have suffered most are the people sentenced to government custody, especially to prisons, jails, detention and treatment centers, and cages at Guantanamo Bay. Tragically, the number of individuals who are ensnared by such draconian governmental “emergency” measures keeps increasing, while our courts continue to look the other way or actually enable this lawlessness to continue in the name of protecting our communities from perceived threats. In the process, our Constitution, especially the Bill of Rights, has been substantially weakened.
Lincoln Expands Presidential Powers Unilaterally
This constitutional assault originated during the Civil War under the otherwise heroic leadership of Abraham Lincoln. In an historic struggle to keep the South from succeeding from the Union, to give slaves a greater opportunity to be free, and, most of all, to reflexively reduce any chances of being defeated in war, the President unilaterally suspended important parts of our Constitution. Most notably he dispensed with the writ of habeas corpus and placed the Declaration of Independence above our Constitution as an instrument to define our fundamental legal principles. He also declared Marshall Law, which he claimed gave him the authority to suspend the First Amendment by preventing antiwar newspapers from publishing and arresting protesters. All of his actions bypassed and thus diluted the powers of Congress, as well as the Constitution. History has judged that these imperial actions did little to aid the war effort and thus have been viewed as unnecessary, as well as ill-advised.
For the most part, the third branch of government—the judiciary led by the U.S. Supreme Court—stood silent in the face of the power of the Presidency and the bravado of war. The lone exception occurred when the Court initially objected to the suspension of habeas corpus. The Justices directed Lincoln to bring those who had been arrested without due process before them for a hearing. Lincoln refused dismissing the High Court's authority based on his personal belief that he had not violated the Constitution. By silently capitulating to Lincoln’s assumption of powers that he was never authorized to possess, the Supreme Court helped to create an implicit precedent that would be relied upon to enable other presidential excesses in times of war and, more recently, self-declared national security crises. Judicial silence in the face of lawlessness by the federal government was then—and continues to be—an unfortunate pattern for the highest court of the land, and an abdication of its constitutional responsibilities.
Public Health Emergencies and State Governments
The next substantial dilution of due process in an emergency involved the power of state governments to incarcerate and otherwise deprive individuals of their liberty and other freedoms when they appeared to pose a health threat to the community. Public health in a local community or within a state is a governmental concern that—until more recently—resided exclusively with the states and not the federal government. A landmark Supreme Court case, Jacobson v. Massachusetts (1905), empowered states to dispense with the normal rules of due process if a broadly conceived health emergency was plausibly thought to exist. The consequences of this ruling proved to be far reaching.
Congress and World War I Sedition Act
The second major wartime contravention of the Constitution was the Sedition Act of 1918, which followed closely the United States’ entry into World War I. Unlike Lincoln’s unilateral actions during the Civil War, in this particular situation Congress exceeded its powers by approving a law that improperly curtailed the First Amendment without prior ratification by the states. Under that statute the federal government was authorized to prosecute and imprison, for up to 20 years, those who used “disloyal, scurrilous, or abusive language” referring to the United States government or symbols that could be taken to represent the federal government. In addition, the U.S. Post Office was directed not to deliver mail that contained this type of contemptuous language towards the United States, which necessitated opening and reading private mail, a governmental practice that has mushroomed in recent years with the widespread surveillance of private electronic communications.
The sedition amendments to the Espionage Act of 1917 criminalized actions that interfered with military recruitment or other efforts by this country to generate support for a properly declared war. The original statute had been enacted in part because local citizens had been taking matters into their own hands in order to physically attack and harass individuals who were lawfully, and on occasion unlawfully, protesting the war effort—mainly socialists and a few communists and Quakers thrown in for good measure. In Abrams v. United States (1919), a divided U.S. Supreme Court upheld the Sedition Act, despite a vigorous dissent by Justice Oliver Wendell Holmes. When World War I ended, Congress repealed the law acknowledging that the prior restrictions had gone too far.
FDR and the World War II Internment of Japanese-Americans
In World War II after the attack on Pearl Harbor, President Franklin D. Roosevelt presided over the most intrusive expansion of emergency powers in our history. Like Lincoln his management of the war effort was otherwise brilliant. Nevertheless, his politically popular emergency actions resulted in the internment of more than 100,000 Americans, mostly Japanese, but also Germans and Italians, in camps located throughout the western United States, especially California. A majority of the victims of this policy were American citizens; the rest residents or visitors. Most of them resided in states that bordered the Pacific, which appeared to be vulnerable from possible further attacks from Japan's air force and navy, greatly enhancing the nation's fear and hate of the Japanese, especially in western ocean communities.
In February of 1942, Roosevelt signed an incredibly broad executive order empowering military commanders to designate geographical areas in which “any or all persons may be excluded.” Subsequently, local military authorities, influenced by community groups in those areas, implemented a multi-state policy in which anyone of Japanese ancestry was exiled from California and large portions of Oregon, Washington, and Arizona. These Americans, based on no substantial evidence other than their race or ethnicity, were suspected of being enemy sympathizers and potential terrorists. As a result, they and their families were placed in relocation camps throughout the western United States. In the process, any real estate or personal property that these Japanese-American citizens and residents were unable or not permitted to take with them was left to be appropriated by their former neighbors and other profiteers.
The Supreme Court largely upheld these unconscionable policies in Korematsu vs. U.S. (1944). The 6-3 opinion, much like Bush v. Gore (2000), was decided substantially on party lines with all six Roosevelt appointees—including Justices Black and Douglas, who later would become champions of the Bill of Rights—voting in favor of these government excesses. Specific guarantees under the Constitution gave way to the perceived exigencies of war, specifically the need to protect the nation against presumed acts of espionage that had never occurred, much less proven to have been carried out by those taken into custody. The Court passively finessed the most important constitutional implications of the military dictate by only addressing the validity of the removal order itself, ignoring the critical issue of a large group of U.S. citizens and residents being incarcerated without due process.
The Mass Institutionalization of Persons with Mental and Other Disabilities During the 1950’s
After WWII, during the 1950’s, the full implications of the aforementioned Jacobson public health decision had now become apparent. What originally was perceived to be a narrow ruling, which authorized compelled vaccinations that are “reasonably required for the safety of the public,” had been transformed into nationwide incarceration and many other deprivations of civil rights for a variety of public health-related “emergency” concerns. These included having any sort of serious mental condition or contagious disease, such as tuberculosis. Hundreds of thousands of adults and children were incarcerated in large mental institutions that became known later as “warehouses” and “snakepits,” which also imprisoned people with physical or sensory disabilities.
Also, during these intervening years the requirement that the public’s safety be directly implicated in these emergencies had been expanded under states’ parens patriae power to include the safety of at risk individuals themselves as the landmark Supreme Court decisions in O’Connor vs. Donaldson (1975) and Parham v. J.R. (1979) made clear. Individuals, who were deemed “gravely disabled,” “in need of care and treatment,” or a potential danger to themselves, were at risk of confinement and other rights deprivations, typically without adequate care and treatment.
The Reagan Years and Its Legacy
In the 1980’s, during Ronald Reagan’s presidency, even the state’s rights limitation precluding federal action in these public health matters began to fray. The U.S. government discovered “new” ways to become “involved” because civil commitment was being criminalized as due process was being invoked successfully in civil commitment cases. Both states and the federal government began incarcerating hundreds of thousands of individuals with mental disabilities in correctional facilities without proper care or treatment. The Supreme Court eventually approved this type of quasi-civil commitment by the federal government in United States v. Comstock (2010).
Also, during the 1980's, federally supported “wars” on violent crime and drugs began sensitizing the American public to the perceived benefits of fighting undeclared wars against those who are perceived to threaten our domestic national security by using extraordinary federal and state prosecutorial and judicial powers. As a result, the United States has a greater percentage of its citizens and residents in jail and prisons than any other major country in the world. A disproportionate percentage of those individuals are young African-American men and persons with mental disabilities.
If those percentages have not been horrifying enough, according to the New York Times, the United States is about to embark in a greatly increased effort to indefinitely incarcerate illegal immigrants with a particular focus on families as a “deterrent to border crossings.” A new facility near Loredo, Texas, which has room for 2,400 “illegals…is especially designed to hold women and their children.” This new incarceration effort probably will not be designated as a war on illegal immigrants officially, but for all intents and purposes it is likely to be exactly that once the composition of Congress changes in January. Unfortunately, substantially-reduced due process is in place already, given the weak protections that exist, which govern individual rights in immigration hearings.
The Aftermath of September 11th
After September 11, 2001 (9/11), the definition of a national emergency in the context of a war-like conflict, whether formally declared by Congress or not, expanded precipitously. The federal government began spying on people who were presumed to be dangerous to others due to their perceived terrorist activities or beliefs or participation in “dangerous” radical Muslim or Muslim-like religious activities. This electronic dragnet has intruded upon the rights of many individuals who have been mistakenly identified as potential terrorists and people who happened to be communicating with those under surveillance. Judicial scrutiny of these largely unmonitored surveillance activities is done secretly in proceedings in which national security is presumed to justify any intrusion into the privacy rights of those being spied upon.
In addition, secret agencies of the federal government began arresting and interrogating suspected terrorists as national security risks without affording them any due process protections. A number of individuals were detained at Guantanamo Bay and other foreign detention facilities for years without their ever being given the opportunity to contest the presumed charges against them. Many of these suspected terrorists were badly mistreated and interrogated using methods that by international standards are considered torture. The recent Senate report on the CIA's activities during this period agreed that many of these methods constituted inhumane practices and a few torture. Remarkably, a majority of Americans believe that these uncivilized methods are justified in order to protect our national security interests.
Making matter worse, these methods have proven to be largely unnecessary or counterproductive as intelligence-gathering tools. There have been a series of rushed judgments by intelligence agencies and other government officials that was exemplified when the administration of the second President Bush fabricated the existence of weapons of mass destruction in Iraq. As one former C.I.A. interrogator recently told the New York Times, officials in charge were more concerned with getting any type of information fast, rather than harvesting reliable information that could be properly analyzed and utilized. Without the constraints of due process and judicial review, there was no one in a position to challenge these secret vigilante methods by overzealous government officials.
Under the cloak of emergency-like powers, we deprive large groups of Americans—those who are presumed to be dangerous due to mental disability, young African-American men, and suspected domestic terrorists—of rights supposedly guaranteed by our Constitution. We also deprive foreigners in our custody, who immigrate illegally to the United States or are suspected of being terrorists, of those rights and many more. The continued persecution of these individuals and the groups they belong to has been enabled by judicial neglect and constitutional malpractice. Dangerousness to self or others has become synonymous with a national or state emergency, while the circumstances that define either legal conceit—dangerousness or an emergency—have been expanded far beyond their original meanings.
For many years “dangerousness” to others or to oneself has been legally defined to embrace speculative events in the future that have not yet occurred based on subjective predictions that they may happen. Furthermore, the current definition of an “emergency” encompasses any type of legally defined dangerousness, plus a wide variety of events that include such diverse occurrences as the inauguration of a President, the playing of a Super Bowl, illegal immigration, and the need to obtain information about individuals and international groups that are deemed—by unaccountable and self-interested secret government agencies—to have the potential to plan terrorist attacks in the United States.
When any of these—and a multitude of other—threatening circumstances arise, many individuals working for federal and state governments to implement emergency measures believe or are told to believe that they are allowed or even obligated to dispense with the Constitution. Moreover, our judicial system, particularly the U.S. Supreme Court, rarely if ever directly interferes and often issues opinions that help facilitate such lawless behaviors. The ends—even ones that may be noble—do not justify the means, when fundamental principles, especially constitutional and human rights, are sacrificed in the process. Yet, as a nation, we continue to embrace or tolerate these human sacrifices because, one way or another, the outcomes appear to serve our narrow self-interests.