The Limits of Tolerance

Jacob Sullum’s review of New Threats to Freedom (“Free Association,” July 5) is wrong on at least two counts.

First, he defends Somali taxi drivers who refuse to pick up passengers with alcohol or dogs, saying that they are merely “exercising their freedom to run their businesses as they see fit.” But taxis are public accommodations, in which we rightfully forbid many forms of discrimination. If Holiday Inn refused to admit a Jew or a blind man with a dog, we as a society wouldn’t stand for it. We wouldn’t tell the Jew or the blind man, “Just use the next hotel, you only have to wait a minute.” This case should be no different. If Somali taxi drivers don’t want to accommodate people with alcohol or dogs, they can get out of the public-accommodation business.

Second, Sullum says the book should have dealt more with threats to freedom arising from the War on Terror. He claims that “the detention powers claimed by the Bush administration” were “so broad that Supreme Court justice Antonin Scalia, no one’s idea of a bleeding-heart liberal, felt compelled to insist (in a case involving a U.S. citizen accused of taking up arms for the Taliban) that the executive branch cannot unilaterally suspend the writ of habeas corpus.”

Detaining someone who made war against the United States may be a unilateral exercise of executive power, but it was never considered even remarkable until Justice Kennedy said so on June 12, 2008, in the Boumediene v. Bush decision. Justice Kennedy’s reasoning — founding a foreigner’s standing and right to habeas relief on “separation-of-powers principles” — is questionable enough. He also departed radically from our history.

Copperheads complained when Lincoln suspended habeas, but no court suggested that “separation-of-powers principles” were enough to trump the suspension clause or order the release of someone who’d been killing Americans in war. As late as 1946, the Ninth Circuit held that we could detain an American who had deserted the Army to fight against the U.S. Nowhere in the opinion was there any dread of unilateral exercise of executive power; there was only a recognition that people who make war against the U.S. need to be detained so they don’t kill Americans.

We need to draw lines. We can’t tolerate hotels that discriminate on the basis of race; nor can we tolerate people making war on America.

Ken Jansen Stafford, Va.