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Situational Libertarianism
Posted by: Dale Franks on Friday, August 12, 2005

Charles Krauthammer has worked up an idea he calls "situational libertarianism".
Liberties should be as unlimited as possible—unless and until there arises a real threat to the open society. Neo-Nazis are pathetic losers. Why curtail civil liberties to stop them? But when a real threat—such as jihadism—arises, a liberal democratic society must deploy every resource, including the repressive powers of the state, to deter and defeat those who would abolish liberal democracy.

Civil libertarians go crazy when you make this argument. Beware the slippery slope, they warn. You start with a snoop in a library, and you end up with Big Brother in your living room.

The problem with this argument is that it is refuted by American history. There is no slippery slope, only a shifting line between liberty and security that responds to existential threats.

During the Civil War, Abraham Lincoln went so far as to suspend habeas corpus. When the war ended, America returned to its previous openness. During World War II, Franklin Roosevelt interned an entire ethnic group. His policies were soon rescinded (later apologized for) and shortly afterward America embarked on a period of unprecedented expansion of civil rights. Similarly, the Vietnam-era abuses of presidential power were later exposed and undone by Congress.

Our history is clear. We have not slid inexorably toward police power. We have fluctuated between more and less openness depending on need and%
I'm not sure about the last paragraph, actually. A country that has reached point where it's jailing immigrants for selling a legal product seems pretty far down the road of expansive police power to me.

That aside, though, he's right. As a former Supreme Court justice famously noted, "The Constitution is not a suicide pact." We are not obligated to turn the keys to the country over to a vocal minority that is willing to use violence and intimidation to overthrow democratic governance. Yes, slippery slope arguments have some relevance, but that means that we have to guard the slope. Letting the avowed enemies of consensual government win through principled inaction would eventually mean that there's no slope to guard at all.
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Previous Comments to this Post 

The examples Krauthammer cites undermine rather than support his points. In both the Civil War and WWII the very existance of the nation was endangered. As bad as they are, there is simply no possible way Islamic terrorists are a threat to the existence of this nation. It is not possible.

The problem with Krauthammer and his ilk is that they are unable to observe the foregoing distinction. They see Islamic terrorists as being in the same league as the Axis or the Confederacy. They aren’t. The real problem is that Krauthammer and his ilk want to use the War on Terror as a means to further their authortarian/right-wing agenda. That’s why he compares the War on Terror to WWII and the Civil War. Not because the comparison is apt, but because it serves his political purposes. The same could be said of Bush himself.

The better comparison would be to compare the War on Terror with the rise of anarchism around the turn of the last century. But of course, that wouldn’t further Krauthammer’s agenda.

No - the Constitution is not a suicide pact. But it is telling you use that quote, because it shows you either have fallen into Krauthammner’s trap, or share his agenda. Suicide is death. But the terrorists can’t kill this country. But mass hysteria in the face of a relatively minor threat just might.

Written By: mkultra
URL: http://
But mass hysteria in the face of a relatively minor threat just might.
Relatively minor threat? Damn MK - just damn.

Tell that to them -
Written By: meagain
URL: http://
The better comparison would be to compare the War on Terror with the rise of anarchism around the turn of the last century.
Wow. I’d like to see you back that up with a few more facts. How many events/murders were committed in the name of anarchism? How many people were involved in the movement? Was the movement backed by foreign powers? How many millions of people gave their support to this movement?

As I recommend so many times...your comments would be taken a lot more seriously if you would back them up once in a while.

Written By: JWG
URL: http://
Terrorists can’t kill this country...

A couple of well placed nukes could very well send this country into a death spin.

They aren’t up to the same level of the Axis, or Confederacy, YET.

We must pursue them vigoursly now, before they can grow to a threat of that size.

And their tactics aren’t the same as the Axis or Confederacy either. Suicide bombers in trains, planes, and malls.

I suppose one could shrug and say that’s the cost of living in a free society.
Written By: Keith, Indy
URL: http://

First, the confidence that they could not destroy this nation assumes rather a lot. If you mean tomorrow, you are probably correct. 10-20 years from now? Unlikely, but all threats we have faced were unlikely 10-20 years out. Nazi Germany certainly didn’t seem so big a threat even after WWII started. Evil, yes. Capable of conquering continental Europe, much less the world? Hardly. The fall of France was an upset mk, upsets happen, often we find out later it wasn’t such an upset after all. Neither you nor I know what capabilities the various fascist states and movements might have 10 or 20 years from now. History teaches us though, that militarily expansive and aggressive fascism has to be fought some time, if not now, later. I’ll pick now while they still seem incapable of destroying this nation.

More importantly if we are concerned about now, why is Islamo fascism less of a threat to our nation proper than Nazi Germany around WWII? I would suggest that at the time Nazi Germany could have won WWII and for a damn long time would have had less capability of striking our home continent than who we are fighting today.

Pity the poor Europeans, but we probably could have sued for peace and Hitler would have been just fine with an empire stretching from the Atlantic to the Urals and South to the Sahara. What that would have meant for the rest of the world is rather disturbing, but heck, no reason to spill even a few thousand of our troops blood by todays standards. Of course, the Middle East already is ruled by fascists and it doesn’t seem to bother you all that much, so I don’t see why deferring to fascists in Europe, North Africa, and the Middle East would have bothered you at all in the 1940’s. Or is it that freeing people from fascism is only worthwhile for Europeans? Hitler was grotesque, but he certainly didn’t hate jews any more than our current foes. Not to mention that our current enemies have an even more grandiose desire for Empire than Hitler, which is really saying something.

What it seems to boil down to for you is that they don’t have large armies capable of invading us today. Germany didn’t either and had fewer options to hit us in any other way than Bin Laden. Hitler couldn’t have done what was done on 9/11. Something which was tried before, and the only reason it wasn’t successful was they screwed up. The act was the same however, and Saddam was involved in that, though possibly only after the fact. We hate Bin Laden for 9/11, why not hate Saddam just as much for helping the first attempt just because it was a failure? The act was just as heinous. The fascists might be fragmented now, but they will not necessarily stay that way, your blitheful assurances notwithstanding. They were already acting in concert far more than you seem willing to accept.
Written By: Lance
URL: http://
I think the system set down in the constitutions in fact works rather well. The Congress can impose harsh laws that violate civil liberties and the constitution in a time of crises. Any law the Congress passes and the President signs is valid *until* the Supreme Court overturns it. The normal Supreme Court process is slow, allowing those laws to be in effect for a year or two in the usual course of events, perhaps longer if the crises overwhelms us. Eventually, the Supreme Court restores our civil liberties without any change in the balance of power of the branches of government.

Any time you grant too much power to part of the overnment, you risk not being able to get it back. But the system we have doesn’t need some dangerous exception for crises - the exception is built right in, and is very safe, because the Supreme Court is still, well, supreme.

And lets face it, in a time of crisis, people feel a strong need for changes that seem to make them safer, and any system of representive government is going to respond with some kneejerk sillyness that is comforting (if not effective). There’s no getting around that, so you need a system that fixes the laws that cross the line, but after a while, so that people feel safe while they’re vulnerable.
Written By: Skorj
URL: http://
I agree with krauthammer. I dont see any big abuse of civil liberties so far (at least not near as bad as those occuring from the war on drugs).
Written By: kyle
URL: http://
Interesting. I was thinking about the same issue (among others) when I posted this short essay about slippery slopes.
Written By: Chief Muser
The problem with "situational libertarianism" is that there’s no truly reliable way of shoving back the government encroachment that was justified by the previous threat. Other than the from-internment-to-desegregation part, the examples that Krauthammer cites we pretty much lucked into.

It’s not to say that there’s a true slippery slope, but it’s too much of a risk to count on chance alone to reestablish freedom, and I don’t think the populace has the patience to rise up in the tide of anger necessary to get back to normal on such a regular basis. On top of that, our conflicts have been getting more complex over time to where we really don’t know when it will be "over", or if it’s even possible for it to end, so the excuses may go on forever...

Written By: b-psycho

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