Stanford Review - Archive - Volume XXVII - Issue 1 - Opinion
To Crush Terrorism, Expand Liberty
Can an open society take effective steps to root out a terrorist threat without compromising its openness and liberty? Thanks to the inefficiency of our current system of liberty, the answer is yes. Right now we mostly protect liberty indirectly, by placing restrictions on what can be done to enforce the laws. These restrictions provide only a very hit and miss protection of liberty, and what protection they do provide for liberty they also provide for rape, murder and terrorism.
An alternative is to protect liberty directly, by articulating the full ideal of protected liberty and placing it in the Constitution. Liberty would then be protected systematically instead of haphazardly, and indirect protections would become redundant, allowing them to be relaxed in many ways.
There are a small number of direct protections of liberty already in the Constitution--the First Amendment freedoms of freedoms of speech, association and religion, and the Second Amendment right to keep and bear arms. All other protections of liberty are indirect. Consider, for example, the Fifth Amendment right not to testify against oneself.
This right is of great value to the guilty. Without it they would have to spin lies if they wanted to assert their innocence, and would risk getting caught in their lies. Yet the right is worthless to innocents, who invariably yearn to testify to express their innocence. This perversity is not a mistake. It is by design. The right was developed as a protection for those who were guilty as charged of violating a particular set of unjust laws: the English blasphemy laws of the seventeenth century.
A right not to incriminate oneself is a very uncertain way to protect religious freedom. Someone else could always testify to one's blasphemy. Recognizing this, the authors of our Constitution enumerated religious freedom for direct protection. Unfortunately, they made no attempt to articulate the full ideal of protected liberty, as they made explicit in the Ninth Amendment's assertion that not all rights had been enumerated. That left the door open for unjust laws to stand, which meant that the right not to incriminate oneself had to be retained as protection for those who violate unjust laws.
Unfortunately, this right also protects those who violate just and necessary laws.
Similarly with limits on search. A main purpose of these laws is to keep people from being prosecuted for things that are not anyone else's business. Thus the Supreme Court has embraced the adage that "a man's home is his castle." Unfortunately, some people launch terrorism from their castles. As a result, blocking law enforcement at the castle gate also protects activities that most emphatically are other people's business.
To escape the terrible costs of indirect protection, and to get much stronger protection of individual liberty, we just need to figure out how to separate what we mean to protect from what we don't. Here the Ninth Amendment points the way. Of all the candidates for unenumerated rights "retained by the people," first in line must be the equal rights to "life, liberty and the pursuit of happiness" proclaimed in the Declaration of Independence ten years before the Constitution was written.
Equal rights to life and liberty mean that one person's life and liberty interests could give way when and only when they ran up against the life and liberty interests of others. That is, we get John Stuart Mill's great principle of liberty: "that the only purpose for which power can rightfully be exercised over any member of a civilized community is to prevent harm to others," where "harm to others" in Mill's usage was limited to harm to the security or autonomy (the life or liberty) of others.
Adding equal rights to the pursuit of happiness only reinforces this result. It can't encompass the happiness of telling other people how to live because it isn't possible for everyone to have a right to tell everyone else how to live. Less technically, a right to pursue happiness is a right to discover one's own values and script one's own life. To interpret it as a right to deny this right to others would pervert its clear meaning.
Mill's principle can be sharpened considerably by transcribing it into slightly different terms. Mill called people's security and autonomy interests their "direct interests." People also have indirect interests: "other-regarding" or vicarious interests in the behavior of others or in what others think. Using this terminology, the principle says that a law is improper if it gives anyone's indirect interests priority over anyone else's direct interests.
This is just the wisdom that every child is taught by its mother: "Sticks and stones will break my bones but names will never hurt me." Psychic interests are not to weigh against material interests. This is the general principle that allows pluralism. It isn't necessary for people to agree with each other. So long as we don't attack each other's material interests, we can all thrive together.
Notice that this is just what the terrorists reject. They kill who does not think like them. They hate our influence. They hate the liberation of women. They hate the progress and prosperity that a free people create. Our success and example is a slap to their tenth century world-view. In response to this injury to their opinions, they wage war. They are a photo negative of the priority of direct over indirect interests that establishes liberty and enables progress.
In the words of President Bush, "freedom is under attack." The best way to fight back is to embrace liberty further. We have the means. We know how to articulate the full ideal of liberty. Protecting it directly in the Constitution would allow us to untie the hands of law enforcement while greatly increasing protection from unjust laws.
Alec Rawls' writings on most subjects can be found at www.rawls.org
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