We read these words in the Declaration of Independence: "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The words are sometimes treated as if life were a particular and extractable good: my right to live for a long time and always protected from the fear of death. In the same way, liberty is occasionally read as if it meant a second and separate thing: my freedom to do as I please, free of disturbance from the claims of other people. The pursuit of happiness is then assumed to be a third thing: my unfettered ability to amass property or good experiences or cherished possessions.
This view of the words of the American founders is wrong. To start with the last and most elusive phrase: when Thomas Jefferson wrote "the pursuit of happiness," he certainly had in mind the acquisition and preservation of property, and 237 years later this has come to be identified, probably by a larger number of people, with "consumption" and "personal pleasures." But happiness, as Jefferson knew well, has its origin in the word hap. Your right to pursue your chances in life was a right to affront your destiny and wrestle with fortune (not identical with "making a fortune"), and to do so unhindered by the designs of other people or by any institution in which you have no voice.
The right of life, in turn, did not mean "a long life in good health with every imaginable protection from harm." Rather, it meant what the word seems to say: the right to live in the world as a single individual person, and to be treated as such, exempt from proscription or persecution. The opposite, however, of the life of a free person was not death. It was the life of a slave. For the political antithesis of the life of a citizen is the life of a subject.
And what of liberty? A view taken by many apologists for massive surveillance holds that liberty is what is left once you have subtracted all the obedience and good behavior required by government to secure for the people a long life. But nothing could be more remote from the spirit of liberty. The Declaration of Independence -- with which the Constitution means to be as consistent as a framework of laws can possibly be -- holds instead that liberty is integral. It is not something you can add or subtract bits of. Liberty denotes the condition of the person who judges for himself, and whose actions are not constrained by an external power hidden from himself.
The contemporary notion of a "trade-off" between liberty and security, contrary to the understanding of the American founders, assumes that life, liberty, and the pursuit of happiness are separable goods. They are separate in our experience, so the argument runs, and therefore they must be separate in our political calculations. But life, liberty, and the pursuit of happiness were not so divisible in the eyes of the constitutional framers. Free existence, but with all the unavoidable risks of hap and mishap: that was their sense of life, liberty, and the pursuit of happiness, taken together. The words express as comprehensive a unity as faith, hope, and charity. We cannot imagine saying: "I'd like to abide by charity (or love) as much as possible, but any love I give too freely may drain my resources for hope of everlasting life. I only have so much energy, after all." A priest or religious counselor who talked of a trade-off between charity and hope would be suspected of not understanding the principle he was raised to believe in. The same is true of the lawyers, journalists, presidents, and security experts who talk of a trade-off between liberty and security.
The constitutionalism they have forgotten was summarized well by Andrew Napolitano in a recent column at antiwar.com. "All persons," writes Napolitano, "are by nature free" and "they have consented to a government. That was the government [Thomas Jefferson and James Madison] gave us -- not power permitting liberty, but liberty permitting power -- and the instrument of that permission was the Constitution." What, then, of the expedient justifiers of state action who defend unchecked surveillance upheld by secret laws in the name of safety? "They have elevated safety -- which is a goal of government -- to the level of freedom -- which created the government." Concerning the relationship between liberty and safety, Napolitano observes: "The relationship cannot be balance, because liberty and safety are not equals, as one created the other."
Such a predisposition for liberty has broad consequences for the understanding of everyday life in a liberal democracy. From the eighteenth century on, a founding truth of free society has been that citizens cannot choose to be slaves. If they do so by an action or a series of actions, they exclude themselves from the compact of freedom. Other forms of political organization are possible for them, but not constitutional democracy. The chooser in democracy (the individual citizen and participant in government) always has precedence over the choice (a government that changes according to the judgments of citizens).
This is a great theme, and it obtains a wider treatment in Judith Shklar's classic essay "The Liberalism of Fear" -- an essay that should be read at this moment particularly by liberals. For in relation to state power, contemporary liberalism has lost itself in a meshwork of trade-offs. Nowhere is this more completely demonstrated than in the actions of the president and the attorney general, and in the justifications they offer for their actions. All of their reasoning turns upon the duty of government to attend to the common defense, the general welfare, and domestic tranquility. They speak as credulous proponents of the trade-off argument. They enforce the argument by endless innovations at the bidding of the security establishment.
The liberalism of fear, according to Shklar, is the ideology that underlies the code of conduct of free men and women under constitutional democracy. The fear we are required to hold in view does not begin and end with the fear of death. No society will underrate the importance of the fear of death, or fail to secure reasonable protection against it. Indeed, the mark of every absolutism has been a relentless preoccupation with guarding against that fear. The liberalism of fear is driven by fear of other things which are as much to be avoided as death. These include cruelty and coercion above all. Cruelty, Shklar wrote, "is the worst thing we do." But to guard against cruelty there must be systematic and operative checks within government which limit the power of government. There must also be open public discussion of matters affecting the common good. And there must be a line between private and public realms -- a line that is clearly marked and vigilantly preserved.
These, then, are the necessary features of a free society that knows itself by the liberalism of fear: (1) aversion from cruelty, and legal recourse against it; (2) checks by the people, incorporated in government, against the abuse of power by government; (3) open and uncoerced public discussion of public affairs; (4) well-maintained prohibitions against the invasion of privacy. Notice that each of these elements of liberal democracy implicates the others. You cannot have consistent protection against cruelty without rigorous external oversight to check the abuse of power by the state. Again, you cannot have free public discussion unless people are at liberty to collect their thoughts in private. And to the extent that matters affecting the common good are settled without the consent of the people, the measures adopted are coercive as soon as they are implemented.
"Thoughtless people," wrote Emerson, "contradict as readily the statement of perceptions as of opinions, or rather much more readily." The leaders and functionaries who in the past twelve years have imposed on the United States a massive system of secret surveillance are best looked on not as betrayers but as thoughtless people. They have forgotten the moral perceptions that were once felt to make the United States a country exemplary for its freedom. The work of this moment is to compel them to see again what people who understand liberty have never failed to see.