Following are excerpts from an article by Robert Higgs written shortly after 9/11, explain the principle whereby "...In national emergencies the Crisis Constitution overrides the Normal Constitution." In other words, all our arguments about this or that being constitutional or not are irrelevant as long as our elected leaders, Supreme Court and we, the public, agree to remain in a state of National Emergency.
And my big contention is that the Patriot Act is redundant legislation in most respects. Presidents, as you may read below, already can and have done a lot of "unconstitutional" things when a national emergency is in effect. The Patriot Act is throwing us into a state of permanent emergency, whereby we can never revert to the Normal Constitution:
After the United States formally entered the war, the government enacted legislation providing for conscription of soldiers. Though men had been drafted during the Civil War, the Supreme Court had never ruled on the constitutionality of the draft. Besides, the issues now differed: men were being drafted not to defend the government against violent domestic rebellion or invasion but to do battle in the trenches of faraway France, ostensibly to foster such abstract ideological aims as "making the world safe for democracy."
The Supreme Court readily affirmed, however, the constitutionality of the draft, refusing to consider seriously the claim that conscription constitutes a form of involuntary servitude forbidden by the Thirteenth Amendment. The outcome: many draftees were deprived of life itself by the actions of political authorities intent on the prosecution of war but unwilling to impose enough explicit taxes to hire the desired military personnel.
And more than just warfare powers, presidential powers during National Emergency have radically altered the course of domestic life:
Harkening back to the railroad case of 1917, Chief Justice Charles Evans Hughes reasoned that "while emergency does not create power, emergency may furnish the occasion for the exercise of power." The Constitution's clause protecting contracts, said Hughes, "is not to be read with literal exactness." The outcome: many thousands of mortgagees were deprived of the rights of foreclosure stipulated in their contracts and compelled to make do with the alternatives provided by emergency statutes.
Patriot Act has broad confiscatory powers towards monetary instruments, which are unnecessarily. They will only serve to make permanent the greedy policies of the Bush administration:
But the Supreme Court held that "if the gold clauses... interfere with the policy of the Congress in the exercise of the [monetary] authority they cannot stand." The Court argued that "contracts, however express, cannot fetter the constitutional authority of Congress." The outcome: thousands, perhaps millions, of parties to contracts containing gold clauses, including the many holders of U.S. government bonds stipulating payment in gold, were deprived of property rights, victimized by their own government.
Do you think concentration camps in the US is an absurd fear? Check it out:
In the war emergency that followed the Japanese attack on Pearl Harbor, the government built an awesome command economy, suspending many individual rights. Ten million men were conscripted. The Supreme Court refused even to review challenges to the draft. Some 110,000 Japanese-Americans, two-thirds of them U.S. citizens and not one of them proven guilty of a crime, were herded into concentration camps, losing their liberty and sustaining property losses estimated at some $400 million. All quite constitutional, said the justices.
In fact we have been silently tolerating what could be deemed unconstitutional constraints against "liberty" and the "pursuit of happiness" for quite some time:
The outcome: during the past decade, American citizens have been forbidden to travel to various countries, to borrow or buy from or lend or sell to the citizens or governments of various countries, to fulfill the terms of valid contracts, or to pursue in U.S. courts legal remedies for injuries and takings. Far from having their rights to life, liberty, and property upheld by the federal government, Americans have been routinely deprived of such rights under declarations of emergency.
Now is the time to pursue correct legislation to correct Constitutional overrides embedded in our laws due to ever frequent National Emergency events:
Perhaps the best way to understand how the Crisis Constitution became embedded in the constitutional system is to examine the major episodes of its development, asking of each: Might it have been different? For each episode one can scarcely imagine that, given the political realities and the prevailing crisis conditions, the outcome could have been avoided.
Even justices themselves have shuddered, in ages past, at the effects of National Emergencies:
Beyond the utter confusion of the marketplace lay the disruption of the administration's monetary policy, now almost two years old. The attorney general's argument before the Court emphasized the doctrine of emergency powers and the gravity of the prevailing depression crisis; the "power of self-preservation," he declared, required transcending the "supposed sanctity and inviolability of contractual obligations." Again, given the prevailing economic and political conditions, the remarkable aspect of the decision is that four justices dissented--Justice James McReynolds read their objections with muttered asides that "the Constitution is gone" and "this is Nero at his worst.'
When we submit to "terror" schemes foisted upon us (whether subway attacks, airline searches, whatever), we must come to terms with the permanent cost of our acquiescence. We must realize that we may be sacrificing our Constitution to ephemeral concerns. Am I saying "just say "no" to terror? Read on, tell me how else we can retain our Constitution:
I am emphatically saying that the Patriot Act will move us permanently into a totalitarian state. And is anyone on Dkos yet unaware that we have to watch this White House like hawks? We are so close to losing our Constitution completely, forever.
To make matters worse, however, the Normal Constitution to which we revert after a national emergency has ended is never the same as it was before the crisis. To some degree, aspects of the Crisis Constitution, as expressed in judicial interpretation and even more so in the body of belief that supports the constitutional system, are incorporated into the Normal Constitution. Such legacies marked the aftermaths of both world wars and the Great Depression.
Once Patriot III is passed, public opinion on this issue will be irrelevant. I would post excerpts liberally, but let's stay on the current discussion:
Should a genuine national emergency arise, there can be no doubt about how the government would react. (Recall its actions in dealing with the partly spurious, partly self-inflicted "energy crisis" in the 1970s.) The private rights of Americans--such as remain--are balanced on a very thin constitutional edge.
But if the dominant ideology does not give strong support to the Normal Constitution, it will eventually be overwhelmed by the Crisis Constitution. Step by step, a ratcheting loss of rights will attend each episode of national emergency. And we may as well admit that such emergencies are inevitable.
Unfortunately, citizens in the United States today, with only a few notable exceptions, have neither an appreciation of this ratchet process nor a strong commitment to individual rights to life, liberty, and property. Therefore, the most likely prospect is for further expansion of the Crisis Constitution and a corresponding loss of the liberty our Founding Fathers sought to secure for us.