Popular Erosion Of Liberty: Do You Feel Lucky?

Note: This post is part of our League Symposium on Democracy. You can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here.

A few weeks ago, I had to travel by air. At the airport, I noticed that there were posters of art by children on the stanchions for the security line. The art contest had been sponsored by the Transportation Security Administration and the winners, from the various age groupings, all illustrated some aspect of airport security. The charming crayoned pictures, mostly of crudely-drawn smiling TSA agents administering full-body scans on crudely-drawn smiling passengers, were really creepy.

So I have the Bob Hope Airport TSA to thank for the reminder that in a world where fear trumps personal dignity, it is not so difficult to put a benevolent face on the demands of security, and thus a major tension in our political reality is between security and democracy.

A liberal democracy exists when citizens exercise ultimate control over the government through the act of voting, and that government is limited in the scope of its ability to govern due to checks on government power intruding upon spheres of individual rights. Governmental respect for individual rights trumps even the will of the majority.

Security on the national policy level means the absence of crime and violence, and a government charged with maintaining security must not only react to and punish criminals and perpetrators of violence, it must engage in acts calculated to prevent crime and violence from occurring in the first place. Security is at once a pre-condition of a peaceful society, and a goal of a functioning government.

To that end, the goal of security inevitably involves an intrusion upon ideal personal liberties. Obviously, a reasonable balance between the two must be found. My concern is that democracy is not very good at striking that balance. The reason for that is twofold: first, ugly and unpleasant political choices are unpopular and therefore unlikely to be made; and second, individual rights are popular only in the abstract and in practice tend to be unpopular in that their invocation tends to provoke a lot of scorn and disdain.

Given this, it seems likely to me that a democracy, if sufficiently concerned about security, will vote itself out of the zone of “liberalism” and into the zone of “absolutism.” After all, a democracy could consist of the citizenry choosing a dictator with no constraint on power other than a specific period of time in which to hold that power, rather than a leader whose powers are restrained by laws.

From the day I saw the towers in New York collapse nearly eleven years ago, that has been my ultimate fear for the United States – that the security state would rush in on a wave of popular fear and outrage. For a while, it felt like there was real substance to that fear. And for all the outrage over warrantless wiretaps, e-mail monitoring, causeless and sometimes downright silly searches and seizures at transportation checkpoints (like that same airport), suspension of standard criminal procedures, and most recently the “kill list,” the part of it all that bothered me most was the applause and approval. And it took seeing another implement of a smiling, benevolent face on the security state to shake me, even a little bit, out of the complacency of accepting intrusions into liberty that previously would have been thought intolerable.

The backstop against which the advance of the security state – which seems to have popular will behind it – must perforce be non-majoritarian. By which in the United States, I mean the courts and the Constitution. Without the enshrinement of limits on governmental power in the Constitution, and the creation of a powerful, independent, and non-majoritarian institution of government to enforce those limits, one wonders how much further it could have gone.

Even this backstop is subject to erosion. Over time, the judiciary is subject to at least an indirect form of political control, and from time to time efforts by partisans of one side or the other to exercise that control become manifest and apparent. Many people look at the failed nomination of Robert Bork to the Supreme Court as a moment in time when the Court became politicized and partisan policy preferences began intruding on the theoretically apolitical manner in which the Court’s members were, selected, but really this sort of thing is literally as old as the Constitution itself. Consider that more than half of our Chief Justices were notable primarily for their political careers and not for judicial or legal careers before taking the bench: John Jay, John Marshall, Roger Taney, Salmon Chase, Edward White, William Howard Taft, Charles Evan Hughes, Fred Vinson, Earl Warren.

So the courts can become stacked, over time, with people who prefer less robust articulations of civil liberties. But for those members of the citizenry who are impatient with this slower and unreliable process, more direct means of parrying the power of the courts are available. Serious political effort has been devoted to stripping the courts of jurisdiction to hear certain kinds of challenges to governmental power (i.e., “terrorist trials”). And the Constitution itself is subject to amendment by a supermajority. This is what is relatively new in American political dynamic: the mobilization of the citizenry directly against the judiciary, focused on efforts to defang the courts in various ways.

It’s pernicious, because the courts have expanded civil liberties and engendered political reactions in ways that implicate civil liberties that do not directly affect issues of security. I speak here essentially of issues relating to sex: abortion, marriage rights, contraception, and the like. But concurrent with reactivity to judicial decisions in this arena has always been a similar sort of reaction to judicial decisions relating to issues of security.

No more eloquent a symbol of popular disdain for judicial enforcement of civil liberties in the context of security, pre-9/11, can be found than Harry Callahan: the tough-talkin’ street cop iconically played by Clint Eastwood in a series of very popular movies from the 1970’s and 1980’s. Dirty Harry sneers at pusillanimous wimps wearing black robes who seem to always take the side of criminals, grows bitter and frustrated at a system that hypocritically claims to punish crime but actually facilitates it, and goes above the law and metes out justice, violently and personally, to the cheers and applause of the audience. Dirty Harry movies were popular because they hit a cultural vibe, they resonated with that part of the general audience that was only then beginning to coalesce around the idea that democratic means could be employed to implement policies that would advance the interests of security at the expense of the interests of liberty.

Is this sort of thing inevitable? In comments for my first post for this symposium, I was heartened to see people raising examples of cultures under democratic self-rule educating themselves, admittedly after hard and unpleasant experiences, that they must make unpleasant choices about fiscal policy. If the Kiwis and the Canucks and the Aussies and the Austrians can stare austerity in the face and make tough choices to both cut government spending from unsustainable levels and raise taxes to pay for the spending they do want, then that is a sign of hope for me: democracies can learn to make good choices.

But can democracies learn to make good choices with respect to liberty? On those days when I am optimistic, I look back on the trend of United States history and see that with one exception that was subsequently corrected, amendments to the Constitution addressing civil liberties have been aimed at expanding rather than restricting them. Indeed, if liberty is defined as a legal restriction on governmental power, only the authorization of income tax stands as an amendment to the Constitution that expands rather than restricts the power of the government. That makes me relax and feel like my hope that things will never get so bad that the form of democracy we practice in the United States will not cease to be liberal (in the eighteenth-century definition of that word).

And then I see the children’s drawings of smiling TSA agents searching smiling passengers without warrants or cause to believe any crime has been committed displayed on the stanchions guiding me to submit to exactly such a search myself. The still-ominous nature of the name “Department of Homeland Security” becomes manifest. And I comply, politely and without protest, as a stranger wearing a badge looks through my bags and a very expensive and technologically impressive device allows another stranger with a badge to look through my clothing. I tell myself the search is not really that bad, not really that intrusive, and that the motive behind the search is benevolent and the strangers with badges aren’t doing this for fun, they have my best interests at heart.

Of course they do.

Postscript: it looks to me like the democracy symposim is running out of steam. If there are no more posts on the subject. I’ll close out the symposium about this time tomorrow. Thanks to everyone for participating.