Principles should advise and determine how humans behave toward each other, no less during times of hardship and crisis than during times of sunshine and peace. It is their universal relevance, after all, that makes them principles. Sometimes it is hard to stick by them and not surrender to expediency, which only means that difficult times call for eternal vigilance in observing the most timeless and crucial principles.
Libertarianism, grounded in the non-aggression axiom, is a principled philosophy, which would in practice confine people in what they are allowed to do to each other, even in times of war, terrorism, or other catastrophe. Whether or not you buy completely into libertarianism, let us stipulate that it as a theory places strict guidelines on when force is justified, and otherwise allows for an eminently robust sphere in which humans may freely and willfully act and interact in any manner that is voluntary and peaceful.
Neither content with adopting libertarianism in all its implications nor inclined to leave it in peace for others to adopt, Charles Krauthammer has a new article describing what he calls “situational libertarianism“: “Liberties should be as unlimited as possible,” he says, “unless and until there arises a real threat to the open society.”
Before even addressing the particulars of his points, red lights, complete with buzzers and bells, go off for all us not-so-situational libertarians. For as libertarians, we consider liberty the highest of all human values, that which gives life to all earthly human achievements that we cherish, and if anything poses “a real threat to the open society,” it is the idea, acted upon for millennia by governments, that our rights and liberties are somehow “situational.”
Krauthammer goes on to say that if Americans look at our history, we see that “[t]here is no slippery slope, only a shifting line between liberty and security that responds to existential threats.” Specifically,
During the Civil War, Lincoln went so far as to suspend habeas corpus. When the war ended, America returned to its previous openness. During World War II, Roosevelt interned an entire ethnic group. His policies were soon rescinded (later apologized for) and shortly afterward America embarked on a period of unprecedented expansion of civil rights. Similarly, the Vietnam-era abuses of presidential power were later exposed and undone by Congress.
Our history is clear. We have not slid inexorably toward police power. We have fluctuated between more and less openness depending on need and threat. . . .
Where to begin with this? During the “Civil War,” Lincoln did a lot more than suspend habeas corpus. He jailed war protesters, sent the army to fire upon a civilians’ draft riot in New York, shut down hundreds of newspapers, deported an antiwar Congressman, implemented conscription for the first time in U.S. government history, established a barrage of corporate subsidies and new federal agencies, and forever abolished the true federalist system of the united States, turning it into an Old World—style militarist nation-state and violently undoing the principle of secession on which America was founded and which almost all political theorists considered sacrosanct before the war. The civil right of secession — as in, the right not to be attacked by the federal government for wanting to leave — stood as a vital check against unlimited federal power and was among the greatest of all the Founding Fathers’ contributions to the liberal tradition, and Lincoln permanently repealed it. The slippery slope, in this case, was short and steep right to the bottom.
At the closure of World War II, Roosevelt’s internment of 110,000 innocents of Japanese descent may have ended (although many of them never got their property back), but what is the lesson we’re supposed to take from that fact? That it’s okay, or at least not too big a concern, to strip an ethnic group of its rights and detain its members in a national concentration camp, because when the war ends they will likely be freed? Did the 110,000 interned men, women and children truly present “a real threat to the open society,” as Krauthammer implies, an “existential threat” that justified pulverizing their liberties for our collective “security”? Our situational libertarian says that “[a] tolerant society has an obligation to be tolerant. Except to those so intolerant that they themselves would abolish tolerance.” I suppose those Japanese-Americans would have abolished tolerance in an instant, if they had been free to run around during the war.
What about the lasting precedents spawned from FDR’s economic nationalization, censorship, pre-war peacetime conscription, and income tax withholding? This last example of FDR’s supposedly temporary wartime measures was still rearing its ugly head last time I saw my paycheck. And yes, financial privacy is a civil liberties issue. World War II laid down momentous antecedents for the consolidated U.S. warfare state, particularly in that it was the first major American war after which the military establishment did not immediately and almost completely retract, but instead was kept intact, mobilized and expanded for further exploits (in the Cold War). Since then it has never run out of monsters to destroy (or to sponsor) and our economic and civil liberties have never been totally restored to the peacetime norms.
With the Vietnam War (and Korea, which Krauthammer doesn’t mention), the significant “abuses of presidential power,” contrary to his assertion, were anything but “later exposed and undone by Congress.” For one obvious thing, Congress has not declared war since World War II, and executive supremacy in all foreign and domestic wars has never been greater. During Vietnam, the executive branch also launched ghastly wartime surveillance programs that we’re seeing resurrected in various forms today.
Even in the “peacetime” years between the Cold War and the Global War Against Violent Extremist Terrorists (or whatever the heck it’s called these days), America suffered under Clinton’s very real despotism, in such obvious instances as Waco, which undoubtedly had its operational precedents set at wartime. The drug war, too, with all its militaristic precursors, has hardly been called off, and our liberties only suffer more each day on that sad front as well.
As Robert Higgs has explained, most famously in his brilliant work Crisis and Leviathan, crises and especially wars lead to a “ratchet effect”: Government grows in size and power, ostensibly as it “responds to existential threats” (as Krauthammer would put it), but then it does not retract all the way when the crisis ends. Instead, government is more powerful than it was before the crisis began, although not quite as tyrannical as it was during the hysterical, crisis-induced stampede toward collectivism.
It is during times of crisis and fear that the government can get away with attacking our most priceless liberties, spying on us, stealing more of our wealth, even locking up dissidents and enslaving young men to go fight and die overseas. This is true not just in America, but throughout the modern world. Pop open a history book and read how Hitler, Mussolini, or nearly any other 20th century autocrat seized absolute power from the people at a time of crisis; the basic story is usually the same. And in most cases, the state can count on many journalists and intellectuals to countenance or defend these abuses of power. What Krauthammer considers a benign formulation for “situational libertarianism” is actually the formula for situational totalitarianism, the tactic by which the modern state has always situated itself during times of war, depression and unrest to ratchet up its own power and grow into the total state. Krauthammer’s cute phrase is newspeak and nothing more.
The ratchet effect occurred with the “Civil War,” World War I, the New Deal, World War II, and the Cold War, and it will likely occur when this terrorist struggle is long behind us. Whenever that finally happens. Since its founding, the United States has been in some war or military conflict with one country, group or entity or another, at least once a generation, and for more than sixty years it has essentially been at war without rest. Whether we’ll ratchet back at all depends on some return to normalcy. Higgs’s original thesis does apply differently to times when the crisis never stops. It’s a mystery when Krauthammer thinks this war, described as a lifetime conflict by its engineers, will end and we’ll get all our freedoms back.
Which brings us to what Krauthammer is really getting at. He champions the U.S. government’s acts of appropriating new powers and attacking old liberties, all for the paradoxical purpose of defending our freedom. He worries that our enemies will abolish our open society unless “we” do so first. Like the social-democratic idea of economic intervention to save capitalism from socialism, this strategy is in the end a losing one. The way to preserve the open society is simply to preserve the open society.
As a purely empirical matter, Krauthammer opines,
. . . [A]fter the 9/11 mass murders, America awoke to the need for a limited and temporary shrinkage of civil liberties to prevent more such atrocities.
Britain is just now waking up, post-7/7. Well, at least its prime minister is. His dramatic announcement that Britain will curtail its pathological openness to those who would destroy it — by outlawing the fostering of hatred and incitement of violence and expelling those engaged in such offenses — was not universally welcomed.
Well, I don’t welcome it myself, and I’m not even British. Despite having one of the most extensive surveillance regimes in the “civilized” world, with a longtime suspension of myriad civil liberties, not the least including the right to keep and bear arms, along with the additional special precautions taken in London this July for the G-8 summit, the police state of Britain failed to protect “its” people on 7/7. As for America, with the largest government, military, and “intelligence”-gathering apparatus in world history, we nevertheless lost 3,000 innocent compatriots on 9/11.
If there were a shred of evidence that we have been made more secure at all by these assaults on our liberty, from Lincoln’s destruction of habeas corpus and FDR’s Japanese Internment to Nixon’s spying on antiwar activists and Bush’s “free speech zones,” I might reconsider the value of “situational libertarianism.” But even if there were some truth to the dubious claims of the pragmatic virtues of relinquishing our liberty, I think I would ultimately maintain my simple, unqualified, principled libertarianism. Ben Franklin once said something about trading liberty for security, and how those willing to make the exchange deserve neither. Even Franklin probably didn’t realize that American history would unfold with such stark illustrations of his point. Looking back at that history, which Krauthammer so selectively invokes, I can only say that a situational devotion to liberty opens the door, and, yes, makes slippery the slope, to a future in which totalitarianism is firmly situated and we are made none the more secure from those threats that our liberty was ravaged to keep at bay.
Anthony Gregory [send him mail] is a writer and musician who lives in Berkeley, California. He is a research analyst at the Independent Institute. See his webpage for more articles and personal information.