November 26, 2011


Liberty and Security: Hostile Allies: We do not purchase one at the expense of the other (Benjamin Wittes, 11/10/11, Defining Ideas)

The idea that liberty and security exist in balance hangs over America's entire debate about national security. The metaphor of balance lives pervasively in our rhetoric. It lives in our case law. It lives in our academic discourse. It lives in our efforts to describe our reality. It lives in our aspirations. It lives in the calls to shift the balance in perilous times by giving up liberty in the name of security, and it lives as well in the calls to restore the balance by abandoning security measures said to injure freedom.

As Philip Bobbitt puts it,

    There is a virtually universal conviction that the constitutional rights of the People and the powers of the State exist along an axial spectrum. An increase in one means a diminution of the other... . . A corollary to this conviction is the widely held belief that intelligence and law enforcement agencies constitute a threat to civil liberties.

The balance metaphor lives, paradoxically enough, even in our attempts to reject it. Opponents of new security measures will often vocally eschew the balance metaphor--insisting that we can be both "safe and free" or, as President Obama put it in his inaugural address, that we can "reject as false the choice between our safety and our ideals."

The image of balance arises especially vividly in the context of surveillance, where every augmentation of government power is said to come at some cost to liberty. The relationship between surveillance and liberty has taken on special importance as the internet has continued its exponential growth and as personal data concerning individuals has proliferated. The question of how aggressively governments can police and monitor the use of communications and other technological architectures has necessarily arisen alongside these platforms--with the balance metaphor invariably hovering over the discussion.

Proponents of more aggressive surveillance justify such steps as necessary and imposing only allowable costs in light of some compelling governmental or societal security need. Opponents criticize them as excessive enhancements of governmental power, which we take at the expense of freedom or privacy. We seldom stop and ask the question of whether and when our surveillance programs are really coming at the expense of liberty at all or whether the relationship might be more complicated than that--indeed, whether some of these programs might even enhance liberty.

We should ask these questions because the balance metaphor is incomplete to the point of inducing a deep cognitive error. Any crude notion of a "balancing" between security and liberty badly misstates the relationship between these two goods--that in the vast majority of circumstances, liberty and security are better understood as necessary preconditions for one another than in some sort of standoff. The absence of liberty will tend to guarantee an absence of security, and conversely, one cannot talk meaningfully about an individual's having liberty in the absence of certain basic conditions of security. While either in excess can threaten the other, neither can meaningfully exist without the other.

One of the things that drives this debate is--as one would expect--the failure to understand what liberty means in the first place, in particular the tendency to confuse it with freedom.  Freedom and security do indeed exist at opposite ends of a continuum.  A system that afforded absolute freedom could afford no security (safety), because every man would be free to do anything he wanted to every other man.  Meanwhile, a system that afforded absolute security from our fellow men could afford no freedom, because our every action would have to be controlled. 

Americans are the fortunate inheritors of two distinct limits on freedom that, nearly paradoxically make it possible for us to live under the form of regime that affords the greatest freedom of any so far crafted by men.  In the first instance, our Judeo-Christian/Protestant-Calvinist origins establish behavior parameters backed by Authority while also requiring that every man be treated with the dignity inherent in creatures created in the Image of God.  Thus, even preceding the formation of governments we accept significant limitations on personal "freedom." 

Second, we are heirs to the classical ideal of republican government and the republican liberty that is its essence.  As Maurizio Viroli explains:

Classical republican writers maintained that to be free means to not be dominated--that is, not to be dependent on the arbitrary will of other individuals. The source of this interpretation of political liberty was the principle of Roman law that defines the status of a free person as not being subject to the arbitrary will of another person--in contrast to a slave, who is dependent on another person's will. As the individual is free when he or she has legal and political rights, so a people or a city is free insofar as it lives under its own laws. [...]

Classical republican theorists also stressed that the constraint that fair laws impose on an individual's choices is not a restriction of liberty but an essential element of political liberty itself. They also believed that restrictions imposed by the law on the actions of rulers as well as of ordinary citizens are the only valid shield against coercion on the part of any person or persons. Machiavelli forcefully expressed this belief in his Discourses on Livy (I.29), when he wrote that if there is even one citizen whom the magistrates fear and who has the power to break the law, then the entire city cannot be said to be free. It can be said to be free only when its laws and constitutional orders effectively restrain the arrogance of nobles and the licentiousness of the people.

Or, as John Locke rendered it for more modern times:

The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, [...] a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man...

We might put it this way: freedom means, not that I am free to do whatever I want, but, that I am free to do whatever everyone else is allowed to do by the laws we arrive at together.   

What's especially helpful about having this sort of basic understanding about the Republic is that the security concerns of the civil libertarians and the freedom concerns of the generally libertarian are exposed as equally silly.  To take one example we've been discussing recently, while the Right rages against Wickard v. Filburn, it is actually Gibbons v. Ogden that they can not over come and remain faithful to the Founders.

Posted by at November 26, 2011 7:43 AM

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