Somewhere in the fog of elementary school memories, there is a story about the founding of America. There are Tories and Whigs, stars and stripes, redcoats and midnight rides, white wigs and beeches. Woven around the characters and events are our founding documents — the defiant Declaration of Independence and our venerated Constitution.
Since 9/11 and the subsequent War on Terror, Americans have lived in a society gripped by fear and paranoia, plagued further by economic woes and socio-cultural transitions. As is psychological and social tendency, in fear and among uncertainty, we have sought out and clung to the Constitution’s familiar, equalizing foundation.
As a central framework that has brought order to conflict and chaos, the Constitution — particularly the civil liberties enshrined in the Bill of Rights — have become a focal point of social and political discourse. Though the economy, employment, and health care dominate this election year, the last decade’s state of civil liberties has been a sad one.
Whether realized or not, civil liberties are part of everyday life. Yet, in neither the Obama administration nor the Romney-Ryan ticket do civil liberties have a champion. Under particular threat are the explicit and implied rights of the First Amendment; the Fourth Amendment’s freedom from unreasonable search and seizure, the Fifth Amendment’s due process demand, and the Sixth Amendment’s rights of the accused, right to a speedy trial, and right to counsel. In combinations laid out by Supreme Court jurisprudence and filtered through the Fourteenth Amendment, the right to privacy and equal protection — under which reproductive choice, voting rights, immigration, and Title IX considerations fall — are also undermined by the present state of governmental affairs.
As the fundamental relationship between citizens and government, civil liberties need to be addressed and accounted for in both Barack Obama’s and Mitt Romney’s campaigns.
In their present state, comparing the two sides’ stances is an exercise in choosing a rock over a hard place.
First, a brief history.
The Constitution’s first ten Amendments make up the Bill of Rights. In application, its enumerations are civil liberties, which ensure personal freedoms against entities more powerful than the single individual — the government, corporations, and other individuals.
In 1866, the 39th Congress passed the Fourteenth Amendment, making the Bill applicable to the states under the incorporation doctrine. With the Amendment, states could not deny anyone within their jurisdictions equal protection of the laws. Over time, the Fourteenth Amendment proved crucial to laws that affect women, racial minorities, immigrants and religious groups, known as “discrete and insular minorities.”
In the early days of the republic, civil liberties were little addressed. Then, on April 27, 1861, more than 70 years after the ratification of the Constitution, President Lincoln controversially suspended habeas corpus in response to Confederate rebellion during the American Civil War. Since, the Supreme Court has explored and clarified civil liberties’ nuances in a steady stream of cases, many arising between 1950 and 1990.
Though civil liberties and their protections have been well-established, their applications are affected by the social and political moment. As they collide with the myriad of governmental considerations — especially national defense and welfare — these moments become the filter through which civil liberties are given effect. In post-9/11 America, the filter has become much less permeable than in the past.
As civil liberties are the line between government and citizens, they must remain close to consciousness. Though partisan rhetoric has reached a fever pitch, neither the Obama administration nor the Romney-Ryan ticket have addressed their collectively poor records on civil liberties, much less their future approaches.
Admittedly, there is difficulty in doing so. Conceptually, civil liberties are straightforward; under philosophies of natural rights, their connection to the intrinsic makes them readily appreciable. But today — as during history’s past moments of conflict, disorder, and fear — civil liberties have been tested and excepted, if not abrogated by federal, state, and local governments alike.
Considering President Obama’s campaign in 2008, it is easier to evaluate his administration’s backpedaling. In 2008, he explicitly ran on a civil liberties platform contrary to the Bush administration’s aggressive, post 9/11 policies. As president, his administration has fixed and expanded many of his predecessor’s enactments while narrowing only a few.
Paralleling society’s changing values, the Obama administration has laudably supported freedoms associated with the First Amendment’s explicit and implied rights — including reproductive choice, gay marriage, and religious freedom. It has also ended the Bush administration’s divisive, and ultimately fruitless, torture practices against those suspected of being enemy combatants.
But President Obama’s record is far from pristine. In 2011, the extrajudicial killing of U.S. citizens, Anwar al-Awlaki, his 16 year-old son, and Samir Khan, outraged many across and beyond the partisan divide. His administration’s continued operation of Guantanamo Bay detention camp has been deemed a broken campaign promise. Though Obama’s efforts at closing the prison were largely blocked by Congress, this does not temper his recent signage of the National Defense Authorization Act, which allows the military to arrest and indefinitely detain without trial U.S. citizens and noncitizens suspected of terrorist activities.
President Obama has also expanded the 2001 PATRIOT Act’s surveillance policies, which have pushed large-scale surveillance tactics past many doorsteps. Federal policies require certain sites to provide access for domestic surveillance, and the National Security Agency has used the Act, in conjunction with a Fourth Amendment loophole, to contract with private firms who broadly mine data.
Romney and Ryan’s stances are no better.
As Romney’s positions have shifted, flipped, or gone unexpressed since he became the presumptive Republican nominee, it has been difficult to determine his exact positions on civil liberties. While Romney has supported some forms contraception and abortion in the case of rape, incest, or to protect the mother’s life — this is a view at odds with his running mate and the Republican Party’s platform, which could create future contradiction. He also opposes the rationale behind the Supreme Court’s implied privacy rights decisions on reproductive choice and stated that, as President, he would advocate for cutbacks in services related to family planning. Romney has also supported the PATRIOT Act measures in broad stroke, expressed his intent to “double Guantanamo,” and shown a willingness to continue the practice of indefinite detention.
Romney’s running mate, Paul Ryan, is more unequivocal. After Romney’s vice presidential announcement, the American Civil Liberties Union released a report detailing Ryan’s history on civil liberties issues. He voted against the repeal of Don’t Ask, Don’t Tell, and opposes same-sex marriage and reproductive choice measures. He has voted in favor of broad applications of the PATRIOT Act and supports indefinite detention legislation.
When given a choice, the “neither” option is one rarely taken. Yet in the choice between the civil liberties positions of the Obama administration and Romney-Ryan, neither have appeal. There is little disagreement that civil liberties are necessary in a free society. But with little daylight between Obama’s administration and the Romney-Ryan ticket, it is unlikely that civil liberties will factor into either side’s campaign. This reality is troubling.
Whether Americans will hold Obama’s or Romney’s feet to the civil liberties fire is an issue beyond Election Day. As recent history has shown, civil liberties traverse a slippery slope, but as of late, they have fallen harder, faster, and farther. The more pressing question has become: If our government will not ensure our rights, who will?