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National Security And Civil Liberties


Corey Robin’s essay in the new Jacobin is quite brilliant.    There’s a lot that could (and will) be said about it, but I have initial responses/amplifications on three points.

First of all, it’s almost certainly correct to say that national security “has…provided the single most effective and enduring justification for the suppression of rights.”   At least in the American context, however, this is a complicated story.   To bring Klinkner and Smith, Dudziak, and Graber into the discussion security has not only been the most powerful justification for the suppression of rights; it’s been the most powerful justification for the expansion of rights.   The two major expansions of civil rights in American history were the result of an incredibly bloody civil war and the Cold War.  And national security has also been part of the story of other important and benign expansions of government authority.   One reason for the horrible escalation in LBJ is that Johnson (who primarily cared about domestic policy) thought that being perceived as a hawk was crucial to keeping his coalition together to get Great Society legislation passed, and he might have been right.   Nixon was the reverse with some similar effects — he was willing to sign some good domestic legislation a Democratic Congress put on his desk as long as that Congress would defer to his desires to bomb Cambodia inter alia.  Essentially, national security is an impetus that is more likely than any other to overcome the inertia-by-design of the American political system.   The consequences of this depends on what pre-existing agenda public officials want to use national security as a justification to implement.

Second, let me highlight one of the most important points of the essay, that “[t]he problem is not that we live in a world of Hobbesian states; it is that we live in a world of failed Hobbesian states”:

In the Hobbesian account, this constitutes a grievous failure; in America, it has been a semi-permanent boundary of state action.  At the most fateful moment of white-on-black violence in US history, in fact, the national government deemed the threat to African Americans a relatively minor item of public safety, unworthy of federal military protection; by contrast, it deemed the threat to employers from striking workers an public emergency, worthy of federal military protection.

Another crucial and ongoing example of this phenomenon, of course, is the War (on Some Classes of People Who Use Some) Drugs.   The language of national security is used to justify mass incarceration and a diminution of Fourth Amendment rights that has, on balance, almost certainly made the targeted communities less safe.

Finally, this is peripheral to the central claims of the essay, but I have a couple responses to this:

While liberalism as a theory has given us excellent reasons to oppose the use of coercive state power on behalf of religious or moral orthodoxy, it has given us far fewer reasons to oppose the use of that power on behalf of security.  In fact, if we look at three touchstones of liberal discourse — Locke, Mill, and Oliver Wendell Holmes — we find that each of them actually provides excellent justifications for the use of coercive and repressive state power in the name of security.

I don’t entirely disagree with this, although (if you’ll forgive a pet peeve of mine) I’m not sure what useful work the “liberal tradition” is doing here. Holmes — while not a person of the left — is certainly part of the liberal tradition, but then Black and Douglas’s dissents in Dennis are surely just as much a part of the “liberal tradition” as Holmes’s disgraceful WWI opinions. The liberal tradition gives us plenty of good reasons to be skeptical of national security as a justification for the suppression of individual liberties; these reasons just tend to lack political potency.

That aside, Holmes is an excellent example — compare the application of the “clear and present danger” text in Schenck and Debs with his dissent in Gitlow. “Clear and present danger” gave some content to the First Amendment as soon as World War I ended. Although, at least, to Holmes “national security” wasn’t a perpetual justification; troops in the field of a war in Europe provided justification for the suppression of liberties, but vague “threats” from domestic radicals did not. The problem is, it’s not a coincidence that as soon as he started to take the First Amendment seriously he found himself in dissent.

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