January 15, 2006


Give Me Liberty or Let Me Think About It: What the wiretapping debate says about freedom. (Michael Kinsley, Jan. 13, 2006, Slate)

Most of us are not Patrick Henry and would be willing to lose a great deal of freedom in order to save our lives. This is especially true when the freedom in question is that of foreigners with funny names, but it is true of our own freedom as well. It's not even necessarily deplorable. Giving up a certain amount of freedom in exchange for the safety and comfort of civilized society is what government is all about, according to guys like Hobbes and Locke, who influenced the Founding Fathers. And that's good government. Many people live under bad governments that take away more freedom than necessary and choose not to become heroes. That is not a contemptible choice, especially if we're talking France, or maybe even China, and not Stalin's Russia or Hitler's Germany. The notion that freedom is indivisible—if you lose a little, you have lost it all; if one person is deprived of liberty, then we all are—is sweet, and useful for indoctrinating children. But it just isn't true.

The current debate about government wiretapping of U.S. citizens inside the United States as part of the war on terrorism, like the debate before it about the torture of terror suspects, and the debate before that one about U.S. government prison camps at Guantanamo and in Eastern Europe, are all framed as arguments about the divisibility of freedom. They are framed that way by the good guys—meaning, of course, the side I agree with, which is the side of the civil libertarians who oppose these measures. That is part of why the good guys are losing. The arguments all seem to pit hard practicality on one side against sentiment, if not empty sentimentality, on the other. There are the folks who are fighting a war to protect us from a terrible enemy, and there are the folks getting in their way with a lot of fruity abstractions. You can note all you want the irony of the government trampling American values in the name of protecting them (yes, yes, like destroying that village in Vietnam in order to save it). The hard men and hard woman who are prosecuting this war for the Bush administration can turn that point, rather effectively, on its head. If the cost of losing the war and the cost of winning it are both measured in the same currency—American values, especially freedom—then giving up some freedom in order to avoid losing all of it is obviously the right thing to do.

Arguing for abstractions while the other side argues for practicality is, to some extent, just a burden that civil libertarians—maybe even liberals in general—will always have to bear.

Not only sensible on Freedom vs. Security, but that last bit touches on why Americans are so anti-intellectual.

Posted by Orrin Judd at January 15, 2006 9:42 AM

... obviously the right thing to do.

Glad that Kingsley has finally gotten a grasp on the obvious. Better late than never.

Posted by: erp at January 15, 2006 11:17 AM

Never thought I'd read that from him. Everyone has to face growing up at some point in time I'd guess.

Posted by: Genecis at January 15, 2006 12:05 PM

It looks as though we are needing that weatherman less and less.

Posted by: Lou Gots at January 15, 2006 12:17 PM

wow, i can not believe that it is kinsley writing this. the real story is why he has come around like this.

Posted by: toe at January 15, 2006 12:19 PM

Arguing for abstractions while the other side argues for practicality is, to some extent, just a burden that civil libertariansmaybe even liberals in generalwill always have to bear.

Well, yes, they have to argue in abstractions, because aguing in real-world instances turns many of their agruments into something akin to suicide wishes, either real or in the political world. It's also why folks in Kinsey's former part-time world of political media talk tend to do better on the right than on the left - do a TV or talk radio show based on abstractions if you're on the left, and you're going to be ineffective in arguing your case if the right is arguing about realities. Do one based on your beliefs and using real world conditions if you're on the left, and you get Air America's ratings.

Posted by: John at January 15, 2006 12:49 PM

The real story is that he'd like to win some elections and is smart enough to see that Democrats are shooting themselves in the foot every time they spew forth on this subject.

Posted by: Bret at January 15, 2006 1:18 PM

Kinsley is no Hitchens. If you read carefully, he's still on the ACLU mailing list.

Maybe we aren't giving up rights, but trading one set of rights for another. I, for one, would heroically surrender my right to call 1-900-OSAMA for the right to drive home on the Brooklyn Bridge without being exploded. But that's just me.

Posted by: Noel at January 15, 2006 2:57 PM
Robert Bork ... always uses wiretapping as his one great example of legitimate reasoning by analogy. The authors of the document didn't know about wiretapping, but if they did, they would regard it as a "search and seizure" just like a police raid, and therefore restricted by the Fourth Amendment.

I do not know if he mischaracterizes Bork's position or not, but even if he doesn't, the analogy is bad.

The correct analogy is face to face conversation over the back fence (i.e. not shouted out). The conversation is not private by definition. It is between two people, and the identity of the counterparty to the conversation will always be disclosed as it will either be in public or the counterparty will leave the place of the subject. If the identity of the counterparty is known, he can subpoenaed before the grand jury and compelled to disclose the conversation, unless he is the subject's spouse, lawyer, or priest. Even if not subpoenaed, the counterparty might drop the pub on the way home, have a few and relate the conversation to the assembled multitude. It might be rude, but it does not violate any law.

Further the paths that conversations take over telephone wires belong to common carriers and are not, by definition, private spaces. (and this does not even analyze cell-phone yakers carrying on whilst the walk the streets)

There is therefor, no reasonable expectation of privacy in any non-privileged conversation.

That is not where the dementos of the Warren court took the law, but that is where a proper originalist should come out.

Posted by: Robert Schwartz at January 15, 2006 3:43 PM


Could you please provide the supporting evidence -- or heck, just citations -- for your ongoing insistence that the Founders understood the words "liberty" and "freedom" to have quite different, even incompatible, meanings?

Otherwise, it remains an idiosyncratic semantic distinction you've invented in your own head, a distinction that's useless in actual communication with others, who do not share this idiosyncrasy.

Posted by: Can't Remember My Previous Screen Name Here at January 15, 2006 3:46 PM

Of course, since he's communicated it to the readers of this site, it works just fine for everyone involved.

Posted by: Timothy at January 15, 2006 5:16 PM

In the beginning, our American Revolution was not to overthrow law but to vindicate law. Our Declaration of Independence invoked not only the laws of nature and of natures God but English constitutional law in violation of which it recited a long train of abuses and usurpations designed to reduce the Colonies under an absolute despotism. We cannot claim that the Revolutionary era was free from lawlessness, of course. But we can say that it was not accomplished or followed by a reign of terror as were recent Nazi and Community revolutions. There was neither blood bath nor purge. That distinguished it from an early contemporary French Revolution in which, after killing off the old regime, the revolutionists fell upon each other until it ended in a new dictatorship. And that, perhaps, is why the world has looked more to our Revolution as an inspiration to freedom than to the French, which stirred fears that any movement toward liberty meant a reign of terror.

After our Revolution, when a Constitution was framed our forefathers adapted the philosophy of Eighteenth Century liberalism. It taught the essential unity of liberty and the law, and its ultimate concern was to insure the fullest measure of freedom consistent with the god order on which a sage and free life must rest. It distrusted loose power and would only admit government to the control of a small area of our total economic, social and political lives. It believed that dissent, opposition and grievances, real or fancied, were most dangerous to stability and good order when underground, unvoiced and hence unanswerable, and that freedom of speech, press and assembly would bring smoldering discontents and oppositions to the surface where they could be satisfied or reasoned with. They believed that the fittest ideas would survive in competition and that unfettered public discussion would provide an intellectual basis for resolving political contests.

However, we must never forget that it is implicit in this philosophy that the discontented have a duty as well as a right to voice openly their dissatisfaction and that the contented have the obligation to tolerate and answer overt opposition, however distasteful. We must also remember that this concept of liberty had no tolerance of any form of lawlessness, no belief that there could be freedom except under law.

These philosophical generalities were easy to proclaim, but it was the genius of our forefathers to devise institutions that would actually put these principles into practice not ideally but well.

-- Liberty Under Law (Robert H. Jackson, Associate Justice of the Supreme Court of the United States, January 30, 1954)

Posted by: David Cohen at January 15, 2006 6:38 PM

Bravo as usual, David. However, can't remember... that isn't what Orrin means when he uses the word liberty. What he does mean by that word is the state of affairs where you volunteer to behave the way Orrin prefers. This is in contrast to freedom, where you volunteer to behave the way you prefer.

Posted by: joe shropshire at January 15, 2006 6:58 PM

joe's description is pluperfect. Freedom is mere license for anarchy. Liberty is a republican ideal meaning that all enjoy the same limited freedoms and accept the same limits. Liberty presupposes laws. Freedom supposes no limits.

Posted by: oj at January 15, 2006 8:12 PM

No, anarchy supposes no limits. Freedom and liberty, which are really one and the same, suppose limits. Liberty the way you use the term means you do as you are told, because you're told to, and like it. Now, plenty of people like to be told what to do, and some dream of doing the telling. All very well and good but that's got nothing to do with liberty. At least shake hands with you inner authoritarian, Orrin, you're the only one here who doesn't recognize him.

Posted by: joe shropshire at January 15, 2006 9:10 PM


okay. If by freedom you really mean freedom so limited that it is just liberty you're welcome to that definition.

The Founders were republicans though and they were more careful than that.

Posted by: oj at January 15, 2006 9:28 PM