Freedom Under Law

Last night the Senate failed to advance an extension of the Patriot Act’s Section 215. Rand Paul objected to Mitch McConnell’s efforts at passing any short-term extensions and suddenly it looks like the legal authority for the Patriot Act’s phone metadata collection program may actually expire June 1st.

“There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now, and I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged.”

So said Rand Paul at the outset of his 11 hour pseudo filibuster on Wednesday, and it’s hard not to be moved by the language. If there is a quality I admire most about the Senator from Kentucky it is his maniacal obsession with restoring checks and balances to our government. In order to have any success at reining in executive power the public must first agree with the premise on which the reform rests. If you’ve paid attention to Paul in the Senate you know the thread that runs through his speeches and through his marathon performances on the Senate floor is the separation of powers. Drones and NSA spying were not background concerns per se, but neither were they the true focus of the filibusters. At root is a fundamental objection with the flagrant expansion of executive power under every administration since World War II, but especially since 9/11.

Why are separation of powers so important? To hear Paul tell it, the sanctity of divvied powers was best championed by French philosopher Montesquieu, who warned that tyranny would ensue whenever the executive moved to legislate. Likewise, separating the judicial branch from both executive and legislative was imperative for the security of habeus corpus and other natural liberties. Embedded in small government philosophy is a staunch suspicion of planning and expertise, a wariness born during The Enlightenment and which reflected the conflict between the regal old guards and the new class of individual-minded bourgeoisie. For eons the word of the state was the final word on society; decrees from on high carried down to the masses for them to follow. However, the individual conscience rights that began taking shape in the Middle Ages became more widely disseminated during the Renaissance and Enlightenment. With the expansion of knowledge and individual agency the feudal system gradually gave rise to market economies fueled by spontaneous order. The consequent loss of power and influence for the aristocracy was a product of capitalism providing the vehicle for political participation by ordinary folk. Schumpeter’s insight that “the princess was always able to wear silk stockings, but it took capitalism to put them within reach of the shop girl” put the lie to the Marxist conceit that free enterprise would destroy the middle class. Voluntary exchange under a legal framework that respects the individual and cherishes his right to profit from his own labor is what created the middle class.

As the Western world moved methodically toward social appreciation for the citizen’s sovereignty over the state, the question of democracy became crucial: how to organize a free society of, by and for the people when for so long power and authority were hereditary and monarchical? Fortunately the British and ultimately the Americans did not need to hunt for a guiding principle. We already got one and it’s embedded in Magna Carta. The great charter signed at Runnymede marks its 800th anniversary this year and yet remains relevant as ever. Habeus corpus, jury trials, property rights and a common law that precedes and preempts man-made law; these natural rights discovered by our English forebears provided the blueprint for the individual based free society. They also declared for the first time in history real restrictions on the power of the state or king, which would prove a launching point for our founders as they set to establishing a government that would pit ambition against ambition as a means of separating and counterbalancing the powers of the state. The best encapsulation of this radical vision for upending centuries of authoritarian rule is inscribed on the monument commemorating Magna Carta: “freedom under law.”

Freedom under law is what the entire debate over NSA and executive power overreach is all about. National security state defenders will often say there’s no evidence of abuse currently and besides, don’t you want to be safe? But that is not the point. The point of a freedom secured by law is that the law is the law, and it is supreme. John Adams said we strove to institute a “government of laws, not men.” When executive authority runs afoul of the law it is supposed to be a big deal. When successive administrations of different parties expand executive power to the degree that natural rights are abused, it is supposed to be a huge deal. But in the name of fighting terror and keeping the country safe the Bush and Obama administrations have treated the 4th amendment like so much garbage.

In attempting to take Rand Paul to task Andrew McCarthy of National Review runs the gamut of talking points before insisting that “the depiction of national-security agents who are trying to protect American lives as seventies-style rogues tearing the Constitution to bits is a smear.” But Paul is not doing that; instead he is arguing that the Patriot Act and its especially problematic provisions open the door for abuse at any time. It may not be now, or in the next administration or the next but the point of freedom under law is that we eliminate this risk altogether by forcing fallible men and women to swear oaths to uphold and defend the Constitution. The founders were explicit about making the law supreme and they further divided power to guard against the transient passions and fears that inevitably come to challenge man and his commitment to law. As challenging and daunting as it is, the jihadist threat of modern times is exactly the kind of passionate, fearful moment in time the founders knew would inevitably materialize. If they knew that only two hundred some odd years later American political discourse would include such penetrating insights as Chris Christie’s you can’t enjoy your civil rights from a coffin, they would have folded up shop and abandoned the revolutionary project full stop.

The Patriot Act is what happens when laws are passed out of fear instead of sober deliberation. Freedom under law was always meant to keep that from happening, like the abstract, intangible version of standing athwart history yelling stop. The founders knew too well the propensity of man to govern arbitrarily; thus the principle aim of the new republic was to build a system that takes arbitrary and consolidated power out of the equation and lifts the Constitution up as the final arbiter on what government can do.

David and Goliath

I have not yet read Malcolm Gladwell’s new book, David and Goliath: Underdogs, Misfits, and the Art of Battling Giants, but I have read Ben Domenech’s outstanding piece in The Federalist on the application of the David and Goliath trope to our modern politics, as well as Daniel Hannan’s marvelous new tome on the uniquely British origins of constitutional liberty, and I believe they share a common and important insight about man’s capacity to resist arbitrary rule, in the same sense that underdogs like David are compelled to resistance against all kinds of Goliaths.

Domenech taps into one of Hannan’s central points about the American Revolution: that the revolutionaries did not see themselves as progressives or even radicals, but as conservatives bent on restoring their rights as free-born Englishmen. To the extent the patriots viewed themselves as revolutionaries at all, Hannan explains, it was in pursuit of a 360 degree turn of the wheel, back to their Anglo-Saxon roots when traditions of representative assembly carried over from their Germanic tribal days blended with budding conceptions of personal autonomy, as well as a preference for local adjudication based on precedent over abstract principle, known as the “common law.” After the Norman conquest however, much of this tradition was wiped out or sent underground as the continental invaders imposed feudalism and the Divine Right of Kings on the land; this would be the galvanizing force of English rebel libertarians for five hundred years until at last with the Glorious Revolution of 1688 they were able to “cast off the Norman yoke” and reassert the primacy of their natural rights.

Our own founders were interested in a similar restoration of their rights when they told King George III to shove it. But these were not men rebelling against a foreign power, rather they saw themselves as any colonial would have at the time, whether patriot or loyalist: as Englishmen. Our “revolutionaries who took up arms against the British weren’t just rejecting a form of political leadership, disemboweling the past in order to start a new regime (as the French did). They were seeking to claim back their old rights from nearly a century earlier.” And this is where Domenech draws a parallel between Gladwell’s advocacy for underdogs and our present conservative political stalemate between the Establishment and the Tea Party, “which is carrying on the traditions of the American Revolution, in ways they may not even recognize.”

It is not difficult to intuit why underdogs enjoy rich histories in both fact and apocrypha. Every child loves a story about a small band of heroic warriors who triumphed against long odds, and it usually doesn’t matter if the tale is true or enhanced through mythological retelling, like the difference between the 1980 US hockey defeat of the USSR and the legend of Sparta’s 300. What matters is the romantic allure of the underdog prevailing simply because his was the just cause, his heart the pure. But can the same exaltation of the underdog be applied to intra-partisan politcal arguments over tactics? The David and Goliath parable seems only relevant to tales of combat and competition, but do rhetorical skirmishes between the Tea Party and the Establishment deserve the same juxtaposition? Domenech thinks so:

For those intellectuals on the right equipped with some insight, they recognize that the thread of populism which runs through Bunker Hill and The Alamo is an ally, not a foe. But for those who are prisoners to their narrow frame of the world, misunderstanding this long-running American tradition has turned into dripping condescension of the populist right. They decry the Tea Party and its new institutions as a kabuki dance performed for filthy luchre from ill-mannered hicks and racists… not realizing that it is in the nature of populism, particularly conservative populism, to see the structures of power more clearly for what they are, as opposed to what they claim to be.

Just as the aristocracy of the day bought the Tories with the benefits of privilege, so today the existing Goliaths guard the status of the self-styled elite. Their approach to government not only protects elite status but also creates it, typically without merit – paired with the authoritarian technocrats’ belief that they know best, and have the right to make that best a reality. It’s why such elitism is the one thing they are conservative about – the modern aristocracy bequeaths titles of nobility for surviving the attacks of the hicks, protecting its own, and attempting to control the agenda in the same way they did in pre-revolutionary times. But the more Goliath ignores, insults, and fights David, the stronger he becomes.

The problem is that these Goliaths are slow and clumsy, and that, equipped with the technology-driven power of collaboration and the institutional wherewithal to match the established fundraisers, the Davids have more than enough smooth stones in hand to do what they came to do. The superior force on which the giants’ success depended grows ever less impressive with each passing election cycle. And the rebels are at the gate.”

“Elites” is a pejorative more generally used to describe paternalist liberals and their effete coastal constituencies, but here it accurately characterizes the temperament of entrenched Republicans in Washington as well. It’s become almost cliche for populist conservatives to accuse Establishment conservatives merely of “protecting the status quo,” but often cliches become cliches because they are true. There is a certain arrogance among many Republican elder statesmen in their frustration and occasional contempt for the new flock of conservative populists in the Capitol. And even if Establishment concerns about tactical politicking are sometimes warranted, they too often forget what the insurgents represent: the underdogs.

There is profound confusion on left and right about the Tea Party’s staying power as a national force in politics. The left derides it as an “astroturf” conspiracy cooked up in the devious halls of Koch Bros., Inc. The right haughtily insists that without Sharron Angle and Christine O’Donnell, all would be well in today’s GOP-controlled Senate and the federal government would not have been “disastrously” shut down, thereby halting for a whole two weeks a small amount of non-mandatory operations. But the truth is that the Tea Party is stronger and more viable than ever because it is a diffuse movement of principles and ideas rather than an organized entity with uniform leadership and planning. Quoting Van Jones at a Netroots meeting of progressive minds in 2011, Matt Kibbe addresses Jones’ exasperation at how the Tea Party “talk rugged individualist, but they act collectively” by explaining:

“He and his colleagues don’t seem to understand that communities can’t exist without respect for individual freedom. They can’t imagine how it is that millions of people located in disparate places with unique knowledge of their communities and circumstances can voluntarily cooperate and coordinate, creating something far greater and more valuable than any one individual could have done alone.”

It is understandable why a former communist Occupy Wall Street cheerleader would express confusion and deem “ironic” that a group of passionate individualists should be able to achieve political ends collectively. He simply doesn’t appreciate the power or the validity of the principles that guide them. But for the staid Goliaths of the GOP to similarly disregard and disrespect the diffuse coalition of focused and committed Davids in their own ranks explains why there is a “civil war” in the Republican Party today. It is never wise to discount the underdogs, especially those named after this celebrated example from our own history. What is the story of the American Revolution if not one of underdog triumph?