Freedom After Sept. 11
Of Aliens, Seditions and Patriots
BY Scott Mcdermott
June 15-21, 2003 Issue | Posted 6/15/03 at 1:00 PM
Even our best presidents have made mistakes.
John Adams, Washington's successor, defied his own party to keep the young United States out of a potentially disastrous war with France. For many historians, however, Adams' statesmanship is blemished because he signed the tyrannical laws known as the Alien and Sedition Acts.
Fearing the influence of French agents within the United States, Congress in 1798 gave President Adams power to deport any foreigner whom he believed to be politically dangerous and to prosecute any citizen who spoke critically of the president or Congress.
The public backlash was so strong that it led to Thomas Jefferson's victory in what became known as the democratic revolution of 1800. (The Alien Act even sparked a 1799 riot at St. Mary's Catholic Church in Philadelphia. Historically, anti-immigrant legislation was often aimed at Catholics, and St. Mary's parishioners were largely Irish.) Adams' folly left such a foul aftertaste that nothing similar was attempted by the next 102 Congresses. Then came Sept. 11 and the USA Patriot Act.
This time the suspicious elements were Arab terrorists rather than French provocateurs (although, interestingly, the French again opposed the policies of the American administration). The part of the Patriot Act relating to aliens (immigrants who are not naturalized citizens) is similar to the 1798 law: Suspicion of anti-American connections can lead to detention for any length of time, even if no crime has been committed, and to deportation at the government's discretion.
As in 1798, the sedition portion of the Patriot Act affects American citizens as well as aliens. It differs from its infamous predecessor, however, by not attacking free speech per se. Instead, the act undermines the Fourth Amendment ban on unlawful search and seizure. Search warrants can now be obtained — from the secret Foreign Intelligence Surveillance Act courts — upon mere suspicion of involvement in terrorism.
Another difference is that the Alien and Sedition Acts came with an expiration date: the end of the Adams administration. Ominously, the Patriot Act doesn't expire, though it allows Congress to review its provisions after five years.
The Patriot Act came home to me recently when I had to explain to my student employees at a university library that they must cooperate with federal agents who come looking for information on what our library patrons like to read. Librarians are also required to reveal information on patrons' Internet usage when available. We have always had to surrender such records when presented with a search warrant, but under the Patriot Act, warrants are much easier to come by.
Will the Church have a similar awakening when the feds come snooping around the confessional?
Mind you, none of the rights listed in the first 10 amendments to the Constitution are absolute. The courts have always held that free speech, the right to bear arms and other rights may be abridged when the common good demands it. Felons may not carry weapons, for example. It is unlawful to yell, “Fire!” in a crowded theater.
When Catholicism was the established religion in many countries, the Church encouraged the state to root out errors and seditions in the name of the common good. In the 20th century, however, faced with states that deployed new technologies of power against religion, the Church re-emphasized the dignity of the human person.
Thus Vatican II's Pastoral Constitution on the Church in the Modern World taught that “the order of things must be subordinate to the order of persons and not the other way around.” The council fathers specifically mentioned the person's “right to act … to safeguard his privacy” (Gaudium et Spes, No. 26). The rights of the person “are prior to society and must be recognized by it,” the Catechism of the Catholic Church affirms. “If it does not respect them, authority can rely only on force or violence to obtain obedience from its subjects.”
Under the principle of subsidiarity, not only persons but also associations must be protected from undue interference by the state. “The principle of subsidiarity is opposed to all forms of collectivism,” the Catechism says. “It sets limits for state intervention” (No. 1885). The common good is still the object of politics, but governments must not trample personal life in the name of state interests. This applies especially to family life and, by extension, family dwellings.
In a country where a lunatic can parade a kidnapped girl wearing a burqa around the streets of a major city for months without being questioned, perhaps the government should be more nosy. But only in well-defined situations when the general welfare requires some interference with individual rights.
During the Civil War, President Lincoln suspended the writ of habeas corpus, under which a person cannot be detained indefinitely unless he is charged with a crime. Lincoln insisted that during wartime, it was necessary to abridge certain liberties in order that liberty itself might be retained. “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”
Here Lincoln echoed St. Thomas Aquinas, who recognized that legitimate authorities “have the power to dispense from the laws” — such as the Fourth Amendment — if it should happen that “the observance of that law would be hurtful to the general welfare.” It is permitted to “act beside the letter of the law” in cases of necessity, as Thomas puts it, since “necessity knows no law” (Summa Theologica I-II, qu. 96, art. 6 resp.).
But Lincoln maintained that only the executive (not Congress) should act in this manner, out of his prerogative as commander-in-chief. Congress' role was to declare war, and once the war ended, all normal constitutional rights would resume.
This is more or less how our government should have treated the current crisis situation. Rather than passing an act abridging rights indefinitely, Congress should have declared war on those nations and organizations involved in terrorism, defining specific war aims. It would then have been understood that the president had the power to suspend Fourth Amendment rights until those war aims were met, but no longer.
Individuals would no doubt have suffered in the short term. But in the long run, both personal rights and the common good would have been preserved.
I do not believe the USA Patriot Act will last indefinitely. Our culture is so firmly committed to individual rights — obsessed with them, rather — that the law will eventually be struck down in court or repealed by Congress. Of course, when detainees are not allowed to speak with lawyers, as has frequently happened under the act, court challenges become more difficult. But like the Alien and Sedition Acts, the Patriot Act will someday become a cautionary tale, a blot on an otherwise respectable presidency.
At least, I hope so. Marx notwithstanding, history does not always repeat itself. Unlike the 1798 laws, the Patriot Act has not produced much of a hue and cry.
Any of you patriots out there remember how to start one?
Scott McDermott is the author of Charles Carroll of Carrollton: Faithful Revolutionary (Scepter, 2002).
He writes from Nashville, Tennessee.
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