Rights or Privileges?

Law’n’order conservatives frequently challenge civil libertarians to show what concrete loss of freedom they’ve experienced under the USA PATRIOT Act and other “counter-terror” (aka “police state”) legislation.

Well, first of all it’s hard to say, since the Patriot Act makes it an offense even to inform the public that you’ve suffered an unconstitutional loss of liberty under that “law.” If an FBI thug goes sniffing around the public library to find out what books you’ve been reading, the librarian can go to jail for informing you. If your house gets searched or your phone tapped under a so-called “national security letter,” you may never know.

More importantly, though, government has the paper authority — and the administrative and enforcement infrastructure — to suspend your liberties entirely. If you’ve experienced little concrete loss of freedom so far, it’s entirely because the state has not seen fit — yet — to exercise the dictatorial powers it holds over you.

Liberty was originally recognized by the state, not as a concession of sovereign grace or because the people in charge were such nice guys, but because the people forced it to. Liberty is not something given by the state — it’s something taken from it, against its will.  As Frederick Douglass said, “power concedes nothing without a demand.”

But our freedom today exists not because we’re in a position to compel recognition of it, but because the state has exercised some discretion in its exercise of absolute power. Liberty today is entirely at sufferance of government. 

The government’s de facto powers of surveillance over telephone and Internet traffic are virtually infinite.  A long series of executive orders gives the President power to nationalize essentially every aspect of American life in the event of a declared “national emergency,” from seizing control of factories and communication and transportation systems to conscripting civilian labor — not to mention rounding up subversives and detaining them without trial.

Compare this state of affairs — in which we owe our liberties to the good will of the government — to the view of the state shared by the revolutionary generation in America. According to Forrest McDonald, in “Novus Ordo Seclorum,” the radical Whig or Anglo-republican ideology of the revolutionary period sought to structure government so that it couldn’t exercise power against the wishes of even local majorities of the people.

Suppose a tyrannical party came to power in the national government, and passed laws depriving the people of their liberties. The Anglo-republicans saw three institutions as bulwarks against such arbitrary power. Rather than the standing army and professional police forces we have today, the radical Whigs envisioned militia units drawn from the local populace, and a posse comitatus (the ordinary citizenry acting as auxiliaries to the local sheriff or constable) raising a hue and cry against murderers or robbers. The central government would be entirely dependent for enforcement of the law on the civilian population of the area in which it was to be enforced. In addition, local juries, with their power to nullify laws considered unjust by the local population, could refuse to enforce tyrannical laws even if those in violation were brought to trial.

In law, procedure is almost everything, and substance is comparatively unimportant. This country could have the drug laws of Turkey or Singapore, and with a strict interpretation of common law procedural rights it would be nigh impossible to enforce. For example, say the state prescribed execution for simple possession of less than a lid of pot. Without the judicial doctrine of “reasonable expectation of privacy” which subverts the plain meaning of the Fourth Amendment, without civil forfeiture, without no-knock warrants and SWAT teams, without undercover sting operations and other forms of entrapment, without testimony coerced from jailhouse snitches, the drug laws would be essentially unenforceable except against the most stupid and careless.

The state’s “laws” cannot be enforced without illegality.

Citations to this article:

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