Government as the Primary Protector of our Rights and Liberties

While government policies can sometimes threaten our freedoms, our legislatures and courts are also often the most effective avenues for defending and expanding our rights and liberties. In reality, many of the main threats to our liberties often come from the private sector.

As seen in another article on this site, “More Government Does Not Mean Less Freedom,” the vast majority of public programs do little to threaten the liberty of Americans. But it would be naive to ignore the fact that democratic governments can sometimes step over the line and pass laws that do violate people’s basic rights and civil liberties. Consider the political witch-hunts of the McCarthy era in the 1950s, the FBI’s harassment of civil rights leaders and the Army’s spying on the anti-war movement in the 1960s, and Nixon’s “enemies list” and the Watergate scandal in the 1970s. More recently, in the wake of the 9/11 terrorist attacks, President Bush and the Republican Congress took a number of actions, including passing the Patriot Act, that undermined our basic rights and freedoms. The government greatly increased wiretapping and other forms of surveillance of citizens, often without any evidence of any wrongdoing on their part. Thousands of people were secretly detained for months without any charges against them. Suspected terrorists were denied lawyers and the right to a trial. Some suspects were even sent abroad to other countries so they could be tortured. And 2005 and 2006 revealed the existence of extensive domestic spying programs by the National Security Agency and other institutions that are legally forbidden from doing so – a very disturbing development.

But consider this: Who comes to the rescue when our government violates our rights in these ways? To whom do Americans turn to revoke or remedy those actions and to make sure that they don’t happen again? The government. Sometimes the government acts independently in this protective role, as when federal authorities intervened in the 1960s when some states were violating the civil rights and voting rights of African Americans. But often it is citizens themselves who use one part of the government – usually the courts – to stop another part of the government from infringing on their freedoms and rights. Citizen organizations like the American Civil Liberties Union have been particularly active in using the courts to protect our freedom of speech, freedom of religion, the right to vote, etc.

In the end, then, we depend heavily on the tools of democratic government to protect people’s rights. When we want to limit the abusive activities of government – such as unreasonable searches or unfair appropriations of our property – we need to rely on the positive actions of another part of the government to do so. This is a point that anti-government conservatives consistently ignore. Yes, government can violate our rights, but democratic government also functions as the main protector of our rights and freedoms as well – and it has often done so very effectively. Certainly totalitarian and dictatorial governments are the enemies of freedom, but democratic governments have constitutions and institutions that enable us to effectively protect our rights and freedoms.

We often make the mistake of seeing our rights and civil liberties as merely the absence of some kind of governmental action. We believe that we have free speech or freedom of religion when the government does nothing to impede those freedoms. But in reality, our rights depend heavily on active government – on positive government actions. In fact, the very existence of rights depends on government. In a very real way, rights and civil liberties are actually political constructs – creations of government. Formal rights do not exist until they are created by law or established in a constitution. We only have the right of free speech because it is guaranteed in our constitution. If we didn’t have our constitution, or if we didn’t have government, our civil liberties would literally not exist. In the preamble of the Constitution, the founding fathers did not say that in order to “secure liberty for ourselves and our posterity” they were going to abolish government; they said that they were going to “ordain and establish” a democratic constitutional government to do so.1 They knew, as Benjamin Barber has explained, that “in democracies, representative institutions do not steal our liberties from us, they are the precious medium through which we secure our liberties."2

 

 

Our rights and liberties are not only created by people working through government, we also rely on government to enforce them and create remedies for their violation. This is a point made by Stephen Holmes and Cass Sunstein in their insightful book, The Costs of Rights: Why Liberty Depends on Taxes.3 They argue that the traditional distinction that conservatives make between “negative rights” and “positive rights” is mistaken. Supposedly, negative rights, such as freedom of speech, simply require that the government not interfere with some activity. In this view, it is only positive rights, such as the right to health care, that require a government action to realize them. But Holmes and Sunstein argue that in fact all rights require government action. They all require an active and well-funded government to enforce them – to make them real. Without a well-functioning legal and court system, for instance, our rights would be unenforceable and meaningless. Rights and freedoms, if they are to mean anything, require a vigorous response by government whenever they are violated. Every effort to prevent the government or private organizations from violating our rights must be supported by court rulings, injunctions, damage awards, etc. As Holmes and Sunstein explain:

Personal liberty cannot be secured merely by limiting government interference with freedom of action and association. No right is simply a right to be left alone by public officials. All rights are claims to an affirmative governmental response. All rights, descriptively speaking, amount to entitlements defined and safeguarded by law. A cease-and-desist order handed down by a judge whose injunctions are regularly obeyed is a good example of government “intrusion” for the sake of individual liberty. … If rights were merely immunities from public interference, the highest virtue of government would be paralysis or disability. But a disabled state cannot protect personal liberties, even those that seem wholly “negative,” such as the right against being tortured by police officers or prison guards.4

Protecting and enforcing our individual rights in this way is no small job. Think of all the various rights we now take for granted: the right to a fair trial, the right to own property, parental rights, voting rights, the right to not be denied a job because of race or gender, landlord and tenant rights, the right to run for office, the right to practice our religion, mineral rights, consumer rights, the right to a minimum wage, the right to marry, copyright protections, the right to an attorney, the right to collect a debt, abortion rights, the right against self-incrimination, the right to free speech, the right to emigrate, intellectual property rights, the right to strike, the right to petition government, the right to privacy, child custody rights, the right to a safe workplace, the right to be free from illegal searches, and so on. Interpreting and enforcing all of these rights requires an extensive network of administrative and judicial organizations on the federal and state levels – courts, attorney generals’ offices, civil rights agencies, etc. These large governmental efforts cost billions of dollars a year – money that must come from taxpayers. In other words, our rights depend heavily on an active and well-funded government. When governments find themselves in a position where they can’t effectively tax and spend – as has sometimes been the case in countries in the former Soviet Union – citizen rights and liberties become unenforceable and largely non-existent.

In short, while we often think of our rights as freedom from government, in fact we rely on an active government to establish and maintain those rights. This fact has led Holmes and Sunstein to conclude that efforts by anti-government ideologues to slash taxes and reduce government contradict their claims to also value individual liberties. They argue that “it is implausible to be ‘for rights’ and ‘against government.’ …All-out adversaries of state power cannot be consistent defenders of rights, for rights are an enforced uniformity, imposed by the government and funded by the public.”5 Since the existence and protection of our rights depend so directly on a healthy and vigorous state, if we want to be pro-rights we have to be pro-government to some extent as well. Without the power and authority of a well-financed state, rights are worthless.

  

  

Government as the Way We Expand our Rights and Freedoms

Government not only protects our long-established constitutional rights and liberties, it has also enabled us to expand our freedoms significantly, especially during the last 75 years. As the power of government has grown, it has not resulted in significant losses in freedom for the average American – it has produced significant gains. In fact, government power has often grown precisely because citizens have demanded more rights and freedoms. Faced with harmful and debilitating social conditions, the American people have turned to government again and again to free themselves from these oppressive situations. And the government has come through and repeatedly expanded the rights and freedoms available to the average person. Social Security has liberated millions of citizens from destitution in their old age. Thanks to federal legislation, all Americans now have the right to vote. Our state and federal governments’ public health efforts have freed millions of Americans from devastating and deadly diseases like polio and smallpox. Because of laws banning housing discrimination, all families are now free to live in any neighborhood they want. Millions of elderly Americans are freed from agonizing and worrying about how they will get medical care – thanks to federal programs like Medicare. Government-sponsored right-to-strike laws and workplace safety rules have freed countless American workers from oppressive and dangerous working conditions. Millions of minorities and women are now free to get jobs and receive equal pay, as a result of government anti-discrimination laws. Millions of handicapped citizens are now literally freer to move around their world due to passage of the Americans with Disabilities Act. And we all now have the right not to be fired simply because we are getting old.

All of these are examples of how the programs and actions of the modern democratic state have made most Americans more free, not less free – how government programs have more often worked to increase our opportunities and rights, not restricted them. So the reality has often been exactly the reverse of the contention of anti-government activists: more government has actually produced more freedom. Consider one final example of this: Indiana now has a policy of guaranteeing a college education for every low and moderate income child in the state. One mother of three, who never went to college and who couldn’t afford to send her kids there, remarked about how this program was expanding the freedom and the career horizons for her children. “Now they can choose what they want to do,” she said.6 At last count, seventeen thousand Indiana teenagers have taken advantage of this newfound freedom.

The Real Threat to Rights and Freedom

Imagine for a moment a dictatorship where your rights and liberties are being constantly violated. There is no free speech and you can be punished for espousing your political views. Associating with groups that oppose official policy can invite reprisals. If you complain about the behavior of officials or blow the whistle on their illegal activities, you will be punished harshly. Privacy is non-existent. The authorities constantly spy on you. They tap your phone and use hidden cameras to monitor and record your daily activities. They know what you do on your computer and where you go on the internet. They open and read your mail; they routinely test you for illegal substances. Officials know virtually everything about you – your employment history, your financial situation, your medical problems, and even your genetic information – and will not hesitate to use this information to their advantage when necessary.

This would be a totalitarian nightmare. It is just this kind of situation that many anti-government ideologues fear, and it is exactly why they so desperately want to limit the power of the state. But they are too late – we already have this situation in the United States. It’s called a corporation. Today, many of the main threats to our rights and freedoms do not come from the government – but come from the businesses we work for. The American Civil Liberties Union has noted this trend with some alarm.

The Constitution does not apply to the workplace. In the 18th century, when the Bill of Rights was adopted, only the government was seen as a major threat to individual rights. Today, many if not most Americans are more vulnerable to violations of their rights by employers than early Americans were by the government. Private sector employees that are not unionized can be fired for any reason, without due process. They can be compelled to submit to urine drug tests on pain of losing their jobs. They can be punished for their political views. They can be subjected to secret computer, video and telephone monitoring.7

Believe it or not, your employer can fire you for expressing your views about a candidate, political party or a particular political issue. So much for free speech. And you can also get sacked for keeping company with people whom your management dislikes – like union organizers. So much for freedom of association. And some companies have even installed cameras in their bathrooms. So much for your right to privacy. In a very real way, when you go to work, you lose the protections of the Constitution. As one worker explained: “Every time I passed through those plant gates to go to work, I left America, and my rights as a free man. I spent nine hours in there, in prison, and then came out into my country again.”8

“Prison” is probably not the most accurate analogy – most workplaces are not that punishing. But “dictatorship” would be an apt description. Workplaces are not democracies with civil liberties or the ability of people to affect their working conditions through elected representatives. They are virtual dictatorships: strictly hierarchical organizations where rules come from the top down, and where workers have few real rights and no say over who is running the show. This may sound too harsh, but it is a description to which any candid business owner would readily admit. And when employees complain about management practices, a typical response is often “This is not a democracy.” Ironically, then, even though we live in a “free and democratic society,” we in fact spend most of our waking lives working in quasi-totalitarian private institutions that are largely devoid of traditional democratic rights and freedoms. And the kinds of problems just described are just the legal actions that business can take to deprive people of their rights in the workplace. They don’t include the illegal practices that some companies use to frustrate workers’ rights to unionize, to violate child-labor laws, to ignore worker compensation rules, or to discriminate against women and minorities.

But anti-government conservatives seem largely blind to these routine violations of our rights and liberties. Their ideology assumes that the private sector is the realm of freedom and the public sector the realm of oppression. So they continue to point at the public sector as the source of threats to our rights, while in many ways, the main threats exist in the private sector. The average citizen is much more likely to have their rights violated in the workplace with phone taps, video surveillance, or drug tests, than they are to be beaten by the police or to have their house illegally searched by federal agents.

 

 

Freedom Often Requires a Collective Use of Power

The larger point here is that when it comes to freedom, anti-government conservatives are wrong about how they portray both government and the private sector. Government is not nearly the threat they make it out to be and it is actually the mechanism that allows us to best protect and expand our freedoms. Moreover, the private sector is not the realm of natural freedom that conservatives depict it to be. Minimal-government advocates want us to believe that government is the only source of oppressive power in society, and that if we prevent it from exercising that power over us in our private lives, we are then free. But this ignores the large concentrations of power in the private sphere that can still coerce us – that can still greatly limit our freedom. The fact is that during those periods of our history when the government kept largely out of the private sector, this approach allowed such private abuses of power as slavery, corporate monopolies, child labor, deadly workplaces, and racial segregation. Democratic government is really the only source of countervailing power that is strong enough to rein in the abuses that can result from the concentration of power in the private sector. As Benjamin Barber has explained it: “Big government – or let's call it strong democracy – is for the little guy; it’s how he and his neighbors can take on the big bullies in the private sector. Naturally the bullies resent competition and make war on ‘big government,’ ostensibly on behalf of the little guy.”9

In his book, The Freedom Revolution, former House Majority Leader Dick Armey defines freedom as “the ability and responsibility to control one’s own destiny.”10 There is much truth to this, but he is mistaken when he also maintains that we can best assert that control when government leaves us alone and stays out of the private sector. He forgets that even when the government leaves us alone, there are still many forces in the private sphere that make it difficult for us to control our own destiny. Powerful institutions and individuals, along with large economic and social forces, make it hard for most people to “do what they want.” As noted earlier, most of us work in strictly hierarchical institutions ruled by powerful superiors, and so we often have little control over our work life. More importantly, as private citizens, we are at the mercy of large, systemic economic realities: the ups and downs of the economy, the domestic impacts of globalization, the stagnation of wages, increasing income inequality, outsourcing of jobs, rising and falling stock markets, skyrocketing health costs, and so on. As Americans we no longer live in log cabins on the frontier, where it could be argued that our fate is in our own hands. We live in enormously large and complex economic and social systems – systems over which we can exert little control as individuals. In this context, the promise of Republicans to have government leave us alone sounds more like a threat – it amounts to abandoning us to larger societal forces over which we can have little influence. It’s like someone dumping you in the middle of the ocean in a row boat and telling you that you are free to go wherever you want. You may be the “captain” of your boat, but in all likelihood if the storms and the sharks don’t get you, the sunstroke and dehydration will.

In our world, being free to control our lives requires a great deal of power. If you happen to be rich, then you may have the economic resources to control your life as an individual. You have the luxury of choosing where you live, what job you have, whether you work at all, and what you do every day. But the rest of us do not have that kind of individual power. So we must rely on collective power – one major form of which is democratic government. If freedom really does mean exerting control over one’s life, then it is government and the public sector that are the instruments of freedom for many people. In fact government has grown in the United States precisely because the American people have realized again and again that they must band together politically to gain some control over these forces buffeting their lives. They have sought out government power to neutralize the private powers and social and economic forces that are creating oppressive and harmful social conditions for them. Only the government is in the position to try to control the economy and prevent prolonged recessions and depressions. Only the government has the power to ensure that workplaces don’t make people sick, or that you are not fired because of your race or religion. Only the government can provide a safety net that catches you after you have been laid off, allowing you to pay your mortgage until you get another job. Thus, to the extent that freedom has to do with controlling one’s own life, people working through a democratic and representative government is in fact one of the best ways to realize that freedom. In other words, we can often be freer acting collectively than we can be acting alone – exactly the opposite of what anti-government zealots are preaching.

 

 

Rush Limbaugh is fond of saying that those who support government programs and oppose tax cuts do so “because tax cuts give people more power and take away from the role of government.”11 But what he and other anti-government pundits cannot see is that taxes and government can in fact be a way to empower people. They view government power as power over us – rather than as our power. Democratic government, when it is working correctly, gives us the power to have much more control over our lives. And as our democratic government has become more powerful, we ourselves have become more powerful and often more liberated as well.

When we see all the various ways that government actions can actually enhance our freedom, it also helps us to see how narrow and stunted the anti-government vision of freedom really is. They refuse to acknowledge that government power can enhance our freedoms. Also, they see freedom as merely being protected from the detrimental effects of government power, not from the equally detrimental effects of private power. And finally, while minimal-government advocates like to portray themselves as the champions of the general principle of freedom, the freedoms they are actually most concerned about are often very particular and only benefit certain limited groups in society, such as people who want the right to own assault rifles, or companies that want the freedom to pollute. They conveniently ignore broader freedoms and rights that would benefit many more Americans, such as the freedom to attend college or the right to adequate health care. Indeed they actively campaign against these kinds of rights and freedoms. Conservatives oppose them because they are only made possible by active government programs that require taxing and spending. In reality, then, while these conservative claim to be on the side of individual rights and liberties, they only truly support those that fit into their anti-government ideology.

Seizing Back the Idea of Freedom from Conservatives

Abraham Lincoln once said that freedom is our “political religion.” Unfortunately, however, anti-government activists have been able to establish themselves as the high priests of this religion; and they have been spreading their simplistic and distorted dogma about how increased government activity will only reduce our freedom. We need to liberate this crucial political concept from the grip of these arch-conservative ideologues. The American people need to be reminded of how much government programs actually protect and enhance their essential rights and freedoms. Defenders of government need to seize back this basic American value and demonstrate how the programs and policies of the modern democratic state have on balance worked to promote freedom, not diminish it. We need to talk about how specific social programs and regulatory rules enacted by government have had a liberating effect on all of our lives.

Consider, for example, the issue of universal health care. Conservatives were able to block this policy for decades in part by convincing many Americans that it would bring a loss of freedom – that we wouldn’t be able to choose our medical treatments or drugs, and that government bureaucrats would be telling us what to do. Of course they ignored the fact that private sector health insurance bureaucrats already restrict our freedom to choose various treatments and drugs. More importantly, the passage of the universal health care bill will have an enormously liberating effect on the 45 million Americans who until recently had no health insurance. It will free them to choose to go to the doctor when they need to, and it will free them from the risk of a serious illness bringing on financial ruin.

Freedom is a public value – along with others like justice, fairness, and equality – that can be enhanced through modern democratic government. So if we cherish freedom, then we must also value the institutions and policies of democratic government that create, protect, and expand our freedoms. We Americans enjoy an unprecedented bounty of rights and freedoms in our lives, not in spite of government but in large part because of government. Democratic government is the main instrument through which we preserve and enlarge our freedoms. That is the real story about freedom and government that Americans should be hearing.

 

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For more on the issue of freedom and government, see “More Government Does Not Mean Less Freedom,"

 

 


1. Benjamin Barber, “A Civics Lesson,” The Nation, Nov. 4, 1996, p. 21.

2. Ibid.

3. Stephen Holmes and Cass R. Sunstein, The Costs of Rights: Why Liberty Depends on Taxes (New York: W. W. Norton, 1999).

4. Ibid. p. 44.

5. Ibid. pp. 47, 58.

6. “College Track,” WGBY, September 19, 2004.

7. American Civil Liberties Union, “Workplace Rights,” http://archive.aclu.org/issues/worker/iswr.html.

8. Ibid.

9. Barber, p. 21.

10. Dick Armey, The Freedom Revolution, p.11.

11. The Rush Limbaugh statement can be found at “Quotes from Famous People.” http://home.att.net/~quotations/rush.html