From the administration's response to today's court ruling on their "terrorist surveillance program":
In the ongoing conflict with al-Qaeda and its allies, the President has the primary duty under the Constitution to protect the American people. The Constitution gives the President the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties.
Although I've written about this a million times in the past year, its never quite hit me until now just how much their argument echoes the theory of government proposed by Thomas Hobbes in the Leviathan. For those who haven't read this classic of political theory, here's the key phrase for today:
I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner.
Hobbes' philosophy comes from a deeply pessimistic reading of human nature. War and violence, he believed, was man's natural state, and only through the imposition of a strong central government could it be avoided. Although man was born with natural, god given rights, in order to protect them it was necessary to transfer power and authority to one man, the leviathan, a ruler permitted to do whatever was necessary to secure the commonwealth. In the face of a threat, any action taken by the leviathan, including those which by others would be deemed to violate an individual's rights, which aimed at security was by definition both necessary and just. When it came to security, the leviathan could in short do no wrong.
But the men who created our nation did not believe in Hobbes' vision. True, they feared violence and war, but they feared tyranny far, far more. Their government - our government - was based not on Hobbes' understanding but instead on that of Montesquieue and Locke. As a result, if there is a single word that defines our constitution it is limitation, not authority.
To be clear here, the Framers didn't just implicitly reject Hobbes' rights-for-security tradeoff, they explicitly rejected it. Think back to the debate over the ratification of the constitution, for example. In the end, a key sticking point was what we now know as our Bill of Rights. Opponents of the amendments argued not that they restricted the authority of the government too much, but that instead they undermined the limitations already inherent in the document in ways that would one day prove dangerous. In their view, unless a power was explicitly granted by the constitution, it did not exist. Thus, they believed, for example, the First amendment was unnecessary, since nowhere in the constitution was there any grant of a authority to regulate the press. In short, they believed that if the constitution didn't explicitly say it, it wasn't there.
Of course, in the end the view of such opponents lost, but it lost because a majority believed that it was too dangerous to allow such fundamental rights to go explicitly unprotected. It was not that they believed that absent such amendments the government was empowered to act, but instead that both implicit and explicit protections were needed to safeguard liberty for future generations. The debate, in short, was not over whether to limit authority but how.
Fast forward to today. The very same people who argue that justices should hold to an "originalist" understanding of our constitution are putting forth a reading of executive power that requires an immensely expansive reading of the very same document. Worse, their pro-leviathan position is one that is both deeply anti-conservative, and yes, un-American. After all, it was no less than Benjamin Franklin himself who once said,
Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.
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