The hallmark of a free society is a rule of law that limits the discretion of public officials to violate individual rights. A constitutional democracy is one where the government is subject to legal limits, a respect for what legal philosopher Lon Fuller once called an “inner morality of law” that recognizes not simply formal procedural regularity but what political theorist David Dyzenhaus calls a substantive respect for freedom. Nazi Germany may have had procedural regularity, but it lacked the real respect for rights.
Yes, public officials need discretion to make choices, but those choices cannot be made with unbridled authority. To a large extent this was the criticism of the American colonies when they asserted their independence from England in 1776. The Declaration of Independence catalogs a list of grievances and abuses of rights by King George III, including a failure to respect “laws for establishing judiciary powers.” There needs to be a balance established with the law, as publicly debated, defining the scope of discretion that public officials may exercise.
The American constitutional system was a reaction to the abuses by the King. It places both procedural and substantive limits on what the government can do. The Due Process and Equal Protection clauses are there to prevent arbitrary and capricious decisions and to ensure that every person is treated the same. The Bill of Rights places a substantive limit on what the government can do to people (may not abridge freedom of speech), and it demands, as stated in the Fourth Amendment, that the government needs to have particularized suspicion to search, detain, or arrest individuals. One cannot have a Captain Louis Renault (from the movie Casablanca) “round up the usual suspects’ approach to investigating crimes.
But to many, 9-11 changed many things, including government respect for constitutional limits on its powers when it comes to respect for individual rights. It began with the Bush administration and continues under Obama. Recent revelations of the NSA surveillance programs tracking telephone numbers and Internet data, along with the US Postal service photographing each piece of mail smack too much of an Orwellian Big Brother. These actions are taking place without warrants, or with warrants issued in secret court hearings by a tribunal that rarely denies a government request.
This news comes on top of what we have known for years that the federal government, dating back to the Bush Administration, has been monitoring phone calls, that America citizens along with foreign nationals were held in Guantanamo Bay, or rendered to secret CIA facilities abroad and tortured, force-fed, and often detained for years without access to legal counsel or opportunity to appear before a judge. Or that the president now asserts the right to use drones to kill Americans abroad suspected of being terrorists, without respect for due process or proof of guilt.
The justification for all this is national security. Perhaps we are a safer nation for all this but we do not know. It is the same government officials whom the law is supposed to restrain who are making the case for why their actions are justified. We are asked by Obama and the NSA to trust the government, or to accept that the ends justify the means, but how are we to judge whether these actions are justified if we don't even know about them unless individuals such as Snowden leak or whistle blow?
This is not what a democratic government is supposed to do. Decisions about use of government authority to maintain national security should be debated in an open and transparent fashion. The government should be required, in an open court and subject to public scrutiny, to justify why it needs to monitor communications among its citizens, demonstrating that it has met the constitutional burden of particularized suspicion. This is what Americans fought a war of independence for, and it is supposedly what separates the United States from undemocratic countries. Limiting discretion to protect rights is what the law is supposed to do, it is why the law matters.
Some quick thoughts on a few other items in the news.
1. Obama and his own Democrats seem to be parting company. Most Democrats seem skeptical of the NSA spying program and they also prefer Janet Yellen to Larry Summers. It seems interesting that so early in Obama’s second term that members of his own party in Congress perceive their political interests to be increasing distinct from that of the president.
2. Municipal power for Minneapolis? There is a powerful case for a municipal utility. Generally they have lower rates than investor-owner ones. But this is not the only argument that supporters should give. They need to push the arguments for how public utilities have incentives to encourage alternative energy sources and decreased usage. Moreover, supporters need to do a better job in arguing how a public facility can do a better job with maintenance, repairs, and emergencies. In the short term Xcel Energy may have the upper hand here. Overall, the case needs to be made to show how replacing a public monopoly with a private one will be better. Perhaps two ideas going forward should be considered. First, how about competition between public and a municipal utility? Second, how about a jointly operated Minneapolis-St Paul municipal power plant? It would be able to achieve economies of scale that one city could not.
3. Julianne Ortman for Senate? It will be a tough road for her to beat Franken. He has money and good approval ratings and a national base to support him. The RNC does not perceive him as easy a win as picking up other Democratic Senate seats across the USA. Also, what is Ortman’s narrative to victory?
4. Same-sex marriage legal in Minnesota. Opponents vow to target legislators who supported it and repeal the law. The best thing to happen to the GOP was to legalize same-sex marriage. It is now behind them and they can concentrate on other messages, if they can find one besides being against everything.
5. Finally, the other day I received a Facebook friend request from a person I did not know. Her profile said that she was “religiously conservative and worried that the country had lost God we were on the wrong track.” I thought about it for a moment and thought about what she meant? Did she mean the country was on the right track when we had slavery? When we persecuted gays and lesbians? When we discriminated against women? Or when we were in the middle of the Cold War? Or did she mean we needed to get back to an America that busted unions, denied help to the poor, and persecuted those who dissented or took unorthodox political positions?
Bob Dylan once wrote a song about those who spoke of God on their side. I am not always sure that America was going in the right direction even when we did have God.