On liberty: man v. the state

Mayer looks at the historical conflict between government and liberty, and at the various philosophical, legal, and revolutionary methods people have devised to resolve it. He concludes that all of these have been incoherent and self-contradictory. The liberal ideal of a state that operates only within strict restraints, with the consent of the governed, and with a goal of maximizing and defending individual liberty is a pipe dream — and its most famous proponents end up unwittingly reducing our options to tyranny or anarchy.

He gives a number of examples from the United States in which “inalienable” rights found themselves alienated without much trouble, and in which the state discovered reasons why, on one occasion after another, it would have to reach just a little bit further beyond the carefully enumerated powers of the Constitution and into the carefully guarded Rights in the Bill of. Here’s a great example that almost reads like it comes out of today’s headlines:

…Attorney General John Mitchell revealed that the FBI had ignored the Congressional requirement of a court order to listen in on the conversation of youth leaders indicted for allegedly inciting riots at the Democratic National Convention of 1968 — and would go on doing so. “While it may be appropriate,” said Mr. Mitchell, “for Congress to establish rules limiting the investigative techniques which the Executive may employ in enforcing the laws the Congress has enacted, a serious question exists as to the power to restrict the President’s power to gather information which he deems necessary to the proper exercise of powers which the Constitution confers on him alone. If the Congress cannot tell the President whom he should employ to direct the Army, there is a strong basis to argue that Congress cannot tell the President what means he may employ to obtain information which he needs to determine the proper deployment of his forces … The President… has the constitutional power to authorize electronic surveillance to gather intelligence information concerning domestic organizations which seek to attack and subvert the Government by unlawful means.”

The various lines in the sand beyond which an individual, a conscience, and the home that is their castle may not be invaded by the state — whether in the rigorous formulations of political philosophers or in the legal scaffoldings of Supreme Court justices — Mayer shows to be easily wiped away by the next wave.

Does Mayer have any better ideas? “The problem may be insoluble,” he says near the beginning of the book, “which is not to say that it is a dead horse that will bear no beating.” At the end of many pages of beating, though, the horse doesn’t appear to have moved much, and although he starts by saying that “to rest on the proposition that the central problem of political life — the problem that is politics — is insoluble is to accept the counsel of despair” he ends on what seems to me, by this criterion, to be a despairing note:

“The immediate issue is not whether the problem of liberty and authority is soluble. Nor is it whether we are condemned to go on crying, ‘Liberty,‘ without knowing what we are crying. The immediate issue is whether we have any ground for asserting the problem’s solubility (or insolubility) without consciously confronting the problem; the question is whether we are manipulating it for purposes of propaganda, deceit, and self-deceit.”