The clash in American history between liberty and safety is as old as the republic itself. As far back as 1798, notwithstanding the lofty goals and individualistic values of the Declaration of Independence and the Constitution, the same generation -- in some cases the same human beings -- that wrote in the First Amendment that “Congress shall make no law … abridging the freedom of speech” enacted the Alien and Sedition Acts, which punished speech critical of the government.
Similarly, the Fifth Amendment’s guarantee of due process has been ignored by those in government charged with enforcing it when they deal with a criminal defendant whom they perceive the public hates or fears. So it should come as no surprise that no sooner had the suspect in the recent New Jersey and New York City bombings been arrested than public calls came to strip him of his rights, send him to Gitmo and extract information from him. This is more Vladimir Putin than James Madison.
I have often argued that it is in times of fear -- whether generated by outside forces or by the government itself -- when we need to be most vigilant about protecting our liberties. I make this argument because when people are afraid, it is human nature for them to accept curtailment of their liberties -- whether it be speech or travel or privacy or due process -- if they become convinced that the curtailment will keep them safe. But these liberties are natural rights, integral to all rational people and not subject to the government’s whim.
I can sacrifice my liberties, and you can sacrifice yours, but I cannot sacrifice yours; neither can a majority in Congress sacrifice yours or mine.