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Liberty in Troubled Times

A Libertarian Guide to Law, Politics and Society in a Terrorized World

Liberty in Troubled Times by James Walsh
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I don’t mean this book to be a legal treatise. Or an elegy about the suffering related to 9/11. Or a political diatribe against any elected official or party. Instead, I hope that this book will serve as a kind of primer for how people can think critically about liberty issues in a world that’s more risky every day. America’s great strength is that it assumes its citizens are intelligent adults, who can make up their own minds about what they want from their government...and what they need in their own lives. Sometimes Americans don’t act like they’re up to this standard of behavior and thought. But I believe that crises often bring out the best in people; and I think the troubles that America has faced since 9/11 will shock its people into thinking about the importance of the American social contract. There’s another point that shapes this book. I believe strongly that the familiar American political dynamic of liberal-versus-conservative is no longer relevant. The new dynamic will be something closer to liberty-versus-statism. The sooner that Americans get past the old terms and get comfortable with the new ones, the more useful our public debates will be. And, finally, I’ve written this book thinking about all of the ridiculous B.S. that I’ve heard in the last several years ascribed to the word libertarian. If I’m at all successful, maybe that word will start to carry a more consistent meaning.
Silver Lake Publishing; July 2005
353 pages; ISBN 9780000000002
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Title: Liberty in Troubled Times
Author: James Walsh
Before the 9/11 attacks on the World Trade Center in New York and the Pentagon near Washington, D.C., debates over the meaning of liberty in the United States seemed silly and academic. Most Americans assumed that liberty and political freedoms were givens in the most powerful and wealthy country in the world. The attacks changed that. First, Americans joined the ranks of people around the world who faced the prospect of being killed without notice at their work or even in their homes because of who they are. Second, the U.S. federal government did what governments do in times of trouble: It ditched its rational, libertarian foundations and grabbed as much power as it could. The second change is more dangerous than the first; it’s al Qaida’s lingering effect—more insidious than the hijacked planes. Power grabs by governments are nothing new. In his Historical Review of Pennsylvania, Benjamin Franklin famously wrote, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Americans made just such a trade-off after 9/11. In more than two years since the attacks, there were no similar terrorist actions on American soil. The military, civilian law enforcement agencies, corporate America and individual citizens stepped up their efforts and attention to prevent further attacks. But the power grab that the federal government made in the weeks after the 9/11 attacks was particularly troubling because of its complexity and scope. Conspiracy nuts can be excused for their paranoid excitement because the Feds seemed so ready to step in. And that stepping certainly makes the debate over liberty less silly. To be really effective, though, it needs to find some new focus. Americans are used to political debates that contrast liberal and conservative philosophies—or the Democrat and Republican parties. Those were the choices that defined U.S. politics for most of the 20th Century. And they became so familiar that most Americans were lulled into a sleepy ignorance about the workings of their republic. After World War II, the U.S. Congress effectively ceded its power over war, peace and foreign policy to the president and its power to decide issues of race, gender, religion, culture and morality to the Supreme Court. Why did Congress cede its powers? Because congressmen are politicians—and politicians would rather not make difficult decisions on war, peace, race, religion, morality, culture and gender. Such issues divide people deeply. They can cost a politician his office. Better for him to hand the hard calls over to judges, appointed for life, who never face the voters. That handing-over began the slippery slope toward statism. It made a lot of assumptions about shared beliefs: that the federal government was the best mechanism for serving citizens; that federal courts of law were the best places to resolve political disputes; that America was a rich and peace-loving country. These assumptions had worked well enough to see America through two World Wars and they still worked in a Cold War. But the end of the Cold War in the 1990s started an unraveling of these assumptions. The Old System Undone Al Qaida’s suicide terrorists finished it. Now, with a hole in lower Manhattan where the World Trade Center used to be, repairs just concluding at the Pentagon and long lines at most airports, Americans are stepping back and asking more fundamental questions about their country and the world. Republican-versus-Democrat doesn’t mean anything any more; libertarian-versus-statist is the more timely debate. This book will consider the libertarian-versus-statist debate in various ways, from various angles. At the start, though, it’s useful to define roughly each perspective. Libertarians believe that liberty is about fundamental rights: the right to own property, the right to practice religion as they wish, the right to assemble, to speak freely, to participate in government. In short, these freedoms mean that no person can be a slave—or a tyrant…and that government should follow laissez-faire guidelines whenever possible. Libertarians believe that self-ownership is essential to human dignity and that self-ownership limits what any person or state can force a citizen to do. Statists believe that liberty is about quality of life. They believe that fundamental freedoms include the freedom from hunger, from illness, from discomfort and even from unhappiness. Most importantly, they believe in a powerful central government—a powerful state—that delivers quality of life to its people. Statists call their wide-ranging, materialistic freedoms “positive rights,” a misleading term that has caught on in many circles. It’s misleading primarily because it leads some people to call libertarian fundamental freedoms “negative rights.” There are several reasons for this misled response. Being a libertarian is difficult—intellectually, politically and emotionally. It means accepting limits on what the government can and should do for its citizens, even down-and-out citizens. It means trusting—not cynically, but honestly—that private-sector charitable institutions will offer social services to people that statists would prefer the government to offer. And, perhaps most importantly, it requires rationalism...a flinty reserve that doesn’t grab at cheap sentiment or emotion. On the other hand, troubled times encourage emotional reaction and statism. This has been true dating back to democracy’s early times in ancient Athens and Rome. In those places, war or civil unrest would result in constitutional tyrants taking control of the government. In theory, these tyrants were supposed to give up their power as soon as the crises abated; in practice, they rarely did. In 21st Century America, the statists have followed that course. In November 2001, weeks after the World Trade Center and Pentagon were attacked, a poll run by National Public Radio and the Kennedy School of Government at Harvard University found that 66 percent of Americans approved of “searching people who are Arab or of Middle Eastern descent to see if they might be involved in potential terrorist activities.” A Zogby International poll taken at about the same time found that 77 percent of Americans supported government video surveillance of public places, 62 percent supported random roadblock searches of vehicles and 61 percent supported government monitoring of people’s mail. Americans were afraid. And they were willing to give the state extraordinary power to track down terrorists. They were willing to let the tyrants rule. Less than a year later—in the late summer of 2002—the fear had subsided. Zogby International repeated its poll and found that tolerance of state intrusions had declined: support for video surveillance of public places remained about the same, but only 49 percent supported random roadblock searches of vehicles and only 35 percent were willing to let the government monitor mail. And a follow-up of the NPR/Kennedy School poll also found fewer Americans willing to target people for special scrutiny based on nothing more than Middle Eastern heritage. This is the natural ebb and flow of public opinion. But, in a republic, the ebb and flow is supposed to be counterbalanced by sturdier political philosophy. In a terrorized world, libertarianism is America’s best hope for that counterbalance. John Locke’s Idea of Liberty Starting with the English philosopher John Locke, classical liberals (of which libertarians are a subset) have described liberty mainly in terms of the primary functions of governments. To them, a government has the authority to: • legislate public rules and revise them to meet changing circumstances; • adjudicate disputes arising under these rules; and • enforce these rules when necessary against those who violate them or who resist their resolutions. For Locke, these three powers are needed to remedy certain “defects” of human nature (including greed, impatience and fear). And the remedy of these defects was the reason that people enter a “social contract” to create a political society. Statists embrace the social contract enthusiastically. They use it as the justification for all kinds of coercion. Libertarians accept the social contract carefully, with careful eyes kept on the compromises that every contract requires. America was founded by people who had reservations about the social contract. Thomas Jefferson accepted that political society was necessary—but was seriously concerned that it always seemed to gravitate toward tyrannies of either kings or democratic majorities. That’s why Jefferson was adamant about protecting “fundamental” and “inalienable” rights. To say certain rights or liberties are fundamental means they have absolute priority over other political values; they can’t be sacrificed or traded for other rights. These fundamental rights can’t be given up—not to satisfy the preferences of democratic majorities, not to enhance security, not to improve economic efficiency, not to achieve fashionable notions of social justice. Libertarian doctrine usually holds that limits on one person’s fundamental liberties are to be imposed only to protect and maintain another person’s basic liberties. In the legal aphorism: Your right to swing your fist ends at my nose. This is a strict standard—and it’s what Jefferson believed. He wasn’t alone, either. His contemporary Roger Sherman (geographically and temperamentally as different from Jefferson as possible) wrote in a draft bill of rights from 1789: The people have certain natural rights which are retained by them when they enter into Society, such are the rights of Conscience in matters of religion; of acquiring property and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the United States. Post-9/11 Americans need to rediscover people like Roger Sherman. To do that, they’ll have to relearn how they think about politics and public life. It may be tempting—and easy—to think of libertarians as the new version of conservative Republicans and statists as the new version of liberal Democrats. That’s not right. Some conservative Republicans believe in minimal government and governmental coercion of citizens; these relative few share beliefs with libertarians. But many conservative Republicans are ambitious statists, with designs on forcing their version of freedom and quality of life on fellow citizens. They’re willing to use the state to coerce people into behaving a certain way—just like the politically-correct American liberals who want to tell people how to think. Statists can be either right- or left-wing. Their politics aren’t important; their desire to control the mechanics of government are. And statists seem to be more numerous than libertarians. They’re attracted to public service and public life—which makes sense, given their interests and ambitions. Spend an evening watching television news programs, listening to (non-sports) talk radio or reading opinion magazines, and you’re likely to find dozens of statists for every libertarian. Finally, being a libertarian is tough because it requires developing and using your own good judgment. And that can be a lonely thing. As UCLA law professor Eugene Volokh has written: A sense of perspective—an ability to recognize the true magnitude of the harms against which you rail, and to compare it sensibly to other matters, especially the countervailing benefits that have come about together with these harms—is intellectually and practically important. That sense of perspective is the best way for a libertarian to honor the liberties that are the foundation of the free world. The brilliant federal court Judge Learned Hand, writing that judges should not try to invalidate legislation offensive to their “personal preferences,” concluded with the oft-quoted line: For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. And, separately, Hand warned: Liberty lies in the hearts of men and women. When it dies, no constitution, no law, no court can save it. The aim of this book is to examine American liberty in its various forms and uses during troubled times. In crises, when Platonic Guardians seem most appealing, liberty is most precious. Perhaps, from this examination, readers will be able to draw a pragmatic understanding of libertarian political philosophy. That will do more good and prevent more terrorism than a parade of random roadblocks. This book stands out from others about the aftereffects of the 9/11 attacks because it’s about the essential American value—liberty. There are no easy emotional appeals in this book…only the bright light of rational debate. If you’re a libertarian, the arguments in this book will make sense, on a gut level if nowhere else. If you’re not a libertarian, consider this book a primer on a radical philosophy.