Congress' 10 Worst Infringements on Personal Liberty

The focus in on the NSA controversy and ObamaCare got us thinking — what are the worst laws passed by Congress? So we did some thinking and came up with some of the most egregious laws to be passed by Congress. The list was so large that we had to cut it into two posts one on personal liberty and the other dealing with economic liberty, which will be posted next week.

The following list isn’t in any particular order, so don’t take one bad law being ahead of another as anything significant.

Espionage Act (1917)

The Espionage Act, passed nearly two months after the United States entered World War I, has had startling ramifications for free speech in the United States. Shortly after becoming law, Eugene Debs, a socialist and labor leader, was arrested and convicted for giving a speech that “interfered” with the recruitment of soldiers for the war effort. The law primarily used for prosecution of alleged spies and whistleblowers working in the government. For example, the government tried to prosecute Daniel Ellsberg of Pentagon Papers fame under the act, but the jury declared a mistrial. NSA whistleblower Edward Snowden has also been charged under the Espionage Act. Both Ellsberg and Snownden’s disclosures were embarrassments for the government.

Indian Removal Act (1830)

Passed by Congress and signed by President Andrew Jackson, the Indian Removal Act is a reminder of a dark time in American history, much like slavery and segregation. This law gave Jackson’s administration the ability to “negotiate” with native American tribes (Cherokee, Chickasaw, Choctaw, Creek, and Seminole), ostensibly forcing them to vacant the lands they held long before the colonies or United States were established. The Indian Removal Act paved the way for the “Trail of Tears,” during which native American tribes in the Southeast were forcibly relocated to Oklahoma. While estimates vary, thousands of people died on the Trail of Tears.

Bipartisan Campaign Reform Act (2002)

Sponsored by Sens. Russ Feingold (D-WI) and John McCain (R-AZ), the BCRA placed new limitations on political speech by trying to diminish the influence of money in elections. Then-President George W. Bush expressed “reservations about the constitutionality of the broad ban on issue advertising,” but signed the measure anyway. The Supreme Court upheld some of the BCRA’s most anti-First Amendment provisions in 2003 (McConnell v. Federal Election Commission). However, subsequent court rulings — including Federal Election Commission v. Wisconsin Right to Life, Davis v. Federal Election Commission, and Citizens United v. Federal Election Commission — have done much undo the controversial sections of the law and restore free speech rights to Americans who want to engage in the political discussion. Democrats in Congress have sought to pass a constitutional amendment that would essentially repeal free speech protections in the First Amendment.

National Defense Authorization Act (2011)

In 2011, this usually routine annual appropriations bill for the Department of Defense contained a provision that allowed an administration to indefinitely detain an American citizen on the on the mere suspicion that they are engaged or involved in terrorist activity. This provision of the law ostensibly suspends the constitutionally protected right to due process, the right to a trial by a jury of an accuser’s peers, and the right to habeas corpus. Subsequent attempts to clarify the language of this provision to protect Americans’ rights have been unsuccessful. Despite expressing reservations about the provision, President Barack Obama signed it into law. Sen. John McCain (R-AZ), a supporter of this policy, met with Syrian rebels, many of whom have ties to terrorist groups, earlier this year, leading some to wonder if he had violated this provision of the law.

National Firearms Act (1934)

This measure imposed new regulations and taxes on weapons, including shotguns and firearms popular with mobsters, and require registration of these guns — call it the “Assault Weapons Ban” of the day, if you will. Policy issues aside, a legal challenge the act, which was signed into law by then-President Franklin Roosevelt, is what makes this law so substantial. In 1938, the Supreme Court upheld its provisions in United States v. Miller, a one-page ruling. In subsequent rulings, lower courts used Miller to declare that the Second Amendment was a collective right, guaranteed only to members of sanctioned militias. This was the prevailing legal logic for decades until 2008, when the Supreme Court declared in District of Columbia v. Heller that the Second Amendment guaranteed an individual right to gun ownership. That right was incorporated to the states and the American people in 2010 in McDonald v. Chicago.

Public Law 503 (1942)

This World War II-era law codified Executive Order 9066, signed by then-President Roosevelt, that authorized the internment of Japanese, Geman and Italian Americans, including nationals who had immigrated to United States and those born inside this country. Tens of thousands of people were forced to leave their homes and property for internment facilities. The Supreme Court, which had rubber-stamped much of Roosevelt’s agenda beginning in 1937, signed off on the policy in 1944 in Korematsu v. United States. In 1988, the United States formally apologized for the terrible ordeal and issued reparations to the victims or their families.

National Prohibition Act (1919)

Also known as the Volstead Act, this measure carried out the Eighteenth Amendment, which barred the production and sale of alcoholic beverages. The unintended consequences to Prohibition led to the rise of mobsters, who rose to power by procuring and selling alcohol on the black market, leading to a rise in crime and bloody turf wars. The Eighteenth Amendment and the Volstead Act were repealed in 1933 by the Twenty-First Amendment, which may have been the only good policy for which Roosevelt advocated.

Fugitive Slave Act (1850)

This law represents another shameful time in American history.  Against the protests of the abolitionists, Congress, largely controlled by pro-slavery Democrats, passed the Fugitive Slave Act, which required that runaway slaves be returned to their “owners” once they were captured. Unfortunately, it took a bloody civil war and the enactment of the Thirteenth Amendment to bring this inhumane practice to an end.

Alien and Sedition Acts (1798)

Passed by a Federalist-controlled Congress and signed by President John Adams, the Alien and Sedition Acts were a series of measures (Alien Enemies Act, Alien Friends Act, Naturalization Act, and Sedition Act) designed to stifle free speech and dissent during the Quasi-War with France. The laws were used to target Democratic-Republican opponents of Adams’ administration and Federalists. Ten people were convicted for violating the various parts of the law. Democratic-Republicans didn’t renew or repealed three of the laws when they took control of Congress in 1801. President Thomas Jefferson pardoned those convicted under the laws and Congress returned the fines paid by offenders. The Alien Enemies Act (50 USC § 21) is the only part of the laws that remains on the books.

USA PATRIOT Act (2001)

Passed and signed more than a month after the 9/11 terrorist attacks, the USA PATRIOT Act (an acronym for Uniting Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) gave the intelligence community and law enforcement agencies broad new powers to combat terrorism. Thanks to recent disclosures by whistleblower Edward Snowden, Americans have learned that the PATRIOT Act has been used by intelligence agencies, most notably the NSA, to snoop and spy on American citizens, even if they’re not suspected of terrorist activity, by obtaining phone and Internet metadata from third-party businesses. Rep. Jim Sensenbrenner (R-WI), who authored and introduced the PATRIOT Act, has said that the government’s interpretation of the law is “excessive and un-American” and supports efforts to put better privacy protections in place.