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A Message to Debaters from NCPA President John C. Goodman

This year’s debate topic is more interesting and more far-reaching than it might seem at first. It causes us to confront some very interesting issues in political science. It will introduce debaters to some new economic concepts which were largely inapplicable to the topics of the last several years. And for the first time in memory, it will introduce debaters to libertarian values on an issue that tends to pit people on the left and on the right against those in the center.

Competing Visions of Rights

What are rights? Where do they come from? Who possesses them? These are some of the questions that will arise in this year’s debates. Affirmative and negative teams are likely to provide different answers. The accompanying chart reveals two different approaches they may take.

Conflicting Visions of Right
  Classical Liberalism Conventionalism
What are rights? moral constraints conventions
Where do rights come from? nature, understood by reason agreements, historical accidents
Who has rights? individuals groups of people

Classical liberalism

Classical liberalism is the political philosophy most often identified with Thomas Jefferson. It finds its roots in the writings of the British philosopher John Locke. It finds expression in the Declaration of Independence. On this view rights come from nature. That is, they flow naturally from the essence of human beings and the nature of the world in which they live. These rights place moral constraints on how people deal with each other and these constraints exist even in a state of nature — before there is any government. Further, all rights are individual rights and all individuals have these rights. [See The Classical Liberal Concept of Individual Rights].

Conventionalism

Though not a popularly held view at the time of the Constitution’s drafting, an alternative view of the foundation of rights is that rights are conventions. That is, they are the result of agreements, accidents and historical happenstance. They do not come from nature and cannot be discovered by reason. Further, although rights may be very important, they are not grounded in fundamental moral obligations people have to each other. So there is no moral problem in changing the rights people have if changing circumstances seem to warrant it. Some conventionalists also reject the idea that the rights enshrined in the American system of government are individual rights. Instead, they are claims made by groups of people that are not necessarily applicable to other groups of people. For a summary of this view, see Barry Alan Shain’s Myth of American Individualism. [A summary of Shain’s book is forthcoming.]

Comparing the Visions

Most American history texts stress the classical liberal view of rights. This is appropriate, since classical liberalism was the dominant political philosophy of the 19th century and continues to influence political debates even today. However, Shain argues that most of the Founding Fathers did not hold this view.

Consider the often-repeated charge that the Founding Father were hypocrites for asserting that all individuals have rights and yet restricted the right to vote to white male property owners and denied it to blacks, women and non-property owners (to say nothing of native Americans). Or, in the context of the debate topic, the people who wrote in the Constitution that there is a right not to be searched, seized and detained were guilty of searching, seizing and detaining American Indians and African slaves. But these apparent inconsistencies arise only on an individualistic (classical liberal) view of rights. To conventionalist historians, the people who set up the American system of government did not believe that all people had equal rights. That was an idea that emerged later in the evolution of our political system.

One contemporary issue where the competing visions clash is over the second amendment guarantee of a right to keep and bear arms. Is this an individual right? Or is it a collective right? The National Rifle Association assets that this right is an individual right, possessed by everyone or at least all mentally competent adults. Advocates of gun control argue that it is a corporate or group right, and that we are entitled to restrain individuals through collective action. Both sides can point to historical documents to support their case.

Just as high school debaters will debate these issues today, the people who set up the American system of government debated them more than 200 years ago. Students may benefit from reading the text of some of those historical debates.

Debate strategy

Neither side needs to commit to any one view of rights. However, the affirmative will be obliged to argue that rights are important and that they should be respected and expanded. So the more thoroughly one can ground the case for rights (in tradition, culture, understanding of the Constitution, etc.) the easier the affirmative task will be. On the other hand, the conventionalist view makes the job easier for the negative. If rights are mere conventions then its relatively easy to argue that when circumstances change (rise of the Mafia, terrorists threats, new types of financial fraud, etc.) rights should change.

Rights Versus Efficient Government

The Founding Fathers wanted a government that would protect and defend the citizenry. Yet in pursing the goals of safety and security for the public at large, government is limited in what it can do by the existence of the individual rights it must respect. These rights not only limited the powers of government, they make it less efficient in carrying out its mission. What difference does this make?

Inefficient Government

The federal government as an institution is very inefficient. That’s not an accident. The founding fathers wanted it that way. For one thing, 200 years ago people didn’t expect that much from government. The average person could go weeks or months without ever encountering a federal government employee. For another thing, people probably feared the federal government more than they feared common criminals. So they created obstacles that made it difficult for the federal government to pursue criminals. Among such obstacles are the Fourth through Sixth Amendments to the Constitution.

The Constitution as a Source of Inefficiency

If you started a business and hoped to make a profit, you would never organize your business the way the federal government is organized. If you did that, you would probably be bankrupt in a few months. For starters, there are three branches of government – each empowered to create obstacles for the other two. Then, the very organization of the legislative branch is designed to thwart majority will. Tiny Delaware gets just as many votes in the Senate as the populous states of New York, Texas and California. And the Senate is positioned to block the will of the more majoritarian House.

The Bill of Rights itself creates a long list of rights that an accused criminal is entitled to – even if he is as guilty as sin. The defendants do not have to testify (a right defendants do not have in civil trials). They are entitled to a jury trial. They are entitled to a speedy trial (again a right not necessarily granted to civil defendants). They are protected against unreasonable search and seizure. They are protected against unreasonable detention. All these are rights people did not enjoy in the mother country ( England) and they make the job of law enforcement more difficult.

The founders did not create these rights because they wanted to abet crime. They created them because they feared abusive government and they wanted to curtail the government’s power to engage in abuse. Thus the Constitution arguably forces the federal government to be less efficient than it otherwise might be at pursuing criminals and deterring crime.

Legislation as a Source of Inefficiency

Constraints on government that result in inefficiency do not end with the Constitution. Many have been imposed by legislation. Again, the motive is the same: fear of concentration of power. For example, the Posse Comitias Act, passed more than one hundred years ago, forbids using the military to carry out police functions on U.S. soil. It’s no accident that the CIA is supposed to be restricted to foreign intelligence while the FBI tends to domestic concerns. Nor is it an accident that the FBI, CIA, NSA and military intelligence organizations are set up as independent intelligence gathering organizations that do not have to cooperate with each other (although changes are underway because of the threat of terrorism).

These are not the acts of lawmakers whose primary goal is efficient law enforcement. These are the acts of lawmakers who fear the concentration of power more than they fear excessive criminality.

Competing Models: Police Power v. Military Power

An important exception to the generalizations above is the power given to military commanders to execute war. A soldier can be tossed in the brig for insulting a superior officer, even in peace time; whereas no civilian can be jailed for insulting his Congressman or Senator. Although the constitution proscribes involuntary servitude, the courts have always allowed the government to conscript soldiers and not only force them to work, but also to risk their lives in the process. In general, a soldier has no right not to be searched or seized or detained by military commanders.

In short, the protections of the Bill of Rights are virtually nonexistent for members of the military, or to the extent they exist they are considerably more limited than they are for civilians. Why is that?

The obvious answer is that our founding fathers and subsequent members of Congress valued efficiency in defending the republic and keeping it safe (thus maintaining a political regime in which rights existed) more than they valued the individual liberties of the troops (even though the troops, until the Civil War, were volunteer citizen soldiers, raised as militias in the states). The same lawmakers who were willing to hobble and stymie the police powers of the state were unwilling to do the same to the nation’s military.

Strategies for Debaters

One way to think about this year’s debate topic is to see it as a clash between two different models for government action. The military model subordinates individual rights to the military’s need to defend the country efficiently. (Note: Extraterritorial adventures or aggressive beyond-continent wars or excursions were largely a late-19 th century innovation.) In the period since September 11, 2001, the U.S. government’s treatment of enemy combatants — especially its denial of the right to due process and willingness to allow indefinite detention — has been largely consistent with its treatment of soldiers under the military model. It is this model that the Affirmative will argue against. The police powers model restricts the powers of the state and forces it to act inefficiently by elevating concern for individual rights to a higher plane. It is this model that the Negative will be arguing against.

How one views terrorism is important here. Should terrorism primarily be viewed as a criminal act? If so, the police powers model would seem to be appropriate. Or should terrorism be viewed as an act of war? If the latter, the military model would seem to be more appropriate.

Economic Tradeoffs

At first glance it might seem that economics is as far afield as you can get from this year’s debate topic. But as Paul Rubin and Hugo Mialon show in the accompanying article, economic concepts lie at the core of the debate. In most debates, this year’s topic will pit individual rights to be free from unreasonable search, seizure and detainment against the desire to enhance security against terrorist and criminal threats. The key word is “unreasonable.” As elsewhere in the law, this term invites application of a balancing test – weighing one value against another. Or, in the language of economics, it calls for a comparison of costs and benefits.

Since economics is the science that studies tradeoffs, debaters will not spend too much time on this topic before they are steeped in economic concepts. For example, what are the benefits of extra security and what is the cost of that security in terms of foregone civil rights? Or, turning the question around: what are the benefits of extra liberty and what are costs of that liberty in terms of foregone security?

This notion of cost is what economists call “opportunity cost” because cost is always measured in terms of opportunities foregone. The classic economic illustration is the tradeoff between guns (defense) and butter (other consumption goods). The cost of more guns is the butter we have to give up in order to produce them. The cost of more butter are the guns we have to give up.

This same framework can be used to analyze the tradeoff between security and privacy. With the exception given below, for any given amount of privacy, there can be only so much security; and vice versa. In other words, we often can’t have more privacy without giving up some security; and we can’t have more security without giving up privacy. This idea is illustrated in Figure I, which also illustrates another important economic idea. As we move around the tradeoff curve, say, toward more and more privacy, the cost of each additional unit of privacy increases in terms of foregone security. Beginning at one axis, the first little bit of privacy does not cost very much. But by the time we reach other axis, the last little bit of privacy is very expensive. (See Figure II.) The principle also works in reverse: as we obtain more and more security, additional units of security become increasingly expensive in terms of foregone privacy. (These foregone opportunities are called “opportunity costs.”)

Rubin and Mialon show how this type of economic reasoning can be used to evaluate policies before and after 9/11. If we believe that before 9/11 society was making the right tradeoff between the value of security and the value of privacy, then after 9/11 we should be willing to sacrifice some privacy for some additional security. Why? Because the act of terrorism increased the value we place on security, whereas nothing has happened to change the value we place on privacy.

Another important economic idea is the concept of substitution. Blocked from achieving a goal in one way, people will turn to alternative, substitute ways. For example, the “exclusionary principle” holds that evidence obtained illegally (violating the Fourth Amendment) cannot be used in court. The effect of this principle is not that a lot of evidence is thrown out of court. The effect is to force law enforcement agencies to turn to alternative, substitute methods of gathering evidence.

Yet Rubin and Mialon argue that these substitute methods are less efficient and as a result, the institution of the exclusionary principle has apparently resulted in less crime deterrence and therefore more crime (see “The Economic Approach to Civil Liberties”).

Here is where economics and politics intersect to create opportunities for debaters, especially on the negative side, although the line of argument needs to be thought through carefully. Rubin and Mialon argue, consistent with the previous section, that a lot of the constraints we impose on government cause it to act in inefficient ways. In terms of our diagram (see Figure III), instead of being on the tradeoff curve, we are inside the curve. Being inside the curve means there is an opportunity to rearrange things and move to the curve – thus having more security and more privacy at the same time.

For example, Rubin and Mialon have shown that relaxing the restrictions on search and seizure can actually reduce the need to search and seize in the first place. How? If the government makes search and seizure easier, law enforcement will be able to catch and arrest more criminals. The more evidence the police seize, the easier it will be to convict and the more criminals will end up in jail. Fewer criminals on the streets means a fall in the crime rate. And since the amount of resources that society (or an individual police department) spends on fighting crime is a function of how much crime there is, less crime would mean less demand for police searches. As a result, making it easier for the police to search and seize might lead to the ironic result that there are ultimately fewer searches and fewer seizures – and hence more privacy.

Similarly, giving the police greater power to detain might increase their efficiency at getting criminal types off the street. With fewer crimes there would be less need for detainment. So making it easier for the police to detain suspects might lead to less total detention overall.

Note: These are not necessarily likely or expected results. But debaters may be able to convincingly argue that more police powers do not necessarily reduce overall privacy or increase overall searches and detentions.

The Libertarian Political Philosophy

Most debate resolutions tend to pit liberals against conservatives. This year is different. Libertarians on the right and civil libertarians on the left see virtually eye-to-eye on the Patriot Act. They’re against it. Defenders of the Patriot Act tend to be people in the middle of the ideological spectrum, including a lot of traditional liberals and conservatives.

What Is Libertarianism?

Prior to the 20th century, libertarianism – or classical liberalism – was the dominant political philosophy in the United States. It was the political philosophy of Thomas Jefferson and the signers of the Declaration of Independence. Many of the emancipationists who opposed slavery were essentially libertarians. The suffragettes who fought for equal rights for women were libertarians. Without this libertarian tradition, there would have been no Bill of Rights. Without this tradition, we would not be debating the Patriot Act today.

Basically, libertarianism is the belief in liberty. Even today, one of the clearest statements of this philosophy is found in Jefferson’s Declaration of Independence. At that time, as is the case today, most people believed that rights came from government. People thought they only had such rights as government elected to give them. But following the British philosopher John Locke, Jefferson argued that it’s the other way around. People have rights apart from government, as part of their nature. Further, people can form governments and dissolve them. The only legitimate purpose of government is to protect these rights.

How Do the Left and Right View Libertarianism?

People on the right who today call themselves libertarians or classical liberals tend to have the basic view of rights and role of government that Jefferson and his contemporaries had. Moreover, they do not tend to make any important distinction between economic liberties and civil liberties.

On the left of the political spectrum, things are more complicated. The major difference between 19th century liberals and 20th century liberals is that the former believed in economic liberties and the latter did not. Twentieth century liberals believed that it is not a violation of any fundamental right for government to regulate where people work, when they work, the wages they work for, what they can buy, what they can sell, the price they can sell it for, etc. In the economic sphere, then, almost anything goes.

At the same time, 20th century liberals continued to be influenced by the 19th century liberalism’s belief in and respect for civil liberties. In fact, as the last century progressed, liberal support for civil liberties grew and groups like the American Civil Liberties Union (ACLU) began to proudly claim the label “civil libertarian.” Since liberalism was the dominant twentieth century ideology, public policy tended to reflect its beliefs. By the end of the century, people had far fewer economic rights than they had at the beginning. But they had more civil rights.

How Libertarians View Rights

To Thomas Jefferson, it was self-evident that people had rights and that they were important. Many modern libertarians argue that liberty is a prima facie good – in other words, liberty is presumed to be good, and restrictions on liberty are presumed to be bad and those proposing to restrict liberty have the burden of showing that such restrictions are justified.1 Most libertarians do not believe the Constitution is a suicide pact. They are willing to accept some limitation on liberties if they are needed in the face of a greater threat. But claims that rights need to be curtailed because of a foreign threat should be viewed with skepticism and demands that the claims be backed by rational argument, strong evidence and proof.

1 A number of contemporary scholars have gone to great lengths to provide defenses of or argument for rights, rather than treating rights or liberty as fundamental and not needing justification. See, for example, Robert Nozick, Anarchy, State and Utopia (New York., N.Y.: Basic Books, 1974); A. John Simmons, The Lockean Theory of Rights (Princeton, N.J.: Princeton University Press, 1992); Ellen Frankel Paul, Property Rights and Eminent Domain (Somerset, N.J.: Transaction Publishers, 1987); Tibor R. Machan, Individuals and Their Rights ( Peru , Illinois : Open Court Pub. Co., 1989).