We must stop being tolerant of repression

On 31 October Wendy Kaminer, spiked columnist and one of America’s leading civil libertarians, spoke at the debate ‘Rethinking Freedom in an Illiberal Age: Securing Rights or Celebrating Liberty?’ at the Battle of Ideas in London. Her opening comments are published below.

I have no intention of ‘rethinking freedom’. Rather I persist in maintaining a traditional notion of rights and freedom and a belief in traditionally liberal distinctions between the public and private realms.

The title of this debate, ‘Securing rights or celebrating liberty?’ does seem to me to assume a false opposition. Positing a choice between securing rights and celebrating liberty is a bit like positing a choice between love and marriage. They may not always overlap but they‘re not mutually exclusive, or so we hope. In fact, they’re often mutually reinforcing.

Our social freedoms are to a great extent contingent upon our formal legal rights. Take a very simple example: going to a cinema or a museum is part of daily, lived experience, but our formal speech rights will determine what we may or may not see there. Personal relationships are certainly part of our daily lived experiences, but the nature of those relationships is partly contingent upon the legal right to engage in them, which is why the gay rights movement is currently focused, at least in the US, on the right to marry. The philosopher Hannah Arendt called the right to marry fundamental and inalienable. It is both a social freedom and a formal political right – marriage is an institution of the state.

I’m not denying that there’s tension between rights and freedom, but this tension is overshadowed by confusion about what each entails and the government’s role both in protecting our rights and allowing for our freedoms. Debates about rights and freedom, at least in the US, tend to be framed in terms of an incoherent, result-oriented partisanship. On the right, people celebrate freedom – the right has virtually copyrighted the word freedom – while showing relatively little regard for the concept. Trumpeting freedom hasn’t stopped many right-wingers from supporting the expansive national security state that developed during the Bush years or an ongoing censorious culture war. On the left you rarely hear people utter the word freedom, although they sometimes talk about civil liberties; they tend to focus on equality and not just economic but existential equality, which includes some sort of imagined right to psychological wellbeing. And this, I think, is really quite dangerous.

The left undermines freedom the most by trying to restrict intolerance or discrimination in the private sphere. This is particularly pronounced on college and university campuses. The right, at least historically, has undermined fairness by ignoring discrimination in the public sphere. It also tends to undermine freedom by trying to restrict sin in the private sphere. But put right and left together and you’d still lack any coherent analysis of rights and liberties and the public and private realms.

Which brings us back to Hannah Arendt. She made her comment about marriage in an essay written about 50 years ago, a very controversial critique of federal efforts to forcibly desegregate the public schools. I don’t share her opposition to forcible school desegregation – it was unavoidable – but the reasons for her opposition are instructive. Aside from her pragmatic concerns, and her very strong distaste for enlisting children in what was often a very heated and violent political battle, Arendt was quite sympathetic to the private associational rights of parents who wanted to control their children’s education.

I disagree that, in this case, private associational rights should have prevailed. In my view, your associational rights aren’t dissolved but they are diluted when you engage in a commercial or educational endeavour in the public realm. But I share Arendt’s conviction – and she stated it in her usual clear-headed fashion – that social life entails the right to engage in social discrimination. And that’s a right that many liberals seem bent on eviscerating. Lyndon Johnson reportedly said, during the civil rights era, that law can’t change what’s in people’s hearts; law can only point the way. The problem today is that many liberals seem intent on using the law to do what it should never attempt to do – change what’s in people’s hearts.

Going back to Arendt, her analysis of the private, social and political realms, and the government’s role in each, clarifies the dangers of this very intrusive approach to law. At the risk of stating the obvious, the political realm demands government intervention to secure political rights: the right to vote, due process, rights against summary detention, and also rights to public education, employment, and access to public services. The private realm demands laissez faire government. These are pretty obvious principles about which you can find general agreement. Yet in practice they’re really quite controversial, or they’re applied arbitrarily with an eye towards results and no coherent delineation between the public and private spheres.

Today, with people being summarily detained and tortured, political rights seem paramount. It’s easy to scoff at people who complain about social restrictions on their daily life, from the right to smoke or overeat to the right to indulge in allegedly abusive speech. And their complaints can seem relatively trivial when viewed individually. But collectively, these restrictions upon people’s daily lives are really quite consequential. Collectively, they erode the basis for a free society, because the more officials exert control over everyday behaviours, the more people develop habits of submission, the more they become tolerant of repression.

I do believe that privacy is the foundation of a free society – it’s extraordinarily important. We have lost so much of it, some of it perhaps irrevocably. It’s not just government surveillance or surveillance by large private entities that’s the problem; it’s the enthusiasm, the eagerness with which the public has surrendered privacy for the sake of a department store charge card, notoriety, or easy social networking.

I really do worry about a future in which privacy is so greatly diminished. ‘There no longer exists an un-political sphere of life’, a German court declared in 1937. I worry about the future because if you imagine a world with no private, personal realm, you imagine a world with no refuge.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon(UK).) See her spiked column, Letter from America.