Saturday, November 12, 2005

Rudy Giuliani vs. Civil Liberties

Tibor R. Machan

The November 2005 issue of Reason—a publication I helped launch but have no hand it at all now—did a stimulating write-up on former New York mayor Rudy Giuliani, by way of a review of Fred Siegel’s The Prince of the City: Giuliani, New York and the Genius of American Life (Encounter, 2005), by the magazine’s online editor and a widely published contributors to prominent newspapers across the country, Tim Cavanaugh. While not a fawning piece about either the book or Giuliani’s mayoral tenure, the reviewer is clearly impressed with how Rudy has managed to tame what before he ascended to mayor amounted to a severely unruly, misgoverned place.

Economically and, for many even more importantly, in the department of civil affairs, the city had been a mess. I recall when I visited there routinely and stayed with the late Ernest van den Haag, a formidable conservative intellectual adversary who had grave doubts about libertarianism, civil or otherwise—although he was a firm supporter of nearly unfettered capitalism—I got many lectures on how Rudy was God’s gift to the city.

Van den Haag sounded very much like one provocative paragraph in Cavanaugh’s review:

Guiliani’s success, particularly his broad definition of ‘quality of life’ issues and offenses, poses a serious utilitarian challenge to civil libertarians.

Why? Well, because the mayor wasn’t all that concerned with whether his policies pleased or displease ACLU types. His measures, often deemed to be harsh—“campaign against squeegee men and his later efforts against turnstile jumpers, public urinators, and other petty lawbreakers”—pretty much discounted these offenders’ civil liberties and many people’s idea of due process of law. That’s at least what Cavanaugh seems to be saying with his worry above.

The idea is that with the widely perceived, indeed by all accounts objective benefits of Guiliani’s policies and methods, libertarians may have to concede that it is better to forego beefing about the basic rights of citizens than to live in an unruly New York City.

Of course this takes us back to a debate that’s bogged down classical liberals or libertarians for decades, even centuries. It was John Locke who put the classical case for natural individual rights on record, insisting that every human being has these in a community by virtue of being part of humanity; the only justification for using force against anyone, then, is if he or she violates the rights of others. Government, especially, is bound by this principle, suggested Locke. And so, too, insist more recent Lockeans in the classical liberal, libertarian movement.

Against these folks stood the likes of Jeremy Bentham who considered Lockean rights a myth, not unlike many of the critics of contemporary libertarianism, such as legal and political theorists Cass Sunstein, Liam Murphy, and Thomas Nagel do today. As the famous passage from Bentham’s Anarchical Fallacies goes,

Rights is the child of law; from real law come real rights; but from imaginary laws, from ‘law of nature,' come imaginary rights.... Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts.

That is to say, government grants rights, they aren’t ours independently or by virtue of our human nature. And, more specifically, those political theorist who follow Bentham’s lead dispute that there is any good argument for ascribing or granting rights to people apart from when it is useful to do so for obtaining a greater acknowledged benefit than otherwise.

In the case of the former mayor, Cavanaugh intimates that no good reason exists to be concerned with some supposed basic rights that New Yorkers have—what counts is that the policies of Guiliani accomplished what to all who cared to consider it yielded important benefits to the city. This is what makes Guiliani a utilitarian and this is why he poses a challenge to at least those classical liberals and libertarians who insist on protecting individual rights no matter what, given that we have them whether governments accept them or not.

Most of those who defend the free society see nearly perfect congruence between a utilitarian and rights based support for free institutions, thinking no matter how you come at it, freedom ought to trump whatever would violate it. But while utilitarians see some exceptions, Lockeans rarely if every do (only, perhaps, in circumstances Locke himself recognized when “politics is impossible,” say in the midst of a devastating natural catastrophe).

Since, however, principles of community life—the foundations of constitutional laws—are to guide policy makers in the long run, not momentarily—that’s not how laws operate in a human community—the utilitarian challenge does not come to much. Even if one were to grant that Guiliani succeeded despite violating basic civil liberties, “one swallow does not make a spring,” as that ancient Greek sage, Aristotle, had observed.

What is even more telling is that nearly all of the measures Guiliani took pertain to how people must behave in public spheres. These are severely reduced in size and scope in a libertarian polity. And private owners and operators of subways, parks, buildings, and streets may, according to Lockean libertarians, establish whatever rules they deem are required to managing these realms. Just as I may require you to go barefoot in my house because, well, it is my house, a significantly privatized New York City would have no trouble establishing and maintaining the sort of measures Guiliani favored without violating anyone’s civil liberties at all.

The real problem is reconciling civil liberties with the effective management of public realms. This is no challenge to Lockean libertarianism.

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