America is at"war" with international terrorism. Civil liberties and war have tended to coexist uneasily in American history. Many of the Bush administration's recent anti-terrorism proposals suggest that the historical pattern of civil liberties contracting during wartime is in the process of repeating itself. Among other things, the President has claimed the power to try foreign citizens accused of terrorism before military tribunals that lack the due process trappings of ordinary criminal court proceedings-for example, the unanimity requirement for conviction, the requirement of proof beyond a reasonable doubt, a defendant's right to choose his own lawyer, the right to appeal a conviction. The administration also has engaged in race profiling of recent immigrants whom it wishes to interrogate, eavesdropped on conversations between criminal suspects and their lawyers, and secured broader authority from Congress to conduct secret searches, to wiretap, and to detain suspects for extended periods of time without filing charges against them.

All of these anti-terrorism measures raise serious constitutional questions. And the one point that is crystal clear is that the law governing these questions is uncertain. The text of the Constitution is notoriously open-ended and indeterminate. Precedents on issues like the constitutionality of military trials for civilians are few and far between, and in any event, always subject to overruling. Terrorist incidents of the proportions of September 11 are unprecedented in this nation's history, and the law nearly always contains sufficient flexibility to accommodate itself to changed circumstances. In light of such considerations, how are the courts likely to respond when the inevitable legal challenges are brought against the administration's anti-terrorism measures?

While the law itself may not be sufficiently clear to provide certain answers, the consistent course of American constitutional history allows for a confident prediction as to how courts will respond: They will defer to dominant public opinion, as they always have. Civil liberties almost invariably have come under fire during previous American wars. During the"quasi-war" with France in 1798, the Adams administration secured passage of the Alien and Sedition Acts, which expanded the President's authority to incarcerate and deport aliens and criminalized speech that was perceived to be overly critical of the President or Congress. During the Civil War, the Lincoln administration employed military tribunals to try civilians, some of whom were charged with offenses no more serious than expressing solicitude for the Confederacy. During World War I, a couple of thousand Wilson administration critics -- ranging from anarchists and communists to pacifists and civil libertarians -- went to jail under the Espionage and Sedition Acts, often for behavior no more dangerous than questioning the administration's war aims. During World War II, roughly 120,000 Japanese-Americans, most of whom were full-fledged American citizens, were forcibly removed from their West Coast homes, given a week to sell off their belongings, and incarcerated in internment camps for the war's duration. In the 1950s, at the peak of McCarthyism, thousands of Americans lost their jobs, were subjected to harassing legislative investigations, and sometimes even went to jail for their alleged complicity with Communists.

WHAT THE COURTS HAVE DONE IN THE PAST

How did the courts respond to these various war-time invasions of civil liberties? Every federal judge to hear a first amendment challenge to the 1798 Sedition Act rejected it. The Supreme Court during the Civil War denied that it had jurisdiction over a case challenging the constitutionality of military trials of civilians. The Supreme Court in 1919 rejected several First Amendment challenges to criminal convictions under the Espionage and Sedition Acts for criticizing the Wilson administration's war policies. In Korematsu v. United States (1944), the High Court denied that Japanese-American internment violated the Equal Protection Clause of the Fourteenth Amendment. In a series of early 1950s decisions, the Supreme Court rejected the due process and free speech claims of alleged communists who were challenging criminal prosecutions, legislative investigations, and job dismissals. On all these occasions, the Supreme Court vindicated the old maxim that" courts love liberty most when it is under pressure least." One might wonder why the courts have proven so supine in the face of what seem, at least from a later historical perspective, to have been glaring constitutional violations. The answer is that the judges were part of the same culture and historical moment that had proven willing, indeed eager, to trade off civil liberties for greater security.

For example, with regard to Japanese-American internment, it is worth recalling that in the wake of Pearl Harbor, most Americans expected a Japanese invasion of the West Coast, and indeed some newspapers actually reported soon after December 7, 1941 that such an invasion was underway. Fuel was added to the fire by a special government commission report in January 1942, which found that Japanese espionage in Hawaii had contributed to the debacle at Pearl Harbor. A string of sweeping Japanese military victories in the South Pacific further inflamed public opinion in the United States against Japanese-Americans. By early 1942, most West Coast politicians and national opinion-molders were endorsing exclusion and internment. Congress passed the bill criminalizing defiance of a military exclusion order by voice vote after the most perfunctory debate. Even the American Civil Liberties Union was bitterly divided over the constitutionality of the military exclusion order, ultimately concluding that national security during wartime could justify exclusion of citizens from a military zone. This was the historical context within which the Supreme Court decided Korematsu, rejecting constitutional challenges to the government's evacuation and internment policy.

Similarly, the Court's 1950s decisions failing to protect the civil liberties of political radicals were issued during the heyday of McCarthyism. Within the space of just a couple of years (1949-1951), mainland China fell to the Communists, the Soviets detonated their first atomic bomb, North Korea invaded the South, Klaus Fuchs and the Rosenbergs were convicted of transferring nuclear secrets to the Soviets, and Senator Joe McCarthy announced pervasive communist infiltration of the State Department. The Red Scare swept the nation. As late as the mid-1950s, the American Civil Liberties Union remained bitterly divided over whether to regard Communist Party affiliation as protected by the First Amendment. Politically liberal organizations such as the CIO, the NAACP, and the American Jewish Committee conducted internal investigations and expelled members alleged to be communists. It was the liberal cofounder of Americans for Democratic Action, Senator Hubert Humphrey, who in 1954 proposed legislation to outlaw the Communist Party. Against this backdrop, it is hardly surprising that the Supreme Court would uphold the constitutionality of loyalty oaths, legislative anticommunist investigations, or criminal prosecutions for subversion.

While judicial acquiescence in wartime invasions of civil liberties thus seems completely understandable, it remains cause for regret, given that each of the judicial failures to intervene noted above has been condemned by the judgment of history. Within a few decades, the conventional wisdom held that the Sedition Act of 1798 was a paradigmatic First Amendment violation. Most Civil War historians have criticized the Lincoln administration's use of military tribunals for trying civilians, many of whom were accused of little more than making disloyal statements. Within a decade or two, the Court's refusal to overturn World War I prosecutions under the Sedition Act was widely judged a lamentable failure to vindicate the First Amendment. Recent scholarship has judged the Korematsu decision upholding internment of Japanese-Americans to be"infamous,""a disgrace," and"one of the Court's most heinous decisions." Similarly, late twentieth century scholars have regarded the Court's failure to stand up for freedom of speech and association during the excesses of the McCarthy era as a"judicial abdication of responsibility," and have labeled these decisions"disastrous,""shameful," and"infamous."

LESSONS

One lesson that might be drawn from these scathing retrospective critiques of the Court's wartime failures to safeguard civil liberties is that people not living through the same historic moment that produced the repressive policies should not be too quick to criticize judges who felt the same exigencies that produced the policies in the first place. Another, quite different lesson one might draw, however, is that the American government frequently has exaggerated security threats during wartime and has adopted repressive measures that, in retrospect, seem difficult to justify. The problem, of course, is that the tradeoff between security and civil liberty must be made without the aid of historical hindsight. In addition, the cost of erroneously minimizing security risks is potentially enormous, which translates into a willingness to err on the side of greater security, especially when the civil liberties being traded off are those of an unpopular minority group (political radicals, Japanese-Americans, recent Middle Eastern immigrants).

The main lesson I would draw from this brief excursion through our nation's constitutional history is that the American people should be cautious about the civil liberties policies they embrace, because once the political branches have adopted them, courts almost certainly will not interfere. Ultimately, we choose our own fate, and we should not delude ourselves into thinking that courts will save us from our own mistakes.

Rather than ending on this sobering note, though, I want to mention a different, more optimistic, lesson one might draw from this nation's constitutional history. Several prior episodes of civil liberties repression have generated backlashes in public opinion that ultimately produced even broader civil liberties protection. Prosecutions under the Sedition Act of 1798 ultimately produced a backlash in favor of a broader conception of free speech. Widespread mob violence against abolitionist speakers and newspaper editors in Northern states during the 1830s ultimately generated a similar backlash in favor of the free speech rights of these antislavery agitators. Criminal prosecutions under the Espionage and Sedition Acts during World War I inspired the creation of the American Civil Liberties Union and probably contributed to the Supreme Court's inauguration of modern First Amendment doctrine just a decade later.

Moreover, while American wars generally have produced short-term contractions of civil liberties, they often have generated longer-term expansions in civil rights, by enlarging the pool of freedom's beneficiaries. The Revolutionary War led directly to the abolition of slavery in many northern states. The Civil War not only emancipated Southern slaves, but also expanded the civil and political rights of African-Americans. World War I accelerated the culmination of the women's suffrage movement, leading directly to passage of the Nineteenth Amendment in 1920. World War II was the proximate cause of the modern civil rights movement, as well as an important factor in the mid-twentieth century expansion of free speech concepts.

There are several reasons why wars may expand particular freedoms, while contracting others. First, Americans tend to define their war aims in democratic terms. World War I was the war"to make the world safe for democracy." World War II was fought against fascism and the multitude of unfreedoms it represented. Many, though by no means, all Americans were unable to escape the cognitive dissonance inherent in fighting against Nazi doctrines of Aryan supremacy with a racially segregated army. The Supreme Court, unable to reconcile the war's democratic ideology with the continued disfranchisement of Southern blacks, finally invalidated the white primary in 1944. The Court likewise invalidated sterilization of recidivist criminals with a disapproving, thinly veiled reference to the eugenics experiments of Nazi scientists. Another Court ruling in 1940 expanded the due process ban on coerced confessions with a disparaging allusion to the law enforcement tactics of totalitarian nations.

Wars, especially total ones like the Civil War and World War II, undermine traditional patterns of status and behavior. President Lincoln was driven to emancipate and then arm the slaves only after a year's effort to suppress disunionism without disrupting traditional racial patterns had proved unavailing. The women's suffrage movement, which for nearly three quarters of a century had failed to secure a constitutional amendment enfranchising women, finally triumphed during World War I, when military conscription and industrial preparedness reduced the male labor supply sufficiently to force popular acceptance of women assuming nontraditional economic and social roles. The extraordinary manpower demands created by World War II opened unprecedented civil and military opportunities for African-Americans and thus accelerated the breakdown of traditional patterns of racial subordination.

Finally, war usually involves common sacrifice for the general good and thus has inescapably egalitarian implications. The sacrifices of the freedmen on Civil War battlefields helped secure post-war constitutional amendments guaranteeing basic civil and political rights to African-Americans. The battlefield sacrifices of American Catholics during World War I paved the way for their accelerated assimilation into the nation's cultural mainstream during the 1920s and 1930s, as America's unofficial Protestant establishment began slowly to crumble. If African-Americans were good enough to fight and die for their country during World War II, surely they were good enough to vote and to deserve federal government protection against lynching and other racially-motivated violence.

Whatever the precise causal mechanism, American wars often have advanced the cause of particular freedoms, especially by expanding the pool of beneficiaries. Thus, while the nation's current war against international terrorism certainly will produce a short-term contraction of civil liberties -- one which courts are very unlikely to resist -- it is possible to retain some optimism about the future. Repression of civil liberties often generates its own backlash, and past American wars frequently have advanced the cause of human equality in indirect ways.