Judge Posner's latest post at Prof. Leit'ers blog reminded me of an old post:
The Fallacy of Freedom vs. Safety
Whenever I discuss civil liberties with almost anyone, the following exchange is bound to occur:
Me: I dislike X-law because it takes away my right to-Y.
Them: Well, you have to balance freedom and safety.
I have always been bothered by the freedom-safety dichotomy. Benjamin Franklin's retort that the person who would surrender freedom for perceived safety deserves neither did not lessen my anguish. My mind rebelled against the dichotomy, though I could not explain why - until now.
When we say that one must balance freedom and safety, we presuppose that surrendering civil rights makes us safer. In other words, giving more power - power in the form of not having rights restrain governmental action - to the government will lead to safety. Now, I have seen state action that turned my stomach. I have worked on cases where mentally ill people were entrapped into taking actions the criminality of which they did not appreciate. I worked on a Section 1983 action where a social worker threatened to take custody away from a mother if she refused to cooperate with an unjust prosecution against her husband. But no matter how many examples of government misconduct I cite, people continually rely on the freedom-safety dichotomy.
Ultimately, though, the freedom vs. safety debate arises only in the criminal context. We all believe that when persons suspected of crimes have less rights, we are safer. But almost all of us are enraged when Congress or the states regulate speech or deny us the right to vote. Almost none would argue that you have to balance the freedom of speech or right to vote with safety, even though bad ideas can corrupt a nation. Bad political leaders can ruin our economy and start wars. We will stack more dead bodies under a wicked President than we would by putting a gun in the hand of any mugger. But no one argues that we need to restrain freedom of speech or the right to vote in the name of safety.
Indeed, about half of us would balk at a Congress seeking to take away gun rights or deny a woman access to abortion clinics. To an opponent of gun control (which includes many people antagonistic to basic criminal rights), it is an unsatisfactory answer to tell them we must balance the freedom to own guns with the need to remain safe from unlawful uses of guns. Gun owners say, "But the Constitution protects our right to keep and bear arms!"
If I told a woman we must balance her freedom to have an abortion with the need for safety - since abortion teaches us to devalue personal responsibility - she would say, "I have the right to control my body!" And so, people who support gun control or oppose abortion do not use the freedom-safety dichotomy. Why is that?
I believe that underlying this bias against the Fourth, Fifth, and Sixth Amendments (Criminal Defense Clauses) is the belief that none of us will ever be charged with a crime. That is why most of us do not care about the rights of persons charged with crimes. Because, frankly, it will never happen to me. But when a criminal prosecution happens, the defendant changes his tune.
I have worked on many criminal cases for the defense. No one - not even the staunchest law and order person - was willing to give up her rights. Indeed, I would blissfully listen while these people - who never in their lives cared about the rights of our other clients - lectured me on the Constitution. [My boss would with joy collect the large fees paid for the protection and vindication of these rights.] Suddenly, they cared. Even George W. Bush, whose would so willingly deny the right to counsel to others, retained a first-class lawyer when his toes were in warm water.
I conclude that the freedom vs. safety dichotomy is fallacious since it presupposes the premise that more power in the hands of government leads to more safety. However, even if we falsify this smuggled premise, the balancing test applied is still accpetable for most people since even a complete repealing of the Criminal Defense Clauses would not harm them. Unjust prosecutions happen, but most people will never be mugged by the state.
Disavowing the rights of criminal defendants on the ground that these rights so important to them will never be relevant to you, is immoral. Those who would allow the government to unconstitutionally abrogate the rights the rights of others but jealously guard their own deserve neither freedom nor safety.