31 Pages Posted: 18 Dec 2010
Date Written: 2010
There are three fundamental questions concerning the Constitution's delicate balance between protecting national security and preserving fundamental rights. First, are wartime limitations on civil liberties necessary to avoid military defeat? Speculating on this topic is an academic exercise; however, it is clear that wartime Presidents like Abraham Lincoln and Franklin Roosevelt, based on the information available at the time, decided to take certain actions that infringed on constitutional liberties, but that were necessary to prevail.
Second, do such restrictions influence the subsequent creation and enhancement of civil rights? The orthodox view is that Americans support wartime Presidents who trample civil liberties, but later feel remorseful and support the generous granting of additional civil rights. However, civil rights laws are created and enhanced due to multiple political, legal, social, and other factors beyond collective guilt over wartime sins.
Third, if these later legal gains occur, do they ultimately justify the wartime measures? Instead of answering this question directly, it is preferable to focus on the dispositive issue of whether the limits on constitutional rights were necessary to achieve the greater good of winning the war.
This Article addresses each of these questions in detail. First, it analyzes the issue of whether wartime restrictions on civil liberties are necessary to avoid a military loss. Then, it explores whether such constraints eventually result in an overall enlargement of civil rights. Finally, it considers where those improvements excuse the infringement of rights during the military crisis.
Keywords: Constitution, President, War, Rights, Civil Rights, Civil War, World War II, Lincoln, Roosevelt, Liberties, War on Terror, Military, War, Infringement, Political, Legal, Social
Suggested Citation: Suggested Citation
Pushaw, Robert J., Justifying Wartime Limits on Civil Rights and Liberties (2010). Chapman Law Review, Vol. 12, p. 675, 2009; Pepperdine University Legal Studies Research Paper No. 2010/22. Available at SSRN: https://ssrn.com/abstract=1727010