Stuart Buck has a post up about political consistency. People say they object on principle to X, and make quite a stink about it, yet they show comparatively little concern for Y, which is arguably just as bad. His examples: people object loudly to the use of torture in interrogation, but are fairly quite when it comes to the use of solitary confinement (which many claim is as psychologically damaging as torture) or sexual abuse in prisons; they object to the government finding out which books people have checked out of the library under the Patriot Act, but not the much more intrusive information a person has to give to the government when paying his taxes.
Stuart blames this inconsistency on partisanship. No doubt there is a lot of that, but I think that the examples he gives illustrate a deeper and even more puzzling phenomenon. When it comes to the question of how to balance the protection of civil liberties against the needs and interests of society, it seems to me that there are three coherent approaches:
1. Protecting civil liberties should always trump the needs of society;
2. The needs of society should always trump civil liberties; or
3. Civil liberties should receive less protection where the needs of society are weighty, and greater protection as they become less weighty.
So, for example, one might rationally give less protection to civil liberties in cases involving, say, threats to national security than in cases involving traffic safety.
Very few people subscribe to approach number one, and at least in America virtually no one subscribes to approach number two. The odd thing, though, is that in practice most people don’t subscribe to approach three either. Instead, most people seem to subscribe to something like the following:
4. Civil liberties should receive *more* protection where the needs of society are weighty, and less protection as they become less weighty.
They wouldn’t put it that way, of course, but if you look at when people actually do object to violations of civil liberties, and how strenuously they do so, it does seem as if they are apt to give greater scrutiny to government action when the government interests involved are most pressing. So, for example, the Patriot Act took various techniques (involving wiretapping, search and seizure, etc.) that had been used for decades in drug cases, and applied them to terrorism cases. You might think that if such techniques were justified to keep people from getting high, then they would be justified to keep people from blowing up buildings (and that, alternatively, if they were objectionable as a means of stopping terrorism that they would be much more objectionable as a means of stopping drug trafficking). Yet a lot of people who never raised a peep about the use of these techniques in the war on drugs became seriously concerned about them once they began to be used in the war on terror. Likewise, many of the traditional protections against search and seizure applied in the criminal context do not apply in the administrative context, even though preventing people from being raped and murdered would seem to be a more pressing interest than ensuring that a building is up to code.
You might argue that this difference is due to lack of knowledge. Cases involving national security or whatever attract more attention, and hence more condemnation. The problem with this is that when you do bring such cases to people’s attention they rarely get even more outraged and start protesting the new civil liberties violations were even more vigor. Tell someone upset about some national security related violation of civil liberties about some comparable violation in a more mundane context, and you may get a verbal denunciation of this other practice (“yes, I think that’s wrong too”) but you can usually tell that the person’s heart isn’t in it, and often times they will in fact defend the government’s actions in the less compelling case.
The source of this discrepancy, I think, has to do with the stories we tell ourselves about our political activities. There are plenty examples, both in fiction and in history, or tyrannical regimes who have abuses civil liberties and have tried to justify this by an appeal to national security. A person who protests such actions, therefore, can easily be seen (and can see himself) as part of a heroic tradition to dissent, struggle against oppression, etc. By contrast, no country has ever descended into totalitarianism by making people stand in line at the airport. Going to jail for burning your draft card has a chic value that getting arrested for performing a manicure without a license just lacks.
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