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August 15, 2005

Situational Libertarianism, Slippery Slopes, and Simplistic Thinking

The prudence of situational libertarianism should be obvious to us all. Short term encroachments on civil liberties are warranted when failing to do so presents a credible danger of still greater long term or permanent endings of our civil liberties.

In fact, short term encroachments on our civil liberties are part of every serious civil libertarian's master plan. Who, for example, would knee-jerkedly agree that it's okay to imprison an innocent man? Yet, that's precisely what we do every day in every state of the union: we arrest innocent-until-proven-guilty suspects, uproot them from their lives, and hold them until and unless they either post bail (the temporary seizure of an innocent man's property by the state), are no longer prime suspects (not enough evidence to continue to hold them), or are acquitted. The long term safety of our civil liberties has always come as a benefit from short term encroachments upon them.

High Energy Physics

There's an analogue for this in the natural world, by the way, in the form of the law of the conservation of energy. By virtue of something called the uncertainty principle, the universe is able to tolerate short term variations in its total energy, variations which disappear almost as quickly as they occur. An example of this phenomenon is of empty space being anything but empty, as matter and anti-matter pairs of quanta are constantly being created and destroyed. But I digress....

Sometimes, short term encroachments upon our civil liberties which are necessary for their long term sustainability extend beyond relatively minor encroachments such as the detaining of suspects of crimes. These situations are not unlike forsaking a healthy chemical-free lifestyle in favor of enduring short term chemotherapy to end cancer. Charles Krauthammer's current column explains:

In 1977, when a bunch of neo-Nazis decided to march through Skokie, a suburb of Chicago heavily populated with Holocaust survivors, there was controversy as to whether they should be allowed. I thought they should. Why? Because neo-Nazis are utterly powerless.

Had they not been -- had they been a party on the rise, as in late-1920s Germany -- I would have been for not only banning the march but also for practically every measure of harassment and persecution from deportation to imprisonment. A tolerant society has an obligation to be tolerant. Except to those so intolerant that they themselves would abolish tolerance.

Call it situational libertarianism: Liberties should be as unlimited as possible -- unless and until there arises a real threat to the open society. Neo-Nazis are pathetic losers. Why curtail civil liberties to stop them? But when a real threat -- such as jihadism -- arises, a liberal democratic society must deploy every resource, including the repressive powers of the state, to deter and defeat those who would abolish liberal democracy.

I tend to be a "slippery-slope" arguer, myself. I like to say that, to quote (as accurately possible from memory) an episode of Star Trek: The Next Generation, "With the first link, the chain is forged. The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." But that's absurd.

"Life, however, is lived on a slippery slope: Taxation could become confiscation; police could become gestapos. But the benefits from taxation and police make us willing to wager that our judgment can stop slides down dangerous slopes."
--George F. Will

Back to Charles Krauthammer and the aforementioned article. He makes his own "slippery slope" argument:

Civil libertarians go crazy when you make this argument. Beware the slippery slope, they warn. You start with a snoop in a library, and you end up with Big Brother in your living room.

The problem with this argument is that it is refuted by American history. There is no slippery slope, only a shifting line between liberty and security that responds to existential threats.

During the Civil War, Abraham Lincoln went so far as to suspend habeas corpus. When the war ended, America returned to its previous openness. During World War II, Franklin Roosevelt interned an entire ethnic group. His policies were soon rescinded (later apologized for) and shortly afterward America embarked on a period of unprecedented expansion of civil rights. Similarly, the Vietnam-era abuses of presidential power were later exposed and undone by Congress.

Our history is clear. We have not slid inexorably toward police power. We have fluctuated between more and less openness depending on need and threat. And after the Sept. 11 mass murders, America awoke to the need for a limited and temporary shrinkage of civil liberties to prevent more such atrocities.

Our tendencies toward simplistic thinking prod us toward making judgments without thinking past the next move on the chess board; all is black and white and please don't bother us with complexities which may confuse.

Posted by Jeff at August 15, 2005 10:55 AM


I happened upon this article during a google search and I had to comment, even if it is two years too late. I am impressed to read such a clear and rational argument at a time when we seem to be hearing so much sensational hyperbole, so many arguments which are never thought out logically in the first place, and than even less logically defended. You've presented intelligent and insightful arguments which cannot be completely rejected by any rational person, but I can not agree with your conclusions.

You would use one flaw in our collective legal systems, and it is a flaw, to justify another. It is true that we imprison innocent people temporarily, strip them of their rights and property, and while I would never argue that this is an unacceptable state of affairs which must be abolished, I would hope that some day, even if it should not happen until well after my lifetime, we would find a better way. In recent years I have heard of days long detention and questioning of people who are never charged with any crime, of terrorism suspects being denied access to evidence which is to be used against them, presented to judges in secret without the presence of defence counsel. It was not so long ago that I thought of these things as impossible in any developed nation, now I skim through articles about terrible injustices because they have become so commonplace. If such unfortunate necessities as the ones you mention above should become the rational for these policies, than we have all taken a step backwards. Please do not think I am judging you to be unjust. I understand your reasoning and the logic of your ideas, but I know that this is wrong.

I know a little of such injustices from the history of my own country. During World War II our government forcibly moved inland or interred thousands of our own citizens because they came from Japan and were thought to be untrustworthy. This was a decision that was well supported by the people and one of the darkest chapters in our history. Mr. Krauthammer, from whose articles you quote, would seem to pass off a similar internment in American history as a mildly objectionable fluctuation in between two extremes of oppression and absolute freedom, barely warranting mention. I had thought such things were well behind us, but if an intelligent, level headed person like you will quote an support an argument like Mr. Krauthammer's than I find I have to rethink just how bad things have really gotten.

I have no doubt all this will be over within my lifetime, that I will be able to look back at all this as what it really is, foolishness, temporary insanity, but I'd like the wait to be as short as possible. I close with a thought: In the end terrorists can kill us, perhaps will again, but they can't take away our freedoms. We have to do that for them.

Posted by: Erik at June 13, 2007 10:55 PM

I only stumbled across this page looking for the Star Trek: The Next Generation quote so I do not wish to argue the merits of the blog, either way (especially seeing as it would be 3 years too late).

I do however wish to correct your use of the quote. While the quote is accurate, it has been cut short and taken in isolation to change its meaning, and demonize the original speaker.

It should read --"With the first link, the chain is forged. The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably. Those words where uttered by Judge Aaron Satie as both wisdom and warning".

The quote in its entirety recognizes both the benefits and dangers to a society of taking away a persons freedom and I do not believe that it is in conflict with your points.

You have deliberately misrepresented the statement as a means to manipulate others with "simplistic thinking" to your own ends.

As you would seem to be familiar with quotes from Star Trek: The Next Generation I hope you will appreciate a closing quote of Captain Picard

--"It is a lie. Lies must be challenged."

Posted by: Cloud at June 30, 2008 09:54 AM

The meaning has not been changed. The extra bit that you contributed, "Those words where uttered by Judge Aaron Satie as both wisdom and warning," is irrelevant and contributes nothing.

Your post serves only to demonstrate that the portion that I did include has not been taken out of context and that the point I made is entirely accurate.

Posted by: Jeff at June 30, 2008 10:48 AM

@Erik: You say, "while I would never argue that this is an unacceptable state of affairs which must be abolished, I would hope that some day, even if it should not happen until well after my lifetime, we would find a better way." Well put. But inherent in that statement is an acceptance of the current necessity of accepting and enduring these short term encroachments on our civil liberties. And that's the essential point. We may no like them, just as we may not like having to pay for, install, and use locks on our doors. But they are necessary. We cannot do without them.

Posted by: Jeff at June 30, 2008 11:02 AM

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