Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters. — Daniel WebsterWe can attribute expansion of government powers to the desires of officials to have the means to achieve their ends, whether benign or malevolent, but there is another important factor driving such grasping for more power: It is often cheaper to exercise sweeping powers than targeted powers.
NSA surveillance highlights this explanation. Ask what it would take, and what it would cost, to limit surveillance to those for whom probable cause could be established and a warrant established. The answer, at least in the judgment of those who support the program, is that it would cost much more than just collecting and storing all communications it physically can, having machines flagging suspicious words or patterns, and use the machine scans, among other means, to establish "probable cause" for a warrant for a human investigator to examine the records. The claim is that it is not a Fourth Amendment "search" until a human does it. Never mind that sophisticated AI software may eventually equal or exceed what humans can do.
Even at $1.2 billion, with the capacity to store copies of every electronic communication on Earth for the next several hundred years, the NSA Utah Data Center is thought to be less expensive than targeted investigations of individual threats.
The problem, of course, is that it is not just the NSA doing the collecting and storing. Other governments and private organizations are doing it as well. Too many with the means to collect and store the information are reluctant to allow it to be lost, especially when it might be saved by someone else and used against one. We are entering the era in which nothing we say, write, or perhaps even think, ever disappears.
Be careful what you wish for, because your wishes are likely soon to be a matter of public record.
In law and war
The protections of rights in constitutions are designed for situations in which threats to those rights, and to the processes of government, are sparse, and amenable to particular treatment. In the early Republic crime was rare, and the ordinary processes of law and government adequate to manage it. But we also have the example of the 1861-65 War of Secession, when those protections broke down, overwhelmed by violations and the urgent demands for violations.
Inter arma enim silent leges is a Latin phrase, a variant of words by Cicero, meaning "Among arms, the laws fall mute," more popularly rendered as "In war, the law is silent." It was written during a time when violent mobs were common. But it carries the notion that the orderly processes of law are luxuries for peaceful times and mostly virtuous people. When people become violent or vicious law becomes too costly to administer.
We saw the economics play out in the War in Viet Nam, where U.S. troops initially entered villages to identify, remove, and detain the enemy combatants mingled with the other villagers, but abandoned that kind of effort when they incurred too many casualties by doing so.
"It became necessary to destroy the village in order to save it." — An American major after the destruction of the Vietnamese Village Ben Tre.We find a similar calculation being made in police policies and training, carried over from military training, that put "force protection" ahead of "public safety", and train police to shoot, and shoot to kill, at the first hint that a suspect might be armed and dangerous, even if it makes it more likely that the person killed will be an innocent civilian or perhaps even a depressed person trying to commit "suicide by cop".
"My Lai ... was the result of an ordered, planned and well-conducted campaign conceived at high command levels ... as the 'pacification' of Vietnamese villagers." — Richard Boyle, Flower of the Dragon, 1972.
"Caedite eos. Novit enim Dominus qui sunt eius." (Kill them all. Let God sort them out) — Arnaud Amalric, to a soldier in the Albigensian Crusade, Sack of Béziers, July 22, 1209. Revived as a saying in the Viet Nam War.
We also find a similar approach taken by police and public prosecutors who engage in fabrication of evidence to get the "bad guys off the streets" on the supposition they are guilty of something even if not the offense for which they are actually prosecuted. Many criminal statutes have been passed for no other reason than to define "crimes" that are easy to prove, as a substitute for incurring the expense of investigating real crimes, or to get perjured testimony from "confidential informants" induced by plea bargains.
A partial remedy for this, besides forbidding plea bargains, would be to separate the office of public prosecutor into an office of public procurator, who would play a ministerial, quasi-judicial function, and public or private prosecutors, appointed by the grand jury, who would actually prosecute cases in court. It would be important for procurators to be impartial, but prosecutors would not need to be. It has been a historical mistake to combine the two functions into the same official.
Taxation and regulation on the cheap
The IRS is loathed by almost everyone, tolerated because it is thought to enable government to afford the services most of us want, but if we examine what is happening economically, we find that it is trying to administer a tax collection system without laws that are clear (or that even exist), left to make up its own rules from one case and day to the next, at a cost that is less than the money it collects. Even if there were clear laws, taxing "income" (however defined) fairly would require auditing and assessing each taxpayer individually, a process that could not be less expensive than the taxes collected for any but those on the high tip of the income spectrum. The only economically viable collection method involves terrorizing everyone and treating almost no one fairly by any standard. Leaving aside constitutionality, that is the very essence of totalitarian tyranny.
We see a similar pattern for much government regulation. By imposing regulations that cannot be fairly or particularly applied at an affordable cost, government inevitably becomes oppressive and tyrannical, in the original sense of acting without lawful authority.
In one examines the language of the U.S. Constitution closely, one can discern that the original intent of taxation and regulation was that it was mainly to be applied at inspection points through which merchants would be required to pass, not by armies of regulators or tax collectors harassing people in their homes or places of business. Excise taxes on transactions that did not travel through inspection stations was contemplated, but not to such as extent as has emerged.
Insights from physics
A dynamic system can be described by a function called the Lagrangian, introduced by Joseph Louis Lagrange in 1788. The value of the Lagrangian over a time interval forms a curve, the area under which is called its action, and nature constrains the system to behave in a way that minimizes its action, in what is called the Principle of Least Action. By analogy a human political, economic, and legal system can be thought of as being described by a kind of Lagrangian which predicts totalitarian behavior unless the system is structured in a way that causes the action to be minimized without taking a totalitarian trajectory. The objective of a properly designed and enforced constitution of government is to do just that, but this analytic approach also shows that without strict compliance with such a constitution, totalitarian tyranny is the inevitable result. Tolerating a little noncompliance is intrinsically unstable. Anything less than strict compliance is disturbing a house of cards.
- A right to nonsurveillance?
- A defect in the Constitution
- 100 obstacles to constitutional compliance
- Selected Works on Tyranny