The Patriot Act and the Politics of Liberty, Part Two

To determine whether the Patriot Act infringes on our liberty, we must first determine what “liberty” is. Two political theorists stand out as defining the meaning of liberty: John Locke, and John Stuart Mill.

John Locke essentially invented the notion of liberty. According to Locke, the essence of liberty is the absence of coercion. Locke believed in political liberty, under which “coercion” means the initiation of force against an individual by physical force, the threat of force, or fraud. Furthermore, Locke held that liberty can only be justified on a particular ethical and epistemological basis, rather than an absolute independent of any particular ethical or philosophical basis.

According to John Stuart Mill, the meaning of “liberty” is very different. Mill was a utilitarian – he saw the happiness of society as his ultimate goal. He rejected the idea that humans had a common nature or a single path to their happiness – which means that each individual must find his own path to self-actualization in order to maximize his happiness. For Mill, liberty lies in the ability of the individual to choose the way in which he wishes to express himself, and to share his ideas with others in order to teach and learn the successful means by which to achieve happiness. In this view, limitations on liberty come from anything that limits one’s means of “self expression,” whether that means singing in the streets, having your art shown in museums, or bashing people’s heads in.

The primary difference John Locke and John Stuart Mill is that according to Locke, full and unlimited liberty is possible as long as men do not initiate force against each other, while for Mill, liberty must always be limited and contradictory because force is often needed to allow individual self-expression. So, if one was unable to convince the media to present his views, or to have museums display his art, or to convince men to follow his vision of society, the state’s role is to regulate the media, support the arts, and enforce “community standards.” Locke on the other hand, argued that the function of government is to protect individuals from the initiation of force, and as long as men respect each other’s rights, and the State prevents the initiation of force, full and unlimited freedom is possible.

When Thomas Jefferson wrote the Declaration of Independence, it was John Locke’s definition of liberty that he had in mind. Since that time however, Mill’s view has come to dominate society, in liberal, conservative, and libertarian circles. Some argue that if any restriction of “self-expression” limits liberty, then no objective basis for government limitation of “liberty” is possible, and anarchy is the ultimate form of freedom. Most people amend this view with the position that government coercion is the only “practical” means to compromise between conflicting views of liberty. Leftists and libertarians are the most common supporters of this utilitarian and subjective definition of liberty.

According to Locke however, totalitarianism and anarchy are essentially the same condition of freedom being displaced by a rule of the biggest thug. Full and unlimited liberty is possible to man – but only in a society where the initiation of force is removed from human relationships – and that can only be done in a system of objective laws. In a free society, the role of the government is to negotiate peaceful solutions to disputes and punish criminals and foreign invaders who initiate force against its citizens. The government must be restricted from becoming yet another aggressor by being limited to stopping criminals and carrying out justice.

Liberty is only possible in a society where men are free to do as they please as long as they respect that same right in others, and the government fulfills its role of carrying out justice based on objective laws. There are only two ways the government can fail to respect the liberty of its citizens: by initiating force, and by failing to adequately protect its citizens from the initiation of force. The former happened with the success of the terrorists in the 9/11 attacks, precipitated by many years of flawed domestic and foreign policy. The proper response of the government should be both to exact justice on anyone responsible for the attacks and to change its domestic and foreign policies to prevent such attacks in the future. The Patriot Acts are just one of necessary steps needed to correct decades of flawed policies that emboldened terrorists, and crippled the security agencies by preventing them from properly carrying out their function. These powers are not a limitation on the liberty of the people, but a necessary condition in order that the primary requirement of liberty: life, be preserved. This is not a blank check for whatever policies the government thinks are necessary – the police must be supervised by the courts to ensure that they abide by the laws, and the laws must be written so that proper precautions are taken to avoid harassment or wrongful convictions of innocents. (See my post The Fallacy of “Liberty vs. Security” for more.)

The latest Patriot Act is not perfect in this respect – but it goes a long way to giving the security agencies the powers they need to carry out justice. It is much better to have a sharp offensive security policy where the FBI actively goes out after individual terrorists than a dull defensive policy where airline passengers cannot take nail clippers in a carry-on and children and grandmothers are subjected to intrusive random searches. Yet both the liberals and libertarians would rather have us treat everyone like children than go after the actual terrorists with no holds barred. Of course, neither group will admit that the inevitable outcome of the policies they are advocating is just that.