The 1% solution and the marginalization of civil liberties

Sandy Levinson

An article in today's New York Times by a British writer, Christopher Caldwell, is, I suspect, symptomatic of the declining support for civil liberties even among elites. The key part of his article comes toward the end: "Blair’s opponents equate today’s civil liberties protections with core British values." Caldwell appears to believe that they are best conceived only as "temporary adjustments that were useful under certain specific circumstances in part of Europe between World War II and the late 20th century.

"Even before Sept. 11, social critics noted that our culture has tended to mistake relatively ephemeral 20th-century phenomena for eternal truths. " Caldwell offers an analogy to modernism in art, borrowed from the writings of art historian T.J. Clark. "Modernism, after all, was presented to every educated Westerner born after 1930 as a new canon that would permanently overshadow the old one. But one could infer from Clark’s reading that, after the fall of the Berlin Wall, much of 20th-century art and culture would be revealed as a timebound fad, albeit a big and influential one. As indeed it was. "

"Some of Britain’s Muslim leaders may also be susceptible to this mistake. Muslims have, after all, been present in Europe en masse for only a very few decades. Many community leaders have rightly understood that contemporary Britain’s commitment to multiculturalism and tolerance hardly amounts to a license of lawlessness. But not all. The sharp-tongued chairman of the Birmingham Central Mosque, Mohammad Naseem, greeted the worries about the potential mass murder of flying civilians with a cavalierness almost unbelievable under the circumstances. “With the track record of the police,” Naseem told The Guardian, “one doesn’t have much faith in the basis on which people are detained. And it poses the question whether the arrests are part of a political objective, by using Muslims as a target, using the perception of terrorism to usurp all our civil liberties and get more and more control while moving towards a totalitarian state.” Until five years ago, this kind of talk might have won him a few allies, as well as enemies. Now it is hard even to understand. If Naseem thinks that the rights of defendants are a cause around which 21st-century Britons will rally, he is making a minor misjudgment. If he thinks that the Britain he is addressing is the same Britain that existed from the 1940’s until a few years ago, eager to build bridges between communities and classes, no matter the cost, he is making a major one."

Perhaps one should commend the Times for opening its pages to all points of view. But Caldwell is not contributing the equivalent of an op-ed. He is a "contributing editor" of the Times Magazine, and one presumes that he is viewed as someone whose perceptions about politics should be taken with due seriousness. So the bottom line is whether Caldwell would just as easily condemn Judge Taylor and Laurence Tribe for believing that 21st century Americans should really care about rights of defendants and/or people suspected of complicity with terror. But we should ask ourselves what the right language of response is to Caldwell. Do we make arguments along the lines that we have to bear certain risks (including increasing the probability of serious terrorist incidents) in order to maintain a free society? Or do we say that respecting civil liberties does not in fact increase such risks? Is the latter argument really plausible? (Isn't it like arguing that criminals do not in fact ever go free (merely) because the constable blundered, to quote Cardozo's critique of exclusionary rules?) If we must address the former argument, how do we frankly confront what level of risk is worth running? (Regular readers of Balkinization will recognize the structural similarity of the argument to the debate about torture and whether there are ever any costs (as well as obvious moral gains) to an absolute prohibition on torture.)

This, then, brings me to my title and its reference to the 1% solution, which has gained currency because of its use--and implicit criticism--in Ron Suskind's recent book about the "Cheney doctrine," which is that we must engage in pre-emptive attacks whenever there is a 1% risk of something truly untoward happening. Many of Cheney's critics attacked that notion because of the way it leads to a paranoid form of politics. But don't we all engage in such analysis, depending on the magnitude of the risks involved? Lawyers in the audience will recognize this as the question posed by Learned Hand in his opinion in the Dennis case, in which he reconfigured the "clear and present danger" test to include a multiplication of the probability p by the gravity g of the risk. Obviously, if g approaches infinity, then the weighted number is very high even if p is quite low, including only 1%.

As Cass Sunstein and others have pointed out, many environmentalists, writing about global warming, embrace the "precautionary principle," which suggests that quite drastic action be taken even if there is only a relatively low risk of, say, rising ocean levels and the like. The strong appeal of Al Gore's movie, which I was much impressed by, ultimately rests on a version of the "1% solutioin."

So, returning to Caldwell, how do we decide what incursions on our liberties are worth paying, given very low p's but quite high g's? And how do we weigh in our analyses the costs c to individuals whose liberties are being infringed? Consider the triviality of no longer being able to bring toothpaste onto airplanes in carryons. For many, including myself, this is a considerable inconvenience that imposes considerable costs on each and every traveller in terms of time spent either checking (and then waiting around for) one's bag or having to purchase toothpaste whenever one arrives at one's destination. Presumably we accept the inconvenience because the cost to the "innocent" individual is very low. But what if c is considerably higher, involving deprivation of liberty for, say, 28 days, without a lawyer and confronting police interrogation? And so on. Caldwell apparently believes that the gravity of a blown-up plane is sufficiently close to, say, a Nazi takeover of Europe so that it justifies a similar decline in respect for civil liberties. Is he correct? As Bruce Ackerman argues in his new book, no one can seriously argue that al Qaeda is trying to displace the US government. But is an attempt functionally to shut down much of American society as we ordinary conceive it, including readily available air travel, to be dismissed "merely' because bin Laden is making no effort to march onto Washington and take over the White House?

I ask these as genuine questions. They are obviously linked to the rise of the National Surveillance State about which Jack and I have begun writing. How is what Foucault called the "gaze" of the state being "renormalized" to make decidedly "old-fashioned" the kind of respect for civil liberties, including the necessity for a decisive congressional role in their diminution, displayed in Judge Taylor's opinioni and Professor Tribe's defense?

A final analogy: Frank Michelman's perhaps best known article is his 1968 piece in the Harvard Law Review "Protecting the Poor Through the Fourteenth Amendment," in which he set out the basic arguments for "constitutionalizing" the welfare state. Cass Sunstein has recently argued that if Hubert Humphrey had won the 1968 election, then it is altogether possible that Michelman's vision (and FDR's call for a "Second Bill of Rights in 1944) would have been realized with the replacement of Warren, Fortas, Harlan and Black by judges quite diferent from Burger, Blackmun, Rehnquist and Powell. That obviously did not happen, and Michelman's arguments were decisively rejected by the Supreme Court in 1973. But the real point is that by the 1990s, Michelman's arguments were basically "unsayable," at least by "mainstream" law professors (including Michelman himself). Ronald Dworkin seemed almost to take delight in pointing out in 1996 that his "moral reading" of the Constitution didn't include anything so outlandish as "welfare rights," and most liberal law professors spent most of their time, like Dworkin, in demonstrating how the Constitution, properly read, protected sexual autonomy and reproductive choice. And, of course, it ws Clinton himself who led the attack on the "welfare system as we knew it." Similarly, if Bill Clinton had an agenda in his appointments to the bench, it was making sure that Roe would be protected (even though some of us believe that that has in fact worked contrary to the institutional interest of the Democratic Party). He might also have been concerned to protect affirmative action. Otherwise, he certainly exhibited no interest in the judicial expansion of welfare rights and was, moreover, the most anti-civil libertarian president since World War II, as seen in his willingness to support and sign various "anti-terrorism" legislation that basically eviscerated habeas corpus as a meaningful protection for criminal defendants deprived of their constitutional rights in state and federal courts.

So at what point will the "standard-form" ACLU arguments on civil liberties become equally marginalized and sound anachronistic? When will proponents of such views be told, dismissively, that they are sooo 20th century? And, more to the point, when will the proponents accept their own marginalization and stop making them? We're clearly not at that point yet. But, frankly, Professor Tribe, like myself, is now a "senior citizen," socialized in a different era. There are clearly some younger professors who are admirably continuing in that tradition. I think especially of David Cole and Neal Katyal. But how representative are they? And how representative are Christopher Caldwell and the legal academics who almost certainly share his views, including, say, Eric Posner and Adrien Vermeule? Who will more successfully shape the views of the next generation of lawyers (and law-oriented journalists and pundits)?
Posted 10:37 PM by Sandy Levinson [link]