Protesting, Police, and the Polis of Aristotle

By Julian Dunraven, J.D., M.P.A.

Really, I just wanted to discuss Aristotle; instead I attended a protest.  It certainly was not my idea; my students requested it.  Apparently, some group had organized yet another protest against police brutality and racism. Laudable goals, I am sure, but I think I do more for the cause by teaching Constitutional Law than by attending protests.  Yet, my students were interested because a colleague of mine was counter protesting on behalf of the police, who she thinks are being treated most unfairly.  I found this notion absurd, but the students wanted to go, and cajoled quite skillfully.

“But Dr. Dunraven,” said they, “doesn’t Aristotle talk about civic virtue and the good of the polis?  Isn’t this protest about just those topics?  And didn’t you say we are studying social justice theories next week?  Wouldn’t this be a good way to see them in action?”

“Besides,” said another, “just last week you made fun of us for being in college but never attending a protest.”

Well there they had me.  What self-respecting college student graduates without ever protesting something?  It’s like graduating without ever writing a research paper: possible but woefully inadequate.  It might even be un-American considering Alexis de Tocqueville’s famous observation of Americans’ remarkable tendency to organize for every conceivable purpose and cause. So, of course, I shrugged and let my troop of hard working, free market, liberty advocates march over to witness their first social justice protest.  They were appalled.

When I arrived at the protest, I found the students already clustered around my colleague, an elegant, petite woman standing alone with a sign thanking police for all they do right.  Facing her was a clearly angry crowd of a hundred or so people.  The protesters were shouting epitaphs at my colleague, calling her a, “white privileged bitch,” who had no right to be there, or even to speak, apparently.  Whenever she would try to reply, they would shout over her, telling her to leave.  The arrival of the students seemed to infuriate them more.  The white students were called rich, privileged, oppressors.  Black and Hispanic students were called white-washed, or sell outs, and told they were far beneath the protesters.  Military veteran students were called murderers.    

The students, to their credit, remained calm and polite, but confessed this was not the type of Aristotelian civic dialogue they had in mind.  Indeed, they said they found no virtue in it at all, and were shocked that people claiming to advocate for social justice, respect, and civil rights could demonstrate such disdain for each of those concepts.  In the face of such hatred, all but one eventually returned to the classroom in disgust at the complete lack of civilized discourse they encountered. 

That left only my fellow professor and a single student, both now resigned to polite silence, to face the verbal assaults of the crowd.  When it became clear they would not be driven away, a couple of activists began circulating through the crowd, and moved the entire protest to the opposite side of the field, claiming that they did not feel safe.  Over 100 shouting people moved because they did not feel safe after trying-- and failing-- to intimidate a 5 foot woman and a first year college student into fleeing. 

The overt hypocrisy of such intolerance only grew in how the crowd treated me.  Upon my arrival, I warmly greeted my colleague and students.  Immediately, the crowd demanded to know who I was.  I politely identified myself, and explained I was also a professor, teaching Constitutional Law.  I stood near my colleague, both of us were dressed quite formally, both appear ethnically European, and both were professors.  No one had any reason to think my opinions differed from hers.  The only difference between us, so far as the crowd knew, was that I was a man and she a woman. Yet, while an angry mob surrounded and shouted at her, when those same people surrounded me, they almost deferentially asked me what I thought of the event. They did not shout, or even make a rude remark. Again, while both my colleague and I looked professional, and we both carried a mantle of authority and expertise as professors, she was treated poorly while I was treated solicitously. I found it hysterically funny that a social justice crowd protesting what they saw as latent racism in police forces would be so blind to their own rather overt sexism in how they tried to shout down and silence the voice of a solitary woman in a position of honor—but not a man.

After returning to the classroom, my students expressed their frustration with the complete lack of civility they encountered.  Many students, much like myself, even sympathized with the ostensible goals of the protesters, but were chagrined at their complete refusal to engage in any meaningful dialogue.  Most reported that, every time they tried to engage, the protesters would simply shout them down with some repetitive phase, be it “oppressor,” or “murderer,” at the instruction of a few lead activists.  As they left, they told me one protestor shouted some incoherent nonsense at them, whereupon an organizing activist ran over to issue a correction.  The chastened protester then shouted, “Yeah, THAT’s what I meant!”  My students said they were not sure if such a display was horrifying or funny, and asked me if such slavish mindlessness was what Aristotle meant when he referred to natural slaves.  I suspect it is.

Aristotle defined a natural slave as someone who was incapable of articulating or reasoning out principles for themselves, but was capable of embracing the principled dictates of others if given sufficient instruction, and thus is not truly free.  Today, we might call this a natural follower.  However, while Aristotle thought this trait to be permanent and inborn, I suspect it is the result of training.  Many of the most viscous protesters were not incapable of intellectualism at all.  Indeed, they turned out to be students of Sociology, and devoted to the teaching of a few of their favored professors.  Unfortunately, modern academia too often forsakes teaching students logical reasoning in favor of teaching them ideological dogma.  Questioning that dogma is quickly derided and punished, while fervent acceptance is held up as virtuous and the very exponent of intelligence.  While this sort of academic training was implemented by the Progressive Movement, and is vital to sustaining it, even many conservatives, tragically, have adopted the process, if with an opposite ideology.  Such dogmatic thinking will always produce slaves, whose chains are reinforced with the vapid level of intellectual discourse running through society, often consisting of no more than a trite platitudinous tweet or a thumbs-up-like to an equally vacuous Facebook post, both echoing dogmas learned by rote.   

The protesters yesterday had real grievances and valid frustrations with their society.  They chose to lay those grievances on the police and demand reparations.  In their refusal to engage in any meaningful dialogue with their opposition, however, they succeeded only in making enemies.  Civil discourse is abandoned as both sides simply try to gather enough numbers to bludgeon the other side into submission—and while such a process may start with verbal bludgeoning, it usually ends in the physical form, for force is all that is left to us when reason fails.

Aristotle posited that the highest good was intellectual reasoned discourse in service to civic virtue.  Yet, thinking and reasoning requires training, and discourse takes a great deal of practice.  Academia is supposed to provide both.  It serves us poorly if it instead trains us only to recite secular dogmas, and shout them repeatedly if challenged in the hope of overwhelming any opposition with noise, exhaustion, or outright force.  It is small wonder our society has become so intractably polarized with such training.  That can only continue to worsen until we can learn to listen to one another, to discourse with one another, and to together struggle to pursue truth through the challenges of reason. 

The 4th Amendment: A Right—Not a Privilege

By Julian Dunraven, J.D., M.P.A.

What is the difference between a right and a privilege? Answering that is a difficult task, for our legal system so often conflates the two concepts. Yet, in the simplest sense, a right is basic liberty intrinsic to being human, while a privilege is granted or purchased from someone else. Legal privileges, or government granted rights, are created, granted, and maintained by government. In this area, you will find your right to drive on public roads with a driver’s license, your rights to attend public schools, and your right to one vote at the age of 18 for government elections—often provided you are not a felon. These are lesser rights, more properly called privileges. Your greater human rights, however, are innate to you just by being. Governments do not create them, and cannot take them away. Governments can only recognize and respect them, or oppress them; in either case these fundamental rights remain absolute regardless of the government. In the United States, some of these greater human rights are expressly enshrined within the Constitution—especially the Bill of Rights and the 14th Amendment.

Within the Bill of Rights, the 4th Amendment is perhaps most foundational to this country’s origin. It expresses a principle we borrowed from our British forbearers, who already held it in great reverence. I think it was best stated by William Pitt, the British Prime Minister, in a now oft quoted speech, just a few years prior to the American Revolution:

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!"

Unwisely, the British forgot that brave and noble principle in their management of the colonies, and forced upon them the hated Writs of Assistance and General Warrants. When the colonists finally began to stand up to these dreaded instruments of oppression, as John Adams said, "there the child independence was born." And to ensure such atrocities never again occurred, the founders gave us the 4th Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This sounds very nice. Most people read this and believe themselves secure from government searches, seizures, and arrests unless there is probable cause and a warrant from a court. Unfortunately, most people would be wrong. All the forces of the Republic have proven much more pernicious than all the forces of the Crown, and warrants today are the rare exceptions to law enforcement activity.

Today, law enforcement can look through your phone records, your internet activity, your bank records, your trash, and many of your business operations, all without warrants. Schools or workplaces can offer no protection, and even your own body is open to inspection without warrant. Criminals—whether convicted or merely accused—get no privacy at all, and if you happen to be at an airport or a border crossing, neither do you. Indeed, the searches now conducted by the U.S. national security apparatus are indistinguishable from the General Warrants that led to the Revolution. So what happened to the 4th Amendment?

The problem stems from one little word: unreasonable. Over the years, the Supreme Court has held that the first and second clauses of the amendment are nearly separate. In short, a warrant, requiring probable cause and particularity is only necessary if a search is unreasonable. A reasonable search, according to the Court, does not require a warrant. So what is reasonable or unreasonable? To determine this, the court engages in a balancing test. On one scale it places your expectations of privacy which society is prepared to accept. On the other it places the interests and importance of the state getting the information it wants. This defines your right to privacy under the 4th Amendment—and it is no right at all.

The rights protected by the 4th Amendment are fundamental and innate rights. Yet the Court seeks to balance them against Government interests before it will recognize them. If a right is only recognized if the Government deigns to do so, but is reduced or eliminated whenever the government determines a matter sufficiently important, then it is no right at all. Such sufferance at will reduces a right to a mere privilege. And the government will, ultimately, always find its own interests outweigh individual liberty or privacy. The proof is all around us.

Try imagining a TSA agent telling George Washington to spread his limbs while their scanner took a photo of his nude body for security purposes, or their staff conducted a pat down which, anywhere else, would be called sexual molestation. Or perhaps imagine the reactions of Adams, Franklin, or Jefferson in discovering that anything they submit to another person or business, from email via an ISP, or a monetary deposit via a bank—effectively every record and transaction—is subject to warrantless and constant surveillance. Somehow I doubt they would have much sympathy for the idea that it is all an important state interest for the security of the nation.

The problem is now bad enough that at least one Justice of the Supreme Court, Sonya Sotomayor, has suggested abolishing the doctrine that information turned over to a third party (such as an ISP, bank, or phone service) is fair game. Unfortunately, she bases her argument on the idea that the modern electronic age simply allows for too much information to be snapped up by government watchers. This means only that she dislikes the consequential result of the doctrine laid down by the Court. It is not a principled objection; our rights remain subject to her subjective sense of what is or is not too much government intrusion, and mass traffic stops, random personal frisks, and other arbitrary exercises are at the whim of the justices. There is an alternative, however.

If the 4th Amendment were read as a whole, as it should be, rather than as separate parts, then it becomes clear that all searches and seizures must be supported by individualized probable cause. That being the case, the only reasonable searches or seizures which could take place without a warrant would be those crimes directly observed by law enforcement, or those emergency situations to which someone involved consensually invites law enforcement. Those are about the only instances where probable cause can be established directly by a law enforcement officer, and would thus be reasonable. Anything requiring indirect observation, or the compilation of disparate evidence, would of course require the judicial oversight of a warrant.

I have no doubt that governments at every level would scream that this view of the 4th Amendment would make it much more difficult for them to pursue criminals. They would be right. However, the primary function of government is not to pursue crime, or even establish order. Rather, it is to guarantee liberty: liberty of each individual against other individuals, certainly—but also liberty of the citizens against the government. Only through this holistic view does the 4th Amendment take on the power of an absolute principle—a human right—not a government privilege. Anything less leaves it to the subjective, arbitrary, and evolving preferences of the Justices, always with the heavy thumb of the government weighting the scales. Alas, I doubt this will come to pass anytime soon.

Every time I teach 4th Amendment jurisprudence in my Constitutional Law class, I find it fascinating to watch the students. Inevitably, by the end they will be in frothing rages against the almost total abolition of privacy that has befallen this nation, and demand to know why my class is the first time they are hearing about it. The tragic answer is that only Constitutional Law classes—and few enough of those—are even paying attention.

Unfortunately, few of our citizens guard their constitutional rights as they should. Thus, few even know how impotent the protections of the 4th Amendment have become. Elected leaders actually campaign on proposals that undermine 4th Amendment rights in the name of safety, of efficiency, of getting at bad guys and, above all—of national security. So far, the people have bought it all, happily selling their rights in exchange. And so Natural Rights become mistaken for government granted privileges. Until people remember what a right actually is, acknowledge how much they have lost, and demand it back from their government, nothing will change. Until then, we remain under near total surveillance. Liberty requires constant vigilance, and our people have been asleep.

Freedom, Responsibility, and the Inexorable Kant

By Julian Dunraven, J.D., M.P.A.

Freedom is a powerful idea. Every time I teach a course dealing with economic, political, or moral philosophy, it is not the social justice theorists with their noble causes who seem to capture the imaginations of my students. Rather, they overwhelmingly favor the Austrian Economists and libertarian thinkers such as Henry Hazlitt, Frederic Bastiat, and Robert Nozick. Even my Business Law students would prefer to attempt the type of anarchy proposed by David Friedman in The Machinery of Freedom rather than endure the current regulatory state.

Remarkably, this preference seems to hold regardless of individual background. Indeed, it is usually those students who have had to struggle the hardest to support themselves that argue most passionately for the minimalist state, and sneer at the paternalistic policy recommendations that issue forth from most of academia. Perhaps this should not be surprising. I do, however, find it marvelously encouraging. There is only one sticky problem.

While my students clearly and consistently prefer a libertarian approach to property, government, and justice, there is much less clarity about what to do with one's freedom once it is obtained. In a truly free system, how does one make morally good decisions? The best answer I have found comes from Immanuel Kant in his Groundwork for the Metaphysics of Morals. Through reason, Kant proposes a moral system to instruct any free and rational being. His Categorical Imperative instructs us to, "Act only according to that maxim whereby you can at the same time will that it should become a universal law without contradiction." He goes on to insist that, by this action, "you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end." He then concludes that, "Therefore, every rational being must so act as if he were through his maxim always a legislating member in the universal kingdom of ends."

The system Kant proposes is incredible: universal self government of all rational beings, from mortals to gods, through reason. It is such a very demanding idea of freedom as to be utterly unworkable as a principle of government outside the Heavenly realm. However, it is certainly workable as a guiding principle of personal morality and conduct.

The daunting task Kant proposes is precisely why, every year, those same students who so passionately argue for freedom, begin to push back against the Categorical Imperative. Most think it is just too hard to live up to. Others are uncomfortable with its universal nature. Thus, every year I challenge my students to successfully refute Kant's theory. We then spend the remainder of the term searching thorough other thinkers, dissecting and arguing over their ideas, and always holding the best up to the looming standards of Kant. So far, Kant has always been victorious, and his defeated opponents among the students seem to become his greatest acolytes.

When graduation rolls around each year, I watch a line of confirmed Kantian liberty advocates parade across the stage. Whether they enter careers in law, law enforcement and government work, business, or policy, I never have long to wait before letters from the graduates start arriving, each telling me how they faced some ethical quandary, and resolved it after explaining liberty and the responsibilities of the Categorical Imperative to their co-workers, friends, or family. It seems freedom is truly a powerful idea--and an equally powerful responsibility.

http://www.inp.uw.edu.pl/mdsie/Political_Thought/Kant%20-%20groundwork%20for%20the%20metaphysics%20of%20morals%20with%20essays.pdf