The Volokh Conspiracy - What Tony Blankley Doesn't Tell You:

Tony Blankley, the editorial page editor of the Washington Times, has an op-ed defending (and urging) various wartime restrictions. Some of what he omits, though, is even more striking than some of what he includes.

For instance, Blankley praises a Court decision that "upheld the school expulsions and parental prosecutions" of "[m]embers of the Jehovah's Witnesses were prosecuted during World War II for refusing to let their children recite the Pledge of Allegiance." He goes on to praise this approach:

In those days, when Supreme Court justices -- liberal, moderate, and conservative -- sat down to write opinions, they knew their words and findings mattered.

Wrongly decided cases wouldn't merely expose the justices to rude comments in fashionable newspapers and magazines. Wrongly decided cases might expose the United States to disunity, sabotage, revolution or conquest.

Under such circumstances, the justices were more than prepared to let Congress give the president of the United States broad powers to defend our country. And they were unlikely to interfere with the president carrying out such powers or to second-guess the military's decisions.

The court would draw lines and preserve the essence of our freedoms. But the justices were practical men.

They understood that the broadest enforcement of every last theoretical right and privilege might well be purchased at the price of losing our most basic right: the right to effectively defend ourselves.

An interesting argument -- but might it be relevant that three years later, when the U.S. was actually fighting World War II (as Blankley points out, the decision he praises came in 1940), the Supreme Court held that the Jehovah's Witnesses did have the right to "refus[e] to let their children recite the Pledge of Allegiance"? The first decision essentially held that the Witnesses couldn't win under the Free Exercise Clause, on the theory that as religious objectors they were entitled to an exemption from a generally applicable pledge requirement. The second decision, though, held that the Witnesses -- and anyone else -- should win under the Free Speech Clause, on the theory that everyone, religious or not, was entitled to an exemption from the Pledge. If one is going to call on one Supreme Court decision as support for one's position, wouldn't it have been good to point out that another decision, three years later, rejected the very sort of argument that one is making?

Likewise, Blankley argues that "Just as their generals and admirals made no compromise to the imperative of total victory on the battlefield, so British and American political leaders, courts and popular opinion let the requirements for victory define the powers of their government on the home front," and gives as one favorable example that "Attorney General Robert Jackson described the targets and responsibility of the FBI's domestic intelligence activities as involving 'steady surveillance over individuals and groups within the United States ... which [are] ready to give assistance or encouragement in any form to invading or opposing ideologies.'" Yet oddly enough, Blankley doesn't mention that the very same Jackson, once elevated to the Court, wrote a majority decision striking down the compulsory Pledge of Allegiance, and memorably dissented from the Court's upholding the ethnicity-based internment that Blankley praises.

Blankley also refers to Justice Frankfurter as a "liberal icon," which Frankfurter probably was in his defense of the New Deal. But on free speech issues, Frankfurter took a relatively restrictive view -- certainly not the view held by the liberals on the Court in that era -- not only on national security questions but also on issues quite unrelated to national security.

Blankley writes, as to Justice Frankfurter's observation that "the mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities,"

This is particularly applicable to the situation we face today. Radical Islamists are demanding to be covered by Shariah -- laws compiled over a thousand years of Muslim jurisprudence, based on the Koran and its commentaries -- rather than by the laws of the United States, Britain, Germany or the other non-Muslim nations in which the radical Islamists live.

Yet it's well-settled under U.S. law that radical Islamists have no entitled whatever to "be covered by Shariah . . . rather than by the laws of the United States." At most, they might be entitled to rather modest statutorily defined exemptions from generally applicable laws and work rules -- for instance, to exemptions from police regulations that require officers to be clean-shaven or to modest breaks on Fridays to be able to pray, just as Jews and Seventh-Day Adventists are sometimes entitled to take the Sabbath off, and yarmulkeh-wearing Jews and turban-wearing Sikhs are often entitled to exemptions from work rules that ban employees from wearing headgear. (People who agree to have their civil disputes arbitrated by religious tribunals, whether Muslim, Jewish, or Christian, are generally allowed to have such agreements stand, but that is a well-settled principle of respect for contract rights, and probably not what people think of when they read about radicals' demands to be covered by religious law rather than secular law.) Again, might it have been worth acknowledging that, if we want to resist radical Islamists' demand to be covered by Shariah, there's little need to borrow World War II attitudes or jurisprudence -- that even the supposedly lax modern regime does perfectly fine at resisting calls for such legal separatism?

There are quite plausible arguments for restrictions on certain civil liberties in the name of national security. We have long recognized some such restraints, and may well need more in some areas (or fewer in others). And history may well be helpful in understanding which restraints have proven justified, and which have proven to be unnecessary or unduly dangerous.

But if you're going to argue based on history, it seems to me better to give a balanced account of that history.

	[Eugene Volokh, September 14, 2005 at 2:30pm] Trackbacks What Tony Blankley Doesn't Tell You: Tony Blankley, the editorial page editor of the Washington Times, has an op-ed defending (and urging) various wartime restrictions. Some of what he omits, though, is even more striking than some of what he includes. For instance, Blankley praises a Court decision that "upheld the school expulsions and parental prosecutions" of "[m]embers of the Jehovah's Witnesses were prosecuted during World War II for refusing to let their children recite the Pledge of Allegiance." He goes on to praise this approach: In those days, when Supreme Court justices -- liberal, moderate, and conservative -- sat down to write opinions, they knew their words and findings mattered. Wrongly decided cases wouldn't merely expose the justices to rude comments in fashionable newspapers and magazines. Wrongly decided cases might expose the United States to disunity, sabotage, revolution or conquest. Under such circumstances, the justices were more than prepared to let Congress give the president of the United States broad powers to defend our country. And they were unlikely to interfere with the president carrying out such powers or to second-guess the military's decisions. The court would draw lines and preserve the essence of our freedoms. But the justices were practical men. They understood that the broadest enforcement of every last theoretical right and privilege might well be purchased at the price of losing our most basic right: the right to effectively defend ourselves. An interesting argument -- but might it be relevant that three years later, when the U.S. was actually fighting World War II (as Blankley points out, the decision he praises came in 1940), the Supreme Court held that the Jehovah's Witnesses did have the right to "refus[e] to let their children recite the Pledge of Allegiance"? The first decision essentially held that the Witnesses couldn't win under the Free Exercise Clause, on the theory that as religious objectors they were entitled to an exemption from a generally applicable pledge requirement. The second decision, though, held that the Witnesses -- and anyone else -- should win under the Free Speech Clause, on the theory that everyone, religious or not, was entitled to an exemption from the Pledge. If one is going to call on one Supreme Court decision as support for one's position, wouldn't it have been good to point out that another decision, three years later, rejected the very sort of argument that one is making? Likewise, Blankley argues that "Just as their generals and admirals made no compromise to the imperative of total victory on the battlefield, so British and American political leaders, courts and popular opinion let the requirements for victory define the powers of their government on the home front," and gives as one favorable example that "Attorney General Robert Jackson described the targets and responsibility of the FBI's domestic intelligence activities as involving 'steady surveillance over individuals and groups within the United States ... which [are] ready to give assistance or encouragement in any form to invading or opposing ideologies.'" Yet oddly enough, Blankley doesn't mention that the very same Jackson, once elevated to the Court, wrote a majority decision striking down the compulsory Pledge of Allegiance, and memorably dissented from the Court's upholding the ethnicity-based internment that Blankley praises. Blankley also refers to Justice Frankfurter as a "liberal icon," which Frankfurter probably was in his defense of the New Deal. But on free speech issues, Frankfurter took a relatively restrictive view -- certainly not the view held by the liberals on the Court in that era -- not only on national security questions but also on issues quite unrelated to national security. Blankley writes, as to Justice Frankfurter's observation that "the mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities," This is particularly applicable to the situation we face today. Radical Islamists are demanding to be covered by Shariah -- laws compiled over a thousand years of Muslim jurisprudence, based on the Koran and its commentaries -- rather than by the laws of the United States, Britain, Germany or the other non-Muslim nations in which the radical Islamists live. Yet it's well-settled under U.S. law that radical Islamists have no entitled whatever to "be covered by Shariah . . . rather than by the laws of the United States." At most, they might be entitled to rather modest statutorily defined exemptions from generally applicable laws and work rules -- for instance, to exemptions from police regulations that require officers to be clean-shaven or to modest breaks on Fridays to be able to pray, just as Jews and Seventh-Day Adventists are sometimes entitled to take the Sabbath off, and yarmulkeh-wearing Jews and turban-wearing Sikhs are often entitled to exemptions from work rules that ban employees from wearing headgear. (People who agree to have their civil disputes arbitrated by religious tribunals, whether Muslim, Jewish, or Christian, are generally allowed to have such agreements stand, but that is a well-settled principle of respect for contract rights, and probably not what people think of when they read about radicals' demands to be covered by religious law rather than secular law.) Again, might it have been worth acknowledging that, if we want to resist radical Islamists' demand to be covered by Shariah, there's little need to borrow World War II attitudes or jurisprudence -- that even the supposedly lax modern regime does perfectly fine at resisting calls for such legal separatism? There are quite plausible arguments for restrictions on certain civil liberties in the name of national security. We have long recognized some such restraints, and may well need more in some areas (or fewer in others). And history may well be helpful in understanding which restraints have proven justified, and which have proven to be unnecessary or unduly dangerous. But if you're going to argue based on history, it seems to me better to give a balanced account of that history.