Of Liberty
OF LIBERTY: the Essential Question
What follows is based upon certain Acts to preserve individual liberty which have been written into the U.S. Constitution (in particular, in Amendments 4-8), are a foundation of the (unwritten) British Constitution, and which have been enacted in the constitutions of many other States since the breakup of the great Empires. In particular, I refer the reader to the provisions for habeas corpus, restrictions against unlawful search and seizure, and the right to be confronted by one's accusers in any criminal or civil action.
Any policeman will tell you that these provisions are a serious pain in the ass, and make their job significantly harder. Indeed, one hardly has to be a policeman to realize how seriously such regulations would impede the efficiency of police power, and derive to the advantage of the criminal. It is left for us, then, to ask ourselves a basic question: were the authors of the U.S. Constitution (and others which have enacted such laws) fools, that they couldn't see the consequences of such acts? Or, if we rather choose respectfully to grant them some meed of intelligence, we must ask ourselves why on Earth they might have made such restrictions part of the very foundation of the State.
Because unless they were fools, and acted without understanding, then they must have acted with understanding, and deliberately undertook to limit or circumscribe the power of the police, or the general coercive power of the State.
Why might they have done so? One does not have to look far for an answer, because it appears with regularity in all the literature of the time, and has been a basic concern of natural jurisprudence for centuries; indeed, it is a concern which goes back to the very dawn of history, and can be as easily found discussed in ancient Greek texts as in the modern-day political polemic of one's choice. They feared tyranny, and were determined, in enacting the Bill of Rights, to make life as difficult for a potential tyrant as possible. Because, ultimately, they believed that a lesser threat was posed to liberty, by those who would exploit it, as was posed by those who would restrict it. Because history demonstrates quite adequately that it is by seizure of the coercive power and its exploitation for his own ends that the tyrant gains control over the whole polity, the authors of the Bill of Rights attempted to limit the police power even at the expense of its efficiency.
And this, I submit, is the crux of the whole matter, and where one falls on the fundamental question will determine where one falls on the lesser questions of sundry statutory laws. And this, I further submit, is a sufficient demonstration that arguing for a law that restricts individual liberties solely on the basis that such a law might improve the efficiency of the policing power, is to place oneself in opposition to the authors of the Constitution, to whom efficiency of the policing power was clearly secondary to the fear of tyranny.
This is not (emphatically) to suggest that those who argue in favor of such laws, who propose them or support them, nurture a desire for tyranny. That is a question within the competence of neither you nor I, and is irrelevant to the issue. The issue is simply that, for every increase one makes in the efficiency of police power, one provides a tool that a potential tyrant might employ to undermine the State, and that the authors of the Constitution considered this threat of sufficient moment that they took steps to prevent it. Those who, on the other hand, cherish order and a strong police more than they fear the imposition of a tyrant, clearly believe that a greater threat to liberty is posed by those who exploit it, than by those who restrict it. And can adduce as many arguments as they like, from history or the pages of today's newspaper, to support this assertion to their own satisfaction.
Whether there is a "right" or "wrong" answer to this question is a matter for the individual to decide, but it is a question that must be answered, even if only implicitly. Of late, many laws are being enacted, and more proposed, to increase the efficiency of the police power for reasons of "national security" or some "war" on this-or-that. And much ink has been spilt in bootless arguments as to whether such laws will, in fact, improve the police efficiency or not. Opponents can be reduced to virtual tears of frustration, because their interlocutors cannot see what is, to them, crystal-clear. And this frustration, I submit, is simply because we are ignoring the essential issue and debating over semantical phantoms. Because the question is not whether or not the efficiency of the police will be enhanced, it is whether such enhancement is a desireable end. And our answer to that question is, ultimately contingent upon our answer to the fundamental question. So, in closing, I will restate this question here, and ask each of us to examine his heart in the matter, and understand clearly his answer:
Is the greater threat posed to liberty by those who would exploit it, or those who would restrict it?
-- Mal
