To be upfront, it is hard to establish a proper balance between liberty and security. In some cases, it does become a zero-sum game (which means a gain in one causes a loss in the other)
Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
Benjamin Franklin, Historical Review of Pennsylvania, 1759
This conflict was recognized by the Founders, and in one sense it could be said that the seperations of powers also could be used to maintain this balance:
You should know that many laws and policies of the United Sates have been determined later to be unconstitutional and abandoned…and that the constitutionality of some of these have been restored at later times. Politics, and not adherence to the Constitution, has created much of this law and policy.
As noted in the third link, the failure of the Founders to make clear legal definitions to establish the balance point has led to a cycle of overreaction.
So let's take a look at the biggest mistakes we've made in security that affect this balance
The Supreme Court
We start at the Supreme Court because the Court has been the biggest source of the security errors we make.
Marbury v. Madison "established" the role of the Supreme Court in making fundamental government decisions. This basically set a small group of unelected judges as the final arbitrators of American policy; a definite weight on the other side of the balance from liberty.
Basically, the Court ruled that they had the this power to interpret the Constitution, because that is the way they interpreted the Constitution. A nice bit of circular logic that kind of takes away from separation of power.
A failure over time to establish clearly defined security concepts;
I don't see this as much as a problem on the Founder's part, as much as a failure to recognize the problems and abuse of the Alien and Sedition Acts, and act used to arrest members of an opposing political party; no saboteurs were ever arrested under the Acts
What do I mean by clearly defined security risks?
- Are there ideologies that are actively hostile to liberty?
- When does political opposition actually become subversion, sedition, or treason?
- Should criminal organizations that target public officials for compromise be considered a security threat?
- What about corruption networks within government?
These are questions that need boundaries that are not subject to interpretation and political semantics.
The deliberate misinterpretation of the 14 Amendment
The 14th was intended so that ex-slaves were recognized as citizens (see Dred Scott, prior to the Civil War, for a case which excluded blacks from citizenship). A series of Supreme Court decisions through the 1870's and 1880s extended the protections for citizenship to Chinese immigrants
Constitution.org makes a different argument about the intent...
They were intended by the framers of the Fourteenth to extend the jurisdiction and protection of federal courts to all rights recognized by the Constitution and Bill of Rights against actions by state government.
These protections extended to non-naturalized residents basically gives the noncitizen the same rights of a citizen; this is a problem when it comes to security measures, especially in regards to those that enter the country illegally.
Citizenship
See Birthright citizenship in the United States, keeping in mind that Wiki entries are user edited and thus subject to bias.
Article I, Section Eight of the Constitution provides that Congress has the power to “establish a uniform Rule of Naturalization.”
Congress delegates portions of that power to the President, and the 14th Amendment clearly mitigates that authority, especially in regard to some of the Supreme Court decisions that have been made.
What we need are clearly defined classes of citizenship to give ensure that every one receives due process protections , without endangering the security of actual citizens; there is no reason to extend the same level of due process rights to noncitizens as there is to citizens.
Just as we regard a legal distinction between children as minors and adults with full protection, we need realistic standards of law in new classes:
- children
- legal immigrants
- illegal immigrants
- mentally retarded
On my own part, I would add the following category, to which a person only after meeting legal standards which were clearly defined and not subject to arbitrary judgement...support of violence would be one such standard
- security threats
The failure to identify socialism/leftism as a direct threat to liberty
In the first "Red Scare" of the 1920s, it can be seen that America pulled back from full prosecution of the leftist enemy, despite the waves of terror attacks form so-called anarchists (socialist hiding themselves behind anarchist labels). Attorney General Mitchell, himself the target of a bombing attempt, bemoaned the necessity of a foreign origination to combat this terror.
A small number of aliens, not citizens, was deported, including terror advocate Goldman.
However, since the media was hiding the full extant of destruction wrought on Russia's economy and people by communism, Americans could be excused for thinking that we could extend the courtesy of free rights to those that wanted to enslave us.
In the second "Red Scare" of the 50s, Americans finally recognized this threat; restrictions on employing Communists in the government and COINTELPRO operations against the Communist and Socialist Parties recognized the leftist threat while still extending them full rights.
Unfortunately, the drunken demagoguery of McCarthy, a propaganda campaign by the leftists, and the normal complacency of a secure people led to a relaxation of the nation's understanding and response to the threat.
Once the boot had been taken off the Left's net, they continued their subversion and Information War operations against America; the extant of their influence in our institutions is clear today. This is particularly a problem in our academic and educational systems
The "necessity" of "foreign" origination to recognize threats
One of the issues that interfered with the operations in security matters was a standard in which subversion (which was never legally defined in the first place) had to be "sponsored" by foreign agency. Hoover looked for connections between New Left terrorists and the Soviet Union instead of simply acting on the violent and illegal actions of the New Left, and their specifically anti-American ideology.
The internment of Japanese-Americans
This was a security problem that focuses mainly on violations of liberty. In the case of the Japanese, they were arrested simply due to their ethic heritage...including American citizens of Japanese heritage. While some Germans and Italians were indeed interred as well, these were individuals who were active participants in organizations that avowed loyalty to hostile foreign movements, such as the German Bund
This post is basically a draft post - I didn't really read through my sources on these issues, and I'm not thinking clearly today. This post will be completed at a later point. Right now I am throwing some ideas at you to think about.
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