I recently read the Espionage Act of 1917 to better understand the statutory basis of a famous Supreme Court decision known as Schenk v. United States. It occurred to me that this was an era when Congress and the Supreme Court statutorily and constitutionally accelerated the splitting of our Bill of Rights into two bodies of law; a peacetime Bill of Rights and a wartime Bill of Rights. Our legislators and judges decided that it was a matter of national security that Americans should have fewer liberties during a time of war. This new definition of civil liberties allowed the Court to accomplish some monumentally challenging feats of jurisprudence such as the Supreme Court’s decision in Korematsu v. United States, which declared the forced internment (i.e., ethnic cleansing) of Japanese Americans during World War II to be constitutional.
What are the consequences of this “dual” Bill of Rights on our civil liberties in a post 9/11 era where we find ourselves in a perpetual "war" against terrorism? Despite later Supreme Court decisions such as Brandenburg v. Ohio, The Espionage Act of 1917 is still on the books as a constitutionally valid law. In this legal environment, does the potential exist for establishing a “new normal” in our definition of American civil liberties? This was a much more salient question eight years ago when the post 9/11 trauma was in full bloom and the popular American mind imagined a radical Muslim terrorist under every rock. Imagined or not, domestic terrorism is still a threat and Americans are still justifiably angry about 9/11. So what about our basic civil liberties? Will they diminish even more?
