So which Amendment is it that permits subordination of the Constitution to "safety from terrorism?" [View all]

[markpkessinger]

Last edited Sat Jun 15, 2013, 10:22 PM - Edit history (1)

I mean, it must be in there someplace, right? Surely we thought somewhere along the way to amend the Constitution to permit us to water down, set aside and otherwise subordinate, as we deem necessary, the express provisions of the Bill of Rights to the pursuit of 'keeping Americans safe from the Terror Bogeyman' whenever we might face security challenges.

Wait, you mean we didn't?

In all of the debates and discussions over security and how best to "keep Americans safe from terror" that have ensued in the post-9-11 period, virtually all of them have accepted it as a given that the government's overarching responsibility and purpose is to "keep Americans safe from terror," and that all other considerations -- civil liberties, privacy, the Constitution --must be subordinated to that 'greater purpose.' Well, I"m sorry, but I simply don't accept that. The price of living in a free and open society, which has been free and open by virtue of the civil liberties enumerated in the Constitution and the Bill of Rights, is that we expose ourselves to certain risks and vulnerabilities. It means we accept the fact that, now and then, malevolent persons or groups may very well exploit that very freedom and openness in order to commit dastardly acts, up to and including those acts we call 'terrorism.' The trade-off between our civil liberties and public safety was every bit as real in 1787 as it is today. Indeed, Benjamin Franklin's famous comment about the just deserts of of those who would "sacrifice essential liberty, in order to purchase a little temporary safety," points to precisely this trade-off.

It strains credulity, then, to think that our founders intended for us to blithely compromise or subordinate those civil liberties (for which such care was taken to enshrine them into the central law of the land) every time we faced a security challenge. I submit our founders would have scoffed at the notion that the Constitution and Bill of Rights should be subordinated to some illusory notion of 'safety.' They understood that the world was, and always would be a (sometimes) dangerous place. It is interesting to note that the words 'safety' and 'security' each appear exactly once in the entire document, including amendments: 'safety' in Article I, Section 9, sub-paragraph 2, which describes the only conditions under which the writ of habeas corpus may be suspended, and 'the word 'security' appears (ironically enough) in the Second Amendment.

It's one thing to take such precautions as we can take, within the parameters of the Constitution, to try to reduce the risk from terrorism. It is quite another when elevate 'safety' to a level that requires all other considerations to be subordinated to it. Perhaps what we need is to collectively grow up about the fact that to live in a relatively free and open society includes living with a certain degree of risk. Of course, actually embracing such an ethic would require us to forswear the political opportunism of charges that "President X failed to keep us safe" whenever a terrorist attack succeeds, as well as the equally absurd, "President Y kept us safe" merely because no successful attacks were carried out on that President's watch. Perhaps we need to remember that we -- ordinary citizens -- are actively defending freedom whenever we go about our lives and our business knowing full well that we do so under certain risks, and yet doing so despite those risks.

Our founders were well acquainted with the 'cost of freedom.' They believed the liberties enshrined in our Constitution were worth dying for. The question for us is, do we?