A sobering and eyeopening indictment that Congress has consistently been the most dangerous branch of government when it comes to protecting, and undermining, civil liberties-particularly in the wake of military conflict. Why do wartime restrictions on civil liberties outlive their original justifications? Scholars have long argued that the blame lies with the executive branch of government. Their logic is straightforward: during war, lawmakers require (in Alexander Hamilton's words) "decision, activity, secrecy, and dispatch," so they choose to enable executive leadership. Executives promise to wield extraordinary powers temporarily, only to entrench them indefinitely. This book tests how these claims hold up in four pivotal moments in US history: the Civil War, World War I, World War II, and Vietnam. Ultimately, it finds them wanting. Harry Blain argues that national legislators are decisive in sustaining postwar restrictions on civil liberties. These elected officials have formidable tools at their disposal, including powers over the rules and membership of their own institution, the funding and personnel of the executive branch, the jurisdiction of federal courts, and the priorities of state and local governments. These tools make Congress, not the executive, the primary institutional threat to civil liberties in the aftermath of war. For example, the House used its exclusion power to refuse to seat the socialist Victor Berger, disenfranchising voters in the process; Congress used its power to compel testimony during the Red Scares in an effort to discredit and humiliate their political enemies; and legislators have removed, or threatened to remove, Supreme Court jurisdiction over habeas corpus petitions throughout US history. In a time where the president and the Supreme Court are seen as the most dangerous branches of government, Legislating Against Liberties is a sober reminder that Congress has historically been at the vanguard of undermining democracy and liberty.
Harry Blain is assistant professor of political science at California State University, Sacramento.
Series Foreword Acknowledgments Introduction: The Most Dangerous Branch 1. Repressive Legislation 2. Independent Tools 3. Congress and the Executive 4. Congress and the Judiciary 5. Congress and the States 6. The Vietnam Anomaly Conclusion Epilogue: Civil Liberties in the Age of Trump Notes Bibliography Index
"Wars are often marked by executive overreach, congressional acquiescence, and sweeping violations of civil liberties. But rest assured, we are told, for once peace returns, Congress steps in to restore the constitutional order and roll back the damage. Not so fast, cautions Harry Blain in this exhaustive and sobering book. While postwar congresses reassert their authority, they do not always serve as agents of repair. On the contrary, Blain persuasively argues, they often deepen the very harms wars leave behind."-William Howell, coauthor of Trajectory of Power: The Rise of the Strongman Presidency "Successfully challenging conventional wisdom that places primary blame on the president for restrictions on civil liberties in times of military conflict, Harry Blain demonstrates that the framers of the Constitution were correct to think Congress, particularly in the aftermath of war, is the most restrictive branch. This thesis is both original, important, and correct. I am not aware of another work that documents the repressive tendencies of the national legislature during war and the aftermath of war. Blain's emphasis on repressive legislatures calls for a rethinking of contemporary wisdom that places much of the blame for democratic decline in the United States and elsewhere on overreaching executives. Law professors, political scientists, and historians will need to read and take into consideration the thesis of Legislating Against Liberties."-Mark A. Graber, author of Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War "Although we have good reason to focus on how presidents violate civil liberties during wartime, it is dangerous to stop there when we consider threats to civil liberties. Harry Blain covers vital new ground as he traces how Congress, too, has been implicated when the federal government suppresses liberties, a danger that doesn't end when peace returns. Those who can be made to appear as 'the others'-whether they be immigrant radicals, peace activists, or even unreconstructed white supremacists-have faced repression at the hands of the legislative branch that is every bit as severe as that imposed by the executive. Blain's work is revisionist in the best sense by forcing us to see what we have chosen for too long to ignore."-Andrew Polsky, editor of The Eisenhower Presidency: Lessons for the TwentyFirst Century
