Lawyers Journal

‘Conversations’ and bright lines

In September, we began our “Conversations” program at Another Course to College, a Boston High School. In the course of preparing for that event with Chief Justice Marshall and for a similar event at Framingham High School, I did a fair amount of reading on the subject of “Civil Liberties in Times of Crisis,” the topic selected for discussion with these high school students. It never ceases to amaze me how much more there is to learn about historic events that helped to shape our country and how much of an impact these historic events still have on our lives today. It also is incredibly rewarding to see just how perceptive, intelligent and receptive the youth of today are to open dialogue about the importance of our civil liberties, especially during times of crisis.

I suspect that if we were asked “Who are our five greatest presidents?” most would include Abraham Lincoln and Franklin Delano Roosevelt. But did you know that when it came to a test of civil liberties in the Civil War and World War II, both of these presidents suspended the constitutional right to Habeas Corpus, in favor of governmental prerogative?

Did you know that, despite a direct ruling and order from Chief Justice Taney of the Supreme Court that Lincoln could not, on his own initiative, suspend the constitutional right to Habeas Corpus (holding that only congress had that right, not the president), Lincoln ignored him and suspended that constitutional right anyway, knowing full-well that Taney had no way to enforce his order?

Did you know that during the Civil War, several New York newspapers were shut down and ordered by the government to cease operations, with one owner being forced to sell his ownership in the newspaper, due to the publication of anti-war sentiments and government claims of disloyalty to the Union? There were no cries for free speech and no complaints of government over-reaching.

Although I seriously doubt this could happen today, our own Attorney General recently stated, in his testimony before the Senate, that “…to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends. They encourage people of good-will to remain silent in the face of evil.” In other words, “if you’re not with us, you’re against us.”

Which of your civil liberties would you give up if you had to? Free speech? Free press? Freedom of assembly? The right to trial by jury? Freedom of religion? Take your pick; or take none.

The fact is, our constitution is and always will be interpreted in light of the times and circumstances in which we find ourselves. The internment of U.S. citizens of Japanese descent during World War II was upheld by the Supreme Court during World War II, but roundly condemned after the war ended.

We live in interesting and challenging times, and the “Conversations” program we have initiated is just as educational for those who help to lead them as it is for the young adults with whom we are having those conversations.

In times of conflict, there are no bright lines to be drawn between absolute guaranties of all civil liberties and governmental actions seeking to suppress those civil liberties under the guise of patriotism and national security. Because there is no bright line, it is critically important for us to discuss and fully understand different points of view on both sides of this equation. “Conversations” is helping us chart our way through the gray spaces between the two rocks of absolute freedom and absolute governmental power.

The dialogue fostered by these conversations is helping us educate our youth to this fact. Most importantly, when we engage in these conversations to educate others, we invariably educate ourselves.

©2014 Massachusetts Bar Association