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Talking Points: Dangerous Arguments

Brandon McNally What are Dangerous Arguments? Dangerous arguments are arguments that lead to policies that are detrimental to liberty. Politicians and commentators on both sides of the political aisle use such arguments to advance their proposals to expand the power of government at the expense of the individual and the free market. Therefore, it is important for liberty-minded people to understand these arguments in order to better make the case for freedom. This set of Talking Points will go into detail on-and discuss strategies on how to combat-the following dangerous arguments: 1. The Government Should Be an Active Force for Good 2. The Set-up 3. Liberal Legal Activism 4. The Constitution is not a Suicide Pact 5. I Have Nothing to Hide Types of Dangerous Arguments Argument 1: The Government Should Be an Active Force for Good In general, clear-thinking people agree that the primary purpose of any government is the protection of its citizens from external and internal threats. Liberty-minded people tend to believe that the government should stick to this purpose, and do little-if anything-else. However, a large portion of our nations commentators and politicians argue that the government should also take an active role in promoting good at home and abroad. Those who advance this argument cite various justifications. Among them are: The promote the general welfare language of the Preamble to the U.S. Constitution, Judeo-Christian morality in general, and/or the Bible in particular, At the state level, the morals component of the states police power, The belief that [t]he law is a great teacher,

The belief that every person in the world is endowed with the inalienable rights to life, liberty, and the pursuit of happiness, and The belief that, in the words of Stephen Gardbaum, people left to their own devices will not be in a position to lead the most valuable life available to them.

This argument presents two problems: First-and most obvious-is the question of what is good. Americans agree as to the basics. For example, few-if any-people would see protection from murder, rape, and robbery as a bad thing. Once we go beyond the basics, however, disagreements begin to emerge. Americans views on homosexuality, for example, range from extreme hatred (such as that espoused by Westboro Baptist Church) to moral superiority (such as that espoused by the radical gay movement). For the government to be an active force for good, it must make moral judgments above and beyond those required for a government primarily dedicated to protecting its citizens rights. When the government makes such a judgment, itexplicitly or implicitly-sends a message that those who hold other views on the subject have the wrong conception of good. This risks alienating those portions of the population that hold different views. Thus, in a free society, the government should keep such messages to a minimum1. The second problem with the argument that the government should be an active force for good lies in its execution. Pursuant to this argument, once the government has defined what good is, it must then take action to promote it. This inevitably leads to an expansion in the size and scope of government. For example: The nations tax policy is rooted in part on the judgment that a more equitable distribution of wealth is good. Until they were struck down by the U.S. Supreme Court, laws banning contraception and homosexual activity were rooted in the judgment that Judeo-Christian sexual morality is good. Many socially-conservative policies also have their origins in this judgment. The interventionist foreign policy of George W. Bush was rooted in the concept of universal human rights and the judgment that democracy is good. Laws such as New York Citys ban on large sodas are rooted in the judgment that a healthy populace is good.

In sum, the argument that the government should be an active force for good has led to increased regulation of our personal lives at home, and an interventionist foreign policy abroad. Neither outcome is conducive to liberty.

A good place to start would be for the government to withhold moral judgment on matters that do not pose a risk of harm to others.

Argument 2: The Set-up A few months ago, I attended the Young Americans for Liberty (YAL) State Convention in Gainesville, Florida. Among the first speakers at the Convention was talk-radio host Burnie Thompson. Thompson discussed one of the arguments-which he calls the Set-up-used as a justification for increased government power: The Set-up: Some people are reckless so we pay the price. -Burnie Thompson To put it another way, an argument invoking the Set-up looks as follows: X has been abused. Therefore, X should be restricted/banned. The current debate over gun rights presents an example of the Set-up in action. Supporters of gun control cite incidents of mass shootings by violent, mentally-ill individuals as justification for increased restrictions on law-abiding gun owners. Why is the Set-up such an effective argument? Because it is invoked with regards to actions that-if taken by enough people-would create chaos. After all, if too many people abused drugs, committed mass shootings, or engaged in acts of terrorism, then we would undoubtedly be in trouble. The Set-up works by conjuring horrible imagery to give cover to expansions of government power. Liberty-minded people should combat this imagery with the truth: That the vast majority of those who enjoy the right at issue are law-abiding citizens who pose a threat to nobody.

Argument 3: Liberal Legal Activism Liberal Legal Activism (LLA) is a set of seven arguments that the left uses to advance their positions on the issues: 1. Its a free country, X should not be illegal. 2. The Constitution prohibits X from being made illegal. 3. If the Constitution protects a right to X, how can it be immoral? Anyone who disagrees is a bigot. 4. If X is a Constitutional right, how can we deny it to the poor? Taxpayer money must be given to people to get X. 5. The Constitution requires that taxpayer money be given to people to get X.

6. People who refuse to participate in X are criminals. 7. People who publicly disagree with X are criminals. -Dan McLaughlin, The Seven Stages of Liberal Legal Activism, as taken from Eliot Spitzers Pro-Abortion Zealotry Unlike the previous two arguments, LLA begins by asking for expanded freedom. However, this is only a prelude to arguments for restrictions on liberty. Therefore, liberty-minded people-who often find themselves on the same side as the left on certain social issues-must take great care to avoid buying into the lefts arguments. The liberty-minded should make clear that they oppose going any farther than Stage 2 (or, in certain limited cases, Stage 3).

Argument 4: The Constitution is not a Suicide Pact The Constitution is not a suicide pact is a phrase used-typically by national-security hawks-as a justification for expanded government power in times of war or national emergency. The phrase originates from the last line of Justice Robert Jacksons dissenting opinion in Terminiello v. Chicago (1949): There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. -Justice Robert Jackson, Terminiello v. Chicago (1949) Nowadays, the phrase is used as shorthand for the following argument: In a time of war or national emergency, the government should be able to take actions of questionable constitutionality-or even blatantly unconstitutional actions-in order to protect the nation. To address this argument, liberty-minded people should utilize three arguments of their own: First, they should call attention to the abuses-and potential abuses-of the powers granted to the government in the name of national security. Recent history provides several examples of abuse: In a statement in July 2004, then-Attorney General John Ashcroft stated that provisions of the USA PATRIOT Act were used to track and capture child pornographers and sex offenders. Keep in mind that the PATRIOT Act was sold as an anti-terrorism measure, and that the last T in PATRIOT actually stands for Terrorism. While sex offenders are heinous criminals, they are not terrorists, and thus should not be the target of government power under anti-terrorism laws.

An August 15 article from the Washington Post details several incidents in which the National Security Agency (NSA) overstepped its already-broad surveillance authority.

Second, the liberty-minded should emphasize both the length of time for which the nation has been at war2 and the lack of a realistic condition for ending the war (and thus scaling back the increased government power that supporters cite the war to justify). STRATFORs George Friedman offers a good articulation of these concerns: [P]artly because of the constitutional basis of the actions and partly because of the nature of the conflicts, World War II and the Civil War had a clear end, a point at which civil rights had to be restored or a process had to be created for their restoration. No such terminal point exists for the war on terror. As was witnessed at the Boston Marathon-and in many instances over the past several centuries-the ease with which improvised explosive devices can be assembled makes it possible for simple terrorist acts to be carried out cheaply and effectively. Some plots might be detectable by intercepting all communications, but obviously the Boston Marathon attack could not be predicted. The problem with the war on terror is that it has no criteria for success that is potentially obtainable. It defines no level of terrorism that is tolerable but has as its goal the elimination of all terrorism, not just from Islamic sources but from all sources. That is simply never going to happen and therefore, PRISM and its attendant programs will never end. These intrusions, unlike all prior ones, have set a condition for success that is unattainable, and therefore the suspension of civil rights is permanent. Without a constitutional amendment, formal declaration of war or declaration of a state of emergency, the executive branch has overridden fundamental limits on its powers and protections for citizens. -George Friedman, Keeping the NSA in Perspective Finally, the liberty-minded should argue that the protections of Constitution are intended to limit the ability of the government to threaten individual rights. They should emphasize that constitutional protections apply not only during times of relative peace, but also during times of war or national emergency. The Constitution should be upheld both when doing so is easy, and when doing so is difficult.

Argument 5: I Have Nothing to Hide This argument serves as shorthand for the following proposition: Because I have nothing to conceal from the government, I am not worried about the governments surveillance.
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YAL called attention to this in its Generation at War tabling event in the spring of 2013.

The Cato Institutes Julian Sanchez offers an excellent rebuttal to this argument: [T]he average person is unlikely to pique the NSAs interest, even when those sweeping surveillance powers are abused for purposes ranging beyond terrorism. It probably wont affect you personally or directly. However, that seems like an awfully narrow way to think about the importance of privacy. Folks dont usually say (aloud, anyway), Im white, why should I care about racism? or, My political and religious views are too mainstream to ever be restricted, so why should I care about the First Amendment? We dont say such things not only because we care about other peoples rights as well as our own happiness, but also because we understand that we benefit indirectly from living in a certain kind of society. You may not be interested in protesting, criticizing the government or debating fringe political views-but as a citizen of a democracy, subject to the laws the democratic process produces, youre better off in a system where those things are allowed to happen. -Julian Sanchez, NSA Snooping Matters, Even if You Have Nothing to Hide In other words, even if one has nothing to hide, one still benefits from having a government that properly respects personal privacy. As Sanchez concludes: Even when it isnt abused-as far as we know-the very presence of that spy machine affects us and poisons us. Reading those New York Times interviews, you find acceptance, but also resignation. The attitude of the unemployed technician who sighed: It doesnt bother me because the government is going to do what theyre going to do regardless of what anyone thinks. Theres nothing we can do about it. The construction worker, who accepted that anything and everything you say, they could be privy [to]. Its slow and subtle, but surveillance societies inexorably train us for helplessness, anxiety and compliance. Maybe theyll never look at your call logs, read your e-mails or listen in on your intimate conversations. Youll just live with the knowledge that they always could-and if you ever had anything worth hiding, there would be nowhere left to hide it. -Julian Sanchez, NSA Snooping Matters, Even if You Have Nothing to Hide

Sources: George W. Dent, Jr., Straight is Better: Why Law and Society May Justly Prefer Heterosexuality, Texas Review of Law and Politics: http://www.trolp.org/main_pgs/issues/v15n2/Dent.pdf

Burnie Thompsons Twitter Page: https://twitter.com/burniethompson/status/202481834859315200 Dan McLaughlin, Eliot Spitzers Pro-Abortion Zealotry, RedState: http://archive.redstate.com/stories/culture/life_issues/eliot_spitzers_pro_abortion_zealotry Prepared Remarks of Attorney General John Ashcroft, dated July 13, 2004: http://www.justice.gov/archive/ag/speeches/2004/071304_patriot_report_remarks.htm Barton Gellman, NSA Broke Privacy Rules Thousands of Times per Year, Audit Finds, The Washington Post: http://www.washingtonpost.com/world/national-security/nsa-broke-privacyrules-thousands-of-times-per-year-audit-finds/2013/08/15/3310e554-05ca-11e3-a07f49ddc7417125_story.html George Friedman, Keeping the NSA in Perspective, STRATFOR: http://www.stratfor.com/weekly/keeping-nsa-perspective Julian Sanchez, NSA Snooping Matters, Even if You Have Nothing to Hide, The Cato Institute: http://www.cato.org/publications/commentary/nsa-snooping-matters-even-you-havenothing-hide

Cases: Terminiello v. Chicago, 337 U.S. 1 (1949)