Over on the blog, Defending People: The Art and Science of Criminal Defense Lawyering, after a post titled “Thoughts on a Hanging,” a character named “Y” comments:
Wait. A. Minute.
How can we have real liberty if we lack safety?
How is a man free to “pursue happiness” — another key phrase to our country’s Founders, if his house may be burned or his family killed?
Safety is a necessary condition to liberty. Not a sufficient condition, of course, but necessary. And we cannot have safety without our criminal code, which means “tough on crime” and docket management. Granted, there must always be a balance between safety and liberty, but they are not always at odds. Without safety, there can be no liberty. Without safety, any liberty we might have is an empty notion of what might have been.
There are a number of issues one might take with this. For that reason, I decided to blog my response, rather than leave what would only be an overlong comment.
It’s difficult to know where to start with this. Mark Bennett makes a good start in his own responsive comment. As Mark impliedly notes, there is no metaphysical or logical connection between being free and being safe. Sometimes, as Mark states, we deliberately move beyond a place of safety in pursuit of freedom.
What is not so clearly stated is that no absolute level of safety can ever be achieved. Even in the most “locked down” of cultures, someone may burn your house, or kill you and your family. You could even assign a police officer to every home — don’t worry, we’re getting there — and still not be completely safe. Assuming the officer could protect you from your son, daughter, mother, or father, who’s to protect you from the officer?
The more that the rules or laws of a particular country attempt to lock things down “in the interest of safety,” the less freedom exists. And, frankly, the pursuit of “safety” in the United States has reached the level of insanity. Petty officials such as the Presiding Judge of the Fresno County Superior Court routinely ignore the constitutional requirements of the Fourth Amendment because it’s apparently reasonable to expect that anyone entering the courthouse might be armed and dangerous. We’ve forgotten that the Constitution required probable cause particularized to the individual being searched, not a belief that it was reasonable to think some person entering a courthouse might have a weapon.
It was against the very idea of indiscriminate searches on baseless suspicion — fishing expeditions, you might call them — that our Founders rebelled. It was this very sort of attempt at making sure all the rules are followed by everyone all the time — and overbroad rules like the “search all persons entering the courthouse” rules we’re increasingly running into now — through the application of arbitrary and indiscriminate searches that our Founders revolted. Yes, revolted. As in, “they started a revolution and overthrew the government.”
In spite of a Constitution which requires particularized reasons to subject a citizen to a search, we are routinely subjected to searches while moving from one area to another. Try to fly without being searched. Try to enter any government building without being searched.
The government gets away with this for two reasons.
First, on the whole, we are sheep. We’re not actually citizens, we’re submitizens. When some new procedure or directive comes down from “on high” requiring us to empty our pockets, strip off our clothing, or otherwise submit to interference in our personal lives from the government, the majority of us don’t even ask why. We just do it. Those of us who don’t, suffer the full wrath of the government because the majority of us are submitizens. Why should the government fear acting as if there were no Constitution, when it knows the submitizens will let them get away with it?
Second, if someone actually does resist and takes the issue to court, the court (which, incidentally, is still the government) simply redefines the term “search.” Somehow, someway, going through people’s things and making them empty their pockets is not a search.
This is okay, “Y” tells us. Y? Because we must have safety before we can have freedom.
But since we can never be safe, I guess what “Y” means is that we can never be free.