By Mike Dorf
A few years back, I gave a lecture (described here) in which I remarked upon and tried to explain the surprising fact that both liberal and conservative Justices on the Supreme Court had come to embrace freedom of speech. It wasn't always that way. For much of American history, almost no one among legal elites embraced freedom of speech. In the early 20th century, liberals began to embrace free speech, although most notably in the dissents of Justices Brandeis and Holmes. Liberals remained mostly silent through the Cold War/McCarthy era, not really embracing free speech until the Civil Rights Era. And conservatives only came along in the late 80s/early 90s. There are two interesting phenomena there: the fact that it took liberals so long to come around and the fact that conservatives came around at all.
To explain the latter phenomenon, I pointed to four factors that, I hypothesized, galvanized the right. They are:
1) Commercial speech;
2) Opposition to campaign finance regulation;
3) Perceptions of Political Correctness stifling the expression of conservative views on college campuses and elsewhere; and
4) The recognition that religious conservatives could advance their cause more effectively under the rubric of free speech than free exercise of religion.
I don't want to revisit my 2010 comments on free speech here. Instead, I'd like to note a similar phenomenon with respect to privacy, though less on the Court than in the more general realm of politics.
Although it is now conventional wisdom to say that Americans have accepted that the national security state will snoop on them if that's the price of keeping us safe from terrorism, I think that's an exaggeration. I have been struck in the news coverage of the latest revelations of government tracking and data mining by the fact that not just liberals, but also quite a few conservatives, have articulated a privacy line. I would identify three factors that appear to be contributing to the conservative embrace of privacy. I encourage readers to add others in the comments and/or to elaborate on or disagree with my own.
Some of the willingness of conservatives to criticize the Obama Administration for secret government programs that spy on foreigners and Americans is undoubtedly rooted in simple partisanship. There is a substantial constituency among Republican elected officials and the grassroots for whom anything associated with President Obama is suspect simply for that reason. Conversely, some of the criticism from liberals is muted because these programs are being executed by a Democrat rather than a Republican. Taken together, these two phenomena may make liberals and conservatives look somewhat closer to one another on privacy issues than they would be, absent partisan considerations.
2) Conservative Libertarianism
For a long time, the Republican coalition included social conservatives and economic libertarians. Indeed, many of the economic libertarians were and are also social conservatives. However, it appears to me that more recently a substantial fraction of the libertarian wing of the conservative coalition has become more generally libertarian. To be sure, one shouldn't exaggerate the phenomenon. Ron Paul, who was the libertarian standard-bearer among elected politicians during the last two Presidential elections, was never more than a fringe candidate. Nevertheless, one shouldn't overly downplay this phenomenon either. Paul was disproportionately popular among young conservative (and not just conservative) voters, which certainly jibes with my own observations. The Federalist Society--the legal elite version of the Republican Party--was also a coalition of libertarians and conservatives (including social conservatives) for much of its history. At least judging by my students who are active in Fed Soc, the libertarian wing is now dominant to the point of having nearly eliminated the traditional conservative wing.
The general rise of libertarianism has both positive and negative aspects. On the positive side, libertarian conservatives who have come to expand their libertarianism beyond economic matters should be praised for their intellectual consistency. Moreover, the growing libertarianism on the right (assuming I'm correct in identifying it) provides opportunities for left/right coalitions on a host of subjects.
On the negative side, however, liberals and progressives have reason to be wary of hard-core libertarianism--or what Andy Koppelman calls "tough luck" libertarianism in his terrific book The Tough Luck Constitution and the Assault on Health Care Reform. While strong libertarians want the government to stay out of their phone records and emails, they also regard collective health insurance as a form of tyranny. If (as 19th-century German social democrats used to say), anti-Semitism is the socialism of fools, then Ayn-Randian libertarianism is the conservatism of 14-year-old boys. And increasingly, those boys have taken their libertarianism into adulthood.
3) Privacy and Shame
Finally, I would suggest that even more traditional conservatives have some reason to bridle at government snooping. To paint with a very broad brush, liberals and libertarians think that (absent targeted suspicion) the government ought to stay out of their private affairs because it's none of the government's business, and because they fear that the government might commit abuses based on the information it discovers. Traditional conservatives may not be nearly as distrustful of the government, but (again, painting with a very broad brush) they have a stronger sense of shame--one that is often connected to religious views. Thus, a liberal or libertarian will think that the government ought not to observe him or her in a sexual act because, again, it's private, but not because it's shameful. By contrast, a traditional conservative with a strongly religious sense of morality may reach the same conclusion because he or she thinks that the underlying conduct is inherently embarrassing or shameful.
To be clear, these are obviously and admittedly over-generalizations. But that's what blogging is for, isn't it?