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.

Is Anyone Embarrassed?

To Vizzini’s list of well-known classic blunders that one should avoid at all costs, I would add a third: in addition to avoiding involvement in Asian land wars and shunning confrontation with Sicilians when death is on the line, a third classic blunder is the modern citizen’s expectation of a balanced, rational and sane media in a culture infected to its core by cushy elite liberalism.

L’affaire voie fermature and the obsessive coverage of Chris Christie is the latest instance media hypocrisy and lack of self-awareness. It is a full on orgy of projection, speculation and righteous condemnation, which would be fine if all scandals were given similar shrift. What makes the Christie spectacle in the media so obscene is the denial that anything unseemly is going on. In fact, progressive media henchmen have noticed the critique and are ridiculously calling out conservatives for having the audacity to call them out for participating in such despicably slanted reporting. Here’s Joan Walsh and Brian Beutler at Salon attempting to shape reality to their own stunted worldview. Debbie Wasserman Schultz insisted that the Christie scandal is far worse than something like the IRS, NSA or AP phone-tapping scandals that discredited Obama’s credibility with the public and would have threatened his Presidency had the media adopted an iota of curiosity or skepticism of the administration’s accounts. John Podhoretz helpfully explains the disparity in media scrutiny of Obama’s abuses of power and those committed by a prestigious Republican with eyes on the White House. And here’s an LA Times hack scoffing that conservatives doth protest too much. The facts are that Bridgeghazi received seventeen times more coverage in 24 hours than the IRS targeting of the Tea Party got in six months. GOP members in the House have played the role of investigative journalists while actual journalists have ignored the obvious leads and inquiries lest they discover a trail leading to the administration. And there are scant few honest progressives uncomfortable with such a tilted media landscape because, after all, progressives want just such a tilted landscape.

The question that keeps nagging at me though is this: Is anyone embarrassed? Particularly among liberals and progressives, is there no one with a conscience or sense of propriety that is just a little bit embarrassed by the cavalcade of elite media obsession with this story?  It clearly is a story; one deserving of investigation and thorough coverage, but to this degree? When Meet the Press devotes its first 33 minutes of airtime to a single story, it is usually either a war or a major scandal involving someone in the federal government. This is a local scandal involving a prominent rising figure in national GOP politics, but still a local scandal. The IRS targeting scandal affected millions of Americans across the country. That is a national scandal, but mainstream media analysis neglected to treat IRS conduct as devious and instead concentrated on absolving the White House of any culpability. That same “nothing to see here” and “no smoking gun, time to move on” attitude was never an option in the Christie case. This was a chance to “clear the deck,” to wipe a formidable potential opponent from the game board three years out from the next election. Jonah Goldberg nailed it with his observation that our culturally and politically homogeneous media are defined less by progressive principles and values and more by trite partisanship. The disparity in coverage of Obama’s scandals and the Christie story is simple: Obama is their guy, and Christie could easily become an obstacle to their girl, thus if/when an opportunity arises, it’s ready, fire, aim. It’s entirely political and entirely partisan. Few liberals in America worry about the unethical use of government power; they just care that a Republican come under fire for it and that his reputation be eviscerated. There was never going to be the same hunger to get to the bottom of any abuses of power coming from Saint Obama.

Just once, it would be wonderful to hear a progressive journalist or blogger express exasperation at his colleagues’ double standards and call them out as the hypocrites they are. The only one who comes to mind is Glenn Greenwald, a noble progressive who respects libertarian philosophy and the conservative critique of government because he himself is suspicious of concentrated government power. The most important development this country can experience in the near-future is a widespread reckoning by progressives that activist government is an enemy to liberty and that those wishing to expand government’s reach should be met with skepticism (if not outright cynicism). Until then, do not expect a media comprised of east coast liberals and power-worshiping sycophants from elite Ivy League schools to behave anything like a neutral watchdog press, and don’t get bent out of shape when its adversarial relationship with the powerful only applies to the evil bastards on the other team.

Some double-standards are perennial, and they’re not going away. It would just be nice if those guilty of hypocrisy would feel a little embarrassed by it.