The United States is a country founded on the ideals of the classical liberal tradition. This was a tradition of political thought centred on individual liberties, which developed in England prior to the American revolution. English philosopher John Locke’s theory of natural rights influenced Thomas Jefferson and likely inspired the preamble of the American constitution. Much of political debate concerns whether America should expand on its ideals of individual freedom to create a more comprehensive social contract along the lines of the continental European model. Less attention is paid to the fact that modern America is fundamentally deficient in its capacity to secure traditional liberal freedoms for its citizens, particularly it’s socially marginalised citizens.
Classical liberalism is chiefly concerned with negative liberty which philosopher Isiah Berlin distinguished from positive liberty. Negative liberty is the absence of barriers obstacles or constraints. In a social context this means the freedom to go unmolested by others. The key political beliefs classical liberals hold concerns the working of the justice system and the limits which must be placed on the power of the state. These political ideas gradually developed in the context of medieval despotism and the American revolution itself was a rebellion against the supposedly tyrannical power of the English monarchy. Classical liberals believe that a criminal suspect should have the right to a fair trial, that the justification for law is upholding the negative liberties of citizens and that the rule of law should constrain the government from exercising arbitrary power.
Law in America has evolved to be fundamentally inimical to liberal freedoms. The body of American law is so large and complex that technically everyone is likely a criminal. The American judiciary is much more politicised than in comparable countries. It’s also less specialised and even less technically competent. American judges play a relatively large role in determining the content of the law leading to huge and politically controversial policy swings. One of the most exceptional features of justice in America is the democratic election of prosecutors which surely undermines the impartial administration of justice. Huge immunity carve-outs effectively place both the police and the government above the law (the so-called sovereign immunity & qualified immunity doctrines).
It all amounts to an increasingly dysfunctional system. One, that encourages the thing classical liberal thought leads us to fear most — the arbitrary exercise of power.
Even relatively basic freedoms are not secured the Frankenstein monster of law in America. Like the right not to be detained without facing trial. As suspects are detained for long periods the ability to defend oneself in court is increasingly less relevant. Indeed, trials have become a rare part of the criminal justice system. This leads to abuses as district attorneys — themselves political actors — can pile on charges to coerce a defendant into a plea bargain. And of course, another peculiar American institution, cash bail adds to the unfairness of the possibility of arbitrary detention. The practice of civil asset forfeiture is another way the arm of the law can punish people without proving their guilt. In this case the presumption of innocence is reversed with the owner having to prove the innocence of their belongings to have them returned.
All of these trends are in opposition to the oldest ideal of liberalism. Before the idea of a liberal society had even began — in a time when few questioned the right of the state to impose an official religious morality & the lower orders were expected to be subservient to their social betters — the very first seeds of liberalism germinated through a conflict over law and order. Specifically the nobles objected to the kings “right” to arbitrarily detain and punish them. Thus Habeas Corpus and the right to a trial by a jury of ones peers were born. Modern policing trends fly in the face of the presumption of innocence and the corresponding principle of using the minimal amount of force necessary.
The problems with American law are much worse when viewed from the perspective of the least socially and economically powerful communities. Heavy handed policing practices harass poor communities by targeting all kinds of petty offences. These practices likely do very little to make people any safer — their function is not to uphold the negative liberties of marginalised citizens. Rather policing is driven by other motivations, the zeal of socially powerful people to police the less well of, a mistaken belief that police activity necessarily reduces crime (the so-called broken windows theory of policing) or even just the collection of revenue. Thus children are charged by police for misbehaving in school, tickets are given for poor lawn maintenance or drinking in a backyard. Policing practices routinely violate the constitution. And all of this in the “Land of Liberty”.
At the same time as over policing is a serious problem American law also errs in failing to create a safer society. Sometimes — as in so many cases — this is a problem of poorer people lacking the necessary clout to defend their rights. A clear example of this is Governor Chris Christie’s callous decision to withdraw state aid from the city of Camden. This condemned its residents to a reign of criminal lawlessness as the homicide rate demonstrably skyrocketed in the aftermath of cuts to the police budget. When the law fails to investigate a homicide case effectively it neglects the protections of negative liberties, just as much as when it polices for profit.
Racial bias of the justice system is another blow to the basic legitimacy of law in America. It’s been shown that race effects sentencing.
Then there is the issue of powerful police departments who have become a law unto themselves. The police seemingly function as a protection racket for bad cops. Police have enormous political power even going on strike to resist policies they don’t like.
One could be forgiven for concluding classical liberalism has almost died out in the United States. Replaced by theories that mirror the hard left in being concerned almost exclusively by power such as the Virginia School of political economy (sometimes called public choice theory). And by theories of libertarianism such as those espoused by Ayn Rand and Robert Nozick which focus narrowly on the economy rather than a broader conception of social life. However, it’s always easier to uphold the liberties of the rich and powerful than the poor and marginalised so perhaps the problem is not ideological but rather the political expediency of conservatives.
Despite clear unfairness it’s hard to find examples of the conservative leaning acknowledging the legitimate grievances of less powerful Americans, a handful of notable exceptions aside. Libertarian public intellectuals tend to focus on theorising Americas social ills in terms of personal responsibility in order to create a reactionary bulwark against what they see as dangerous leftist ideas. This helps to create the political landscape we observe today. One side claim implausibly that sever social disadvantage is simply the result of the individual choices and the other claims equally implausibly that some kind of mysterious totalizing force perhaps culture — or maybe capitalism, dooms America to a permanently unequal society unless it is torn down — using of course methods supplied by the radicals themselves. An honest classical liberal perspective would point out that the harms suffered by citizens who can’t rely on fair treatment by the law or feel harassed in the course of their daily life, are intangible ones and cannot be measured in dollars and cents.
One doesn’t have to be a card carrying classical liberal to point out these basic hypocrisies. Indeed, arguably it was by a loss of focus on the broader requirements for social and economic flourishing (positive liberty) that conditions were created for this decline in negative liberty. Either way the concept that America is the fairest society on earth is clearly no longer true. And it no longer matters which definition of fairness is applied.
Note: I wrote the above before the incredible infringements on the rule of law and civil liberties occurring in Portland and I think the argument stands very well without this powerful example.