Libertarians Debate Civil Liberties After the Boston Bombings

The Cato Institute is currently playing host to an important libertarian debate over civil liberties and the law enforcement response to the Boston Marathon bombings. The starting point was a recent essay at the Hoover Institution’s Defining Ideas journal by libertarian New York University law professor Richard Epstein, who argued, “given the stakes, law enforcement officials should follow all leads, even if that means more surveillance and ethnic profiling.”

That piece prompted a response by Cato’s Jim Harper, who argues that Epstein “sounds needless anti-privacy notes.” Here’s a portion of Harper’s argument:

Where I think Professor Epstein goes wrong insofar as he wants law enforcement to have its way is in setting aside “technical difficulties” and “means-ends” questions as peripheral. For me, the Fourth Amendment’s bar on unreasonable searches and seizures demands coordination between means and ends in light of the technological situation (both in terms of doing harm and discovering it). It is not a given that government action is reasonable, and no amount of priority given to a threat makes an incoherent response reasonable and constitutional.

Cato has now published a response by Epstein, which contends:

Harper would have a stronger case if he had tried to comment constructively on serious proposals that are put forward.  But to take an ill-advised a priori position that does nothing to advance either the protection of human life and human property, both private and public, is inconsistent with any sound libertarian position.  Remember that libertarians like myself, and I hope Harper, regard the protection of both as the primary function of the state. Harper’s careless and imprecise invocation of the Fourth Amendment cannot conceal this fundamental truth.

Read the whole debate from the beginning by starting with Epstein’s initial essay, Harper’s response, and Epstein’s reply.

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  • ||

    Harper would have a stronger case if he had tried to comment constructively on serious proposals that are put forward.

    Why on earth do people keep insisting that the only way to argue against a policy is to simultaneously put forth some useful corrections to it? It's getting irritating. One can say "this policy violates this fundamental rule of our philosophy and so we conside that bad" and just leave it at that.

  • Virginian||

    That means you're rigid and ideological.

  • ||

    It does if you say that all the time. But if you limit yourself to "this violates our fundamental principle X in this way..." then what's wrong with that? And why do I have to fix your stinking law?

  • Virginian||

    No no you don't understand. Rigid and ideological is bad. Good Washington people are pragmatic and flexible.

    You gotta go along to get along. That's why we have a supposedly libertarian entity arguing for gun control. Because you have to meet everyone halfway. Or else you are rigid, ideological, old fashioned, mean, possibly racist.

  • The Late P Brooks||

    The Cato Institute is currently playing host to an important libertarian debate over civil liberties and the law enforcement response to the Boston Marathon bombings.

    Let me guess: we need more cameras, militarized police continuously patrolling the streets in armored vehicles, and confiscation of all civilian firearms!

  • Nazdrakke||

    Epstein needs to stop describing himself as a libertarian, like, right now. When you start arguing for the building blocks the police state you are not arguing for liberty. His argument that the roll of government's function is to protect life and property justifying this leads to no end of government power.

    And I'm sure if he instituted his multi-billion dollar monitoring technology to ward of a threat 1/5 of that of being struck by fucking lightning that it would totally not be abused. I mean, the police and politicians that control them will assuredly only use this for terrorism and not to pick up other types of law-breakers or discredit political opponents.

    Sure.

  • The Late P Brooks||

    But to take an ill-advised a priori position that does nothing to advance either the protection of human life and human property, both private and public, is inconsistent with any sound libertarian position.

    Great; another "The End Justifies the Means" libertarian.

    Does Epstein also advocate the use of Eminent Domain for expanding university campuses, because providing him a nice warm place to ponder the great mysteries of human existence take a shit outweighs the mundane interests of all those pesky business owners and lowly apartment dwellers?

  • ||

    “given the stakes, law enforcement officials should follow all leads, even if that means more surveillance and ethnic profiling.”

    These are not leads. These are means for fishing for leads when you have none.

    "But to take an ill-advised a priori position that does nothing to advance either the protection of human life and human property, both private and public, is inconsistent with any sound libertarian position. Remember that libertarians like myself, and I hope Harper, regard the protection of both as the primary function of the state."

    Libertarians like yourself are not libertarians Dick. While both of those are served by the primary function of the state, neither are primary functions of the state.

  • CatoTheElder||

    This is the Reason.com website.

    Since it seems to have no trouble accepting Bill Maher's libertarian credentials, certainly Epstein qualifies.

  • Capo||

    I think for me, there is a huge difference between every building in a downtown (Boston or anywhere) having cameras watching the street, as opposed to public cameras monitored by the government.

    Authorities are pointing to all of the footage from the Boston bombings, but what they aren't mentioning is that the cameras were all private security cameras, not Police controlled.

    It may seem trivial, but a bank or an office building or a corner market that is recording everything outside is not sitting there monitoring the footage watching for criminals. It is much less intrusive than a Police camera sitting on a light pole tied to some kind of central monitoring system.

    I much prefer the private surveillance. If something happens, building owners are always more than happy to share any footage with authorities. But on a normal day, you don't feel like some voyear with a badge is watching you go about your day.

  • Loki||

    If something happens, building owners are always more than happy to share any footage with authorities.

    And in cases where they aren't the authoritays can always go get a subpoena or a warrant.

    Besides, if a property owner wants to install cameras on their property that's perfectly fine with me, but the government intalling cameras all over the place and hiring mouth breathers to watch them all day is where I think most of us on this site would draw the line.

  • CatoTheElder||

    "It may seem trivial..."

    Not trivial at all!

  • ChrisO||

    Hint to Epstein, if you advocate an expansion of the surveillance state, it's time to hand in your libertarian badge.

  • Anonymous Coward||

    Remember that libertarians like myself, and I hope Harper, regard the protection of both as the primary function of the state.

    So the ends justify the means?

    Rule-tarians! Mount up!

  • CE||

    It's a post 4/15 world, after all.

  • CatoTheElder||

    Everything is on the table post 9/11, post 12/14, and post 4/15.

    Even sunshine libertarians agree.

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