I have a confession to make that might get me into deep water with my friends back in Berkeley. I am not a privacy nut. In fact, back in the day I cc’d all of my email, as a matter of course, to John Ashcroft. You know: “Picked up the milk,” “On my way to get kids,” “Meet you at the theater,” etc. So, when I read an article about how indignant I am supposed to be about spying, I am inclined to yawn. This article is different, because it peels the edge back ever so slightly on one of the many legal, ethical, and institutional contradictions festering just beneath the surface of our social formation.
Privacy rights, we are told we must remember, were born out of the privilege — literally the private law, freedom, or right — enjoyed by those possessing greater political power and economic wealth to gather information about those with less power and use this information against them. This was not against the law. This was their private law, their private right, their privilege.
This privilege came under criticism only when another class — a class without title, whose only powers derived from their wealth, not their family lineage or land — gained sufficient social and economic power to challenge the right of the privileged to enjoy their own private law; and with this challenge was born the notion of universal law: a law that applied equally to all parties, irrespective of their land, title, or wealth.
It needs to be pointed out that this new notion of universal law emerged at a time when, at most, 10% of adults in the newly constituting United States enjoyed the “one vote” democracies say that they grant to “one person.” It needs also to be pointed out that the notion of universal law has always stood in tension with a much older notion that “might makes right,” which is the legal principle upon which the current Patriot Act and its successors is based.
Might makes right sounds like no more than the “Bully Principle.” But it is not. When John Yu, the often ridiculed UC Berkeley Law professor, wrote the famous legal memo that justified the Executive branch’s violation of the US Constitution and established law, he drew upon a tradition that says, in essence, that politics is a contest among the branches of government. If Congress had sufficient political power, it could have politically challenged the Supreme Court and the Executive. Lacking that power — or, in the alternative, agreeing with the Executive’s right to violate the US Constitution — Congress tacitly endorsed the action of the Executive. Similarly, did the Supreme Court possess the power to compel the Executive to subject itself to the “Law of the Land,” it could have done so. However, failing to do so, it too concedes that it is in agreement with the Executive. In other words, on purely legal grounds, since neither Congress nor the Supreme Court enjoyed sufficient will or power to challenge the Executive, the Executive’s extra-Constitutional (indeed, anti-Constitutional) decisions and actions prove to be . . . constitutional. For, where the three branches of government agree, that is where law is made.
So, on the one hand we have universal law; and on the other hand we have legal particularity. Think of it this way: did the growing entrepreneurial classes of the 18th century not have sufficient power to force the nobility’s and monarchy’s hands, universal law would never have been enshrined in the various Constitutions that sprang up in the late 18th and throughout the 19th centuries. Universality is thus grounded in the legal particularity of the power exercised by the non-titled, non-landed, educated bourgeoisie in the 18th and 19th centuries. These newly constituted elites, of course, then went on to brutally suppress the working families upon whose penury their new wealth depended.
But, does the reverse also hold true? Those who enjoy might, make right. If citizens are able to compel governments to once again hold themselves to universal law, does not this power to compel, in and of itself, reconstitute the law as universal law?
These questions, I believe, if squarely faced shift the burden of proof away from “the government” and place them once again on the shoulders of “the people.” Why is “the government” — which, in a “democracy” is constituted by “the people” — not obeying universal law? Why is “the government” able to eaves drop on the private lives of “the citizens” by which it has been constituted?
The simplistic and simple-minded answer to this question is that “the government” has not actually been constituted by the people. This answer begs the question who — the Tri-lateral Commission, the international Zionist conspiracy, the Communists, the homosexual life-style lobby etc. — who has taken over “our government.”
Far more troubling, I think, is the conclusion — born out in poll after poll — that “the people” are not real big fans of or cheer-leaders for the universal rights and liberties — including privacy — enshrined in the constitutions of the 18th and 19th centuries. In other words, “the people,” who enjoy the power to overturn and turn out their representative governments, have constituted governments that, like themselves, prefer the right of might to the right of law; they agree and support the notion that might makes right.
When a US Law Firm is working for the government of Taiwan and finds itself caught in the web of NSA surveillance; and when the Supreme Court rules that private citizens have no standing to challenge this clear violation of Constitutional Law; this can only mean that might makes right and that “the people” lack the will or the power or both to reconstitute the rule of universal law.
Of course, “the people” might change their minds about this. They might decide that they prefer a universal law that makes all parties — the powerful and the weak alike, the wealthy and the poor alike, the many and the few alike — equal before the law. But there is much to suggest that this is not at all the direction in which “the people” are moving. For when, in the 1970s, “the people” agreed that private interests needed to be “unbound” (think Ayn Rand here) and public interests sacrificed in order to create greater private efficiencies, they were in effect choosing the right that might makes. When they began to place the interests of the Commonwealth, the Republic, under those of private enterprise — making politeia subject to oikonomia — they were already saying quite loudly that the universal law protecting their privacy against surveillance by those who were more powerful could be sacrificed to the benefits the powerful can win from the knowledge they seize from those who are too weak to resist.
“The public” has already decided that it does not particularly like or support or want universal law. (And Tennessee recently showed that its people have no interest in assuming power, even when it is offered to them.)
Is it important for us to note here that now the majority of Supreme Court justices explicitly embrace the legal tradition — might makes right — upon which John Yu based his famous memo? Is it important for us to note that this tradition includes Carl Schmitt, the notorious architect of the National Socialist judicial system and mentor to Leo Strauss, the University of Chicago classicist responsible for inspiring, among others, Donald Rumsfeld?
The right to privacy is founded on a legal tradition to which the courts no longer adhere. It is founded on the antiquated notion of universal law. The legal world now adheres to the contrary and much more ancient tradition: might makes right.
If this is true, then we need to find the might that will make this wrong right once more.