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May 14, 2012

"Laissez-faire with strip-searches: America's two-faced liberalism"

The title of this post is the headline of this recent commentary appearing in The Guardian authored by Professor Bernard Harcourt.  The piece, which I have been meaning to post for some time, makes for a very interesting read and it gets started this way:

There is a deep tension in contemporary US political thought between the notion of freedom that tends to dominate in the socio-economic domain and the concept of liberty that predominates in the penal sphere.  In socio-economic matters, the idea of freedom tends to be shaped by classic economic liberalism: the belief that an invisible hand shapes favorable public outcomes, that individuals need robust protection from the government, that the state should refrain from interfering in commerce and trade.  In the law enforcement and punishment context, by contrast, the dominant way of thinking about liberty gives far more ground to the government, to the police and to the state security apparatus.

This tension, when it gets acute, gives rise to what I would call "two-faced" or "Janus-faced liberalism".  Over the last 40 years, during a period characterized by increased faith in free markets, in deregulation, and in privatization, America's Janus-faced liberalism has worsened and fueled the uniquely American paradox of laissez-faire and mass incarceration.  In the country that has done the most to promote the idea of a hands-off government, our government runs, paradoxically, the single largest prison system in the whole world.

This past month, the great American paradox took a distinctly dystopian turn, particularly at the US supreme court.  The oral argument on the constitutionality of President Obama's Affordable Care Act, in conjunction with the court's decision on the constitutionality of strip-searching all persons arrested even on the most minor traffic infractions, crystallize this worrisome trend.  My sense is that I am not alone in this assessment; there appears to be growing recognition across the US that this two-faced liberalism may, in fact, be pushing the country, inch-by-inch, in the direction of a police state.  This is surely true of the recent strip-search case, Florence v County of Burlington.

May 14, 2012 at 05:46 PM | Permalink

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"In socio-economic matters, the idea of freedom tends to be shaped by classic economic liberalism: the belief that an invisible hand shapes favorable public outcomes, that individuals need robust protection from the government, that the state should refrain from interfering in commerce and trade."

Is this guy on LSD? The amount of government regulation of the market is at an all-time high. I guess the author missed, among a zillion other things, the Obama campaign's web page about "Julia," whose life-long waltz with government-this and government-that was an unintentionally hilarious, and revealing, look at the extent to which private life is slowly being eaten away by government sprawl.

Posted by: Bill Otis | May 14, 2012 9:52:48 PM

i'd aay more like LIGHTYEAR by LIGHTYEAR!

i'm afraid that good old "slipery Slope" is BEHIND US!

Posted by: rodsmith | May 15, 2012 2:01:45 AM

In Florence, there was a miscommunication about the outstanding bench warrant. He had paid his fine, and it was not properly recorded. This miscommunication is straightforward negligence. The remedy and the deterrence is in torts. The jurisdiction was a county, which does not have immunity. All governmental immunities should be repealed, in a constitutional amendment, so that judges cannot overturn a statute.

Liability shrinks not only the defendant, but the entire enterprise. Tort liability is the royal road to shrinking government. As constituted today, it is a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession. Sue them enough, and the public will have enough of the lawyer and get rid of it from government. There should be zero tolerance for any lawyer in any bench, legislative seat, or responsible executive position. By definition, the lawyer believes in supernatural doctrines. His intellect has been devastated by law training, and he is under the control of a hierarchy structured like a criminal syndicate. Zero tolerance.

Posted by: Supremacy Claus | May 15, 2012 6:04:51 AM

The ruling in fact does not require that "strip-searching all persons arrested even on the most minor traffic infractions" be the case.

The matter is left open in respect to various situations, including if the person is isolated from the general population. Linda Greenhouse even wrote a blog over at NYT noting how Roberts/Alito appears to have went out of their way to minimalize the reach of the majority opinion, leaving open hope that such caution would apply to the PPACA.

Anyway, treating those in prison, even for minor offenses, differently from those outside is traditional under classic liberal tradition. Whatever the excesses, surely there are some, in practice.

Posted by: Joe | May 15, 2012 11:21:59 AM

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