During my many years of writing in defense of law as a shield of the people instead of a weapon in the hands of the state, I have identified two important reasons that Americans are losing the protection of the legal principles that made them free. One reason is that a significant portion of the population, especially among those who think of themselves as conservative, there is indifference and even hostility to civil liberties. The other reason is that Benthamite thinking has made inroads into the Blackstonian conception of law that is the basis of the Constitution. Jeremy Bentham argued for pre-emptive arrest before a crime is committed, for torture in order to obtain confession, and for subverting the attorney-client privilege. Bentham’s views, fiercely hostile to those of our Founding Fathers, are now represented on the federal bench (federal appeals court judge Jay S. Bybee, for example) and in prestigious law schools (John Yoo, UC Berkeley, for example).
In chapter 3 of The Tyranny of Good Intentions, Larry Stratton and I contrast Bentham’s views with those of William Blackstone and our Founding Fathers. This article is about the division of the American public on the matter of civil liberty.
Court decisions by “activist judges” in behalf of criminals, abortion, homosexual rights, and against school prayer, all in the name of constitutional rights and civil liberty, have resulted in many Americans identifying civil liberty with procedures that provide protections and immunities for criminals and with judicially created rights that are destroying morality. All the fights over Supreme Court appointments have to do with “social issues” such as abortion. The enumerated rights in the Constitution, such as habeas corpus, due process, free speech and association, long ago receded into the background and play scant role in Senate confirmations of Supreme Court appointees.