Posted: September 1, 2003
here is a question as to why the Beacon Press would choose to publish this collection of Wendy Kaminer's essays. It is not enough to say, as she does in a prefatory note, that "civil liberties are always in jeopardy and always require attention." Fair enough, but she and her libertarian colleagues have made a career of saying just that. So why say it again? There is nothing new in these essays, all of them previously published and none of them distinguished in any way.
Numbering about 50, they deal with such topics as sexual freedom, abortion rights, "gay" marriage, assisted suicide, and the medical use of marijuana, all of which she supports; as well as racial profiling, the death penalty, the war on drugs, "flag worship," and censorship, all of which she opposes. In still others—"An Imperial Presidency," for example, and "Safety and Freedom"—she comes to grips (so to speak) with the exigencies of our present situation. While written before September 11, 2001, all the essays were "updated" later; she makes a point of this, presumably, to assure us that she appreciates the greater relevance, after 9/11, of national security considerations. In the event, this appreciation amounts to very little.
The most that might be said is that she is not unmindful of the importance of national security, but she speaks disdainfully of every measure designed to promote it. The airport security measures are not only intrusive, she says, but "unnecessarily" so; they were adopted only because of the untoward influence of large but otherwise unidentified corporations. The requirement to display a photo ID card before boarding a plane is a useless security measure, in fact, an "idiotic" security measure, and was adopted only because it is "an effective revenue enhancer that enables the airlines to catch passengers using other people's discount tickets." As she sees it, the whole security business is something of a scam; she refuses to believe the (unidentified) officials who tell us that sacrificing freedom will make us more secure. "Most of them," she says, really want us "to have less freedom just so they can have more power, regardless of security." This is a serious, in fact, a reckless charge, but she apparently sees evidence enough to support it in the laws enacted after September 11, particularly the Patriot Act, and the way the laws, old and new, are being enforced. Her conclusion is that, while we don't yet inhabit a police state, "it is not paranoia that imagines one taking shape." Her friend, Kathy Pollitt, may have had statements like this in mind when she said, on the book's back cover, "Wonderful Wendy Kaminer! With wit and style and cold hard facts, she skewers contemporary credulity."
After all this, it comes as something of a surprise to learn that Kaminer's views on this subject do not differ all that much from those of the general public. "Ask people to choose between freedom and security," she says, "and almost all will choose security." But, nominally at least, so does she. She does so because, like them, she believes that "freedom depends on peace and some measure of order, after all." So it does, after all; but, perhaps because the ACLU spends its time defending the rights of unpopular minorities—anarchists, pornographers, flag burners, left- and right-wing zealots—she overlooks the fact that the popular majority also has rights, specifically and of consequence here, the right to peace and some measure of order, in a word, to security. This right deserves as much respect and protection as freedom of speech and the other rights explicitly mentioned in one or another provision of the Constitution, and more respect and protection than the so-called right of privacy derived from "penumbras formed by emanations" from a potpourri of provisions. But she says nothing like this. Beyond that, it should be said that freedom and security are not so much at odds as she sometimes makes them out to be.
The key here is how we understand freedom, or more precisely, our constitutional rights. For example, correctly understood, it is not a denial of a defendant's right to due process if, thanks to the Patriot Act, the government is allowed to avail itself of foreign intelligence information in a domestic criminal case. Kaminer thinks otherwise. Nor, correctly understood, is it an abridgement of our First Amendment right of freedom of speech and press to prohibit child pornography on the internet. But Kaminer, ever mindful of the alleged slippery slope, insists that the right is meaningless unless it protects, say, "A Child's Deep Throat" as well as "Anne of Green Gables." Wonderful Wendy, indeed. But this can truly be said of her: she treats civil rights as if they were natural rights and, by doing so, exaggerates their extent or reach.
She is not the first of her tribe to do this, just as she is not the first to speak repeatedly of "autonomy" and "autonomous individuals." The autonomous individual is said to have "antecedent rights against the state," including the right to say or print whatever he pleases irrespective of its effect on the state. In principle, this means (as the fashion now has it) that the right has priority over the good, a principle given at least quasi-official status in an opinion written by Justice Oliver Wendell Homes (Kaminer's favorite jurist) in a free speech case decided by the Supreme Court of the United States in 1925. Holmes said, and among libertarians became famous for saying it, "If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." (Gitlow v. New York, dissenting opinion.) If we take him at his word, as libertarians are wont to do, this means that it is worse to suppress the advocacy of Stalinism or Hitlerism than to be ruled by a local Stalin or Hitler. So much for autonomy and its principle.
The fact is, of course, there are not autonomous individuals in this country, none at all; leaving aside visitors, there are, instead, only citizens and aliens, all of them living under the jurisdiction of the law and expected to obey it, and with the collective right to peace and some measure of order under it.
* * *
There was a time when, in theory, venerable liberal theory, all of us were autonomous or radically independent and self-governing individuals. Living then in the state of nature, we had nature's rights, but these rights were not secure, and could not be secured. The state of nature proved to be a state of war, with the consequence that our lives were "solitary, poor, nasty, brutish, and short."
The way out of this unhappy situation was found by Thomas Hobbes, the political philosopher who coined that phrase. Hobbes, followed by John Locke, "America's philosopher," as he used to be called, asked the political question, what sort of society or social bond can be established among persons who are by nature asocial and with the right (the "antecedent" right) to do as they please? To put the question otherwise, what are the preconditions of a society formed of naturally autonomous individuals, or what portion of that autonomy is retained after society is formed? Or, again, since the autonomy is defined by natural rights, which rights does the individual retain, and which must he surrender when entering society?
These are not questions of interest only to theoreticians; on the contrary, they were asked and answered at our beginning as a people. Writing in Federalist 2, Publius—John Jay in this Case—said, "Nothing is more certain than the indispensable necessity of government; and it is equally undeniable that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers." Which rights are ceded (or surrendered) and which are retained?
Strictly speaking, the only one retained is "the Right of the People" we exercised in 1776 and, if necessary, stand prepared to exercise again. All other natural rights are surrendered in exchange for the civil rights which society promises to secure. A civil right is a civilized version of a natural right, by which I mean, it is the result of reflections on what is necessary, first to constitute a society, and then govern it. By treating them as natural rights, Kaminer would deprive the government of the powers required in times of danger. And to do this would be to deprive the people of their right to peace and some measure of order.