This Wednesday's Con Law class just floored me. We were talking about the "living tradition" idea enshrined in Griswold when Professor (D.) Williams put two graphs on the board, one representing the trend of liberty over the years, and other other totalitarianism. The idea was that the trends in areas such as these form patterns that judges can observe and make decisions that maintain the pattern. The totalitariansim graph was essentially constant, which, for purposes of the thought exercise in class, is fine with me. But he drew liberty as a steadily increasing trend.
I was completely shocked. My first instinct, without giving it a moment's thought, would have been to draw the line going down rather steadily. On further examination, and noting the particular years marked on the graph, his view can be reconciled in terms of the breadth of liberty. Things like the abolotion of slavery, the equal protection clause, and granting women the right to vote made the "liberty club" bigger. But, Griswold wasn't about giving someone freedom that didn't have it before, it was about recognizing how far that freedom went for the parties at issue. Except for incorporation, the trend for the depth of liberty in America has been decidedly downward.
This is so obvious that I didn't even originally consider the breadth of liberty argument. It's a truism that when the legislature is in session, liberty is in jeopardy, that legislation nearly always contracts a person's freedom rather than expands it (the law tells you what you CAN'T do), and that new laws are passed more quickly than the are repealed or struck down. The decrease of liberty over time is a systemic problem of any democracy.
But I suppose I should be more concrete. Let's bust out a more complete liberty timeline.
1824: Gibbons v. Ogden goes farther than is necessary to prevent states from interfering with interstate commerce, leaving only commerce "which does not affect" other states free from federal regulation.
1868: 14th amendment passed; through incorportation, most federal rights will now apply against the states. the only substantial expansion of the depth of liberty in US history
1914: Shreveport Case pushes the federal power/liberty front back a bit by holding that the effect on other states must be substantial
1930s: New Deal ends any remaining restrictions on the scope of Federal power; economic regulations work their way into most intrastate contract situations
1934: National firearms act passed, restricts possession of weapons useful for personal defense and militia purposes to only those rich enough to afford expensive licences
Post-1940's: With the end of World War II, wars are no longer "declared," but merely fought at the command of the executive; the removal of this authority from Congress insultates the decision to go to war, moving the decision farther away from the people who will bear the burden of the fighting (the liberty interests here are that of life and consent).
1960's: State restrictions on firearm ownership are on the rise; the Court declines to incorporate 2nd Amendment against the states
1970s: State restrictions on abortion on the rise; Roe v. Wade curtails some of this, but leaves enough wiggle room for states to burden abortion to the point of impracticality.
The government further intervenes in contract and takes a huge step backward from the passage of the 14th Amendment by requiring sexual and racial discrimination in hiring.
1980's-today: War on drugs leads to an unprecedented expansion of law enforcement search and seizure powers (not to mention curtails the autonomy one had in one's own body). No-knock searches result in frequent fatal shootings, while convictions for trivial offenses are used to curtial other rights.
1994: Brady Act further restricts possession of weapons and ammunition
1996: Lautenberg amendment provides for firearm ownership being restricted without due process of law
2001: USA-Patriot Act makes banks, libraries, etc. agents of the federal government and expands the government's power to spy on its citizens, in many cases without judicial oversight.
2002: McCain-Fiengold Act restricts the means of political speech, delivering a severe blow to the ability of people to gain access to the media. The Court is not swayed by the argument that a right to do something is meaningless if one is prohibited from the means to exercise it and upholds the law.
I don't intend for this to be anything close to an exhaustive list, but I think it's safe to say that the truisms are correct--liberty contracts over time, and will continue to do so without massive reforms. We've made great progress in making our polity more inclusive over the centuries, but to say that the "space" we have in which to live our lives in our own way free of interference has increased is absolutely ludicrous.
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2 comments:
I think your premise of the 'depth' of liberty as being separate from the 'breadth' of liberty is inherently faulty. Insofar that liberty means anything, it is has to be linked to an even distribution of power. If we say that liberty means nothing other than the ability of the individual to do whatever they want, then an absolute monarchy has the greatest amount of liberty of any style of government--albeit all the liberty exists only for one individual.
That's obviously absurd. Democracy exists for the purpose of preserving liberty, and it only works insofar that all individuals wield equivalent power. Liberty has no value unless it is equally distributed. I think it's very safe to say that the general trend in the United States has been a rise, not fall, in liberty. It's unquestionable that there are more people who have access to political power today than there were two hundred years ago, and not simply because of population increase.
Now, that's not to say that there are not now threats of disenfranchisement of liberty, nor that they have not always existed in the past. I simply disagree with the general premise that we've been on a downward slope of liberty.
I think there's plenty to disagree with about the premise that any kind of legislation is inherently restrictive as well, and I think you would have to agree, but that's a pretty big argument that I'm too lazy to engage in right now.
It's "inherently faulty" to interpret my argument--that liberty has two components--as meaning that only one component ("the ability of the individual to do whatever they [sic] want") matters.
Just as liberty becomes meaningless when practically no one has it (as in your example), it also becomes meaningless when everyone has a negligible amount of it.
As for the connection between liberty and power, well, there certainly is a connection, but it's much more attenuated than you're suggesting. It's conceivable, although unlikely, that society could have a great amount of liberty in an autocratic society where the power is anything but equally distributed. The problem isn't that liberty is fundamentally linked with power, but that the power is likely to swallow liberty on a whim over time. Similarly, it is possible to have a society where all have equal power but very little liberty, which would essentially be the case in any majoritarian society that placed no (constitutional) restrictions on the exercise of political power.
Equal distribution of power certainly helps liberty in that, within the right institutional structure, that power can be used to prevent or repel intrusions, but this balance is precarious, since it allows intrusions by a majority. The most dispositive factor in creating and preserving liberty is not equal distribution of that power, but instead the extent of the power that the government can bring to bear against a minority or individual.
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