The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, I saw again an argument that uses Benjamin Franklin's famous quote,
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
And this reminded how often the quote is misused to generally condemn liberty-for-safety trade-offs, something I wrote about back in 2002, in the earliest days of this blog.
First, note how important the qualifiers are: essential Liberty, a little Safety, and temporary at that. Sure, once you put it that way, who but a fool would give up something "essential" to get "a little temporary" something else. Indeed, once we label something "essential," that itself is an assertion that we shouldn't be giving it up (at least unless we get something even more essential in exchange). One can just as well say,
Those who would give up essential Safety, to purchase a little temporary Liberty, deserve neither Liberty nor Safety.
After all, if the safety is really that essential, how could we reasonably give it up just to get a little temporary something else (even something as important as liberty)?
Indeed, sensible government—including the government that Benjamin Franklin helped build—necessarily involves constant trade-offs of liberty and safety. The Fourth Amendment bars unreasonable searches and seizures, and requires probable cause for warrants. But that means that it allows reasonable searches and seizures, and allows warrants (even to search your houses and papers) when there is probable cause. If we wanted maximum liberty, we could ban all searches and seizures, period. But we realize that the consequence would be an unacceptable loss of safety (you couldn't search someone's home for a dead body, or for a murder weapon), and indeed a loss of liberty, in the sense that criminals undermine our liberty, too. So we trade off some nonessential liberty (at least Franklin would likely have viewed it as nonessential) in order to get a considerable amount of long-term safety, which may even include a different sort of liberty.
The list could go on. Franklin famously argued for enforcing libel law, as a means of reasonably restraining liberty in order to protect reputation (and perhaps to prevent violence). The jury is seen as a protector of liberty, but it's part of a criminal justice system that necessarily threatens to take away people's life, liberty, or property in order to make society safe from criminals (always with the risk that this action will inadvertently punish the innocent, or can be corrupted into doing so). Franklin was a prominent supporter of the U.S. Constitution, but it clearly gave the federal government a great deal of power that would or could be used to restrain liberty in some measure: the power to regulate, the power to tax, the power to raise armies, and more.
Second, let's think a bit about the context in which Franklin said the quote. As Ben Wittes has noted (paragraph break added),
The words appear originally in a 1755 letter that Franklin is presumed to have written on behalf of the Pennsylvania Assembly to the colonial governor during the French and Indian War. The letter was a salvo in a power struggle between the governor and the Assembly over funding for security on the frontier, one in which the Assembly wished to tax the lands of the Penn family, which ruled Pennsylvania from afar, to raise money for defense against French and Indian attacks. The governor kept vetoing the Assembly's efforts at the behest of the family, which had appointed him.
So to start matters, Franklin was writing not as a subject being asked to cede his liberty to government, but in his capacity as a legislator being asked to renounce his power to tax lands notionally under his jurisdiction. In other words, the "essential liberty" to which Franklin referred was thus not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security.
Then Franklin famously repeated the words right before the Revolution, as a defense of the colonies' right not to have their charters and laws altered by Parliament—again, we're talking here about "liberty" in the sense of communal self-government, not individual liberty. And yet a dozen years later, there was Franklin in the Constitutional Convention, signing and apparently fully endorsing the Constitution, which sharply increased the power of the federal government (as compared to its power under the Articles of Confederation), and which thus in some measure limited states' rights to control how they are to govern themselves. Why? I take it that Franklin thought, as I suggested at the outset, that it is fine to renounce some liberty (so long as it's not "essential liberty") to obtain a large measure of long-term safety (rather than "a little temporary safety").
Indeed, if you step back a bit, a big part of Franklin's life as a pragmatic politician—a big part of all sound politics in a country that aspires to liberty—was the inevitable exercise of careful judgment about which restraints on liberty are justified by the desire for more safety and which are not. Indeed, even much libertarian legal and political thinking is about how to exercise such careful judgment. (Consider the works of Richard Epstein and Randy Barnett, for example.) That judgment is not much advanced by the slogan we're discussing here.
So to sum up: All the logical work (if not all the rhetorical work) in "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety" is being done by the decision about what aspects of liberty are essential, and how much safety is at stake. The slogan might work as a reminder not to make foolish tradeoffs, but the real difficulty is in deciding which tradeoffs are wise and which are foolish. Once we figure that out, we don't need the slogan to remind us; before we figure it out, the slogan doesn't really help us.