Preserve The Liberty To Be Civil

By GIL TROY

The Forward, The Ivory Tower, JULY 12, 2002

The cry of "McCarthyism" has become a standard set piece in the kabuki theatrics that often masquerade as substantive debate in modern American politics. The routine is familiar. Attorney General John Ashcroft releases a trial balloon, contemplating a new legal stratagem against terrorism. Before you can say Osama Bin Laden, editorialists and lawyers are resurrecting the ghosts of past civil rights violations. It is now a common litany, featuring the great domestic outrage of World War II, the Japanese relocation camps and the great farce of the Cold War, Joseph McCarthy's all-too-real crusade against apparently phantom Communists.

Without apologizing for previous abuses or current overreactions, without endorsing every Bush-Ashcroft move, it is worth contemplating a different tradition in American history. Crackdowns on civil liberties have not all been hasty, foolish or overzealous. Many of America's greatest liberals have sacrificed individual liberties for what Thomas Jefferson called national "self-preservation." While keeping American missteps in mind, it is essential to judge difficult contemporary debates about racial profiling and military tribunals in a healthier, more balanced context.

"The Constitution is not a suicide pact," a Great Society liberal, Justice Arthur Goldberg, once observed. Goldberg recognized the essence of the American republic. The Constitution itself was founded as a counterrevolution by leaders frustrated with the Articles of Confederation's weak central government. In the Federalist Papers #41, James Madison, the "Father of the Constitution," thought it "vain to oppose constitutional barriers to the impulse of self-preservation." Nearly 20 years later, in 1810, ex-president Thomas Jefferson agreed, writing that: "A strict observance of the written laws, is doubtless one of the high duties of a good citizen, but it is not the highest.... To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."

On the whole, American leaders have a pretty good track record in preserving both the nation and civil liberties. No election has ever been postponed by war, foreign or civil.

Abraham Lincoln once worried: "Must a Government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?" Yet Lincoln's own leadership answered the question by demonstrating the republic's resilience. Nearly four score years later, the less contemplative Franklin D. Roosevelt had no doubts that it was acceptable to use "the sovereignty of Government... to save government." In the end, his greatest legacy, even with his mistakes vis-à-vis the Japanese, remains his eloquent affirmation and active defense of the four freedoms — freedom from want and fear, freedom of speech and religion.

Jews are, of course, particularly sensitive to the importance of civil liberties for all. But whereas European Jewry championed civil liberties out of an insecurity borne from a history of being society's unwanted, American Jewry's embrace of civil liberties stems from the self-confident reaping of the great bounty of America.

The questions facing Americans today are not easy. We are stuck with unhappy choices, wondering what we can tolerate, both in terms of violations and in terms of violence; wondering which freedoms we need to sacrifice in order to preserve others: Do we choose freedom of association for terrorists, or freedom of movement for their targets? Do we choose freedom of religion — for Muslims, who have allowed too much extremism to fester unchecked — or the basic freedom to live?

The liberal Justice William O. Douglas, dissenting in Dennis et al. v. United States, a 1951 Cold War case against Communists, offered a prescient carte blanche for extraordinary efforts in our current predicament. Douglas wrote: "If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale."

Jewish law confirms this constitutional mandate to balance. As in any interesting halachic or constitutional discussion, it only is a debate because it entails conflicting goods, difficult choices. But the concept of Pikuach Nefesh, of self-preservation, makes it clear: Nearly every mitzvah can be neglected temporarily for the sake of self-preservation, individual or collective.

Here, then, is an essential idea often overlooked in the televised debates that afflict our political culture: To neglect temporarily is not to negate. The mitzvot remain important and holy, as do individual civil liberties, even when suspended or constrained.

The United States — and much of the civilized world — cannot afford to be immobilized by past failures. We must be energized by our collective commitment to self-preservation. We have to acknowledge that this terrorist threat is centered in — although sadly not limited to — one religious group and disproportionately among immigrants. We have to balance the needs of the many who are innocent and the few who are guilty. We are left with what the great philosopher of liberty, John Stuart Mill, called "the practical question, where to place the limits — how to make the fitting adjustment between individual independence and social control." This, he said, " is a subject on which nearly everything remains to be done."

Both from the left and the right we need to balance with a clear head and a pure heart, with a rich and complex understanding of the past and the knowledge that we will be judged by history.