Category Archives: Freedom

Ferguson Fatigue

It seems fatigue has set in with the protests in Ferguson, Missouri, following the fatal shooting of Michael Brown by Officer Darren Wilson. I’ve been following the protests and the police response every night on Twitter since the shooting, and it’s been riveting. I keep telling myself to ignore it for a while, and for most of the last two weeks, I keep getting drawn in anyway.

There seemed to be a sort of hardening effect going on among the protesters. I first really noticed it the second night after the highway patrol took over from St. Louis County. Everything was relatively peaceful for a while, but then it started to rain, which I think chased off many of the ordinary residents of Ferguson, leaving behind a crowd with a larger-than-normal fraction of drunks, criminals, and agitators. Without the moderating influence of normal people, the looters went a little wild, which prompted the Governor to declare a state of emergency. Captain Johnson of the highway patrol had said that police wouldn’t use tear gas on peaceful protesters, but police ended up gassing the crowd anyway, which they claimed was necessary because of people with guns and Molotov cocktails. That drove off even more people.

Meanwhile, experienced protesters from all over the country had started to travel to Ferguson, and I started to notice more signs of preparedness among the crowds — eye protection, ear plugs, stashes of supplies, legal aid phone numbers written on their arms — and I began anticipate that things would get more confrontational, but also that the message of the protesters would get derailed as the outsiders brought their own agendas to the scene. I’m pretty sure I saw some protest signs about Gaza and bankers.

Instead, it all just kind of fell apart, starting on Tuesday. I’m not sure why. Maybe it was a change in police tactics. When police saw someone throwing dangerous objects or brandishing a weapon, instead of gassing the crowd, they would just swarm in, grab the people causing trouble, and quickly retreat. They’ve also stopped trying to enforce a curfew or hold a an arbitrary line on the streets. They had figured out a way to go back to the basic police mission of protecting the mass of the citizens from the relatively small number of miscreants. The more peaceful protesters had always been angry at the troublemakers, so I think this relieved the tension a bit.

Maybe it was the media circus. By some estimates, Tuesday night’s crowd held more members of the media than Ferguson residents. It was getting a bit silly. On the other hand, perhaps Ferguson residents finally felt their concerns were being heard by someone.

Or maybe the protests just ran down as part of their natural course. People worked through their anger and returned back to their normal lives.

Now I guess the question is what happens next? Will Michael Brown’s death be brushed under the rug once people stop looking? Or has all this attention created enough pressure on the local and state government to ensure that a thorough investigation takes place and justice is served? Or will police and prosecutors railroad Darren Wilson in order to gain political approval? And what will happen to the really awful police and government of Ferguson? Will Antonio French succeed in his voter drive to run them out? Or will whatever kept them in power ’til now keep working?

And what about the larger issues? Following along through the internet, it certainly felt like something of national importance was happening in Ferguson. But that might just be an illusion; I was intensely interested, so I noticed how much everyone else was interested. Still, it brought attention back to the issue of policing in minority communities, and it attracted a lot of scrutiny to Ferguson and the St. Louis County area in particular. It also attracted some much-needed attention to the issue of police militarization.

Maybe this has all been a step down the road toward some change. I have my doubts, but I certainly hope so.

The Constitution Is Not a Suicide Pact

“The Constitution is not a suicide pact.”

The first time I heard that phrase, I thought it was a pretty good line, and I agreed with it. In a sense, I still do. That’s because the first time I heard it I interpreted it backwards from how most people do when they invoke it. I never knew why the other interpretation was the one that caught on.

I stumbled on the answer the other day when Scott Greenfield quoted from Justice Robert Jackson’s 1949 dissent from Terminiello v. Chicago, in which the Court overturned a conviction for an apparently somewhat hateful speech that violated Chicago’s breach of peace ordinance because it stirred up anger between those who heard it and those who were protesting it. Two other Justices wrote dissents (i.e. supported the conviction) on somewhat technical grounds, but Jackson argued that the Court should have upheld the conviction because it was critical to preserving the public order:

…underneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society’s need for public order.

He then goes on to describe the public response to the speech and quote from it extensively. Honestly, I skimmed over the speech (apparently something about commie Jews), but it sounds like Terminiello was something of a fascist. The protesters outside the auditorium supposedly were communists, which created the potential for some rioting. All of which apparently gave Justice Jackson visions of World War II breaking out all over again, right there on the shores of Lake Michigan:

This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe.

Jackson’s dissent goes on and on — including quoted material, it runs to almost 8000 words — ending with this:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Greenfield explains what that has come to mean:

That the Constitution is not a suicide pact flows from this, and at any given moment in history, the outcome of a decision may seem to be compelled by “a little practical wisdom,” meaning that we first must protect ourselves from who or what seems most threatening.

To me, Justice Jackson’s position is somewhat daft. What’s the point of preparing a written Bill of Rights and having it ratified by the States if you allow the courts to ignore it whenever obeying seems like hard work?

What Jackson proposes is like calling your homeowner’s insurance company while staring at the smoking ruins of your house only to have the claims agent respond, “The whole thing burned down? Oh wow…  No, buying you a whole new house would be way too expensive… I’m sure you understand that we didn’t anticipate anything that bad happening to your house when we sold you the policy…”

Just as we only need homeowner’s insurance when something really bad happens to our home, we only need our legal rights when the government thinks we’re doing something bad. There’s no point to a Bill of Rights that only protects us when the government doesn’t mind what we’re doing. We don’t need protection when no one’s out to get us. We need protection when the powers-that-be think we’re the enemy.

But people with views like Jackson (or Posner) argue that those are the very times when the Courts should be less rigid about protecting people’s rights. They speak of times of “unprecedented perils” and “existential threats” to our country. (The sources of the threats change over time — communist spies, civil rights agitators, militias, drug dealers, Satanists, human traffickers, terrorists — but the solution is always drearily authoritarian.) To ignore the danger because we are too worried about phantoms of lost liberty would be tantamount to suicide, and our commitment to Constitutional rights is not so great as to require we follow it to our deaths. The Constitution is not a suicide pact.

When I first head that phrase, however, I understood it to mean something different: The Constitution is not a suicide pact because respecting individual civil liberties is not a suicidal act. How many countries have died because they allowed their citizens to have too much due process? How many nations have fallen because they allowed their citizens to speak up too much?

Granted, there are governments that arguably fell because of a failure to crack down hard enough on their people. Off the top of my head, there’s tsarist Russia, communist Czechoslovakia, apartheid South Africa, and the Arab Spring nations — Tunisia, Egypt, Libya, and Yemen. Corrupt authoritarian regimes, every one. In some cases, the new governments that arose afterwards weren’t any better, but the destruction of the old governments was no great loss.

And of course there’s colonial America, creators of that Constitution we were just talking about. The new United States had just fought a war for independence against one of the most powerful enemies we’ve ever faced (only the nuclear-armed Soviet Union would be proportionately more powerful), and it was in the aftermath of that war that the Bill of Rights was created, setting forth our rights in some rather absolutist language. Clearly the authors did not think due process and freedom of speech were a recipe for national destruction.

Not only is respecting individual civil liberties not a suicidal act, it’s arguably a source of considerable strength. A tradition of freedom makes a nation difficult to conquer, the economic benefits of free markets make strong defense affordable, and the practice of open debate makes a nation flexible to advantageous changes of policy.

I suppose folks like Jackson are right in a sense: We still do have to find a balance between liberty and order. But I would argue that we did find that balance, and we wrote it down in the Constitution. It’s not a suicide pact, but it is a pact: If some people think it’s time to change that pact, let them make their argument for changing it and follow the process for amending it. Otherwise, keep the order you think is so important by following the rules.

Join the Mobile Infantry and save the world. Service guarantees citizenship!

Chris Hallquist intrigued me with a recent post about the number of crazy people who think an armed revolution will be needed in the US in the next few years. I’ll ignore the horrible infographic he used at the start of the post for now since I’m currently more interested in his attitude toward such an armed rebellion against the government.

Chris suggests that these people (supposedly 29 percent of Americans) would be too busy getting ready to avoid or run from such a rebellion if they really believed it was coming soon. And I see his point. There are, after all, currently more than a million refugees fleeing Syria’s rebellion.

I’m certainly not in that 29 percent who thinks we will need (or be in) an armed rebellion any time soon (or, indeed, in my lifetime), but I would be one who would take up arms if needed rather than try to hide from the rebellion. Maybe that’s just my age talking. Rebellions tend to involve the young and the old. Those in the middle often have too much to lose.

Hmm, I guess that makes me quite selfish. I’d be pushing the rebellion along, dragging the young with me, who don’t realize the value of their own lives, while putting everyone else who doesn’t want to be involved in mortal danger. All for my high-minded ideals.

And if we win, the surviving young would build statues to assholes like me.

Yeah, that sounds nice. Just be sure to get my beard right.

Seriously, though, that’s my point. I’ve always supported the Second Amendment on the principle that, someday, citizens may need it to defend themselves from the government. I don’t own a gun, nor do I want to own a gun. In case you didn’t know, those things are dangerous!

Still, if the situation arose where I thought we needed to rebel against our government, that danger is a useful trait.

Yet in every rebellion I’ve ever studied, the vast majority of the population just wants to get away, or simply survive. It’s a small minority of the people actually fighting on either side of such a conflict. Most are just like Chris Hallquist, simply looking for a way to lay low until the conflict blows over one way or another.

Studying the American Revolution has made me realize how few people carried the population along towards war and how they used questionable morality and ethics to do so. Nelson Mandela, on the other hand, turned away from violent rebellion and successfully overthrew a well established and armed government using peaceful methods.

Is defending the Second Amendment just the selfish act of a minority of old assholes like me with grand notions of a just armed rebellion? Have I now lost so much of my libertarian ideals that I can’t even muster the strength to defend the Second Amendment anymore?

Come on. The readers on this site should be able to reason some sense back into me. Give it a shot. Or maybe I just need to dig out some of the Heinlein books I read too often as a kid. I just have to avoid picking up that copy of Forever War from the same box.

A Bad Week For Liberty

It’s been a rough week for liberty.

To begin with, we had two terrorist style attacks, the moderately successful Boston Marathon bombing, and the failed ricin poisoning. I doubt either attack was because “they hate our freedom” (few attacks are) but the attacks themselves are attacks on our freedom. As is often the case, just as the human body’s immune system sometimes overreacts to a contagion and does more damage than the disease, the overreaction of the government to terrorism often does a great deal of harm.

In this case, the overreaction was triggered after one of the bombing suspects was killed in a shootout, but the other was on the run, a state of affairs which prompted the easily alarmed Boston Police to shut down the whole city while they tried to catch him. I don’t know what law gives them the right to order citizens off the streets of the whole city — perhaps they used an absurdly broad interpretation of their power to order people away from danger at the scene of a hostage taking or bank robbery — but I’ m guessing they seriously exceeded their constitutional powers.

It’s also kind of stupid to detain millions of people in their homes for no good reason. These people faced real costs, not just in wages losses but also in time, convenience, and freedom, all to avoid a risk that was actually very small. Police should have warned them, and then let them make their own choices.

Then there’s the fact that police allowed Dunkin’ Donuts to stay open so police officers could get food while on duty. As Clark at Popehat brilliantly points out this demonstrates that the Boston Police Department is run by insincere hypocrites:

The government and police were willing to shut down parts of the economy like the universities, software, biotech, and manufacturing…but when asked to do an actual risk to reward calculation where a small part of the costs landed on their own shoulders, they had no problem weighing one versus the other and then telling the donut servers “yeah, come to work – no one’s going to get shot.”

Like minor bureaucratic authoritarians everywhere, they completely dismiss the concerns of anyone who isn’t them.

And then there’s Senator Lindsey Graham, who released an asinine statement from himself and Senator John McCain:

It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorist trying to injure, maim, and kill innocent Americans.

Actually, Senator, they didn’t just try to injure, maim, and kill innocent American. They succeeded. But go on, I’m sure you’re making a point…

Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks.

What a tool. The suspect wasn’t part of some foreign invasion force. He’s a criminal who killed some people. We put criminals in jail all the time. There’s no need for this Jack-Bauer-national-security bullshit.

We will stand behind the Administration if they decide to hold this suspect as an enemy combatant.

I won’t.

(On the other hand, the whole issue of him being questioned without Miranda warnings is something of a distraction for reasons explained here.)

Meanwhile, as everyone was watching other news, the House passed CISPA.

For the second year in a row,  the House voted to approve CISPA, a bill that would allow companies to bypass all existing privacy law to spy on communications and pass sensitive user data to the government.

“This bill undermines the privacy of millions of Internet users,” said Rainey Reitman, EFF Activism Director.  “Hundreds of thousands of Internet users opposed this bill, joining the White House and Internet security experts in voicing concerns about the civil liberties ramifications of CISPA.  We’re committed to taking this fight to the Senate and fighting to ensure no law which would be so detrimental to online privacy is passed on our watch.”

Finally, I’ll leave you with a few depressing comments from Rick Horowitz.

Towards Shifting the Judicial Balance

In response to my noting that the Florida Supreme Court has approved the state’s policy of convicting people of possessing drugs without proving they did so knowingly (a problem not unique to Florida), someone named Paul Murray comments,

Surely all that’s needed is to get a pickpocket to plant some grass clippings on these judges.

Yeah, I’m convinced that one of the reasons judges keep issuing rulings like this (and that lawmakers keep passing laws like this) is that they never get caught up in the justice system themselves. Sure, they offer all kinds of legal arguments, but they also talk a lot about the need for “balance.” Maybe if they got rousted by the cops a little more often, their sense of balance would give more weight to freedom.

Which reminded me of an idea I had earlier.

Don’t Let Godwin’s Law Protect Totalitarians

I’ve always been wary of Godwin’s Law — the internet maxim which says that if you are in an argument and you compare someone or something to Hitler or the Nazis, you automatically lose the argument. (Actually, Mike Godwin’s original comment was more nuanced than Godwin’s Law has become today. Wikipedia has a nice summary.)

Granted, there’s way too much of that going around. Not everyone we dislike is a Nazi, and no matter what a lot of silly protesters said, George W. Bush didn’t turn into Hitler and Barack Obama won’t either. We invoke Godwin’s Law as a reminder that such comparisons are often ridiculous, and also as a reminder that an analogy can become a replacement for careful thought.

On the other hand, Godwin’s Law can also become a replacement for careful thought, if we allow it to shutdown the debate.

Part of the reason we have Godwin’s Law is also part of the problem with it: When we think about Hitler and the Nazis, we naturally think of their greatest crimes, and compared to the Holocaust, all our current problems seem small, which is why a comparison is so often foolish. Nothing happening in the United States today comes close the ultimate horrors of Nazi Germany.

However, it’s important to remember that Adolf Hitler didn’t murder 12 million people on his first day, and those ultimate horrors were preceded by many lesser horrors. Hitler was active in German politics for over a decade before becoming Chancellor, and it would be another nine years before the Wannsee conference and the Final Solution. So while it’s correct to say that nobody in America today is as bad as Hitler, it’s also correct to point out that for the first fifty years of his life, neither was Hitler.

Yet it’s not as if Hitler was a nice guy for most of his time in office. It’s not as if Germany was a great place for Jews (or Gypsies or homosexuals or any of the other victims) right up until the moment the death camps began operating. There were clues to what was coming, and those clues are worth thinking about today. It’s not enough to remember history; we also have to recognize the evils of history when we see them again, if we don’t want to be doomed to repeat them.

As Kevin Carson says in his own denounciation of Godwin’s Law:

Godwin’s Law, by treating Nazi Germany as some sort of unique, metaphysical evil in human history, essentially nullifies its practical lessons for people in other times and places. Although Nazi precedents are now used as symbols of ultimate evil — just look at Darth Vader — they didn’t seem anywhere so dramatic to the German people at the time they were happening.

Nazi repression came about incrementally, in the background, as people lived their ordinary daily lives. Each new upward ratcheting of the security state was justified as something not all that novel or unprecedented, just a common sense measure undertaken from practical concerns for “security.”

After all, the bulk of Hitler’s emergency powers were granted by the Reichstag after a terrorist attack (blamed at the time on communists), a fire which destroyed the seat of Germany’s parliament. Any parallels to 9/11 and USA PATRIOT are, of course, purely accidental. Each new security clampdown, after an initial flurry of discussion, was quickly accepted as normal because it didn’t affect the daily lives of most ordinary people. And of course, those ordinary people had nothing to fear, because they’d done nothing wrong!

The Nazis weren’t the last totalitarian bastards the world will ever see, and when the next Adolf Hitler begins his rise to power, it will be a lot harder to stop him if we’re not allowed to point out that he’s acting just like the last Adolf Hitler.

Jennifer Abel gives an example of how this works:

I’ve been banging the anti-TSA pro-civil liberties drum on this blog since 2006, the same year I started it. And America’s gotten worse, incrementally, as people lead their ordinary lives. It led directly to the passage and acceptance of the NDAA, with its unconstitutional insistence that the government can arrest any citizen at any time with no evidence, no trial, no legal rights at all, provided the government first says “Trust me, he’s totally a terrorist.” It’s led to what Carson calls a “de facto internal passport” required for travel within the borders of our own country. And when those who support these laws watch documentaries on the rise of the Third Reich, they shake their heads in patriotic superiority and swear “It can’t happen here.”

But of course it could happen here. America is still basically a free country, but there’s no natural law that says it has to stay that way. There are certainly things going on in this country that look a lot like the early days of the Nazi rise to power. The TSA’s metastasis into a system of internal checkpoints (the hallmark of totalitarians everywhere) is one good example. Another example, is the War on Drugs, which strikes me as a slow-motion Kristallnacht, with drug users and the inner-city poor in place of the Jews. 

I can’t point to any major American politician and say he’s the next Hitler, but I can think of a at least one minor figure who certainly fits the uniform: Maricopa County Sheriff Joe Arpaio. He fought the DEA’s war on drugs for 25 years, he brags about the cruelty of his prisons (in which inmates regularly die), he uses the investigative powers of his office to intimidate people who criticize him — including journalists and other members the justice system — and he has even tried to imprison judges who ruled against him or his officers. And to top it off, much of his political power comes from exploiting racial and ethnic hatred against illegal immigrants.

So in the spirit of civil disobedience against Godwin’s Law, I’ll say it out loud: Sheriff Joe Arpaio is like Hitler. Not like the Hitler who killed millions in the death camps, of course, but like Hitler from twenty years before, filled with hate and lusting for power. But not as successful. And unlike the real Hitler, we don’t need a time machine to stop him. We can do it by voting him out of office.

That said, identifying “the next Hitler” isn’t really the important point. Hitler wasn’t evil because he was Hitler. Hitler was evil because he did evil things. Similarly, our goal need not be to stop the next Hitler. Our goal should be to recognize when people in our government are doing evil things, and spread the word so they can be stopped. If that means saying that they’re behaving like Nazis, so be it.

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