Monday, June 01, 2015

Liberty and Security by Volokh

From the Eugne Volokh of far off 2002:
LIBERTY VS. SECURITY: People often say that it's "a fallacy" to "sacrifice[]" "civil liberties . . . in the name of heightened security" (I'm quoting a generally quite thoughtful and interesting message I received from a reader).
     This could mean one of two things. First, it could mean that we should never allow restrictions on liberty in order to get security. But this can't be right, because we of course must restrict liberty in some measure in order to protect ourselves against enemies foreign and domestic.
     That's why the Fourth Amendment prohibits only unreasonable searches and seizures, not all such searches and seizures; that's why the government can search your home, albeit with a warrant and probable cause. That's why we have trials and prisons, even though we can be positive that even with the best justice system, some innocent people will be wrongly convicted. We accept these restraints on our liberty, because they're needed in order to get adequate security.
     Ah, but maybe the statement means simply that we shouldn't allow new restrictions on liberty, beyond the ones we already have. "Sacrifice civil liberties" would thus mean "diminish the liberties that we now enjoy," with the baseline being the current rules, rather than some regime of perfect liberty.
     But why should we think that the current regime is the perfect one? Maybe it doesn't restrict the government enough in some areas. Or maybe it restricts the government too much in others. Or maybe when current laws bars "unreasonable searches and seizures," events that increase the threat to our security might make "reasonable" what might not have been reasonable before. There's no particular reason to enshrine the current rules as the ones from which we may never budge, no matter what the reasons.
     Finally, some articulate this via the quote attributed to Benjamin Franklin, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." But all the work is being done here by the qualifiers "essential" and "a little temporary." Of course giving up something essential in order to obtain a little temporary benefit is a mistake. But one can equally correctly say "They that can give up essential safety to obtain a little temporary liberty deserve neither safety nor liberty." Unless the statement claims that all liberty is inherently essential, or all safety benefits are inherently little and temporary (in which case it's just mistaken), it's simply a truism that at most calls on us to carefully measure how much we're giving up and how much we're getting in return.
     This having been said, I fully agree that (1) many proposed restrictions on liberty are likely to be unproductive or even counterproductive, (2) the government often has lots of incentive to ask us to give up more liberty than we need to, and (3) we therefore should closely scrutinize all proposals for restricting liberty in order to get safety. And I know that there are good arguments that (4) the current regime already asks us to give up too much liberty in many areas.
     But the analysis has to acknowledge that we must sometimes sacrifice some liberty in order to protect ourselves, and thus has to focus on the specifics of each proposal -- the magnitude of the loss to liberty, the magnitude of the gain to safety, the alternative means that might yield a better trade-off, and so on -- rather than on broad generalities about liberty and safety in the abstract. 
I generally agree.... although we often launch off of the de-contextualized Franklin quote because of the meaning we would use if we spoke the words, while ignoring the actual meaning as intended. In this case that's fine.

Eugene Volokh.jpg
"Eugene Volokh" by UCLA School of Law
Original uploader was Neutrality
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