Leonard P. Strickman

The aftermath of the terrorist attacks of September 11, 2001, place on the table for the United States public policy issues of extraordinary magnitude. Circumscribing the resolution of these issues is the American Constitution. While constitutional principles are sometimes re-evaluated by the political process through the amendment process and by the judiciary in the decision of court cases, there would seem to be a national consensus that basic principles which have not been upset though amendment since the passage of the Civil War amendments, concluded in 1870, should circumscribe governmental efforts to provide a secure society. This is consistent with our understanding of equality before the law and basic civil rights and liberties.

The range of constitutional issues before our country is vast, and the space for this essay is necessarily limited. Hence, I will acknowledge some vast issues that I do not plan to address in this article:

1. President Bush has announced that the nation is at war, yet asserted initially that the international rules of war do not apply to present conflict. The only reference to war in the Constitution is found in Article I, Section 8, where Congress is given power to declare war; the President is made Commander in Chief of the armed forces in Article II, Section 2. To what extent do these provisions circumscribe issues of, for example, who may be tried by military courts?

2. Thus far, there have been no serious threats to free speech undertaken by government. The political consensus behind governmental policy is strong. As the length of time extends for extraordinary actions by government responding to the perceived terrorist threat, history would suggest that consensus might yield to division. The president’s press secretary has on at least one occasion suggested dissent in these times is inappropriate. To what extent does perceived crisis permit the inhibition of First Amendment rights of free speech, press, and assembly?

3. To what extent can the normal due process rights of defendants in criminal proceedings—rights like a public trial, confrontation of evidence against one, and cross-examination of witnesses—be suspended in the name of national security?

Other questions arise associated with national origin discrimination, selective discrimination against non-citizens of the United States, and rights to privacy under the Constitution.

In 1944, in the case of Korematsu v. United States, the Supreme Court sustained the constitutionality of legislative and military policies that led to the establishment of “relocation centers” in the western United States to which persons of Japanese ancestry were required to move. These requirements were imposed while the United States was in a declared state of war with Japan. Korematsu, himself, was an American citizen of Japanese descent. Three members of the nine member Court dissented from the result.

Although the case has never been directly overruled, it has been widely discredited. Indeed, during the 1980s, Congress established a commission that concluded that the policies challenged in the Korematsu case had been unjustified by military necessity, and Congress passed legislation approving an apology and reparations to many of those adversely affected. The weight of scholarly opinion would be that the Korematsu case is no longer good law, and that even in time of declared war, extensive national origin discrimination against citizens cannot be rationalized under the Constitution.

Applying this conclusion to post September 11 circumstances in the United States, any policies that visit significant burdens or the liberties of Arab Americans would be unconstitutional. Whether the profiling of all persons whose ancestry appears to derive from Muslim countries (e.g., for the purposes of more extensive searches at airport security checkpoints) would create a sufficient burden to create unconstitutional discrimination is an open question.

Although Congress may not discriminate against citizens based on religion or national origin, its plenary power over immigration and naturalization under Article I, Section 8, gives it considerably more latitude in discriminating between aliens and citizens, and further, among aliens on national origin grounds. States may not discriminate on the basis of alienage any more than they may on the basis of race, as the Supreme Court has interpreted the equal protection clause of the Fourteenth Amendment. The non-discrimination component of the Fifth Amendment, which applies to national government, requires that discrimination on the basis of alienage have only a rational basis in order to be sustained. Hence, Congress may recognize distinctions in the treatment of aliens and citizens, and between aliens from different countries.

One consequence of the foregoing analysis is that the national government may track the travel of aliens in the United States that, arguably, they may not do for citizens (except perhaps, for those under reasonable suspicion of having engaged in criminal activity).

Finally, the question is raised of the privacy rights of citizens. It is no longer arguable that metal or explosive detectors at airport security checkpoints violate any constitutional right to privacy. Many airlines are trying to establish systems of accelerated computer read cards for frequent travelers that would alleviate the need for extended airport security procedures.

Can the national government require all persons who use the nation’s transportation system—airplanes, trains, buses, and rental cars—to have identity cards that include pictures, fingerprints, and the information normally shown on state driver’s licenses? Can they require the issuance of such cards to any non-citizens entering the United States? I believe the answer is yes; i.e., whatever one’s belief about whether such a requirement would be sound public policy, nothing in the limited constitutional right to privacy prevents the federal government from seeking such information from citizens or non-citizens.