In the preamble to the United States Constitution, the Framers established that three of the fundamental responsibilities of the government was to “insure domestic tranquility”, “provide for a common defense” and “secure the blessings of liberty”. In other words, the government has a duty to protect the nation and its people from harm. The Declaration of Independence, however, states that there are certain unalienable rights that every citizen possesses. Moreover, the Bill of Rights, lists a number of the unalienable rights, such as privacy, freedom of expression, and due process of the law, which the Framers felt were important enough to be enumerated. While on first consideration these two principles, namely, the duty of the government to provide security and the right of the people to enjoy their liberty interest do not seem in opposition; the reality is that they are acutely so. This opposition is most clearly illustrated during a time of war, where the government’s duty to protect often results in moves to limit personal freedoms, such as the right to privacy, which the government argue facilitates or disguises enemy activity and therefore limits their ability to carry out their duties. Generally, the people have agreed to these restrictions because they knew that they believed that they would be temporary and they believed that they were necessary. But the key question is, is that what the Framers wanted? In other words, in drafted the founding documents, did the Framers expect that the people would need to limit their rights in order for the government to provide security. An analysis of the Constitution suggests that in balancing the “security versus rights” framework, the tendency was for the balance to support the people. That is to say, that people should not have to give up their rights, unreasonably, in order for the government to provide them and the nation with security.
The Fourth Amendment is one of the most relevant constitutional provisions supporting the rights of the people over the security responsibilities of the government. Under the Fourth Amendment, the government is prohibited from performing any “unreasonable searches or seizures” on or of a citizen. The key word in the phrase is unreasonable (Herman 107). The United States Supreme Court has interpreted unreasonable to mean without a court, probable cause, or a legitimate exception to those first two requirements. In other words, before the government can search or seize a person it must explain the nature of it desire to conduct they activity and the reason why it is necessary (Solove et al, 208-210). What this means when these principles are applied to wartime is clear. For instance, the government should not be allowed to spy on any citizen unless they can first show that there is reason to believe that the citizen is involved in threats to national security and that spying on the citizen either further an investigation into the threat the citizen poses or other party that is connected with the citizen. The key to understanding this concept is that the Fourth Amendment does not ban government search and seizures; it simply requires that they have a valid reason (Herman 108). On the other hand, the Fourth Amendment does not require that a person have a valid reason to enjoy his privacy. That right is fundamental and unquestioned.
Modern society, however, has completely disrupted the traditional oscillation of the “security versus rights” framework (Solove et al., 207). In fact, the question of whether people should give up their rights in a time of war is now even more critical. Advocates for the primacy of security argue that the new nature of the world is all the more reason that the liberty interests of the people need to be limited. To be sure, according to this argument, as a result of globalization, information technology, and the threat of terrorism, the government has not only seized the opportunity to: declare a continuous war on terror but also implement technologies that have the ability to interfere with the people’s personal liberties to an extent never realized in human history. Consequently, on the one hand, the government argues that because the nation will be at war for the near-term, the people must submit to decreased liberties. On the other hand, the manner that the government believes it can limit personal liberties in the name of security, has the potential to lead to the oppression that the Framers originally though the Bill of Rights would protect against. An illustrative example is the right, under the Foreign Intelligence Surveillance Act (FISA) as amended by the U.S. Patriot Act, which not only allows for government surveillance without a court order or with a “delayed court order” from a “secret court”, but also allows foreign intelligence agencies to share information with domestic law enforcement agencies (Logan 231-232; Solove et al., 298).
The Constitution, however, once again provides the appropriate response to the primacy of security advocates’ argument that modern life requires limits of liberty. Under the Fourteenth Amendment, before the government can deprive a citizen of “life, liberty, and property” they must be afforded the due process of the law. Due process has been interpreted by the Supreme Court to require both procedural process, such as the right to be informed of the claim against you and the heard before; and substantive process, such as a government explanation why it is acting against a citizen and a showing that there is no less drastic choice. Applying the Due Process Clause to wartime, and it is clear that, unless the government can provide a reasonable explanation for their conduct, at the most basic level, it must implement the policies that are the least intrusive or abusive of the people’s rights.
The debate between the duty of the government to provide security to the nation, especially in times of war, and the right of the people to enjoy those fundamental privileges that all humans share has present since the founding of the nation. While the people have traditionally allowed for some limits on their rights during a war, modern society has the potential to end the debate by making those limits permanent on a primarily level. Before that happens, the people must ask themselves if it is necessary for limits in the name of security. The Constitution provides one of the clearest answers to that question, namely, that the people should not prepare to or feel that they must give up their rights unless there is a clear and reasonable government explanation on why limits are needed as well as a procedure for the people to contest the imposing of such limits.
Works Cited
Herman, Susan N. “The USA PATRIOT Act and the Submajoritarian Fourth Amendment.” Harvard Civil Right-Civil Liberties Law Review 41 (2006): 67-132. Web. https://www.aclu.org/files/pdfs/about/herman_usapaf.pdf
Logan, Cedric. “The FISA Wall and Federal Investigations.” New York Journal of Law and Liberty 4 (2009): 209-251. Web. http://www.law.nyu.edu/sites/default/files/ECM_PRO_062708.pdf
Solove, D.J., Rotenberg, M., & Schwartz, P.M. (2006). Information Privacy Law. 2nd ed. New York: Aspen Publishing. 2006. Print.
