•Pat Lucie Built to Last

Built to Last
The American Civil War posed an immense challenge to the Constitution—
to find the powers of self-preservation, a war power extensive enough to mobilize amass army, organize an economy to support it, and reconstruct the Union on the basis of freedom and equality under law, all without trampling on the very liberty for which it stood. Though victory brought permanence and freedom from slavery to the Union, everything else is work in progress, and contemporary Americans are still engaged in interpreting and using the tools the war left behind.
The original intentions of the Framers have sometimes been a vicious battleground, played out on the Supreme Court, the academy, and, in the
1980s, the Justice Department. It has provided ammunition at different times for radical change but also for shrinking the reach of federal, especially judicial power cutting the litigious individual rights bearer down to size;
returning power to the states and returning to the values of community and collective rights. The dangers of ancestor-hunting for constitutional lineage are clear. Even if it were possible to retrieve and reconstruct historical evidence beyond dispute, there are no straight lines from a complex past to an even more complex present. There is little point in asking whether
Republicans in the Thirty-eighth and Thirty-ninth Congresses intended or even thought about a woman’s reproductive rights or same-sex marriage.
Constitutional language is designed to lay down fundamental principles capable of growth and good for all time. Room has to be left in which to account for the intervening social, political, and jurisprudential change and how judges reconciled these to the text. Painting with abroad brush,
however, some of the ways in which the Civil War impacted on individual rights into the twenty-first century maybe suggested.
The Bill of Rights, almost verbatim, now applies to the states through the
Fourteenth Amendment. There can be no doubt that the Republicans in the s believed that fundamental rights belonged to individuals by reason of birth and citizenship, and that these were protected everywhere from infringement. The devil need not be in the detail, for they made no list, not even in the 1866 Civil Rights Act, and they set no limits, not even the Bill of Rights. A century later, the application of the Bill of Rights to the states was more than a delayed effect of the Civil War. The conditions in which it took root depended on another transformative process in American constitutional history. The modern Supreme Court’s commitment to the idea that the Constitution contained preferred freedoms over which it had a duty to maintain special vigilance and guardianship, dates from the New
Deal. To reach that point, the Court had to make a momentous change and abandon the jurisprudence it had clung to since 1905, that the Fourteenth
Amendment’s liberty clause protected business corporations from the state regulations that deprived them of due process.
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It was a cruel irony that an
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amendment adopted to limit states from depriving people of their civil rights was used for nearly forty years to insulate business from the efforts of states to improve the working conditions and wages of their citizens. The New Deal ended that. The Court’s commitment to applying the details of the Bill of Rights came still later, when the Warren Court picked up the pace of change and, in addition to First Amendment rights, obliged the states for the first time to observe the rights of the accused contained in the Bill of Rights instate criminal trials. This has resulted in avast increase in federal court jurisdiction as defendants seek to raise constitutional issues using the procedures of the 1867 Habeas Corpus Act, first used to protect federal officials and others in hostile state environments.
Nor was the process of expanding liberty over when most of the enumerated rights had been incorporated. Even under the leadership of the more conservative Chief Justice Warren Burger, the Court could still muster a majority to hold that the unenumerated right of privacy was part of that liberty.
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Though the individual rights bearer became much better clad in the twentieth century in processes that are better understood in the context of the New Deal and later the Great Society than in that of the Civil War, it was a development that traced its roots both to the language of its Framers and their efforts to make the rights of all Americans as inalienable as possible in all environments. Although it seems close to unthinkable that a future
Court might undo the work of applying the Bill of Rights to the states, the
Court as currently constituted has made its distaste for freighting the liberty clause of the Fourteenth Amendment with rights pulled from the magician’s hat rather than the text or history. A majority of the Justices have expressed sympathy with the idea that the states should be able to experiment with solutions to modern ethical and medical dilemmas. While liberty is measured by Court opinions and Court membership changes, it can contract as well as expand.
The Supreme Court in the twentieth century also returned to the ideological battlegrounds of the Civil War in its equal protection jurisprudence.
In 1953 the Court asked counsel in Brown v. Board of Education of Topeka
to address the question of the Framers intentions with respect to desegregation. Thurgood Marshall, who at that time was counsel to the NAACP,
drafted in academic historians to scour the historical record for speeches and writings that would sustain the case against segregation in education.
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Chief Justice Earl Warren chose to set the fruits of these efforts aside in the unanimous Brown opinion, finding the historical case inconclusive and famously observing, we cannot turn the clock back to 1868,” but must consider public education in the light of its full development and present place in American life throughout the Nation Arguably Warren was being as true to the origins of the amendment in that honest statement than in volumes of historical research to tie down the meaning of its language
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to specific rights. The Fourteenth Amendment, like the Thirteenth and
Fifteenth, did what the rest of the Constitution did. It fused individual rights with constitutional structure. It committed future Congresses and courts to whatever interpretation and enforcement became necessary to achieve freedom and equality under the law. It prohibited both states and individuals from violating the individual rights it protected.
This is not an uncontroversial statement. One of the most intractable problems in contemporary constitutional law has been the extent to which the amendments reach violations by private actors. The 1875 Civil Rights
Act was one of the most radical pieces of legislation Congress ever passed.
In making racial discrimination unlawful in public accommodations such as inns and places of amusement, the law reached private conduct. It was struck down as unconstitutional in the Civil Rights Cases in 1883. Justice
Bradley, for the Court, denied that individual invasion of civil rights was the subject matter of the Fourteenth Amendment, but it is state action of a particular character that is prohibited This was a statement of doubtful historical accuracy, but it has remained undisturbed.
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In practice, private discrimination has been reached by stretching the concept of state action to include private actions that are touched in anyway by the hand of the state, but it remains a potential, and sometimes areal, barrier to tackling discrimination. The 1875 Civil Rights Act also rested on the Thirteenth
Amendment, and it was much more difficult to argue that it did not reach private actors. Justice Bradley conceded that it clothed Congress with the power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States but thought it would be
“running the slavery argument into the ground to apply it to the instances covered by the Act. Justice John Harlan dissented from that and his more expansive opinion on the scope of the amendment’s enforcement power has prevailed. In 1968 the Court turned to the 1866 Civil Rights Act to reach private discrimination in the housing market. Other enforcement statutes from the post-Civil War arsenal that reached private conspiracies to deprive persons of their right to equal protection, especially the Ku Klux Klan Act of 1871, have had anew lease of life in modern civil rights law and have become important pathways to federal courts.
The Civil War’s experiment in creating a more perfect Union produced some very durable tools. Used robustly, as they have been by the Supreme
Court at times in the not so distant past, the liberty, due process, and equal protection guarantees have added to the freedom and fairness enjoyed by most but not all Americans. The anti-discrimination principle has been applied to challenge race, ethnicity, nationality, gender, age, disability, and other classifications that traditionally disadvantaged people. Although the scope of legally secured liberty resembles the stock market in that it may fall as well as rise, the long-term trend has been towards expansion in such
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matters as freedom of expression, lifestyle choices and political participation.
And yet all is not well. Some of the concerns that have been raised about the current state of civil liberties in the United States put the adequacy of the
Civil War inheritance on trial.
The first charge is that the culture of rights is too much centered on courts,
especially federal courts, and chief of these the Supreme Court. This is a criticism that can spring both from the ranks of those who would like to see a more radical and rights-protective outcome and those who resent the interference of courts to overprotect what they perceive to be increasingly litigious and self-centered individual rights bearers.”
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Unquestionably the
Civil War set the pattern for the expansion of federal court jurisdiction but it was the post-New Deal Supreme Court, and particularly the Warren Court,
that laid down the doctrines that allowed the Court to take a leadership role in expanding the parameters of individual rights. Although the Court as presently constituted is a good deal less active in pursuit of a liberal agenda,
it is no more modest in its use of judicial power. Naturally there is a limit to how much courts can change society. Fifty years after beginning to desegregate schools by court order, they are still enmeshed in litigation.
The Civil War constitutional changes did not limit future generations to case-by-case progress, however. The war was a schoolhouse as much for
Congress as it was for the courts. It was 1964 before Congress passed a significant Civil Rights Act again, and the older legislation not only remains part of the US. Code but is in everyday use. The enforcement powers of
Congress remain to be fully utilized. The Thirteenth Amendment is a good example. It is a potential armory to tackle the badges and incidents of slavery that have been resistant to change and there is no question that it is directly binding on individuals. Nor need it be restricted to race. Its possible applications to issues such as prostitution, child abuse, the death penalty,
and labor law have been the subject of recent literature.
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Where a person is wrongfully prevented from exercising control over their life by the power of others, the amendment could be relevant. First, however, there would have to be a radical interpretation by the Court and Congress of what “slavery”
means in the twenty-first century as well as willingness to legislate. The problem is that slavery was an institution, freedom an individual right. Many
Americans are not free and not equal, and will not be until racism and poverty are eradicated. Though the culture of individual rights is strong it is centered on individuals and court cases, and limited by that.
The second major critique of the Civil War’s impact is that it began the swing towards federalization of rights, a process that risks consequences as undesirable as its opposite, states rights. The argument is that it has resulted in a loss to the sense of community, in which responsibilities go along with rights, and accountability for the uses and abuses of power is to the local electorate. The Supreme Court in recent times has appeared to have
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some sympathy with this view, generating liberal fears for the safety of previous decisions on such matters as abortion, religion in schools, and the rights of the accused in criminal trials. It is something of a stereotype,
however, that states would inevitably set lower standards. No less a liberal judicial activist than Justice William Brennan wrote an important article in the Harvard Law Review in 1977 at a time when he despaired of the conservative direction the Supreme Court was taking on rights. It was time,
he argued, to look to states to regenerate their constitutions and even to craft better and stronger protections than those available from the federal courts.
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The prominence of some first-rate state supreme court judges, and the announcement of a crop of progressive state decisions on criminal justice and gender discrimination, fueled his optimism. His message was one of partnership. It did not argue fora green light for states to experiment in ways which could diminish as well as enhance rights. The Bill of Rights and federal decisions on it would be a floor of protection, and not a ceiling. Only above the floor was it safe to give states room to experiment. Scholars are divided about how real the new state constitutionalism has turned out to be, and evidence of a flourishing rights discourse in the states has been patchy.
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Nonetheless Brennan was right in his insight that individual rights cannot flourish when they depend solely on being imported by federal courts to unwilling states.
To return full circle to the debate that accompanied the Civil War, America is engaged in anew war, designated, but by its nature undeclared, as a war against terrorism. Once more the Constitution is under intense examination.
There is a flourishing discourse about national security and individual liberty. After long decades in which the culture of rights has been dominated by the issue of state compliance with federal standards, the greatest threat to liberty now comes, it seems, from Washington. Like Lincoln, President
George Bush argued that the Constitution is not a suicide pact and the liberty it stands for will be worth nothing if it does not exercise the powers of self- preservation. After the murderous attack on the twin towers, Americans were prepared to accept that some individual sacrifices might have to be made for the sake of the whole. Experience of an overzealous executive power in two world wars, however, and suspicion of the ritual use of national security in the Cold War to limit speech, suppress opposition, and target internal enemies made many people wary of signing away liberties in the heat of the moment. Nevertheless, the Patriot Act was passed just six weeks after the events of September 11, among other things giving federal officials wider powers to track and intercept both foreign and domestic communications and access library records. There was evidence of growing dissent, however, and in early 2003 Congress buried a second Patriot Act which would have introduced even more intrusive and draconian surveillance. Under the terms of its sunset clause the first Patriot Act was
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renewed in March, 2006, again with a time limit. Meanwhile an avalanche of books, blogs, articles and speeches warn that the President and his Attorney
General are waging war on liberty, particularly through unwarranted surveillance and secret detentions that take the executive beyond the rule of law and the Constitution.
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Guantanamo Bay is widely believed to be the nadir of America’s commitment to civil liberties. Jefferson Davis and Abraham Lincoln must have had days when they would have sympathized with the idea of rounding up their enemies, dispensing with evidence of their identity as enemies,
holding them incommunicado in secret locations, humiliating and interrogating them abusively, and denying them the benefit of either the
Constitution or international law for what could be the rest of their lives. By comparison, the detentions that occurred during the Civil War were temporary, not done in secret, and prisoners were brought to trial, albeit by military tribunals. It has never been easy to hold the executive to account in time of war, and every war has produced its challenges to the separation of powers demanded by the Constitution. Roger Taney lectured Lincoln on the exclusive power of Congress to suspend Habeas Corpus. After the war’s end, and too late to matter to that particular war, the Supreme Court in Milligan reminded us that the Constitution applies equally in war and in peace Judges do not often stand in the road of war powers and what the executive does in the name of national security. It is therefore a matter of some consequence that the Supreme Court has handed down a series of opinions since 2004 that bring the Bush administration and the Congress to book for its treatment of alleged enemy combatants while the war on terror is current, and this time before the horse has bolted.
The battlefields of the war on terror are many, real, and imagined, and one of the thorniest problems is the accurate determination of the identity of the enemy. Some prisoners are picked up in Afghanistan and some at airports, even domestic ones. Some are US. citizens, most are foreign nationals. The evidence against them is either highly sensitive and the authorities do not want to compromise their intelligence services or the safety of the public by placing it before a judge, or it has been collected by interrogation methods that would make any ordinary court throw the case out. Sometimes the evidence is nonexistent. Even regular military courts operating under the Uniform Code of Military Justice are perceived as too open and too governed by the rule of law to process the government’s cases against detainees. It was only by taking prisoners to a land in limbo, a U.S.
naval base in Cuba, that the administration could place them beyond both the Constitution and international law, including the Geneva Conventions.
After all, these were aliens, suspected combatants, and terrorists and surely not beneficiaries of the checks and balances of 1787 or the access to federal courts and statutory Habeas Corpus so central to post-Civil War concepts of
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personal freedom and due process. This was a national emergency and the
President could rewrite the rulebook. The Supreme Court had other ideas.
Since 2001 the executive, with the assistance of Congress, has been attempting to keep detainees out of traditional civil or military courts and to deny them an opportunity to challenge the authority under which they are held. It has been more concerned with extracting information from prisoners than in testing evidence and it has denied the relevance of constitutional, international, and even ordinary military law to their situation.
On November 13, 2001, an executive order setup special military commissions to deal with enemy combatants and try those designated as al-Qaida members or supporters who have engaged in, abetted, or conspired to commit acts of terrorism against the United States. With death as a potential punishment it was important to get these things right. The commissions,
however, were woefully deficient in procedure. Classified information could be used against a prisoner but not divulged to him, and the commissions could admit coerced confessions and hearsay evidence. It was not that the administration was in a hurry to trial. Only a small minority of prisoners have even seen the small amount of daylight that trial before a military commission, however defective, would entail.
The Court fired the first salvo in 2004. In Rasul v. Bush a six-to-three majority held that the federal courts have Habeas Corpus jurisdiction to review the legality of the detainees confinement and ask whether they had been fairly classified as enemy combatants.
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The decision prompted the political branches to action. Just weeks later, on July 7, the Defense
Department ordered anew breed of military tribunals in addition to the commissions created under the 2001 order. Styled as Combatant Status
Review Tribunals, these were to make routine assessments of the detainees’
standing. Once it was established that a prisoner was an enemy combatant,
he could then be tried before a military commission. Almost 600 detainees have been processed by CSRTs. Without lawyers or access to the governments information, or permission to produce exculpatory evidence and witnesses, the results were a foregone conclusion. They were no substitute fora hearing before an independent court on a writ of Habeas. Congress passed the Detainee Treatment Act in 2005, purporting to prohibit inhumane treatment of prisoners, but stripping the federal courts of jurisdiction to consider statutory Habeas petitions and limiting the appellate review of decisions by CSRTs and military commissions to one federal court only, the
DC Court of Appeals.
The ball went back to the Supreme Court in 2006 and this time it went right to the heart of the legality of the military commissions setup under the executive’s 2001 order. Salim Ahmed Hamdan, Osama bin Laden’s former driver, had been captured in Afghanistan, turned over to the Americans, and was about to be tried by a military commission for conspiracy to participate
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in terrorist acts. It was a charge that could have been tried in a regular military court, operating under the procedural rules of the Uniform Code of Military
Justice. In Hamdan v. Rumsfeld. the Court handed down its opinion that
President George W. Bush’s executive order had overstepped the Constitution’s separation of powers by making new rules inconsistent with those made by Congress in the Uniform Code.
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For critics hoping for an end to these military commissions, however, it was not to be. If the President could not rewrite the rules, Congress could. It passed the Military Commissions Act of 2006, placing the commissions on a federal legislative footing. Some improvements were made, but coerced confessions and hearsay remained admissible in evidence, in clear violation of the Fifth and Sixth Amendments of the Constitution and of Common Article 3 of the Geneva Conventions—
if they had any application at all to these prisoners. Section 7 deprived the federal courts of Habeas jurisdiction. It was time to return to the Supreme
Court.
Lakhdar Boumediene was an Algerian-born Bosnian national held at
Guantanamo on suspicion of conspiring to bomb the American embassy in Bosnia. He had been reviewed by a CSRT and found to bean enemy combatant. He applied fora writ of Habeas Corpus from a federal court.

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