The Civil Liberties Ratchet


John Quiggin wonders how the erosion of civil liberties in the United States will ever come to an end:

So, how does all this apply in the case of the erosion of the US constitution? The operation of the ratchet mechanism is clear enough. But what is the end state? And will the process be stopped before it gets there? The constitutional theories put forward by John Yoo and others, along with general conservative criticism of “judicial activism”, provide a pretty clear answer to the first of these questions. That is, the end state is an expansion of police powers in general, sufficient to ensure that anyone who is, in the police view of the matter, definitely guilty, can be convicted with no concern about “legal technicalities”, combined with an essentially unlimited presidential power to override the law in the interests of national security.

The critical test might come when the new rules are applied (or not) to white Christianist terrorists like the Hutaree. This could happen either because such a group mounts an actual attack, or because the state decides (as it could have done, but hasn’t so far in the Hutaree case) to use its full powers against a group that is planning, or maybe just talking about, something like this. At this point, the number of people potentially affected by the next upward ratchet would suddenly become much larger – the militia movement, for example, and then the more rhetorically bloodthirsty elements of the Tea Party crowd. Or, more plausibly perhaps, a Tea Party government could project its fantasies on to its opponents and use the powers inherited from Obama against Democrats.

I don’t actually think this is too mysterious. What we saw in the 1970s is that eventually national security powers will come to be abused in a manner so egregious as to provoke a massive scandal. That will pull back the veil from the fact that smaller-scale versions of those abuses have actually been taking place for some time. And in the resulting backlash, there will be a wide array of inquiries into malfeasance that will end up extending far beyond the original scandal. New protections will be put into place, and then we’ll begin the cycle of erosion again. After all if you look at the historical context for Richard Nixon, you’ll see that we had a massive collapse of civil liberties in the Woodrow Wilson administration that prompted a backlash under Warren Harding. Then from the 30s forward the backlash was undone until we had a new backlash.