The policy ratchet and US civil liberties (crosspost at CT)

Apropos of recent proposals to stop giving Miranda warnings to terrorism suspects,

, the reaction is still exactly the same to every Terrorist attack, whether a success or failure, large- or small-scale. Apparently, 8 years of the Bush assault on basic liberties was insufficient; there are still many remaining rights in need of severe abridgment. Even now, every new attempted attack causes the Government to devise a new proposal for increasing its own powers still further and reducing rights even more, while the media cheer it on. It never goes in the other direction.

This kind of policy “ratchet” is quite common, but I haven’t seen a fully satisfactory, or general, analysis of either the metaphor or the phenomenon.

The crucial feature of a ratchet is that, at any time, the mechanism is a locally stable equilibrium, which can be shifted in one direction, with a moderate energy input, but can’t be shifted the other way without breaking the mechanism.

The metaphor hasn’t been used in political discussion as much as I would have expected. The most notable example is that of Huber and Stephens who apply it to social democratic reforms, with the idea that welfare state measures, once implemented are too popular to repeal. Certainly, the welfare state has proved far more resilient, through decades of market liberal dominance, than might have been expected, and the passage of Obama’s health plan suggests the possibility of further movement. But equally, the regular upward movement implied by the metaphor ended some decades ago.

One aspect of the policy ratchet that isn’t quite as clear to me is that, for the ratchet effect to work, it appears to be necessary that there is a consensus, or at least elite majority view, that the desired end state is a long way in the direction of the ratchet movement. The success of the social democratic policy ratchet depends on general acceptance of a policy ideal that could be described as the end of poverty.

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. [1] . 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.

That sounds apocalyptic, so presumably the ratchet will stop at some point before this. But where is the political force that will stop it?

fn1. It’s striking, as Greenwald has pointed out quite a few times, that this ratchet effect seems to be confined to the US. Other countries have restricted civil liberties in various ways, but there has been nothing like the continuous pressure seen in the US, and there have been notable steps in the opposite direction (in Australia, for example, the National Security Legislation Amendment Bill 2010 removes some of the most objectionable features of anti-terrorism legislation passed in 2005, as well as repealing sedition laws that were seen, until recently, as dead letters). By contrast, Obama’s one big announced measure, the closure of Guantanamo Bay, has gone nowhere.

fn2. Assuming for the sake of argument that the government’s case is factually correct, there’s no doubt that their alleged actions constitute terrorism)

34 thoughts on “The policy ratchet and US civil liberties (crosspost at CT)

  1. Alice :
    @paul walter
    Paul – there is only one “defence” against lawyers…and that is staying out of trouble.

    isn’t that an eldridge cleaver quote “the only way to live outside the law is to obey it”

  2. @gregh
    yep – dont get sick, stay outta trouble, keep your books tidy and make sure you do regular grease and oil changes and check the water and you should be taking care of your expenses just fine.

  3. ” they are as wolves in sheep’s clothing”- biblical quote.
    Seems a feature of late capitalist legal system that is for all practical intents and purposes, it is not possible to avoid eventually breaking a law. The notion that one can make ones self exempt from the process remains one of the fondest delusions of ordinary citizens-part of the commodification process which is as much to do with expectations as truncheons

  4. paul walter :
    ” they are as wolves in sheep’s clothing”- biblical quote.
    Seems a feature of late capitalist legal system that is for all practical intents and purposes, it is not possible to avoid eventually breaking a law. The notion that one can make ones self exempt from the process remains one of the fondest delusions of ordinary citizens-part of the commodification process which is as much to do with expectations as truncheons

    Who would have thought, a few decades ago, that everyone would need a filing cabinet just to maintain compliance?
    Anyone here know the incredibly prescient movie The Rise and Rise of Michael Rimmer (Peter Cook and John Cleese 1970)?

  5. Dear JQ, regarding the “ratchet” – Prof. Robert Higgs has written an entire book examining precisely this phenomenon. It’s called Crisis and Leviathan (Oxford University Press).

  6. @paul walter
    Mayve IM being naive Paul…maybe other have been anive in hsitory…one law change, one weird “enemy within” legislation and you could be in jail before you know it (eg for commenting on this blog)…
    Would I trust Tony Abbott not to be the next lunatic extremist leader ? To make laws to suit his narcissism? To imprison his enemies?

    …no I wouldnt. I think he is nuts.

    He sat around and helped write the “lets go to Iraq legislation”. the anti terrorist laws, helped Brendan make sure no-one in unis was getting grants unless they had “bio security” “terrorism” or “policing” in their research.Helped write workchoices and is now writing “how to rip off retirees by stealing their super”.

    In gfact he has done nothing but help write oppressive laws for oppressors.

    He is D (capital D) isgusting. Some sort of modern day Australian Himmler. Cant stand him and anyone who votes for him is as mad as he is.

  7. @Jack Strocchi

    Although the bias does swing back and forth, I think it tends to be more authoritarian than liberal most of the time. There are periods of time, such as the late 60’s and 70’s, where there is a strong shift towards civil liberties. But these periods tend to be the exception rather than the rule.

    The bias has clearly shifted against civil liberties in recent years. I suspect there are a few reasons for this. One is the decline in social trust and interconnectedness. Due to social problems like family breakdown and dysfunction, plus a decline in the role of voluntary organizations and civil society, people are often more disconnected from each other and norms of behaviour are not as clear. This tends to make people more suspicious of others, and therefore more likely to assume the worst and accept the need for coercive measures to combat alleged threats. And those who are alienated and fearful are easy prey for emotive scare campaigns whipped up by populist politicians and media. What’s the old saying about keeping the people in a constant state of fear, so they will be anxious to be led to safety?

    I also think having an aging population contributes marginally to these trends. As people get older they tend to value security and order more, and value liberty less than the young.

    Another factor that contributes towards an authoritarian bias among the general population is the just world theory. That is, people have some psychological need to believe in a just world where people generally get what they deserve. Related to this is that people like to believe that there are at least some authorities you can turn to that will protect the innocent and dispense justice, and that harsh treatment will only be meted to those who deserve it. I suspect the average punter is probably relatively naive when it comes to the extent of things like police corruption or malpractice, wrongful convictions and other miscarriages of justice.

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