Ask Rockridge: Privacy, Protection, and the Constitution

Welcome back to "Ask Rockridge," a collaborative project brought to you by the BuzzFlash News Network and written by the Rockridge Institute.

The Rockridge Institute experts want to answer your questions about framing the political discourse. To ask a question or submit comments, see links below.

Or go to "Privacy, Protection, and the Constitution" -- Comment here. To ask a new question regarding a progressive issue that you think needs "reframing," go to: Questions for Rockridge Nation Staff and Community.

* * *

Today's Ask Rockridge feature will answer two related questions about privacy and the Constitution.

We recently received the following questions:

1. How do we frame privacy [and avoid the frame that we have something to hide when we demand it]?
2. How can we frame the current debate in Congress over civil liberties, telecom immunity, and the Constitution?

These are important questions, not least of all because many progressives are passionate about civil liberties but have trouble articulating why. Let's start our discussion with a quote.

"Those who would give up Essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety."

-- Attributed to Benjamin Franklin

Underlying the recent controversies over privacy, the rule of law, and due process is the contested concept of "protection." The conservative logic goes that none of these things are as important as protecting us against terrorism. If you insist on habeas corpus, they might say, the terrorists under your bed are gonna getcha!

But Franklin's quote reflects a different conception of protection. The other founders of America (who embodied it in the Constitution) and many modern day progressives share Franklin's conception. The discrepancy arises because the concepts of protection and law are contested between progressive and conservative modes of thought.

The conservative mode of thought has a lot in common with Hobbes' social contract from Leviathan (for more on Hobbes, see Glenn W. Smith's piece Children of Rousseau and Hobbes ). According to Hobbes, we enter a society in order to be protected from a violent death. We surrender just enough of our sovereignty to the society's authority figure to make sure we aren't killed. The authority can do what he thinks is necessary to keep us from being killed. As a result, Hobbes contended, the authority has no specific obligation to obey statutes, although he has a prudential moral obligation to follow laws that would enhance security.

In the conservative Strict Father model described by Lakoff, the President has the innate moral authority to determine when he can use extraordinary means to protect the U.S. against terrorists. His discretion is very broad, even going beyond (or violating) current law. In this view, whether the Bush Administration "allows" torture or "follows" habeas corpus depends on President Bush's determination of the danger posed by terrorists.

There are two conditions that the Strict Father model demands from (and ascribes to) a moral authority in order to be considered legitimate: "(1) A parent must know better than the child what the child's and the family's best interests are. (2) The parent must be acting in those best interests." (Moral Politics, p. 79) The head of the family has an innate claim to "better knowledge" that comes from being the father and thus the inherent head of the household. As family members, or by analogy, citizens, we have an obligation to obey the authority.

When mixed with fundamental religious belief, this "better knowledge" and the concomitant authority are seen as derived from God and His preordained moral hierarchy. This means the authority is by definition extra-legal. Before the Bush Administration, the best historical example of this view was the relationship between a king and his subjects. As we can see, even when it's not explicitly theistic, the Strict Father logic of executive authority ends up being rather circular.

In Hobbes' view and Lakoff's Strict Father model, the conservative authority figure and his subjects have a significant mutual obligation -- subjects are accountable to him by virtue of his moral position, and he takes a patrician interest in protecting them. This is especially so under situations of national threat or emergency, when his guidance and knowledge are needed most.

The progressive mode of thought is different. It is based on a Nurturant Parent family model, where parents and children are obligated to each other by mutual respect and responsibility built on nurturant cooperation. Parents are accountable to their children to be open about their decisions and actions, and children are accountable to their parents to respect and care for them (and others). As these obligations are met, trust is generated from within the moral hierarchy. Authority is derived from this trust and nurturance:

"Nurturance is a precondition to authority, and indeed is seen as productive of authority: a fully nurturant parent deserves to be listened to. The same is true of leaders who fulfill their nurturant obligations -- who are empathetic, who successfully help people, who are fair, who communicate effectively, and who nurture social ties successfully ... [I]n a nurturant morality, moral authority is not the ability to set rules and the responsibility for setting them. Rather it has to do with trust, the trust that a leader will communicate effectively, arrange for participation, be honest, and have the wisdom, experience, and strength to succeed in helping." (Moral Politics, p. 134)

One of the obligations of the parents (or the government, when extrapolated) is to provide a protected, empowering environment of mutual trust and respect for the children or citizens. Open, two-way, mutually respectful communication is morally essential to this environment. We cannot have this trusting environment with the government illegally spying on citizens or denying habeas corpus. Without trust, we cannot have democracy, only tyranny or anarchy.

Protection from outside threats is part of the Nurturant Parent model, as well, where protection is a form of caring. In a Nurturant Parent household, the family recognizes that a break-in by someone who intends to harm us is dangerous; the parents must protect the family from it. Similarly, the president must protect the nation from foreign enemies.

Also within the Nurturant Parent model, there is an important role for government that goes beyond just protection to nurturance. The government must empower citizens to both thrive as individuals and to participate fully in the government itself. In our Constitutional and democratic government, this occurs in two ways: (1) through limits on government power—laws create power to act so that no one is above the law -- and (2) through government programs that assist and empower citizens -- everything from the court system to the EPA to roads to firefighters to libraries to schools. Both (1) and (2) are necessary, though the rule of law and limits on government power are what concern us in this answer.

For progressives, when an authority encroaches on your inalienable right to privacy and due process, it's illegitimate by definition. This is also set forth explicitly in our Constitution. The only authority the President has is derived from the law, and there can be no such thing as an executive exercising legitimate authority outside of the law. Due process and the rule of law don't just protect the environment of mutual trust and respect that the authority is morally obligated to uphold -- they are also essential to the very existence of the President's authority.

Let's look now at how the Constitution and progressive thinking lead us to talk about these issues. For progressives like our Founding Fathers, the rule of law, due process, and being secure against government intrusion are essential elements for human liberty and for the mutual trust and cooperation democracy needs to function and communities of people need to thrive.

• Rule of law: Under the Constitution, our laws serve as the only legitimate source of authority for a leader, thus protecting us against the emergence of a tyrant. In turn, these limits on government power enable citizens to use laws for their benefit. For example, used wisely, laws protect us against a number of dangers, everything from violent crime to unsafe products to workplace discrimination. They are also used to provide services, such as the courts, roads, firefighters and libraries. The rule of law -- law as the sole source of power -- enables us to thrive as individuals and as a community. That is the essence of our constitutional democracy. In many ways, the conservative Strict Father view of government is opposed to this thinking. It closely resembles the Divine Right of Kings (one of our founders' greatest fears), where authority comes from an outside moral hierarchy rather than the laws created by the citizens through their elected representatives.
• Due process: Due process requires that legal procedures be followed so that we have a real opportunity to defend ourselves when accused of violating the law. Thus, due process protects us from injustice, cynical persecution, and harassment at the hands of government authorities. This helps create some legal space for mutual obligations and trusting relationships to develop between the government and citizens. Imagine you are accused of a crime, but you have no right to a timely trial, before a jury, based on evidence that you have seen. Without these safeguards, you would be left with trusting the authorities not to use the governmental apparatus for political purposes, or to consolidate power, or just to silence you. If this seems far-fetched, keep in mind that the Bush Administration is already using US Attorneys, torture/extraordinary rendition, and Interior Department resources for those very purposes. If you would rather trust the government because of its legal safeguards than because of its moral status, that's the progressive stance.
• Privacy: Privacy, meaning security in one's person and possessions, is the de facto guarantee of a free and democratic society. It is an inalienable right. It is absolutely indispensable as a component of democracy itself. We can protect ourselves against other encroachments on our rights by dissenting, but authentic dissent is not possible without that security. Our elected leaders only have the right to violate our privacy when it is expressly given to them by statute, and we already have specific and limited statutory procedures for allowing these exceptions (warrants approved by independent judges) in accord with the Constitution. This way we spread out power and accountability democratically, protecting each other quite literally in the process.

The founders of our nation looked to the monarchies in Europe and saw the abuses of power that inevitably result from unchecked Strict Father executive power. Although they were aware of the need to defend the country, they were far more concerned with the internal threat of tyranny. That's why they created the world's first open society, where the elites are held accountable to the people by the rule of law, due process, and the people's privacy.

To grant special immunity to telecommunications companies for violating our rights to privacy and due process would be a horrible mistake that would strike at the very fabric of our open society. Remember that due process is there to protect them, too. We may think telecoms are culpable for violating our privacy, and advocates of special immunity argue they are not. But none of us can say for sure. The one and only body qualified by the Constitution to determine guilt is a jury in a court of law. Due process and privacy are as much for their protection as for ours, and we are all in danger when they are defiled.

Will Bunnett
Eric Haas
The Rockridge Institute

* * *

Submit questions or comments to "Ask Rockridge" using the links below:

Rockridge Nation Home Page

"Privacy, Protection, and the Constitution" -- Comment here.

Submit Questions for Rockridge Nation Staff and Community.

Rockridge Nation is a community project of the 501 C-3 Rockridge Institute. The weekly question posted on BuzzFlash.com is designed to help readers express progressive views and values in the ongoing dialogue that is politics.

---

Thinking Points: Communicating Our American Values and Vision -- A Progressive Handbook (Paperback) by George Lakoff and the Rockridge Institute.

Read BuzzFlash.com's Full Review.

Click here to order.