Prof. Barnett on Liberty
Minnesota Public Radio has an hour-long broadcast on liberty, featuring Prof. Randy Barnett. Link via the Volokh Conspiracy here.
Interesting points: Lord Acton maintained that liberty was not a means to higher political ends, but was itself the highest political end. (Interesting contrast to the Court's treatment of the First Amendment, esp. in the election law context, where freedom of expression is balanced against other factors, its weight determined by the political purposes it serves, at least those purposes the Court deems valid). Barnett points out Acton's view was that of the Framers. That liberty promotes socially-desirable ends is a fortunate byproduct, not its purpose.
You need a core notion of rights to begin with -- no one has liberty to kill or rape or steal, precisely because those do not involve "doing what you want with that which you own."
Debate about Patriot Act is (for most of us) not about liberty per se -- the average person can't violate it. Debate is really about limiting gov't power so that it doesn't violate liberty in other ways.
Not unprecedented -- Barnett says his peve is the line "in these troubled times." Only for a few years have we had "untroubled times" in our history. Going back to the founding, there were troubles and the gov't tried to get of control. Alien and Sedition Acts. Got so out of hand that VA and KY state legislatures passed resolutions declaring the federal law unconstitutional. If we take view that things are uniquely bad, going to hell just now, this leads to destructive actions and destructive politics. We are really facing same issues Americans have for two centuries.
Interviewer asks -- is liberty unchanging, or does it change with society. He replies--go back to framers, one of the federalist claims was that liberty was so unbounded that you could never write down all your rights. Iredell said make as long a list of liberties as you want, and I'll come up with twenty that you didn't set down. Illustrates Framers' expansive view of liberty. Liberty changes, usually by expansion, since what we can do with what he have is continually expanding.
Caller agrees these are not unique times -- look at abuses in WWI, WWII. Barnett agrees, jests that doesn't want to depress everyone by listing all of them.
American culture distinctive in that our culture embodies concepts of liberty and of limited government. Appropriate to remember, on Memorial Day, that many thousands of Americans died to protect that. The culture of a nation affects not only domestic but foreign policy -- it's your self-image as a people.
Caller wonders if modern situation isn't different... no longer need pouring over paper to pry into lives, computers can do it. Barnett says lot of truth to that... technology is both liberator and restrainer. Almost impossible to lead an anonymous life today. Taking new job, have to fax new college two forms of ID. Unheard of a century ago, you could pack up and become someone else, and lots did. On other hand, with encryption, technology gives us a way to keep things private. Interesting contrast between Americans' sensitivity to liberty and relative insensitiviy to privacy.
Caller: should we add privacy to constitution? Barnett: we've unfortunately lost the tradition of amending constitution, perhaps because Supreme Court has gotten in habit of unofficially "amending" it. In early republic, Supreme Court held that a person could sue another state over debt. People didn't like that, and immediately adopted 11th Amendment. That was the proper response. That's healthier than expecting the Supreme Court to reconstrue the constitution to suit our desires.
Should privacy be protected? We ought to get specific. Privacy is a generality. The advantage of doing a written amendment is that someone has to put it down in specific words, and then we can have a proper debate over it.
Another prof said life liberty and pursuit of happiness in Declaration was divisive. Barnett-- dunno, know original was life liberty and pursuit of property. Famous trilogy dates back to Locke and to state constitutions. I don't know about negative reactions to original or to the change.
Testy caller: Bush talks of liberty in Iraq, but in US tries to curtail it. Barnett: liberty is not specific. Sometimes used to mean political liberty, voting. Offtimes I think president uses it in that sense in Iraq. I disagree with many of pres. policies, but don't believe he's conspiring to violate liberties. I do think he should be more sensitive to individual liberty... he seems interested in political liberty, but not in expanding individual choice (exception for his Social Security proposal).