Copyright © 2001 Boston Phoenix, Inc.

Sidebar: Two cases in point

From the Alien and Sedition Acts of 1798 to Richard Nixon's vicious, unconstitutional assaults on his political enemies during the Vietnam era, our cultural attitude toward civil liberties in wartime might be described as one of repress in haste, repent at leisure. This was never more true than during World War II. At a time when nothing less than the freedom of the world was at stake, some government officials decided that freedom at home was simply too dangerous to allow.

The best-known example was the internment of some 120,000 Japanese-Americans, a gross overreaction to the possibility that some small percentage of them might be Japanese spies -- or simply provide a safe harbor, wittingly or not, for Japanese agents who might try to slip into the country. There is obvious relevance to the situation that exists today with Muslims and Arabs living in the United States, some of them naturalized citizens, some of them not. As recounted in Supreme Court chief justice William Rehnquist's All Laws but One: Civil Liberties in Wartime (1998), only one high-ranking member of Franklin Roosevelt's administration, Attorney General Francis Biddle, was opposed to the idea of forcibly moving Japanese-Americans away from the West Coast. Later, in speculating about Roosevelt's own feelings, Biddle wrote: "I do not think he was very much concerned with the gravity or implications of this step. He was never theoretical about things. What must be done to defend the country must be done."

Rehnquist traces three lawsuits brought by Japanese-Americans, the last of which resulted in the Supreme Court's ruling that the plaintiff "was entitled to be released from confinement." That decision quickly led to the end of the internment program in late 1944 -- a time, Rehnquist archly observes, "when the United States' fortunes of war were vastly improved." And though Rehnquist himself appears to conclude that the program was at least partly justified -- particularly as it pertained to foreign-born Japanese -- the American people eventually came to believe otherwise, with Congress approving some $1.2 billion in reparations in the late 1980s. Francis Biddle would have been pleased.

Another World War II-era case involved the mandatory recitation of the Pledge of Allegiance in public-school classrooms -- another issue that could come back to life because of the terrorism fears that now grip the nation. As Alan Charles Kors and Harvey Silverglate write in The Shadow University: The Betrayal of Liberty on America's Campuses, "Coerced conformity in matters of conscience is the fatal enemy of liberty, but it is often difficult to resist during periods of crisis, when a society views dissent different from majority beliefs as a threat to what it believes to be a vital unity of purpose."

Kors and Silverglate recount two Supreme Court decisions involving Jehovah's Witnesses, who as a matter of religious principle refuse to salute the flag or pledge allegiance to it. In the 1940 Gobitis decision, the Court upheld a law requiring that schoolchildren salute the flag. Just three years later, though, in the Barnette decision, the Court overruled its previous opinion and ruled that a local school board's Pledge of Allegiance requirement was unconstitutional. The Gobitis decision was written by Justice Felix Frankfurter, a formidable conservative who often sought to limit the extent to which the courts interfered with the judgment of elected officials.

Barnette was authored by Justice Robert Jackson, who -- far from being a liberal -- was a former attorney general who later served as chief prosecutor in the Nuremberg trials, helping to send Nazi war criminals to their deaths. Jackson, then, was hardly a foe of government power. But, in Barnette, he made it clear that forcing children to pledge allegiance to the flag, even to the point of making the parents of those who didn't comply liable to prosecution, was an unwise use of that power.

"To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds," Jackson wrote. "We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes."

-- Dan Kennedy