Since the beginning of the War on Terrorism, shortly after the terrorist attacks of September 11, 2001, much speculation has occurred on how policy and legislation enacted will be analyzed against the rights provided by the First, Fourth and Fourteenth Amendments. Specifically garnering criticism is the Patriot Act, which was enacted 45 days after September 11, 2001. According to David L. Hudson, Jr.
, a First Amendment research attorney, “supporters contend the Patriot Act is responsible for preventing further catastrophes”, while “detractors counter that the Patriot Act represents a loss of individual liberty and a naked grasp for power by the executive branch of government, particularly over the judicial branch”. (Hudson, 2006) The Patriot Act, however, has not yet been fully tested by the Supreme Court, and so it is interesting to speculate on how the Court will decide on various provisions in light of their interaction with Constitutional amendments.
Hudson writes that while many believe that the impact of the Patriot Act is felt only upon the Fourth Amendment, it also affects the First and Fourteenth Amendment. The First Amendment, which provides the freedom of religion, speech, press, assembly, and petition of the government, is the most debated and challenged Constitutional amendment, making it the backbone of many Supreme Court petitions.
The Fourth Amendment provides the right against unreasonable search and seizure. The Fourteenth Amendment provides an Equal Protection Clause, making all citizen equal in the sight of the law and ensuring equal treatment by the Federal and state governments. The combination of these three amendments really provides the basis for the rights and liberties enjoyed by Americans.
The Court has shown time and time again its unwillingness to butt heads with the President, and especially in times of war and emergency. Therefore, the Court will tread very lightly when any cases against the Patriot Law comes under its review, in order to ensure that while the rights of individuals are protected, they are not protected at a risk to the overall safety and wellbeing of the country as a whole.
In the case of the First Amendment, cases have already come about alleging a violation of the freedom of speech through the use of wiretaps designed to record terrorist planning activities. So long as the Federal government can continue to show the necessity of such an extreme measure – in effect, spying on Americans on American soil – the Court will be likely to decline to end those efforts.
Because the War on Terrorism has shown to be an overreaching war whose impact on America is far different than past wars, extra leeway may be shown in order to ensure future safety and stability. In terms of the Fourth Amendment, challenges have occurred in several realms since the start of the War on Terrorism, and specifically deal with the continued holding of captives in Guantanamo Bay as well as the imprisonment on American soil of people suspected of aiding and abetting the enemy.
Challenges to the Fourteenth Amendment include much the same issues – the treatment of prisoners on and off American soil, and whether they are afforded the protections of the Equal Protection Clause. Similarly to how the Court will most likely decide on First Amendment challenges to the Patriot Act, the Court will also likely continue the precedent of the Marshall Court and the Warren Court and decline censure on narrow laws during times of war and emergency.