In 1775 Benjamin Franklin may have said, "They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety." Did Franklin have it right hundreds of years ago?   The government must go out on a decision-making limb to preserve Americans' rights and freedoms. Game changers to cognitive analysis--such as nuclear proliferation, climate change, internet privacy and stem-cell technology--add new concepts to the global vocabulary and an added complexity in understanding constitutionally-protected rights.  The Greeks did not provide strict legal frameworks on how to figure out cryptographic functionality, and so many of these issues represent the first trial.  At this moment, our generation sets the stage for future legal rationales.  To achieve progressive development with fresh eyes, how should lawmakers apply a rich history that did not contemplate these modern questions?

Lacking explicit experience in these nascent areas, governments must adapt quickly to negotiate efforts towards evolving the existing multilateral approaches towards new solutions; they must also manoeuvre around a fine line drawn to protect national sovereignty and safety.  Government is about power, and whether debating Hamilton or Madison's view of the powers of the President, the Supreme Court has also provided guidance such as "the power of the president is limited to that granted in the Constitution, plus any power that Congress decides to grant him" (Youngstown Sheet & Tube Co.), and Congress alone must legislate and cannot give law-making authority to the President (Clinton).

Understanding historic examples of balancing rapid global change will always help shed light on the subsequent government determinations. As an example, the Cold War raised legitimate concerns about American security.  In light of a severe European crisis following World War II, President Truman sought to rally support for a new and radical departure from the American tradition of avoiding entangling alliances.  Before a joint session of Congress in March 1947, he described a grim confrontation between liberty and oppression. In asking for military aid for Greece and Turkey, President Truman presented a unilateral declaration that effectively transformed the United States into a global police (and became known as the Truman Doctrine).  Suspicion and loyalty struggled to compete with the concept of equal protection. This struggle has since extended considerable criticism to the evolution of American foreign policy.

Domestically, President Truman also issued Executive Order 9835 establishing the Federal Employee Loyalty Program to provide a loyalty check on all government workers.  The drive for absolute security overtook concerns about rights, as the probe extended to the beliefs of every government worker.  Do you think that a law student in 1947 versus a law student in 2010 would offer similar arguments about such an Executive Order?  As law students (and concerned citizens), we get to analyze the purpose of the federal executive power, and explore the way the framers of the Constitution structured important powers, such as Article II.

If you watched the news recently, you may have witnessed some of the emerging issues that I described above: Obama administration officials faced pressure to show that they are tough on illegal immigration, the US apologized for a NATO cross-border raid that killed 3 Pakistani soldiers, US visitors received blanket warnings on travel to Europe, tensions deepened around a currency war crossfire and climate change standoffs, and an eighteen year old freshman took his life after video of his sexual encounter with another man was posted online by his roommate while Research in Motion continued an uncertain position in India. Oh, and a small movie about the birth of web-networking also came out and scored big at the box office; if I checked any of these fan's twitter sites, I'm sure they narrated their entire movie-going experience for me. What is the lesson from these examples?  Well, there may be none.

In analyzing fundamental and constitutionally-protected rights, there are four elements required.  I appreciate the complexity behind the fourth element: whether the action infringes upon the claimant's right is sufficiently related to the constitutionally-sufficient purpose used to justify the infringement; another addition to this element is that there must also be a showing that the law infringing upon the right is necessary to the achievement of that purpose. I love the word necessary.

There is no set formula for determining what is necessary or what constitutes a fundamental right. The key rationale usually requires looking to the facts and particular circumstance at play.  I think it is important to understand that even on a case-by-case basis, new and old lessons emerge to help shape the legal landscape, and add dimension to the plaguing issue of what constitutes necessary, even if we swim in uncharted waters.  Is it necessary to protect an endangered turtle while she lays her eggs?  Is it necessary to provide vaccines to a community lacking clean water supplies? You decide.  The public and it's perceptions of necessary remains in our hands. Clear and convincing evidence is hard to find. The necessary debate is still going strong, in the three branches of government and society as a whole. The facts are new, but we may tap into a great combination of logic, wisdom, and reasonableness (passion, guts, and luck) to apply both exploratory and normative methods to make sense of it all.