The Right to Wear T Shirts

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President Bush took an oath — as he said at his press conference last week — to "protect and defend the Constitution" of the United States. It's good that the Constitution is in the forefront of his mind. It should stay there. It should be engraved on his shaving mirror. It should be embroidered on Attorney General John Ashcroft's bath towels.

Sometimes wars are necessary in order to rescue peace and enforce international law and order. I think that is what is going on now, although I respect the credible fear that the effect of American action will be the reverse of peace and order. We don't yet know.

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Jan. 17, 2004

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Meantime, the least we can do is reread the Constitution and refresh our gratitude and submission to it. Keeping the Constitution will be as vital to the American future as fending off terrorists. More so. If Americans win a war (not just against Saddam Hussein but the longer-term struggle) and lose the Constitution, they will have lost everything.

The terrible freedom of war — with its rush of animal adrenaline, its wild all-is-permitted, its violent necessities — inverts the moral order. Killing, normally forbidden, is suddenly sanctioned, even deemed heroic. Stakes are high. So is fear. Paranoia drifts on the wind like mustard gas. Disagreement may look like treason. Due process may appear to be an unaffordable luxury. The First Amendment may seem optional. The peacetime fail-safe checks and balances (Congress and courts keeping the presidency honest) may strip themselves down to a military principle — deference to the chain of command, and to the Com-mander in Chief.

All this is especially true at the start of the 21st century, when the urgencies of nuclear weapons, anthrax and other horrors getting hatched in any tinhorn's basement make it even more difficult to keep a watchful and reverent eye on an 18th century document that, for all its service to the Republic, can seem a tiresome inconvenience when the blood is up.

With the approach of war, a familiar recklessness boils up from the American id; you catch it, for example, in the talk-show braying about various ingeniously horrible ways that the U.S. ought to be torturing Khalid Shaikh Mohammed. (I have been trying to decide how much anti-Arab bigotry goes into this: Would the braying be as graphic and gleeful if the terrorist were a Whiffenpoof? Maybe.)

There was a stupid incident last week at the Crossgates Mall in Guilderland, N.Y., where a 61-year-old lawyer and his son put on T shirts that read PEACE ON EARTH and GIVE PEACE A CHANCE, and were ordered by mall security guards to remove the shirts or leave. The lawyer refused, and was charged with trespassing. At high schools across the country, some students were threatened with suspension if they cut classes in order to participate in antiwar demonstrations. The incidents caused a stir, but were insignificant compared with the damage that the Ashcroft Justice Department has inflicted on American freedom since 9/11--a zealot's agenda of illegal detentions, denials of due process and invasions of privacy. If the war on terrorism is open-ended, that means "emergency" measures to combat terrorism can go on indefinitely. That way lies the police state.

Americans should also be careful about Bush's ram-it-and-jam-it, get-real style of pre-emptive global law enforcement — Wyatt Earp on a mission of Napoleonic Wilsonianism. On the other hand, humility and self-doubt can get you killed in a dangerous world.

In the obscurities of a bad moment, we need the clarity of the Constitution. Just as the Constitution is clear about freedom of speech, it is explicit about the power to make war. Article I, Section 8, gives Congress the authority to declare war. Article II, Section 2, makes the President Commander in Chief of the armed forces. Is it constitutionally necessary for Congress to declare war in order for a President to make war? No: the U.S. has declared war only four times (1812, Spanish-American, World War I and World War II). Bush has congressional resolutions authorizing force. But you do not want to go into a (to say the least) controversial war, opposed by much of the world, when protected merely by the fine print. I wish Bush had the full constitutional writ behind him. He is a gambler, of course. He's going to be awfully lonely if this goes wrong. Will he be a hero if it goes well?

A hard rain, in any case, is going to fall. Keep the Constitution dry and legible. The danger to America is that in trying to protect what it has, it will lose the very thing that is worth having.