Paper: Role of Civil Society in Checking Government Restrictions on Fundamental Rights

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November 29, 2012

Civil society has a unique and essential role in defending constitutional rights when the formal structures of government fail to, says a November 2012 paper from Georgetown University law professor David Cole.  Arguing that the three branches of government were often compromised in meeting their commitments to “liberty, equality, dignity, fair process, and the “rule of law” in the decade since 9/11, Cole says many civil society organizations helped lead the charge to restore constitutional freedoms and human rights values, and during periods of crisis “may be the only institutional counterforce to the impulse to sacrifice rights for security.”

The American constitutional system is traditionally understood to rely on the separation of powers and judicial review to protect liberty and impose legal restrictions on government action.   Since 9/11, however, the Executive Branch, Congress and the courts have commonly “thrust legal restrictions aside” in pursuit of security objectives. Whether it was through the National Security Agency’s illegal warrantless wiretapping program, shutting down charities that allegedly provided “material support” to listed terrorist groups, or aggressively using informants and provocateurs to spy on law abiding communities, Cole says the government often treated the law and constitutionally protected rights as “inconvenient obstacles on the path to security.” 

Constraints on these controversial powers were often, and sometimes only, spurred by pushback initiated by civil society, according to Cole.  Groups like the American Civil Liberties Union, the Bill of Rights Defense Committee, the Constitution Project, and the Muslim Public Affairs Council (disclosure: some of these organziations have members on CSN’s advisory board), have spent nearly a decade (and, in some cases, even longer) playing a “critical role in the restoration of constitutional and human rights values as the formal institutions of government.”  Their efforts include testifying before Congress, filling lawsuits at all judicial levels, producing educational programs and materials, and through the use of international mechanisms to pressure the U.S. to meet its legal and humanitarian obligations. 

Cole describes these efforts as “civil society constitutionalism,” which he defines as “the unique role that civil society organizations committed to constitutional rights play in bridging the gap between formal constitutional law and ordinary politics, and in reinforcing the respect for constitutional limits.” 

Cole says that role of civil society is particularly important in periods of crisis, when neither the formal separation of powers nor the public at large are likely to perform much of a checking function. Cole writes that civil society stands up “for constitutional rights at times when the courts, the political branches, and “the people themselves” are likely to discount or dismiss such rights, civil society groups help to reinforce the culture of rights essential to a robust Constitution. In times of crisis, when all other forces are arrayed against constitutional rights, civil society organizations may well be the last defense.”