Krauthammer's "Situational Libertarianism"

In a bizarre column today in the Washington Post entitled "Setting Limits on Tolerance," Charles Krauthammer endorses what he describes as "situational libertarianism." Krauthammer begins by discussing how he supported the right of neo-nazis to march through Skokie, Illinois in the famous 1977 case. But he claims he supported their right to protest only because they were "utterly powerless" and "pathetic losers." He then writes:

"Had they not been [utterly powerless] -- had they
been a party on the rise, as in late-1920s Germany --
I would have been for not only banning the march but
also for practically every measure of harassment and
persecution from deportation to imprisonment. A
tolerant society has an obligation to be tolerant. Except
to those so intolerant that they themselves would
abolish tolerance"

Explaining further, he writes:

"Call it situational libertarianism: Liberties should be as
unlimited as possible -- unless and until there arises a
real threat to the open society. Neo-Nazis are pathetic
losers. Why curtail civil liberties to stop them? But
when a real threat -- such as jihadism -- arises, a liberal
democratic society must deploy every resource, including
the repressive powers of the state, to deter and defeat
those who would abolish liberal democracy."

Krauthammer acknowledge that:

"Civil libertarians go crazy when you make this argument.
Beware the slippery slope, they warn. You start with a
snoop in a library, and you end up with Big Brother in
your living room. The problem with this argument
is that it is refuted by American history. There is no slippery slope, only
a shifting line between liberty and security that responds
to existential threats.
During the Civil War, Abraham Lincoln went so far as
to suspend habeas corpus. When the war ended, America
returned to its previous openness. During World War II,
Franklin Roosevelt interned an entire ethnic group.
His policies were soon rescinded (later apologized for)
and shortly afterward America embarked on a period
of unprecedented expansion of civil rights. Similarly,
the Vietnam-era abuses of presidential power were
later exposed and undone by Congress."

Buried within this strange argument is a point that has merit. Slippery slope arguments are generally weak. Societies almost never fall down the slope, so to speak. Bag searches on the subway are no more likely to lead to cameras in the living room than legalizing gay marriage is likely to lead to state-endorsed bestiality. In both cases, the slippery slope arguments are rather silly, and show little understanding of how societies function in reality.

That being said, Krauthammer's meta-point strikes me as ludicrous. The very phrase "situational libertarianism" invites ridicule. Talk about wishy-washy and relativistic. Can you imagine if someone like John Kerry had used such a phrase in the 2004 election? We'd still be hearing about it. To say that your rights of freedom of speech and association depend and what you are saying and who you are associating with is highly problematic to say the least. And how does it make sense to make your rights dependent of how popular the ideas are that you're espousing? Who gets to make the call as to which groups are "pathetic losers" and which are "parties on the rise?" Is that a legal standard? And how do we determine whether a group is "so intolerant that they themselves would abolish tolerance?" Wouldn't that description fairly accurately characterize much of the religious Right in this country? And they're pretty clearly a "party on the rise." So I suppose we should "deploy every resource, including the repressive powers of the state, to deter and defeat" them, right?

Even more strange is Krauthammer's apparent attempt to justify extreme curtailments of civil liberties in the present by invoking American history. He points out, correctly, that Americans have always returned to their freedom loving ways in the aftermath of various wars. But just because we eventually came to our senses doesn't mean that the wartime violations of civil liberties were necessary or were the right thing to do. The internment of Japanese Americans was wrong. The suspension of rights during the Civil War was, in many cases, clearly excessive and wrong. The Vietnam era abuses of government power were wrong. It's nice to know these abuses were short-lived and that we eventually returned to normal, but that in no way justifies such measures. It doesn't prove that we were right to do those things in the first place. That's like arguing that you shouldn't worry about what you do when you're drunk because you know you'll eventually sober up. Does that make any sense? Aren't we supposed to learn from our past mistakes instead of blindly repeating them?

Finally, what makes Krauthammer's argument even more disturbing is his refusal to address the obvious differences between our current "war" and past wars. The "War against Terror," or whatever it's being called these days, is not a traditional fight between nations. It's a struggle against an ideology and its use of a particular tactic (terrorism). We may (hopefully) make progress in this struggle in the years and decades ahead, but there is little reason to believe that we will every fully defeat our jihadist enemies. There will be no surrender, no V-Day, no treaty signing ceremony to mark the point when the conflict is over and we can return to our freedom loving ways. The restrictions we adopt on civil liberties right now are likely to endure for a long, long time. Therefore, we should not be as cavalier as Krauthammer apparently is about signing away our rights in the name of the war effort.