Surveillance and the Libertarian Right's Embrace of Civil Liberties

by Michael Dorf

The intra-Republican disagreement, indeed, intra-Kentucky-Republican disagreement, about how much government surveillance to authorize, provides a useful moment to reflect on American libertarianism more broadly. Although Senator Rand Paul's one man quasi-filibuster may seem to place him outside the mainstream of Republicans, in fact he has a non-trivial level of support. He is almost certainly too libertarian to win the Republican presidential nomination, but the emergence of his niche strikes me as a potentially important, and largely positive, development in American politics.

Political parties in America have almost always been uneasy coalitions. There are multiple groups with multiple divergent interests, but Duverger's law means that the thousands of different possible combinations of positions on issues have had to cram themselves into just two parties. The resulting ideological orientations of the parties are thus usually an uneasy compromise. Still, in the modern era, we can see broad ideological coherence within each party.

How so? Let's vastly over-simplify by assuming that there are only five sets of issues, and on each issue one can take one of only two positions, as follows:

Civil rights: Liberal or conservative
Civil liberties: Liberal or conservative
Redistribution: Pro or Anti
Regulation: Pro or Anti
Foreign Policy: Dove or Hawk

The modern Democratic Party tends to be liberal on civil rights and civil liberties, pro-redistribution, pro-regulation, and dovish on foreign policy. The modern Republican Party tends to be conservative on civil rights and civil liberties, anti-redistribution, anti-regulation, and hawkish on foreign policy.

Those generalizations are intended only comparatively. Judged by the standards of European politics, the U.S. Democratic Party is center-right on redistribution and regulation, and hawkish on foreign policy. But the labels are mostly accurate in comparative terms. The Democrats under Clinton moved right on most domestic policy issues (remember Reinventing Government, welfare reform, AEDPA, etc.) and particular Republicans have been foreign policy realists, which made them doves by comparison with the rest of their party. But these are examples of one party, or one wing of one party, moving to the center. Rarely has a wing of either party crossed over past the other party.

Against this backdrop, it is tempting to see Rand Paul as a one-off figure, futilely attempting to revive the isolationism of the pre-Cold War Republican Party. That wing of the party probably never disappeared in the electorate but it was largely invisible among politicians in modern times. Pat Buchanan and Ron Paul were notable exceptions.

Paul fils could be seen as simply the latest iteration of this throwback tradition but I think that would be a mistake. To my mind, he is something new: A right-wing foreign-policy dove who is a civil liberties liberal.

Paul's opposition to government surveillance outflanks nearly all Democrats on the liberal side. One suspects that were Paul a Senator from a less conservative state than Kentucky, he would be more liberal on more issues. The fact that he extends the familiar right-wing "get government off our backs" notion even as far as he does on civil liberties issues shows that there is a real constituency for civil liberties on the right--even in Kentucky.

That's something fairly new in American politics. During the Cold War, the right saw civil rights and civil liberties as either a communist plot or, at best, an opening for communists. The modern libertarian right still resists civil rights (as illustrated by Senator Paul's opposition to laws banning discrimination by private actors) but the libertarian right has made its peace with, indeed has embraced, civil liberties. In this respect, Senator Paul is hardly an outlier.

To be sure, Senator Paul's "victory" last night was largely a product of the power the Senate rules give to each individual Senator to delay action. But we should not lose sight of the fact that the discontinuation of bulk phone data collection by the government came out of a Republican-controlled House. The embrace of civil liberties by a large chunk of the libertarian right is a notable development that at least holds out the hope for future cooperation by civil libertarians on the right and the left.