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


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