America's Two Constitutions

A Study of the Treatment of Dissenters in Time of War

By: Thomas J. Reed

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eBook | 6 October 2017

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America’s Two Constitutions explores the history of the treatment of dissenters in time of war, beginning with the treatment of Tories during the Revolution, followed by description and analysis of the Lincoln administration’s treatment of disloyal persons during the Civil War, President Wilson’s organized plan to curb anti-war, anti-draft groups including the Socialist party during World War I, President Roosevelt’s handling of the Japanese internment program and trial of U.S. citizens by military commission during World War II, the cold war campaign against Communists in government and in the entertainment field, the FBI spying program COINTELL and other means to curb draft resisters and anti-war groups during the Viet Nam war followed by a chapter on the post 9-11 treatment of suspected terrorists including surreptitious interception of electronic traffic and trial of U.S. citizens and foreign nationals by military commission. The final chapter concludes that the United States has two constitutions: the written constitution in peacetime and a special unwritten constitution in time of war or national emergency.

Industry Reviews

This book is a careful and thoughtful analysis of the tension between the written, formal US Constitution of 1787 and what Reed (emer., law, Widener Univ.) calls the “living” constitution of the US as it has evolved in practice and through judicial review over the centuries since ratification. The author focuses on the inherent tension between the presidential power to make war and the individual liberties guaranteed to US citizens in the Bill of Rights and elsewhere. The larger problem, as Reed sees it, is whether moral consequentialism (utilitarian ethics) authorizes the president and the federal government to do just about anything they think necessary to protect the state in time of war, and in so doing violate the historic rights of individuals. Reed surveys all of US constitutional history leading up to the forceful behavior of George W. Bush’s global war on terror to demonstrate that, when push comes to shove, Americans (their courts and legislatures) have been willing to subordinate individual liberty to national security. Well-informed readers will not be surprised by Reed’s conclusions, but they will find little to disagree with in his well-informed account.

Summing Up: Highly recommended. Upper-division undergraduates and above.