stiletto. So we may say civil liberties are not even defined until some balancing
exercise is undertaken. And all that is happening in a post-September 11 world
is that our understanding of civil liberties is being made responsive to changes
in the very factors that enter routinely into its definition. The balance does not
affect the priority we accord to liberty: it affects only our discussion of what the
appropriate liberty is. Admittedly this line is easier to take for those freedoms,
like freedom of movement, that have no intrinsic definition and are obviously a
matter of degree than for those—like free speech and freedom of religion—whose
definition may be given in large part by the nature of the interests they embody.
It will be quite implausible to say, for example, that ordinary political criticism
does not count as “speech” in a time of crisis though it may count as “speech”
in a time of peace.