The Only Viable Threat

The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.

AHCL, at the Elect Kelly Siegler Blog can be forgiven a bit of snarkiness when she reads:

Defending People is about protecting the people, one at a time, from the only viable threat to their liberty: their government.

After all, to people like AHCL and her core readers, who either serve the government or are scared of things that go bump in the night and want the government to protect them, the idea that the government is anything but noble is anathema. We wouldn’t expect them to readily accept the notion that the government’s protection has a price, much less that the price of that protection is liberty, and very much less that the government is the only viable threat to our liberty.

I am willing to accept, for the sake of argument, that government is a necessary evil, or at least an inevitable one. But a necessary evil is not, by virtue of its necessity, any less evil, much less noble.

By a margin of more than 11 to one, Defending People readers choose freedom over safety as the thing they value most. Even if all of the people who value health most and the three goofballs who prefer wealth to health and freedom chose safety over freedom, freedom would be favored more than two-to-one by Defending People readers. (AHCL, I dare you to run the same poll over at your site.)

[poll=2]

The history of civilization is the history of a struggle not between good and evil or rich and poor or black and white or left and right or Democrats and Republicans but between institutional power and individual power. Until the aliens invade, this struggle will define humanity. Governments increase their power by taking away individual power (also known as freedom). In this struggle, prosecutors have chosen the side of the government. Increasing institutional power by taking away human freedom is not a noble profession.

I’ve long pictured the government as a beast, necessary to society — or at least inevitable — but nonetheless dangerous. And I’ve pictured the Constitution as a leash, wrought to keep the beast restrained. (Thomas Jefferson saw things the same way, as evidenced by his quote with which I began this post.)

So: in America we’ve got this terrific document, the Bill of Rights. It lists some of our rights explicitly. Then it says, “The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”

Yet the history of Constitutional jurisprudence (written by the government’s judges) has not been one of clarification of the rights of the People not listed in the Constitution; it has, rather, almost universally been one of (a) expansion of governmental power (the obverse of the People’s rights) to exclude any rights not explicitly listed, and (b) curtailment of the rights explicitly listed. The leash, in other words, has been stretched and weakened.

In every case in which the government’s judges allotted the People less freedom and the government more power, it was the result of the government’s prosecutor arguing persuasively for the diminution of human freedom.

Other than government, what threats are there to our freedom as a People?

Kidnappers? Individually, any of us could be kidnapped by a criminal. But the chances of that are minuscule and we cannot be kidnapped as a people.

Foreign invaders? The last foreign enemy that posed a real risk to the Constitution and the freedoms it preserves was arguably Nazi Germany. If not Nazi Germany, then Great Britain in 1812.

Terrorists? Laughable. Terrorists can do no harm to our Constitution without the collaboration of the internal enemy: the government. I’ve written often about how governments use fear as an instrument of compliance. Make people afraid: make the People fear things that they would not otherwise fear. One fear that the government exploits is this risible fear of terror’s threat to freedom. “They hate us for our freedom,” the President says, justifying our embroilment in a war without end that in turn serves as rationale for the curtailment of our rights — to free expression (“There are reminders to all Americans that they need to watch what they say, watch what they do….”), to be secure in our homes and persons (the malevolently-named USA-PATRIOT act), to habeas corpus, counsel, due process and jury trial (Guantánamo) . . . .

So am I guilty of the same sin as the Government, trying to make you, reader, afraid of the threat that the government poses to our liberty?

No.

First, I do want you to be wary of the government; that’s the first step in preserving your liberty. If we don’t recognize and acknowledge the threats to our freedom, we can never counter them. But you don’t have to be afraid. We have, as Ed Howdershelt wrote, the Four Boxes: soap, ballot, jury and ammo.

Second, I don’t want anything from you. When the government tries to make people afraid, it wants something from us. Specifically, it wants our liberty. From the legislature to the courtroom, government wants us to give it more power, which means giving up our freedom.

I’ve got all the power I need; I don’t want more. All I want is for you to recognize what the government is and does, and behave accordingly.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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12 Responses to The Only Viable Threat

  1. AHCL says:

    Thank you for the forgiveness, Monsignor Mark. Good Lord, I was just laughing at the irony of your mission statement on your blog after all you had written on fear. I mean, seriously, I think it’s funny how you have my blog listed on your blog-roll.

    Was your sense of humor entwined in your pony-tail when you cut it off?

  2. Guest Blogger says:

    Mark is famous for having no sense of humor when it comes to totalitarianism. I think the government may have unlawfully appropriated it.

    Mark, honestly, this post was more than a bit over-the-top and preachy. While I can accept the view that some criminal defense lawyers adopt that they are defenders of individual liberty rather than scum-sucking bottom dwellers who get rich by helping bad guys go free, are you REALLY so enamoured of your profession that you believe that

    “In this struggle, prosecutors have chosen the side of the government. Increasing institutional power by taking away human freedom is not a noble profession.”?

    Let us assume for the sake of this discussion that your worldview is correct (since there are some fundamental truths to be seen in it). Let’s assume that the defining struggle of humanity IS between institutional and individual power. Now let’s ask some simple questions:

    1. Can we agree that, as human beings, we have the right to other things in addition to liberty?
    (“Life, liberty, and the pursuit if happiness,” ring a bell?)

    2. Can we agree that, while the government may be the most proficient at taking away our rights, individuals can also do so, or at the very least prevent us from enjoying them? It doesn’t take an institution to pull the trigger of a Saturday Night special or burglarize your house.

    3. Can we agree that government, in some form, is the most efficient way of PRESERVING our rights collectively? (Stay with me here, Mark, I know you’re going to try and balk on this one, but, again, I’m not talking about “our Freedom as a People” but our individual rights.) Because, after all, that’s who you’re trying to protect, right? Individuals with individual rights who collectively form a people.

    Let’s expand on No. 3 before moving on. The alternative to government protecting our individual rights is for all of us to do it ourselves. That is fine for some folks who can hole up in bunkers with automatic weapons, but what about the weak? And do we really want to live that way? To quote a very qualified candidate for dogcatcher I know, we need “the Rule of Law” so that people with bigger and more powerful automatic weapons won’t come and take our property, loved ones, and lives away.

    4. Can we agree that INDIVIDUALS who violate these rights held by OTHER INDIVIDUALS must be punished — or, at the very least, prevented from doing so again? If so, then Someone must be charged with this task. Rather than rely on individuals or posses of individuals, we have delegated this task to the government.

    But a government can’t exist unless individuals run it, and it takes INDIVIDUALS working for the government (I know, just reading the words is enough to put you in a bad mood) to enforce the rights of aggrieved individuals against other individuals who have violated their rights. These INDIVIDUALS working for the government who do this job are known as PROSECUTORS.

    5. Can we agree that, for these PROSECUTORS to stand up in court and fight to ensure that justice is done and that the violators of individual rights are held accountable, is a noble thing? Sure, there’s an individual sitting at counsel table whose freedom we are trying to take away, but there’s also another individual, perhaps a little old lady or even a small child, whose rights have been violated by the criminal individual, often in unspeakable ways. If speaking up for the weak and giving them a voice in court is not noble, then what is?

    Sure, there are plenty of cases where the State is the complainant. We won’t get into the WoD tonight. But aren’t you being a little broad with your brush when you say our profession isn’t noble? Ultimately, that brings me to my final question, which is really a follow up to No. 4 but needs to come last because of its importance:

    6. Can we agree that there are individuals who, because of what they have done to deprive other individuals of their rights, deserve to be deprived of their right to freedom?

    Maybe if we can agree on some fundamentals, it can be the starting point for a more informed discussion. If not, well, I guess there’s always AHCL’s blog…

  3. David says:

    Mark, I can’t believe you don’t have a sense of humor when it comes to totalitarianism! I mean, come on, lighten up; it’s only liberty.

    Don’t be sad that the Fourth Amendment’s been “temporarily” appropriated, you still have the First!

    Now’s not the time for serious discussion about whether the executive branch can have you ‘disappeared’ or to examine things like whether the Geneva Conventions apply during an unending “war,” it’s time to surrender liberty for temporary safety no matter what that pesky Constitution or those old fashioned Founding Fathers warned us about.

    Whether or not our Constitution is circling the drain or not isn’t the important question. What’s important is while turning round and round this quickly we can all take a moment to laugh and say “whee!”

  4. Mark Bennett says:

    AHCL, I’m glad you think it’s funny.

    GB, thanks for the testimonial.

    I agree with you more than I disagree. I’m not an anarchist. Government is inevitable. Absent some organized government, the strong would dominate the weak to the detriment of the weak, and power would be more and more consolidated in the hands of a few of the strong, until the power structure resembled feudalism. I think that’s pretty much how it happened in the western world. So I agree with you up through the first paragraph of your #4.

    You lose me at #4.5. You’re not representing the complainants in criminal cases; you’re not “enforcing the rights of aggrieved individuals.” If there is even a complainant with a righteous cause, any damage to his rights was most likely done before you became involved. Occasionally you are protecting the weaker from the stronger — itself noble if done right. Safety has a price, and even if you were prosecuting only bad dudes, who need to be removed from society (not being omniscient, I can’t say whether they deserve it or not, and neither can you), exacting too high a price from the constitution for the temporary safety you provide would be ignoble.

    In an imaginary world that is pretty and shiny with rainbows and ponies (we’ll call it “Dickwolfia;” there’s always an episode on) the job of a prosecutor is a noble one. But in the real world, the “plenty of cases” where the State is the complainant are actually most of cases. In most criminal cases, nobody has been hurt or threatened with imminent harm. In the real world, it is inevitably the prosecutor arguing for the diminution of the constitutional rights of all of us. If I were wrong about government being the enemy of freedom, it would not be so. The cases in which you aren’t protecting the weak swallow up the cases in which you are, and make my point for me.

    The job is what you make it. If it involved only prosecuting people who need to be removed from society for their clear inability to play well with others, I’d be with you. But it doesn’t, and as another eminently qualified dogcatcher candidate said, “we can’t choose the laws we prosecute.” That makes you bureaucrats, official women with guns.

    When Britain’s citizens in North America sought independence, by the way, their government’s response was, “You guys need us to keep you safe from the indians!”

    Whee!

  5. Guest Blogger says:

    What about future victims? Maybe we’re not tort lawyers, but the community (distinguishable from the big bad government) has an interest in depriving people of their liberty when they deprive other individuals of their rights.

    Or do you disagree with No. 6?

    With respect to our regrettable lack of omniscience, that argument is going nowhere fast. Let’s accept that, while we could be brains in vats somewhere, we live in an objective reality and courts of law are one way we have of resolving disputes and establishing “facts.” Though the system, dependent on frail humanity, is flawed, it does its job the vast majority of the time. If you take your argument to its logical conclusion, then no one, nowhere, could ever be in a position to judge anything. Thence anarchy.

    I’m probably never going to change your worldview, but let me take issue with one last thing you said and pose a little experimental survey question. You say the State is the complainant in “most” of the cases out there. This is flat out wrong. Your next, more restrictive statement is wrong, too.

    I propose a simple test which I think will reveal just how flawed your prism is, and I’ll toss it out to your liberal — excuse me, liberatarian? –Nah, let’s go with ANTI-AUTHORITARIAN readers: Please give me your best guesstimate of how many prisoners in Texas are currently incarcerated for narcotics offense. (NO CHEATING.) If you want to take it further and broaden the net, how many inmates do you believe are incarcerated for offenses where the State of Texas is the complainant and no one’s individual rights have been infringed? Remember, I want your best, knee-jerk, gut reaction. Anyone can look it up. Let’s see what the gap is between our perception and reality, shall we?

  6. Mark Bennett says:

    Your last question changes the terms of the debate. You’re only allowed to do that on your own blog. The proportion of prisoners for victimless crimes has very little to do with the proportion of prosecutions. Take DWIs, drug cases, and offenses against institutions out of the picture, and you’re left with considerably fewer than half the total prosecutions. Lots of those people wind up on probation (a lesser loss of liberty than prison) because juries in Texas have such a wide range of punishment to consider in most cases.

    I disagree with #6 as stated, because you infallible humans (I used to say “we” but people didn’t seem to get that I was politely referring to them as well) can never have the godlike wisdom to know what each other deserve. The only thing that is off the table is retribution. We can still punish people to deter them, deter others, incapacitate them, and rehabilitate them. That’s not anarchy; it’s punishment based on what we know rather than what we’d like to believe. I would agree if you said that some people need to be deprived of their liberty, for their own good and that of society.

  7. Guest Blogger says:

    Decent answer.

    Good points.

    Totally evasive.

    Your blog.

    : )

  8. Every time an issue of rights comes up, it is inevitable that it is the GOVERNMENT which seeks to minimize or sidestep those rights, and the DEFENSE which seeks to expand upon them or apply them.

    If we left it to Government, those rights would all be worth no more than the paper they are written on. Look at the cases that recognized Constitutional rights for the first time: in every one, Government was the losing side.

    An interesting case study: Randy E. Barnett used to be a prosecutor in Cook County, Ohio. He quit when he found that he could no longer be a prosecutor in good conscience, because so many of the laws he was required to apply were victimless crime laws. He had no problem putting muggers, rapists, thieves and murderers away: he would not keep the job if it required prosecuting drug users, etc.

    Prof. Barnett is now the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, and he is the author of many books including Restoring the Lost Constitution.

  9. Ron in Houston says:

    To the extent that fear makes us vigilante, I think we need to be afraid of government.

  10. PJ says:

    It is somewhat interesting that Guest Blogger, who is likely quite politically conservative, says “government … is the most efficient way of PRESERVING our rights collectively.” This sounds like a good argument for expanding our social welfare state to ensure that our human rights to a living wage, food, housing, and health care (physical and mental) are protected.

    Guest Blogger continued, “The alternative to government protecting our individual rights is for all of us to do it ourselves. That is fine for some folks who can hole up in bunkers with automatic weapons, but what about the weak? And do we really want to live that way?” Again, as good an argument against laissez faire capitalism as could be.

    Guest Blogger continued, “Sure, there’s an individual sitting at counsel table whose freedom we are trying to take away, but there’s also another individual, perhaps a little old lady or even a small child, whose rights have been violated by the criminal individual, often in unspeakable ways.” The problem is that by the time that “criminal individual” is sitting at the table, the State has typically already failed to adequately protect his (and his parents’ and their parents’) rights to adequate food, housing, and physical and mental health care, greatly contributing to (if not the primary cause of) the criminal act. So it’s kind of late in the day for the government to play the hero. Inefficient, too. If we focused our attention on the front end and the root causes of criminal acts, we wouldn’t need much in the way of a back end and prosecutors. (By the way, persons are not “criminal,” acts are “criminal.”)

    Mark,

    I will take exception to your claiming deterrence of others as a legitimate purpose of punishment. It ought to be considered unethical to harm people for the purpose of teaching other people something. For example, if a judge determines that, based on the circumstances of the offense and a defendant’s background, he deserves 10 years imprisonment, but that if he is given a 25-year sentence it will deter a future crime, is it just for the judge to give him the 25 year sentence? Isn’t this only punishing the defendant for the future crime that somebody else would have committed? I actually think there are some serious due process issues implicated in that view.

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  12. Colin says:

    What’s wrong with wealth? It buys the other 3.

    On the matter of governmental power, I tend to subscribe to the Starship Troopers model. Nobody gets to vote until they demonstrate humility and selfless sacrifice for the community. Government usually sucks because it elevates the least humble and selfless among us.

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