The Myth of the Civil Libertarian DemocratAnthony Gregory • Tuesday October 22, 2013 8:20 AM PST •
J.D. Tuccille has an insightful post prompted by a progressive blogger’s admonition against left-liberals working with libertarians to protest the NSA. Watson, the progressive, warns that “the presence of anti-government laissez-faire wingers at the beating heart of the privacy movement will surely sour the very political actors that movement desperately needs to make actual. . . progress” and contends that “the path to NSA reform so clearly lies inside the Democrats’ big tent—and runs through its liberal wing.”
Tuccille points out that Edward Snowden, the whistleblower who exposed the NSA horrors in the first place, is a libertarian. If there is any hope in beating back the surveillance state, it will surely require more than a fringe coalition of Democrats. Since the beginning of the post-9/11 assault on civil liberties, libertarians along with liberals and a handful of constitutional conservatives have been the most vocal critics of the growing police state. We who advocate both personal and market freedom were quick to embrace our progressive allies on the common-ground struggle against infinite surveillance and detention powers, even if we looked at the issues differently.
And indeed, we do tend to see civil liberties questions through a somewhat different lens. Most civil liberties issues concern our rights not to be deprived of life, liberty, and property without due process. Here we see how anti-statists and left-statists can diverge on how best to conceive of the problem. Libertarians generally see the deprivation of liberty, proportional to the exercise of state power, as the primary evil, and due process protections (usually themselves enforced through state action) as pragmatically necessary but messy mechanisms to keep state oppression in check. Left-liberals generally don’t see anything at all problematic about the process. They admire active government, and so don’t see a tension between upholding the rights of privacy and criminal defendants, and allowing the state to have an active role in guaranteeing these protections.
Civil liberties are recognized if not granted by the state. They often involve judicial powers like the power of a judge to issue writs of habeas corpus, the power to subpoena evidence, the power to force people to testify. Even those in the legal profession dominated by the political left are thus motivated not just by their interest in our personal freedom as individuals, but in the well-workings of the state’s institutions. There is a real libertarian reason to want courts to be able to throw out evidence and issue writs of habeas corpus. But there is also a sense in which such due process protections elevate the structural nature of the government and can be seen as machinations of the government itself. A leftist attachment to civil liberties is thus compatible with a belief in a well-working, equitable managerial state.
Yet, given the government is not going away any time soon, we can all celebrate procedural due process, strict requirements for warrants, the exclusionary rule and the like. But the reason we libertarians defend civil liberties—because we don’t trust the state by its very nature—is at least subtly different from the left-liberal conception, whereby they want the state to be as trustworthy as possible. To the left-liberal, civil liberties are reasons to celebrate the government we live under. For us, they at best cause us to fear less what even the most moderate of us consider an evil, even if it is necessary.
And so here we come to the disagreement between civil libertarians like Watson and the more holistically defined libertarians that Watson fears will taint the NSA reform movement. The first group, while genuinely concerned about certain rights against oppressive government, frames its understanding in terms of the well-working society, of which the state itself is an instrumental organizing component. The second group, while genuinely in favor of judicial restrictions on government spying, sees the spying itself as an evil, just one more horrendous expression of overbearing institutional coercion.
Now, there are things libertarians can learn from the left regarding civil liberties. For one thing, many libertarians have not taken civil liberties seriously enough. In the late 20th century, economic issues defined much of the libertarian identity, with opposition to the draft and the drug war standing out as notable exceptions. Some libertarians, believing that the police and national security apparatuses constitute “legitimate” functions of the state, sometimes go so far in defending these powers that they become less consistent on restraining abuses than left-liberals are. And of course, because many civil liberties controversies take place within the state’s domain—free speech on public property, defendant rights in the courtroom, humane treatment of inmates in prison—sometimes libertarians fail to think through the real-world consequences of their reductionist principles. Thus do we see libertarian defenses of the death penalty or other disproportionate punishments, or a reluctance to grasp with the complexities that arise when the state creates avenues of public space.
But left-liberals have something to learn too, concerning the institutional nature of the state. There is a reason states, left unchecked, massively violate human rights, and that reason is intimately related to the reason we libertarians are critical of government across the board. As a monopoly on legitimized violence, the state is an intrinsically dangerous organization, and many of its core activities, if not done under the auspices of political legitimacy, would be universally seen as criminal.
Those who embrace an active role for the state, and certainly those near the center of power, are almost never reliable defenders of civil liberty. This notion that hope for restoring privacy can be found in the Democratic Party is thus totally off the mark. Sure, some Democrats genuinely believe in civil liberties, and liberal writers and lawyers like Glenn Greenwald are as good friends to the Bill of Rights as one will find. But the Democratic Party isn’t characterized by its civil libertarian fringe, but rather by its organizing principle—devotion to a strong governmental role in social and economic affairs in the name of moderate egalitarian and liberal commitments.
The Democrats have never been particularly good on civil liberties. Woodrow Wilson was likely the worst president on this front in American history. Franklin Roosevelt put Japanese-Americans in internment camps. Cold War liberals beefed up the surveillance state, Bill Clinton expanded the drug war and gutted habeas corpus, and Obama has only continued the trajectory of steadily eroding liberties that began under Bush II. These are not cherry-picked data points. Volumes could be written on the plight of civil liberties under liberal stewardship.
Nor do mainstream Democrats, even when they vaguely care about civil liberties, ever conceive of the issue as a high priority. Under Bush, they sounded like Guantánamo and surveillance were top issues. Today, they make excuses for their commander-in-chief, and rarely regard these matters with as much urgency as they do health care and fiscal questions. Since due process and free speech are simply just a couple of issues along with any other issues, ones that are about governing well just like the whole Democratic agenda is supposedly about governing well, then it almost becomes a question of fungibility—if Obama violates civil liberties X and Y but expands government programs A and B, it sort of all evens out.
I can’t expect in a blog post to convince any progressive civil libertarians of my whole ideology, of my deep belief that personal and economic liberties cannot in the end be separated, of my conviction that so long as you embrace an active state you will have to witness it crush the innocent and disenfranchised and peek into your bedroom and e-mails. But I do hope to plant the seed of understanding that those who are truly close to the levers of power—which today would be the Democrats—are not very likely to do anything to radically compromise that power they worked hard to obtain and nurture. When we’re talking about governance as conceived by Obama and the mainstream Democrats who have spent their careers mastering statecraft to attain the grand prize of influence over the U.S. government, the prospect of civil libertarian social democracy, as authentically as one might believe it as an ideal, is but a fantastic myth.