Free for All: Defending Liberty in America Today - Softcover

Wendy Kaminer is the author of many books, including I'm Dysfunctional, You're Dysfunctional: The Recovery Movement and Other Self-help Fashions and Sleeping with Extra-Terrestrials: The Rise of Irrationalism and the Perils of Piety. Her articles and reviews have appeared in numerous publications including The New York Times, The Wall Street Journal, The Nation, The Atlantic Monthly, and Newsweek, and her commentaries have aired on National Public Radio.

Introduction

Love of liberty is supposed to come naturally to Americans. It"s supposed to
be transmitted through our culture-like love of shopping; it"s supposed to be
instilled in us in childhood. When I was in grade school, we started our days
by singing to our "sweet land of liberty" and pledging allegiance to the flag
that stands for liberty, and justice, for all. We learned about the American
Revolution, the Declaration of Independence, and the Emancipation
Proclamation. A child of the Cold War, I felt lucky to be an American,
because, unlike "Red" Chinese or Soviet children, I was free.
I"m still pleased to be an American and still feel relatively free, but
I"ve discovered freedom"s fragility; I"ve learned much of what I wasn"t taught in
grade school. While I was saluting liberty, African Americans were
systematically denied the right to vote (or eat at "white" lunch counters);
McCarthyism raged and the House Un-American Activities Committee was
persecuting people who held unpopular political views or were associated
with unpopular organizations. Our lessons in America"s love of liberty were
incomplete; we weren"t told that Americans sometimes loathed liberty, or
feared it, and fell prey to the temptations of political repression. Our lessons
in liberty were also self-defeating: When you force children to salute the flag
and recite the "Pledge of Allegiance" you don"t teach them to exercise
freedom so much as you accustom them to the imposition of political
orthodoxies.
America"s disloyalty to liberty is disheartening but predictable.
Liberty leashes power and, right and left, people who find themselves in
possession of power tend to resist restraints upon its use. Cynics don"t care
if they abuse power to advance their own interests; people who take pride in
their own virtue generally manage to convince themselves that they exercise
power virtuously (even when they exercise it harshly) to serve the public
good. Powerful people convinced of their own goodness are as dangerous to
individual liberty as powerful people for whom goodness is irrelevant.
So concern for liberty often has a disproportionate relationship to
proximity to power. The more protected you feel by your own power or the
power of your friends, the less threatened you imagine your own rights. But if
you"re concerned about the rights of other people, including those you
disdain or whose views you abhor, you"re apt to be wary of power, even when
you or your friends possess it. You"re likely to put less faith in power as a
means of forging a just society and more faith in fairness.
Of course, many people claim to value fairness over power, but in
practice, few of us do. Few people are willing to extend the same rights to
their enemies that they extend to their friends; indeed, you can usually rely
on people across the political spectrum to use whatever power they possess
to defeat their enemies, partly by denying them rights; most would probably
consider it politically naive to do otherwise. Liberals lambaste civil libertarians
when they defend the rights of Skinheads or Klansmen. (In 1978, the ACLU
lost considerable support for defending the right of a neo-Nazi group to march
in a community of Holocaust survivors in Skokie, Illinois.) Conservatives
attack the civil libertarian defense of religious minorities who are expected to
adopt the majority"s religious practices in public schools. (Insisting on their
right to pray, proponents of official school prayer also insist upon the power
to impose their prayers on others.) Liberals and conservatives alike favor
restricting the rights of criminal suspects or members of religious sects
denounced as cults. Liberals and conservatives alike will use their power to
censor speech they consider dangerous or hateful, although they rarely admit
that the restriction of pornography, racist speech, or violent entertainment is
censorship; they"re more likely to call it common sense.
Civil libertarianism is a nonpartisan virtue, just as repression is a nonpartisan
vice. During the 1920s and 1950s, when the government conducted witch-
hunts against the left, a commitment to political freedom was associated with
liberalism. During the 1990s, when some left-wing college administrators
promulgated repressive speech and sexual misconduct codes and, with little
due process, prosecuted students for political incorrectness, conservatives
laid claim to liberty"s torch. Now, their commitment to liberty will be tested,
on and off campus, by left-wing protests of the Bush Administration"s military
campaigns. I suspect that most conservatives will fail freedom"s test, as
liberals failed when they turned on sexist, racist, or otherwise "offensive"
speech. It"s worth noting that in the aftermath of September 11, students and
professors of various political persuasions were disciplined for making
statements for or against the war effort, and for allegedly offending or
defending Muslims. Their liberty to speak depended on their conformity to
views that prevailed on their campuses. Power trumped fairness, as usual.
What distinguishes a civil libertarian is a focus on preserving fair processes
rather than obtaining particular results. A commitment to civil liberty simply
requires fealty to the golden rule: extend the same rights to both your friends
and foes—the rights you hope to enjoy yourself. This is, in part, a political
strategy: Power shifts between your allies and opponents, often
unpredictably. Your rights are most secure if they derive from established
constitutional principles, not patronage. But the equal allocation of rights is
also a moral imperative. I oppose censorship not simply because I fear that
the power to censor might be turned against the speech I like but in the belief
that people have a moral right to indulge in speech I hate. The right to view
Nazi porn or tune in to Jerry Springer and Bill O"Reilly may seem ignoble
compared to the right to read Montaigne, but it includes the individual"s
essential right to entertain moral preferences. Restrict it and you substitute
the authority of the state for the individual conscience.
That, of course, is precisely the aim of censors who don"t trust individuals to
make moral choices or withstand the corrupting effect of "bad" speech to
which they may be exposed inadvertently. This assumption that government
knows best suggests that we"re a nation of children (while the government is
staffed by adults), and it"s no coincidence that censorship campaigns often
begin with the stated intent of protecting minors. Censorship in the name of
child welfare usually garners popular support, although it treats child rearing
as the collective responsibility of government officials and not individual
parents. In any case, if individuals can"t be trusted to choose "good" speech
over bad (or "good" religions over "cults"), than neither can their government,
which is, after all, composed of individuals, with all their vices; it"s not as if
being elected or appointed to office magically cleanses them of sin.
Civil libertarianism doesn"t rely on assumptions about our moral character.
The belief that we should all enjoy the same rights doesn"t reflect faith in
everyone"s ability or inclination to exercise rights virtuously. Instead, it"s
based on a conviction that we don"t have to earn inalienable rights or win
them in a national popularity contest: Stupid, nasty people have the same
right to vote as their intelligent, compassionate neighbors.
This belief in equality of rights is hardly controversial; at least it evokes
rhetorical acclaim. But, for most of our history, equality has been greatly
qualified by the usual forms of discrimination. Sex, race, ethnicity, religion,
and sexual orientation (if not intelligence or kindliness) have all been used as
criteria for distributing rights. Historically, Americans have had a "yes, but"
belief in equality: We believe in equal rights, but only for people considered
deserving, or capable, of exercising them. For over a century, women were
denied the vote because they weren"t trusted with it; for nearly two centuries
they were legally excluded from male professions, because they were
presumed incompetent to engage in them, or because female doctors or
firefighters were considered unnatural, like female soldiers today.
Sometimes, rights are denied in God"s name. In the nineteenth century, the
women"s rights movement was apt to be considered ungodly. Today, some
consider homosexuality a sin, and gay people are denied the right to marry
because same-sex marriages are deemed unnatural, or a violation's of God"s
plan. Interracial marriages were barred for similar reasons only thirty-five
years ago.
Is the right to marry fundamental, like the right to pray or speak
freely? What are the boundaries of our right to privacy? What rights should
people enjoy when they"re arrested? What rights should survive
imprisonment? (The right to live freely in society may be forfeited when you
commit a crime, but what about the right not to be raped in state custody?)
Are we endowed with a fundamental right to end our lives? Does democracy
depend upon the right to own a gun?
Civil libertarianism begins with a roster of inalienable human rights–like rights
of speech, religion, privacy, and due process–which are often contested.
Does the right to privacy include the right to obtain an abortion, use
contraception, or marry the person or persons of your choice? Are violent
video games protected forms of speech? Does the right to be free of "cruel
and unusual punishment" preclude the death penalty or the torture of
suspected terrorists? But reaching general consensus on a list of
fundamental rights is only the prelude to battles that occur when rights
conflict. Does the First Amendment right to conduct an aggressive protest
outside an abortion clinic unduly interfere with women"s privacy rights to
obtain abortions?
Civil liberties often conflict with civil rights, as liberty inevitably conflicts with
equality, dividing liberal and conservative libertarians. The 1964 Civil Rights
Act that prohibited discrimination in public accommodation and transit
systems (as well as in the workplace) subordinated the associational
freedom of white supremacists to the equality rights of African Americans.
The conflict between the freedom to discriminate and the right to equal
treatment in public places was properly resolved about one hundred years too
late, most Americans would probably agree. But it"s worth noting that the
conflict existed. Bigots have civil liberties, too. Today, while laws against
official segregation are no longer controversial, workplace regulations aimed
at benefiting women, racial minorities, or other historically disadvantaged
groups, like disabled people, raise similar questions about balancing
employer"s liberties with employee"s rights. Conservative libertarians
generally value economic liberties, like the liberty to hire, fire, and promote
without government intervention, over civil rights against discrimination.
The conflict over rights and freedoms in the workplace reflects the conflict for
left-of-center libertarians between their attachment to liberty and their notions
of justice. In the liberal view, an unregulated marketplace inevitably exploits
the most powerless members of society and produces gross inequalities of
wealth that effectively prevent many people from enjoying the rights to which
they"re entitled. In our society, your ability to exercise rights usually depends
on your income: You have no practical right to obtain an abortion if you can"t
afford to pay for one and there are no free clinics within your reach. The
extent of your due process rights is often determined by your ability to hire a
lawyer. Conservative libertarians disagree about the effect of free markets,
arguing that they would benefit everyone; but the history of maximum hour,
minimum wage, child labor, and occupational safety laws shows that many
businesses and industries treat workers decently only when they"re legally
required to do so.
I share liberal faith in a regulated marketplace (despite my opposition to
particular regulations, like workplace speech codes intended to prevent
harassment,) but I regard the state as an occasional ally, never a friend. I"m
wary of liberalism"s anti-libertarian tendencies. Because liberals often depend
upon government to fulfill their vision of social justice through welfare
programs and antidiscrimination laws, they risk losing the mistrust of
government that is essential to maintaining liberty. They risk becoming
statists.
Of course, liberals are not alone in embracing statism. Virtually all of us rely
on the state and want to dedicate it to our vision of the public good.
Sometimes only the government can protect individuals from excesses of
corporate power. Only the government can administer penal laws to protect
individuals from each other. Only the government can conduct foreign policy
and provide for the national defense, virtually everyone agrees. Liberals and
conservatives have different visions of a just and virtuous state, but they all
want to harness its power. Even practically pure libertarians might agree on a
short list of essential governmental functions, although they always regard
government suspiciously. (In their view, it"s always a necessary evil, never an
ally.) Only libertarians resist efforts to direct government power to moral
reforms. Social conservatives want government to rid us of promiscuity,
among other disputed vices; liberals expect the government to rid us of
prejudice.
The temptation to restrict freedoms that are popularly linked with injustice or
vice has always been strong. Often people fear the freedom of others as
much as they desire their own. In fact, mistrust of liberty may be as hardy an
American tradition as mistrust of big government. Left and right, people
expect government to keep them safe, and to make their neighbors more
virtuous.
State power has become particularly seductive after September 11; it
promises more protection than liberty. Ask people to choose between
freedom and security and almost all will choose security. Freedom depends
on peace and some measure of order, after all. People in high-crime
neighborhoods are not at liberty to walk the streets, civil libertarians are often
reminded, when they fight for the rights of criminal suspects. (Not all criminal
suspects are criminals, they respond.) People in the Middle East, Israelis
and Palestinians, are prisoners of violence, like Protestant and Catholics in
Northern Ireland before their truce. So I don"t champion liberty in the belief
that it matters more than safety. But I believe it matters almost as much, and
I"m skeptical when government officials tell me that sacrificing freedom will
make me more secure. Left and right, most of them always want me to have
less freedom just so they can have more power, regardless of security.
I shiver a little when I hear the familiar post–September 11 debate about
balancing liberty and security. "Are freedom and security a zero-sum game?"
people ask, a...