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Libertarian Panics

A former law professor of mine, Adrian Vermeule, has a new paper on “Libertarian Panics.” He offers the term in contrast to “security panics”–episodes in American history where a frightened populace supports unjustified crackdowns on civil liberties. As Vermeule explains, in the “standard model” these security panics recur periodically because of cognitive flaws in the way we assess risk. For example, we’re more likely to overestimate the prevalence of risks that are highly visible. Your kid may be far more likely to be hit by a car walking to school than get killed by a rampaging classmate, but given Columbine and what just happened in Minnesota, you probably spend more time worrying about guns in school. Similarly, it’s hard to imagine anything more “visible” than September 11th or Pearl Harbor, and the resulting fear can lead to reactions disproportionate to the threat.

But, says Vermeule, that cuts both ways. As he puts it, “panicked crowds may run in any direction.” There’s no reason to think that the mechanisms that lead us to panic about security threats can’t also lead us to panic about “jackbooted thugs.” The same biases and cognitive flaws that make Americans hysterical about the risk of terror can also make us hysterical about the risks of government abuse. If Pearl Harbor was highly visible, so too was Japanese Internment, the result of the security panic caused by “the day that will live in infamy.” Michelle Malkin aside, internment has formed part of a historical narrative that leads us to fear unjustified government crackdowns on civil liberties. The visibility of such examples may lead us to overreact to liberty threats from government in the same way we might overreact to terrorist threats to security.

And that’s just what’s happened, says Vermeule: “Libertarian panics have been a regular occurrence in American history[.]”

It’s a plausible enough claim in the abstract, but when we get to the section entitled “Libertarian Panics in America,” there’s very little there there. That section consists of two examples, the American Revolution and the Patriot Act.

Funny as it may sound, he has a point on the first. Anybody who’s read The Ideological Origins of the American Revolution is struck by how thoroughly convinced the American Revolutionaries were that the British government wasn’t just trying to recoup revenue spent fighting the French and Indian War–it was trying to reduce the colonies to slavery. Much as I love the men who pledged their lives, fortunes, and sacred honor to the cause of American Independence, they weren’t exactly reasonable people. Their behavior could have served as the first chapter in the Paranoid Style in American Politics.

The second example Professor Vermeule uses is the Patriot Act. I’m no expert on the Patriot Act, but I find his account of what it does pretty tendentious. To take one example, he writes:

Second, consider Section 215 of the Act, which allows courts to issue subpoenas for business records in national security investigations. Many have denounced the provision as a mechanism of governmental oppression. Yet the provision codifies a power that grand juries (typically dominated by prosecutors) have long exercised without judicial oversight. Measured from that baseline, as opposed to some imaginary libertarian one, the addition of judicial subpoenas looks no worse and possibly better, from the point of view of targets and defendants.

But isn’t it a signal difference that, under the Patriot Act, you might never know whether a third party has been forced to disclose business records, medical records, or other personal information about you? As Dahlia Lithwick notes:

Downplaying the extent of these changes, the DOJ argued to Congress that 215 is no big deal, since grand juries could always subpoena private records in the past. The difference they don’t acknowledge is that investigators may now do so secretly, and these orders cannot be contested in court.

Lithwick asks: “Would you know if Section 215 had been used on you? Nope. The person made to turn over the records is gagged and cannot disclose the search to anyone.”

I’m not one to get hysterical over the Patriot Act. I’ve barely blogged about it, being more concerned with enemy combatant detention of American citizens, which many people wrongly associate with the act. The clever acronym has led to an Orwellian backfire. Very few people have any idea what’s in it, but they’re creeped out by the name. However, if I had to bet, I’d put money on its renewal.

But by far the limpest part of Vermeule’s argument is his discussion of “cost-externalization.” As he explains,

The literature on security panics often runs together the diagnosis of panic with a different idea: that democratic majorities will sacrifice the civil liberties of outsider groups–foreigners, resident noncitizens, illegal immigrants, and so on–in the interest of
maximizing the majority’s security. This idea strictly speaking has nothing to do with panic. On the picture sketched by these accounts, a rational, albeit self-interested, democratic majority would sacrifice the civil liberties of outsider groups just because the
majority captures the security gains while shunting the costs of its illiberal policies onto others.

But here again, Vermuele points out, this cuts both ways. Those with an overprotective attitude toward civil liberties might structure things so as to impose the costs of those liberties on others in the form of increased security risks. Vermeule writes:

it is quite possible that democratic majorities will externalize the costs of liberty onto minority and outsider groups, purchasing too little security because majorities do not bear the costs of insecurity.

Here’s his example:

the red-state voters who supported the Republican party in 2000 and 2004 might cause the national political process to provide too much liberty and inadequate security for blue-state urban centers.

The footnote to that passage cites a bunch of articles about how federal homeland security aid is going to Alaska, Wyoming, and suchlike states in greater proportions than it should if the risk of terrorist attacks was the guiding factor:

Dean E. Murphy, Security Grants Still Streaming to Rural States, NY TIMES A1 (October 12, 2004); Keven Diaz, Pork-barrel security; Federal money to protect Americans from terrorism may not be going to states that need it the most. Formulas and politics are behind the disparities, STAR TRIBUNE (Minneapolis-St. Paul) 1A, (September 11, 2004); Elizabeth Shogren, More Federal Aid Sought for Cities at Risk of Attack; Under the current rules, a large chunk of such funds goes to less vulnerable areas. Efforts to redirect money have stalled in Congress, L.A. TIMES A21, (August 10, 2004).

But what in the world does this have to do with libertarian “cost-externalization”? It’s typical porkbarrel politics. Vermuele may have noticed that New York and D.C. are “blue zones” that align themselves overwhelmingly with the political party currently (opportunistically) opposed to civil liberties crackdowns. He complains about communities passing resolutions against Patriot while failing to notice that New York and D.C. are two of those communities.

To recap: Vermuele suggests we should be concerned about civil-libertarian overreaction to perceived government abuses. Such overreaction, he claims, can lead a panicked citizenry to favor liberty over security. His two primary examples are the American Founding (a good thing, no?) and a law that got passed in the midst of a security panic, and that is likely to be renewed.

I’m not impressed. If he can come up with examples of this magnitude, I might be. Until then, don’t panic about libertarian panics.

03/22/2005 | Uncategorized | 7 Comments

How Do You Beat a Cliche? With Another Cliche.

My co-blogger Chris likes this piece from U of C Law Profs Vermeule and Posner Jr. I found it unimpressive, question-begging, and dull. It takes aim at the “…the terrorists win” cliche, but all it has to offer in response is a more prolix version of the “Constitution is not a suicide pact” cliche, which has become a sort of “tell it to the hand” of constitutional debate. Fine, the Constitution is not a suicide pact. But the person wielding that cliche like a trump card needs to then go on and explain how holding on to whatever liberty is currently in the crosshairs amounts to “suicide”–or at least presents unacceptable risks. The VP piece, in contrast, seems to rest on the unsupported notion that, if a terrorist bomb goes off anywhere in the West somewhere, somehow, some civil liberty is to blame. Thus framed, you can build a sober, responsible, grown-up case for any liberty-restricting policy you please, whether it’s administrative search warrants or gun registration.

I criticized Vermeule’s article on “Libertarian Panics” here.

08/09/2005 | Uncategorized | 4 Comments