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.

Solid as Iraq

“When pride comes, then comes disgrace, but with humility comes wisdom.”
– Proverbs 11:2

In politics, disgrace does not follow pride and there are no such things as humility or wisdom. Partly this is because politics attracts the type of people who “think that it is not the system which we need fear, but the danger that it might be run by bad men,” as Friedrich Hayek wrote in The Road to Serfdom. The belief that there is nothing wrong with a bloated, oppressive, administrative bureaucracy actively engaged in managing the economy should be woefully outdated and subject to mockery. Alas, this idea retains decent heft in America and the broader West. Worse is the belief among federal bureaucrats that they are called to do important work on behalf of “society.” Worse still is they believe they are “public servants” arbitrating what’s fair and proper in civic life. But the absolute worst aspect of it all is how proud they are to play petty authoritarian. Whether it’s an IRS middle manager, an EPA busybody or an EEOC scold, American life is now regulated to the point of oppression by a class of elite social justice warriors who are all too happy for the opportunity. This is the subject of Charles Murray’s new bookBy the People, which calls for a form of conservative civil disobedience by way of noncompliance with the regulatory state. But the left is exceedingly proud of their regulatory state – they did build that, and over a long period and a “long march.” They are never going to part with it willingly or lightly; their identity depends on its preservation.

If only this was confined to the left. The reality though is that the faction of conservatives who base their identity more or less on American global power are similarly in thrall to pride. The spectacle that was Jeb Bush fumbling soft ball questions on the Iraq War last week was both instructive and foreboding. We got crystal clear confirmation that Jeb is surrounded by the same elite cadre of foreign policy hawks as was his brother George. We got warning that proponents of the war had undergone a level of soul-searching akin to that of Sauron after his first defeat. I would bet everything I own that without the advice of his team, Jeb would have answered Megyn Kelly’s “knowing what we know now” Iraq hypothetical with an unequivocal “no.” But Jeb is not without that advice, because that advice comes from a donor class and an establishment GOP mostly wedded to the idea that the Iraq War was basically the right call.

Hovering in the ether ever since the Democrats’ 2006 midterm romp is an obvious political truth, one which precious few on the right want to accept. The truth is this: the war in Iraq was devastating to conservatism and the Republican party. This devastation had layers. The first layer was the practical impact on the party, which suffered from both honest and dishonest partisan attacks by the Democrats and therefore limped into the post-Bush era discredited and with all the confidence and swagger of a beaten dog. The second layer has to do with how principled conservatism itself was discarded by the Bush administration. Despite pursuing a brave and fortuitous tax cut agenda, George W. Bush governed as a progressive Republican, aka a “compassionate conservative.” Federal spending skyrocketed, add-ons to entitlements were enthusiastically adopted and that once proud disciple of the Reagan-Laffer school of fiscal conservatism, Dick Cheney, opined that “deficits don’t matter.” That champions of the Bush legacy and adherents to the neoconservative worldview are one and the same today is not surprising. What is surprising is they lack any self-awareness or humility and instead prefer to look at their foreign policy record and bask in pride.

There was very little reason for conservatives to rally around Bush in 2004 beyond pride in the tribe. Compassionate conservatism was a disaster that ushered in Medicare D and No Child Left Behind. The “ownership society” Bush wished to cultivate was corrupted by the Fed and congressional loan edicts to mortgage lenders, setting the scene for the 2008 crash. The only reason Bush won in 2004 was because the war led Republican voters to dutifully vote to keep their tribe in power for fear of what the other would do. Now eleven years on, the other tribe is gearing up to rally around someone they don’t particularly like but to whom they owe loyalty and deference because again, pride and tribe, and again, those other bastards would be worse.

Because ultimately, depressingly, inevitably…. we’re all tribal animals and it will always be so, to a degree. What is the point though of living in a tribal democracy, where the mob reigns? Despite the fact that it is the natural condition of democracies to have competing tribes looking to get to 51% so that they may force their preferences and mandates on the other 49%, the American model is supposed to be something quite different. We are a republic because the founding generation looked askance at democracy. Pure, majoritarian democracy is indistinguishable from mob rule, whereas a republic would be healthier than a democracy because a combination of representative democracy with an ingrained respect for natural rights and common law would cement the centuries long social transition from “status to contract,” meaning a society where prospects and opportunities are contingent on an individual’s freedom to enter into contract instead of on social status or class. Democracy only works if certain first principles and inalienable rights are enshrined forever into the nation’s DNA so that no transient majority can ever deny those natural rights which inform the Declaration of Independence.

The parallel rise of the Tea Party along with a rowdy libertarian-minded youth are about far more than tribalism. They are about first principles and the attempt to revive them in the public conscience. The movements are essentially inchoate, schizophrenic attempts by frustrated conservatives and libertarians to reclaim the agenda from the big spending, saber-rattling, deep pocketed GOP elites who not only wish to see their influence preserved, but who insist in all their pride that their righteous motives yielded righteous gains, and anyway, who are you to suggest otherwise, some kind of isolationist?  This is the takeaway from l’affaire Jeb Bush: the GOP foreign policy establishment is simply too proud to admit they committed a fatal error, politically, strategically, morally. “Most of the Republican presidential candidates would have invaded Iraq. Despite protestations to the contrary, few of them have truly learned the lessons of the war,” says James Antle at The Week. There is nothing in the founding and nothing in conservatism that says nation building abroad  or preemptive war is desirable, and yet “even today, the true conventional wisdom in the GOP seems to be that the only mistakes that were made in Iraq were invading with too few troops and withdrawing too soon.”

When the party which is supposed to stand for limited constitutional government that maximizes individual freedom eventually abandons its fixation with mimicking the domestic progressive project on the global stage and returns to its notional commitment to free markets and federalism, then that will be party worthy of my pride. Until then, all the elites in both parties should take a moment to consider why exactly growing government and expanding arbitrary power (whether with OSHA or the DHS) at the expense of ordinary taxpayers is anything to be proud of.

Or maybe the GOP is actually G.O.B.?

Iraq? Solid as a rock!

solid as a rock

 

Hypothetical Hospitals

Kelli Goff at The Daily Beast asks the question:

I’m injured in a plane or car crash. There is one hospital located in the town in which the crash has taken place. Do you believe the hospital has a right to refuse to treat me on the basis of race, and that the government has no moral or legal imperative to require the hospital to treat me?

It is a powerful hypothetical, but one wholly contradictory to her own worldview, if she bothered to examine the issue critically. That worldview which meets its every encounter with limited government or libertarian philosophy with the rejoinder that says “your philosophy sounds great, and probably works as an academic exercise, but it just doesn’t work in the real world.” Well Kelli, if we’re dealing in “real world” empiricism, I might ask the same of your hypothetical: who, in the real world, would ever deny treatment to a plane crash victim on the basis of race, in 2014 America? For one, we have federal laws that require hospitals and physicians to deny no one access to emergency care, and these are not race-based but comprehensive statutes already on the books. More important is the impossible to measure yet difficult to argue with reality that an overwhelming majority of Americans of every race, creed or religion would not hesitate to treat a wounded victim in an emergency.

Libertarians understand that the perfect should not be the enemy of the good. We accept that ideological principle must cater to the world as it is, not as we wish it was. Thus, we accept the necessity of the Civil Rights Act, especially in the real world of 1965. But whether through evolution of general human understanding and tolerance, or through federal intervention to prevent institutional racism, the real world of 2014 is not that of 1965. Yet that does not mean the libertarian project of this century aims to dismantle the CRA. It does mean however, that the social realities of today have improved and therefore the tendency to suggest that worst case scenarios would be imminent as a result of libertarian policy is unhelpful.

Accepting real world realities means libertarians wish to unwind the federal government’s involvement in civil society at the margins first. Every libertarian trains his eye on reducing the bureaucracy’s influence over education, for example, long before he lands (if he ever does) in the realm of undoing all federal involvement in society. Medicaid is an awful program rife with waste, replete with fraud, and provides no measurable gain in health or general well-being when compared to those in similar economic strata who do not participate in the program. Still, libertarian efforts to block grant this money back to the states are efforts to allow more flexibility and thus provide greater service at less cost, rather than an attempt to destroy the program in full or to literally take benefits from those most in need. Goff’s hypothetical is of a piece with the unwelcome habit of scaremongering; claiming the absolute worst possible outcomes would necessarily flow from pragmatic, nee real world libertarian prescriptions.

By always assuming the worst in the abstract, critics miss the obvious and tangible good that would flow immediately from many libertarian reforms. On the drug war, sentencing disparities, economic opportunity and educational choice, libertarians have been at the vanguard of these lonely efforts to buck the status quo and improve the lots of African-Americans. Unlike our self-anointed altruists of the left, whose prescriptions are paternalistic in their insistence that only the enlightened bureaucracy can solve your problems (i.e. “we’re smarter than you, let us plan your path out of poverty from remote Washington D.C.”), we mean to empower black Americans through more choice. Lower taxes and fewer one-size-fits-all central plans on healthcare and education. No more public monopolies on services but an extension of services through local competition and an eradication of public union thuggery. Ultimately, libertarians believe that black Americans have been promised endless aid in the form of other people’s money and that this has utterly failed to lift large swathes of blacks out of poverty. Why not try something different?

If ever given the opportunity, libertarian ideas can show the skeptics how our policy positions do not begin from the philosophical extreme of the ideology. Even it was our goal, anarchy wouldn’t be achievable overnight. And anarchy isn’t really our goal, not in the real world. So can we stop posing hypothetical gotchas against libertarianism that insist we operate from such rigid dogma? Politics is the art of the possible, even for libertarians.

The answer Kelli is, of course you would be treated. The question you should be asking is will my children be better off stuck in the public monopoly on education run by selfish, ‘me first’ union reps, or would competition and choice mean a world of advancement and fulfillment for the black community?

It’s not an easy question to demagogue, which is why it isn’t often asked.