The Constitution in 2020
Imagine for a moment you are the President of the United States. You are preparing to announce a new government program when an aide rushes in and tells you that Minneapolis has just been destroyed by a nuclear explosion. Hundreds of thousands dead or soon to die. Medical facilities overwhelmed. You know you will be expected to answer this attack, but how? You ask who did it, but no one knows, and no one is claiming responsibility. After several days of intelligence analysis, the best the intelligence agencies can do is report that it was probably a suitcase nuke and narrow it down to a short list of suspected terrorist groups and nations from which they may have operated, which includes some modern Western nations that are lax in their security measures.
While you are agonizing over what to do, Denver is destroyed. The armed forces are mobilized, but still no idea where to send them, or what they are to do when they get to wherever they are sent. You declare martial law in several cities where rioting is breaking out and people begin to flee the cities and loot stores and supermarkets for supplies. You discuss an all-out nuclear attack on the short list of suspect nations, but two of them have nuclear weapons already, and threaten to use them. Furthermore, Russia and China warn against such a response, hinting that they will launch a retaliatory attack on the U.S. if we attack any nation not proved to be responsible for the attacks on the U.S.
There follows a pattern of random cities being destroyed all across the U.S. at approximately one-week intervals. San Antonio, TX. New Haven, CT. Redmond, WA. Atlanta, GA. It goes on, and on, and on. You order general martial law, and seal the borders, pending inspection of all cargo entering the U.S., which proves to be impossible. In the meantime, people are fleeing the cities, rioting, forming armed groups to defend themselves against rioters, and detaining anyone who looks suspicious, including anyone of apparent Middle-Eastern extraction.
At this point I will leave it to the reader to think about what he would do as President, and ask readers to think about what this kind of all-too-real nightmare scenario might mean for our constitutional order. Preserving "New Deal values" would seem a luxury in the face of the threats of nuclear terrorism.
For discussion of these and other topics, I invite readers to our Constitution Society site and to our Constitution Blog. If I were to address the conference, it would be to examine these and other issues, and ask whether, even if such a nightmare can be avoided, "progressives" do not face a choice: between civil liberties and government programs (jobs). Much "progressive" thought presumes that government agents are for the most part benign, and abuses rare, but many of us note a disturbing trend toward abuses of constitutional rights as prevailing practice or even policy in more and more branches and departments of government. What "progressives" call "fundamentalists" would argue that such abuses are the inevitable consequence of progressive programs that are all too willing to expand government powers beyond what is delegated by the Constitution, abandoning the wisdom of the Founders that the only way to secure rights was to restrain government powers, not enhance them.
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