Ask Rockridge: Privacy, Protection, and the Constitution
Today's Ask Rockridge feature will answer two related questions about privacy and the Constitution.
We recently received the following questions:
- How do we frame privacy [and avoid the frame that we have something to hide when we demand it]?
- How can we frame the current debate in Congress over civil liberties, telecom immunity, and the Constitution?
These are important questions, not least of all because many progressives are passionate about civil liberties but have trouble articulating why. Let's start our discussion with a quote.
"Those who would give up Essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety."
-- Attributed to Benjamin Franklin
Underlying the recent controversies over privacy, the rule of law, and due process is the contested concept of "protection." The conservative logic goes that none of these things are as important as protecting us against terrorism. If you insist on habeas corpus, they might say, the terrorists under your bed are gonna getcha!
But Franklin's quote reflects a different conception of protection. The other founders of America (who embodied it in the Constitution) and many modern day progressives share Franklin's conception. The discrepancy arises because the concepts of protection and law are contested between progressive and conservative modes of thought.
The conservative mode of thought has a lot in common with Hobbes' social contract from Leviathan (for more on Hobbes, see Glenn W. Smith's piece Children of Rousseau and Hobbes). According to Hobbes, we enter a society in order to be protected from a violent death. We surrender just enough of our sovereignty to the society's authority figure to make sure we aren't killed. The authority can do what he thinks is necessary to keep us from being killed. As a result, Hobbes contended, the authority has no specific obligation to obey statutes, although he has a prudential moral obligation to follow laws that would enhance security.
In the conservative Strict Father model described by Lakoff, the President has the innate moral authority to determine when he can use extraordinary means to protect the U.S. against terrorists. His discretion is very broad, even going beyond (or violating) current law. In this view, whether the Bush Administration "allows" torture or "follows" habeas corpus depends on President Bush's determination of the danger posed by terrorists.
There are two conditions that the Strict Father model demands from (and ascribes to) a moral authority in order to be considered legitimate: "(1) A parent must know better than the child what the child's and the family's best interests are. (2) The parent must be acting in those best interests." (Moral Politics, p. 79) The head of the family has an innate claim to "better knowledge" that comes from being the father and thus the inherent head of the household. As family members, or by analogy, citizens, we have an obligation to obey the authority.
When mixed with fundamental religious belief, this "better knowledge" and the concomitant authority are seen as derived from God and His preordained moral hierarchy. This means the authority is by definition extra-legal. Before the Bush Administration, the best historical example of this view was the relationship between a king and his subjects. As we can see, even when it's not explicitly theistic, the Strict Father logic of executive authority ends up being rather circular.
In Hobbes' view and Lakoff's Strict Father model, the conservative authority figure and his subjects have a significant mutual obligation—subjects are accountable to him by virtue of his moral position, and he takes a patrician interest in protecting them. This is especially so under situations of national threat or emergency, when his guidance and knowledge are needed most.
The progressive mode of thought is different. It is based on a Nurturant Parent family model, where parents and children are obligated to each other by mutual respect and responsibility built on nurturant cooperation. Parents are accountable to their children to be open about their decisions and actions, and children are accountable to their parents to respect and care for them (and others). As these obligations are met, trust is generated from within the moral hierarchy. Authority is derived from this trust and nurturance:
"Nurturance is a precondition to authority, and indeed is seen as productive of authority: a fully nurturant parent deserves to be listened to. The same is true of leaders who fulfill their nurturant obligations—who are empathetic, who successfully help people, who are fair, who communicate effectively, and who nurture social ties successfully... [I]n a nurturant morality, moral authority is not the ability to set rules and the responsibility for setting them. Rather it has to do with trust, the trust that a leader will communicate effectively, arrange for participation, be honest, and have the wisdom, experience, and strength to succeed in helping." (Moral Politics, p. 134)
One of the obligations of the parents (or the government, when extrapolated) is to provide a protected, empowering environment of mutual trust and respect for the children or citizens. Open, two-way, mutually respectful communication is morally essential to this environment. We cannot have this trusting environment with the government illegally spying on citizens or denying habeas corpus. Without trust, we cannot have democracy, only tyranny or anarchy.
Protection from outside threats is part of the Nurturant Parent model, as well, where protection is a form of caring. In a Nurturant Parent household, the family recognizes that a break-in by someone who intends to harm us is dangerous; the parents must protect the family from it. Similarly, the president must protect the nation from foreign enemies.
Also within the Nurturant Parent model, there is an important role for government that goes beyond just protection to nurturance. The government must empower citizens to both thrive as individuals and to participate fully in the government itself. In our Constitutional and democratic government, this occurs in two ways: (1) through limits on government power—laws create power to act so that no one is above the law—and (2) through government programs that assist and empower citizens—everything from the court system to the EPA to roads to firefighters to libraries to schools. Both (1) and (2) are necessary, though the rule of law and limits on government power are what concern us in this answer.
For progressives, when an authority encroaches on your inalienable right to privacy and due process, it's illegitimate by definition. This is also set forth explicitly in our Constitution. The only authority the President has is derived from the law, and there can be no such thing as an executive exercising legitimate authority outside of the law. Due process and the rule of law don't just protect the environment of mutual trust and respect that the authority is morally obligated to uphold—they are also essential to the very existence of the President's authority.
Let's look now at how the Constitution and progressive thinking lead us to talk about these issues. For progressives like our Founding Fathers, the rule of law, due process, and being secure against government intrusion are essential elements for human liberty and for the mutual trust and cooperation democracy needs to function and communities of people need to thrive.
- Rule of law: Under the Constitution, our laws serve as the only legitimate source of authority for a leader, thus protecting us against the emergence of a tyrant. In turn, these limits on government power enable citizens to use laws for their benefit. For example, used wisely, laws protect us against a number of dangers, everything from violent crime to unsafe products to workplace discrimination. They are also used to provide services, such as the courts, roads, firefighters and libraries. The rule of law—law as the sole source of power—enables us to thrive as individuals and as a community. That is the essence of our constitutional democracy. In many ways, the conservative Strict Father view of government is opposed to this thinking. It closely resembles the Divine Right of Kings (one of our founders' greatest fears), where authority comes from an outside moral hierarchy rather than the laws created by the citizens through their elected representatives.
- Due process: Due process requires that legal procedures be followed so that we have a real opportunity to defend ourselves when accused of violating the law. Thus, due process protects us from injustice, cynical persecution, and harassment at the hands of government authorities. This helps create some legal space for mutual obligations and trusting relationships to develop between the government and citizens. Imagine you are accused of a crime, but you have no right to a timely trial, before a jury, based on evidence that you have seen. Without these safeguards, you would be left with trusting the authorities not to use the governmental apparatus for political purposes, or to consolidate power, or just to silence you. If this seems far-fetched, keep in mind that the Bush Administration is already using US Attorneys, torture/extraordinary rendition, and Interior Department resources for those very purposes. If you would rather trust the government because of its legal safeguards than because of its moral status, that's the progressive stance.
- Privacy: Privacy, meaning security in one's person and possessions, is the de facto guarantee of a free and democratic society. It is an inalienable right. It is absolutely indispensable as a component of democracy itself. We can protect ourselves against other encroachments on our rights by dissenting, but authentic dissent is not possible without that security. Our elected leaders only have the right to violate our privacy when it is expressly given to them by statute, and we already have specific and limited statutory procedures for allowing these exceptions (warrants approved by independent judges) in accord with the Constitution. This way we spread out power and accountability democratically, protecting each other quite literally in the process.
The founders of our nation looked to the monarchies in Europe and saw the abuses of power that inevitably result from unchecked Strict Father executive power. Although they were aware of the need to defend the country, they were far more concerned with the internal threat of tyranny. That's why they created the world's first open society, where the elites are held accountable to the people by the rule of law, due process, and the people's privacy.
To grant special immunity to telecommunications companies for violating our rights to privacy and due process would be a horrible mistake that would strike at the very fabric of our open society. Remember that due process is there to protect them, too. We may think telecoms are culpable for violating our privacy, and advocates of special immunity argue they are not. But none of us can say for sure. The one and only body qualified by the Constitution to determine guilt is a jury in a court of law. Due process and privacy are as much for their protection as for ours, and we are all in danger when they are defiled.
Will Bunnett
Eric Haas
The Rockridge Institute
If you use a web bookmarking service, you can share this entry.
The unchecked power of the executive
Somehwere in all of this is the question of what is the State and who does it serve.
Born and bred Americans are likely to assume that the State serves us, by definition. Government of the people, by the people, and for the people. But that is not always the case.
We are accustomed to a democratic state, but this is more the exception than the rule in history. Other forms that the State can and often does assume include one-party pseudo-democracies (such as the late USSR), monarchies, oligarchies, theocracies, and military dictatorships. In these other cases, it is highly questionable whether the principle concern is "for the people". Very often, the concern of the State is primarily for the well-being of the State itself and the elites who occupy its positions of power. They typically take care of the people only to the extent that they perceive that the well-being of the people contributes to their own well-being.
Our Constitutional democracy was designed by men who were well familiar with the abuses of unchecked executive power. Their brilliant, world changing insight was that the rule of King George III may have been of the people, but it was not by the people, and thus, inevitably, was most certainly not for the people.
The astonishing achievement of our Constitution is not that once every four years, we get to vote for one of two guys for President who then gets to do whatever he wants. It is that we the people elect two branches of government, one to determine what we should do, the other to do it, and each to watch the other to make sure that nothing unduly perverse happens. And these two branches collaborate to appoint a third, to make sure that the first two follow the rules.
The current contest over warrantless spying and telecom immunity tends to be framed around the issue of security. The assumption is that the main threat must be external, but the authors of our Constitution would not have seen it that way. They would have seen it as over-weening executive power, which once granted will ALWAYS be abused. It immediately becomes a matter of the State acting in its own interests, or those of the current occupants of powerful positions, and not in the interests of the people.
Because there is no transparency, and no effective oversight by our elected representatives in Congress, it cannot be honestly be said that warrantless surveillance constitutes government by the people. And therefore, it inevitably cannot be government for the people.
privacy is not fro the poor
at teh va and thorugh all county programs even fed civl rights n agencies county state nad fed or under the guise of continuumn of care all privacy is a joke.
i wasn't even signed up in the sfva system when they accessed my info.
a va employee stole a medical record from my bag. yes. hwhen ihe shouldnt have touched it moved my stuff then it was gone.
a state appeal process two socials services agenices worked together with the state cover and continue to deny. as been done before
and i can't ell you all the instances where the agencies did violations by a phone call. i only know of many.
in two countiies the legal services regualry share confidential info from clientt to agency then say no we wont assist. one even had you sign a waiver before they will agree to help see if.. After you give all the info. with the agencies on the boards and other wise involved. ha.
hand delivery of info..
since there is no legal advocacy avaialble fro most disablity issues unless you are from certian well lobbied disbled groups like dev delay and blind and deaf.we mulit disbled espeacilly too much work less help get left in the road and we have no rights.
sorry about the typos
social contract and state of emergency
this blog provides a good exposition of the conservative and progressive stances on law, privacy, and due process. what follows from me is an opinion that doesn't quite fit in either camp.
both hobbes and rousseau dealt with the problem of the social contract. for hobbes, the "state of nature" was transformed into the "commonwealth" when citizens agreed to transfer some of their natural liberties in exchange for civil liberties and protection. for rousseau, the general will arose from the people to direct the writing of laws that turn "individuals" into "citizens" with new responsibilities.
of course, it is important to read both these guys in their historical contexts. hobbes' writing was a reaction to his exile from england during the civil war; his observations of chaos from a distance made him distrust the average citizen as a warmonger/beast; hence his "state of of nature" with its war of all against all. hobbes didn't think this state ever existed in real time, but he saw it as the dangerous potential in all humans that could be unleashed given the right conditions. this is why his solution to the chaos was the strong hand of a sovereign, one who was more rational than the warmonger/beasts and who could unite the commonwealth.
rousseau was a forerunner of modern democracy in the turbulent years preceding the french revolution; he was never very comfortable around royalty, and believed that individuals could come together and form a social contract. By combining the interests of all and picking out those which were common to all, he thought a set of laws could be drafted that would represent the "general will," or the best approximation of the public's interests. he hoped that the general will would be the sovereign, and the laws would be the expression of that will and the direct authority that would bring the society together.
to me, neither of these models--or the nurturant family model, for that matter--gets the whole picture. hobbes' model assumes that there is a sovereign out there who does not have the same base desires as the citizens of the commonwealth; rousseau's model assumes that there is a cognizable general will that the laws can not only capture, but implement; and the nurturant family model overextends itself in attempting to describe highly mediated (and often alienating) interactions with institutions and government as direct and empowering.
but most important of all is the element of active participation in the above models--this is also where they fall short in describing our current predicament. both hobbes and rousseau describe a fictional moment when the commonwealth is created. what is unique about the united states is that the founding fathers made this moment real when writing the declaration of independence. but that direct action does not trickle down to us today. to be born into a society claiming to protect civil liberties, privacy, rule of law, etc., is to take those things for granted. yet there is no guarantee that the government, as a wise and nurturing parent, will continue to ensure that our rights are preserved as written. the rule of law only exists to the extent that people make sure to enforce it as such.
so why do we have such problems upholding the rule of law right now? (1) we do not know how to combat a government that blends norm and exception and (2) we assume that we are not just equal but substantially similar to each other as citizens.
to explain this, i can turn to schmitt's work on sovereignty and the exception, and agamben's extension of it. although some of schimtt's ideas were conservative, he was a very shrewd observer of the difficulties of politics and the rule of law. he saw the law as an emergent property of the concrete order and orientation of a people; rather than a set of moral norms, the laws were meant to capture the pre-existing reality of a society that is growing and producing, and is in need of written regulations to ensure continuing success. however, he noted that all laws are situational, finding their ground in a people's experience, and necessarily subject to exceptions. for him the exception--the moment in which a law was called into question--helped illuminate to use what the norm really was. and furthermore, when an exceptional situation arose, it was up to a person (an executive) to decide on the exception and figure out what to do that better suited the situation.
of course the danger here is that the executive will declare a "state of emergency" and suspend the laws altogether, forgetting to restore them at some point. this is exactly what bush has done, but with a funny twist--he's not saying that he really is suspending the rule of law. he has used the same rhetoric from his democracy tool box but has changed the scope of words' definitions, or has simply withheld information altogether about the state of our government's compliance with the rule of law. as a result, we have what agamben would call a blending of the norm and the exception, so that we don't even know where the boundary is anymore.
this is a dismal picture, i know, but it is more on the mark for me than other more progressive models. in such a big and heterogeneous society, the application of equal rights is very tricky--simply because we do not start on equal playing fields. therefore, the norms we hold dear may be limited, or may in some cases produce unfair situations as opposed to fair ones. the rule of law is more attractive in the abstract, because it assumes that everyone has equal needs and that those who enforce those rights will do so in a manner we can all agree upon. but this is plainly not the case.
what to take from all this? the best weapon with which to arm ourselves against deprivation of rights is dissemination of information. the more people know their rights and are told how to exercise them, the more it becomes possible for people to participate as citizens. the more balanced a view we present of what it's like to be a cop, or a poor welfare mother, the more we can look at inequalities squarely and come up with ways to tend to each person's needs. now, this may only be feasible at the local or municipal level, but there's nothing wrong with that! functioning as small communities takes away the alienation of modern american life and reminds us that we are people again.
as the norm and the exception blend ever further, we can still act as citizens by educating each other and striving to move beyond what we are given to create new possibilities in our society. that, if nothing else, is what the founding of this country can inspire us to do!
New! What did you mean by (1) and (2)
Hi suzannem,
Thanks for your comments. It's clear you've given this quite a bit of thought. I wonder if you could say a little bit more about your points (1) and (2), though.
What did you have in mind for the blending of norm and exception? It sounds like you're probably referring to our government. Did you mean to suggest the subtle destruction of rights we've seen here without the outright declaration of emergency, like in Pakistan?
What did you mean by "not just equal but substantially similar"? And what is it about that assumption that makes upholding the rule of law problematic?
Will