What Tony Blankley Doesn't Tell You:

Tony Blankley, the editorial page editor of the Washington Times, has an op-ed defending (and urging) various wartime restrictions. Some of what he omits, though, is even more striking than some of what he includes.

For instance, Blankley praises a Court decision that "upheld the school expulsions and parental prosecutions" of "[m]embers of the Jehovah's Witnesses were prosecuted during World War II for refusing to let their children recite the Pledge of Allegiance." He goes on to praise this approach:

In those days, when Supreme Court justices -- liberal, moderate, and conservative -- sat down to write opinions, they knew their words and findings mattered.

Wrongly decided cases wouldn't merely expose the justices to rude comments in fashionable newspapers and magazines. Wrongly decided cases might expose the United States to disunity, sabotage, revolution or conquest.

Under such circumstances, the justices were more than prepared to let Congress give the president of the United States broad powers to defend our country. And they were unlikely to interfere with the president carrying out such powers or to second-guess the military's decisions.

The court would draw lines and preserve the essence of our freedoms. But the justices were practical men.

They understood that the broadest enforcement of every last theoretical right and privilege might well be purchased at the price of losing our most basic right: the right to effectively defend ourselves.

An interesting argument -- but might it be relevant that three years later, when the U.S. was actually fighting World War II (as Blankley points out, the decision he praises came in 1940), the Supreme Court held that the Jehovah's Witnesses did have the right to "refus[e] to let their children recite the Pledge of Allegiance"? The first decision essentially held that the Witnesses couldn't win under the Free Exercise Clause, on the theory that as religious objectors they were entitled to an exemption from a generally applicable pledge requirement. The second decision, though, held that the Witnesses -- and anyone else -- should win under the Free Speech Clause, on the theory that everyone, religious or not, was entitled to an exemption from the Pledge. If one is going to call on one Supreme Court decision as support for one's position, wouldn't it have been good to point out that another decision, three years later, rejected the very sort of argument that one is making?

Likewise, Blankley argues that "Just as their generals and admirals made no compromise to the imperative of total victory on the battlefield, so British and American political leaders, courts and popular opinion let the requirements for victory define the powers of their government on the home front," and gives as one favorable example that "Attorney General Robert Jackson described the targets and responsibility of the FBI's domestic intelligence activities as involving 'steady surveillance over individuals and groups within the United States ... which [are] ready to give assistance or encouragement in any form to invading or opposing ideologies.'" Yet oddly enough, Blankley doesn't mention that the very same Jackson, once elevated to the Court, wrote a majority decision striking down the compulsory Pledge of Allegiance, and memorably dissented from the Court's upholding the ethnicity-based internment that Blankley praises.

Blankley also refers to Justice Frankfurter as a "liberal icon," which Frankfurter probably was in his defense of the New Deal. But on free speech issues, Frankfurter took a relatively restrictive view -- certainly not the view held by the liberals on the Court in that era -- not only on national security questions but also on issues quite unrelated to national security.

Blankley writes, as to Justice Frankfurter's observation that "the mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities,"

This is particularly applicable to the situation we face today. Radical Islamists are demanding to be covered by Shariah -- laws compiled over a thousand years of Muslim jurisprudence, based on the Koran and its commentaries -- rather than by the laws of the United States, Britain, Germany or the other non-Muslim nations in which the radical Islamists live.

Yet it's well-settled under U.S. law that radical Islamists have no entitled whatever to "be covered by Shariah . . . rather than by the laws of the United States." At most, they might be entitled to rather modest statutorily defined exemptions from generally applicable laws and work rules -- for instance, to exemptions from police regulations that require officers to be clean-shaven or to modest breaks on Fridays to be able to pray, just as Jews and Seventh-Day Adventists are sometimes entitled to take the Sabbath off, and yarmulkeh-wearing Jews and turban-wearing Sikhs are often entitled to exemptions from work rules that ban employees from wearing headgear. (People who agree to have their civil disputes arbitrated by religious tribunals, whether Muslim, Jewish, or Christian, are generally allowed to have such agreements stand, but that is a well-settled principle of respect for contract rights, and probably not what people think of when they read about radicals' demands to be covered by religious law rather than secular law.) Again, might it have been worth acknowledging that, if we want to resist radical Islamists' demand to be covered by Shariah, there's little need to borrow World War II attitudes or jurisprudence -- that even the supposedly lax modern regime does perfectly fine at resisting calls for such legal separatism?

There are quite plausible arguments for restrictions on certain civil liberties in the name of national security. We have long recognized some such restraints, and may well need more in some areas (or fewer in others). And history may well be helpful in understanding which restraints have proven justified, and which have proven to be unnecessary or unduly dangerous.

But if you're going to argue based on history, it seems to me better to give a balanced account of that history.

At what point, though, does pragmatism about civil liberties in wartime become outright enthusiasm for The Man On a White Horse?
9.14.2005 3:50pm
frankcross (mail):
It's a little known fact that WWII was won on the classroom with the Jehovah's Witnesses.
9.14.2005 3:51pm
It's not available on Westlaw/Lexis yet, but there's a newsreport that the district court in San Fransisco has ruled in favor of Michael Newdow, barring the recitation of the Pledge of Allegience. Apparently he felt he had to go along with what the Ninth Circuit said. Now, didn't the S.Ct. dismiss the case on standing issues, thereby voiding the Ninth Circuit's ruling?
(sorry for the tangential threadjack)
9.14.2005 3:59pm
Nobody Special:
Sacramento, not San Francisco.

The decision is from the Eastern District of California, and once again involves Michael Newdow: Sacramentan, Atheist, and Activist.
9.14.2005 4:08pm
Whitehall (mail):
I'm afraid our good law professor missed the point of Mr. Blankley's articles. As I read his them, his argument was not that these were "precedents" to be followed, so much as examples of past pragmatic actions that would be considered "politically incorrect" today. What we do should be adapted to the current conflict and should be equally vigorous.

He didn't say "Make children recite the Pledge" or "intern the Bund"; he suggested ethic profiling on airplanes and increased surveillance of mosques. It doesn't really matter to our security how Felix Frankfurter did or did not rule 60+ years ago.

Sorry, but this country has too many darn lawyers! We graduated 43,000 last year and only 430 petroleum engineers. Little wonder we're running out of energy while wasting too much time in ineffectual arguments.
9.14.2005 4:31pm
"As I read his them, his argument was not that these were "precedents" to be followed, so much as examples of past pragmatic actions that would be considered "politically incorrect" today."

And you missed the point that the decisions didn't even survive in their own time period, much less to today - they were "politically incorrect" even during World War II.
9.14.2005 4:44pm
Shelby (mail):
they were "politically incorrect" even during World War II

Well, legally incorrect anyway.
9.14.2005 4:48pm
washerdreyer (mail) (www):
Nobody Special, are atheist or activist meant to be criticisms? Activist is nonsensical as a criticism of a litigant (it very rarely makes sense as criticism of a judge, but for different reasons).
I recognize that some religious believers see atheism as a moral failing, though I don't think of that as being part of a well though out ethical system.
Whitehall, the article surely does seem to argue that internment was a good idea in World War II and might be again.
9.14.2005 4:57pm

Sorry, but this country has too many darn lawyers! We graduated 43,000 last year and only 430 petroleum engineers. Little wonder we're running out of energy while wasting too much time in ineffectual arguments.

Yes, clearly the high price of oil these days is due to a lack of petroleum engineers. I think the market is pretty good at a macro level at directing people into careers where they're needed.
9.14.2005 5:04pm
Anderson (mail) (www):
Newdow can't be happy about living in "Sacramento." One battle at a time, I suppose.
9.14.2005 5:05pm
ChrisS (mail):
Now, didn't the S.Ct. dismiss the case on standing issues, thereby voiding the Ninth Circuit's ruling?

Technically yes, but the precedent of how they ruled on the specific question of the pledge's constitutionality stands. At least that's my understanding.
9.14.2005 5:17pm
Catfish (mail):
It seems to me that Blakely does the cause of racial profiling a disservice. There are many people, like myself, who oppose racial profiling, but could be persuaded on practical grounds to relax our opposition. Those who explicitly tie it to internment and forcing people to recited the pledge (not that those too things are equivalent) make it that much harder for us to see proponents of racial profiling as having any respect for the basic rights of US citizens.
9.14.2005 5:51pm
Anderson (mail) (www):
Technically yes, but the precedent of how they ruled on the specific question of the pledge's constitutionality stands. At least that's my understanding.
So it appears; SCOTUS reversed rather than vacated, and the district court reasons that because the reversal was based on lack of prudential standing, not Article III standing, the panel's ruling on the merits remains valid. (I.e., the panel *shouldn't* have gone there, sez SCOTUS, but it's not as it they *didn't* go there.)

An issue to which it will be interesting to learn the answer, regardless. And presenting the prospect of a SCOTUS reversal that decides ONLY the issue of precedential value of decisions reversed on grounds of prudential standing, without reaching the merits. Be very afraid.
9.14.2005 6:24pm
W.J.Hopwood (mail):
I agree that Blankely's case example might have been better chosen but he did hit the nail on the head by pointing out the absurdity of today's politically-correct ideological response to clear and present danger vis-a-vis the pragmatic approach of the WWII SC when it came to national security.

Better examples to prove his point could have been Hirabayshi or Korematsu (the latter so horribly misrepresented by Senator Leahy in the Roberts hearing yesterday). With such cases the WWII High Court upheld the war power of the Executive "as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack...exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group..."

Never overruled, these cases could be useful precedents in days to come should circumstances similar to those for which FDR's E.O.9066 were enacted once again present themselves, current ideological objections to the contrary notwithstanding.
9.14.2005 6:48pm
Whitehall, whether or not we have too many lawyers, we could always use another like Robert H. Jackson. Or Felix Frankfurter, for that matter, whose opinion in Gobitis was probably contrary to his personal views but consistent with his interpretation of the Constitution's prescribed role for the Court in our federal system.

Admiration for Frankfurter's judicial restraint aside, enforced recitation of the pledge isn't a "pragmatic" but politically incorrect action by the government. When fighting against fascists, it's not generally a good idea to retain in one's own society the trappings of fascism, such as compulsory loyalty oaths such as those permitted in the Gobitis case and prescribed by the West Virginia law declared unconstitutional in the Barnette case (the W.Va. compulsory flag salute included not only the pledge, but also included a straight arm, nazi-like salute; one must wonder whether this provision was added as an accommodation to the W.Va. Chapter of the German-American Bund). Far from being an example of political correctness trumping pragmatism, Jackson's opinion is an eloquent statement of "Why We Fight."
9.14.2005 6:52pm
We can only hope that John Roberts is from the same mold that gave us Justice Jackson. Jackson's opinion in Barnette is worth reading and re-reading (and re-reading, and re-reading . . .). It's hard to choose where to begin in picking a favorite sentence or three, but these will serve as well as any of 15 or 20 others:

"It was said that the flag-salute controversy confronted the Court with 'the problem which Lincoln cast in memorable dilemma: 'Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?" and that the answer must be in favor of strength. We think these issues may be examined free of pressure or restraint growing out of such considerations. It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school."
9.14.2005 7:06pm
It is quite scary to hear someone opine that Korematsu could be a "useful precedent someday." Thankfully Judge Roberts, like his brethren-to-be on the Supreme Court, understands that it has been utterly discredited.
9.14.2005 9:30pm
Whitehall (mail):
I'll certainly agree that some lawyers are better than others and more useful socially too. My point was about excess QUANTITY and not about a lack of quality.

However, I will NOT agree that the 43,000 lawyers a year are needed by our society. However, we will see a reversal of the trend to "underattract" students into energy engineering careers over the next few years. Will you lawyers stipulate that engineering is a more rigorous career path and deters all but the best and the brightest? Plus, immigration by engineers is much more effective than immigration by foreign lawyers, depressing engineers' salaries.

Further, some of the measures Blankley was enthused about may have been reversed later by the Courts and I will grant that some other measures taken during WWII were pretty stupid and, worst, ineffectual. Still, we need more vigor.

Agreed that a better, more persuasive article could have (and should be) written on the subject. But I'll take it.
9.14.2005 11:32pm
Lorenzo (mail):
Let me guess that Blankley's main point was that we are at war, and that some restrictive measures are needed to remind the public of that fact. He went back in history to the "good" war for examples, and due to the nature of the war we're fighting, couldn't use gas rationing, Meatless Tuesdays, scrap metal drives, or any of the unifying measures that hit the average citizen in his lifestyle. You can say he didn't make good choices in his examples, but are there any, really? Given the circumstances of this struggle, are there any measures that can put the public into a war spirit short of emphasizing the aid and comfort statutes and rounding up the Bush-Hitler crowd?
9.15.2005 12:26am
The Original TS (mail):
"There are quite plausible arguments for restrictions on certain civil liberties in the name of national security."

Well, yes . . . and no. Concerns about "National Security" and cheap invocations of loyalty are more often used for cynical manipulation than to actually defend the country from a real threat. Think of the "Patriot Act" itself. The name was nothing more than an attempt to cut off any serious debate through emotional blackmail. "How can you be against the Patriot Act? Aren't you patriotic?"

By the same token claiming that some new rule or restriction is necessary to "fight terrorism" is all too often a lazy way to achieve some completely unrelated purpose. If something, no matter how ridiculous or apparently unrelated, is necessary to "fight terrorism" we're all supposed to fall into line without asking any pesky questions.

All this is to say that invoking "national security" ought to be done extremely sparingly and as a last resort. I've always found it disturbing that the courts are so ready to acquiesce to executive branch claims that "We're at war!" In point of fact, at least from a legal perspective, we are not -- sound bites regarding "the war on terrorism" not withstanding.

If being in a state of war is going to be a legal trigger for curtailing civil liberties then courts ought to insist that the formalities be observed and that Congress make a formal declaration of war. Allowing the Executive unilaterally decide that we're in a "war" and then use that decision to limit civil liberties effectively means that these civil liberties only exist at the whim of the executive. That's not the way our system of checks and balances is designed to work.
9.15.2005 4:46am
doe (mail):
I'm shocked--I just can't believe that the editorial page editor of the Washington Times is a know-nothing hack...
9.15.2005 8:47am
Whitehall, Blankley's article is pretty good in general, but Gobitis doesn't help make his point, which is that political correctness shouldn't be allowed to trump common sense. The Barnette case, decided in 1943 and which reversed Gobitis, seems to be the politically expedient decision, whereas the dissenting position taken by Frankfurter, which would have upheld Gobitis, would have been highly unpopular. That is apparent for a number of reasons -- first, Jackson takes the trouble to describe the straight-arm, nazi-like salute prescribed by the West Virginia law at issue; second, the Court's decision reversed Gobitis a mere 3 years after it was decided, with Black and Douglas switching their own positions, ostensibly because Gobitis was decided on free exercise of religion grounds whereas Barnette was decided on free speech grounds (Jackson doesn't have much patience for this meaningless distinction -- the free speech grounds are broader than the free exercise grounds); and finally, Frankfurter includes in his dissent a personal note to the effect that he, as a Jew, understood the sort of persecution associated with compulsory demonstrations such as that at issue, and that he would personally prefer the majority's position but was compelled by his interpretation of the Constitution to dissent. Even though Barnette is indeed the correct position on the issue, you might speculate that it wouldn't have been heard by the Court if the West Virginia law had popular support around the country. After Pearl Harbor, the government delivered the Why We Fight message, and its implication was that laws such as West Virginia's flag salute law had no place in a free society fighting against nations characterized by similar compulsory demonstrations of loyalty.
9.15.2005 12:08pm
Catfish (mail):
This loose use of the term of "political correctness" is troubling. Why is it "politically correct" to oppose the internment of people based on their race? Why is it "politically correct" to be against forcing the children of Jehovah's Witnesses to recite the pledge? In the 1990s usuage, it seemed to have more to do with using the "sensitive" terms for minority goups. Does "politically correct" now mean a devotion to civil liberties? A devotion to liberal or libertarian causes? If so "politically correct" has become exclusively a term of abuse with no real meaning. Thoughtful and rigorous people should avoid using it.
9.15.2005 1:57pm
Sorry to be loose, Catfish, but this is just that kind of place. Substitute "in keeping with prevailing public sentiment" for "politically correct." That's not quite the same thing, and it's probably more accurate. Prevailing public sentiment in 1943 was with the Court in striking down the W. Va. compulsory pledge recitation law, not with those seeking to uphold the law. If Blankley is suggesting that wartime patriotism is synonymous with support for compromises on basic freedoms, then he's mistaken. In WWII, the government drew a sharp contrast between us and our enemies: we were a free society, they were oppressive, a coerced pledge of allegiance was more them than us, and people by and large recognized that.

The social and political features of the Jehovah's Witness cases are easily distinguishable from those involved in the internment cases, which of course arose from far greater deprivations of liberty than a coerced recitation of the pledge. Internment was something that the government did to "them" -- that is, persons whose loyalty was legitimately (so it was then perceived) questioned because of their connection to an enemy nation. The Jehovah's Witnesses who refused to recite the pledge weren't seen as a security threat.
9.15.2005 2:41pm
W.J.Hopwood (mail):
Writes Catfish:

"This loose use of the term of "political correctness" is troubling. Why is it "politically correct" to oppose the internment of people based on their race?"

It wouldn't be if that is what happened. What is "politically correct" is to contend that they were "interned based on their race" when they were actually "interned" because there was an abundance of intelligence showing pro-Japan activity among them, two-thirds of the adults among them were Japanese nationals, and the adults who were U.S.citizens also held dual citizenship status as citizens of Japan, thousands having been educated in Japan many returning to the reservists in the Japanese armed forces.
9.15.2005 5:06pm
Brian Westley (mail) (www):
I haven't seen anyone who advocates some sort of racial/religious profiling of Arabs/Muslims due to the 9/11 attacks also advocate profiling of people similar to those responsible for the previous "worst terrorist attack in US history", namely the Oklahoma City bombing.
9.18.2005 7:26pm