The Future of Limited Government - Summary and Analysis

The paper, “The Future of Limited Government,” by Jim L. Riley, is an examination of the conflict between government authoritarian control and individual freedom. It discusses the involvement of the Supreme Court in balancing this conflict, while paying particular attention to the Court’s decisions under Chief Justice Earl Warren. The paper also discusses various social theories stated by Lynne Iglitzen, B.F. Skinner, and Robert Jungk concerning the impact of human behavior in the control/freedom conflict. The paper concludes by recognizing that rapid developments in technology demand a reevaluation of civil rights and liberties.

It is important to recognize that the paper was written in 1974, and while some of the points it makes continue to be relevant, the author could not have anticipated the post-9/11 realities affecting the duty of the government to protect its citizens and the effects on individual freedoms when that duty is dismissed. The paper was also written during the time when the Watergate scandal made government intrusion the great issue of the day.

One hint of the time this paper was written is the stark distinction the author makes between liberals, as supporters of the individual against an oppressive government, and conservatives. In our current age of “political correctness,” it is much more difficult to draw any such distinction, when the so-called liberals of the 1960s and 1970s have become the thought regulators of the 2000s.

The Supreme Court

The author writes that most people are aware that the role of the Supreme Court is to shape the Constitution. This represents a pro-activist view. Under a strict constructionist reading of the Constitution, the role of the Court is to interpret, not shape the Constitution. The author quotes the first activist, Chief Justice John Marshall, as saying his Court was “expounding” the Constitution. Even Marshall did not claim the right to shape it.

An example used repeatedly in the paper is the Warren Court and its activism. While there can be no doubt of the impact of its decisions on American society, there remains a widely held view that the Warren Court exceeded its Constitutional authority by using its judicial decisions not just to interpret laws, but to make them. Although it can be argued that Chief Justice Warren and his Court exceeded their Constitutional role in order to right social wrongs, its actions revealed a weakness in the Constitution. When an activist Court exceeds its authority, it unbalances the separation of powers laid out in the Constitution by leaving the representative and executive branches of the government without alternatives. This type of activism in the Court would be similar to a President opposing a Supreme Court decision by military order.

As the paper points out, Justice Black recognized that Constitutional (and social) stability result from institutionalized change based on equal chances for all participants, not the imposition of a forced idea of equality. The society we live in today, however, looks more to our courts to correct all wrongs, inequities, and human errors. While the writers of the Constitution recognized the legal equality of all people, they could not have ignored the natural inequality of individual abilities. The Constitution was never intended to guarantee equality. That would be impossible. What it guarantees is an equal chance.

Looking back with the benefit of hindsight, the Warren Court protected minority rights by forcing social change in a society where the majority probably was not ready for it. By expanding its authority in order to protect “the rights and privileges of . . . vulnerable minorities,” the Warren Court created other inequities, like racial quotas, school busing, and reverse discrimination that resulted in conflict, and in some cases, in violence.

Another prevailing “conservative” view of the Warren Court is that, in addition to overstepping its Constitutional authority, it went much too far in “protecting” the rights of those accused of crime at the expense of the direct victims of the crime and the good of society in general. The protections, like those involving the exclusionary rule cited in the paper, are seen as providing a haven for criminals. Courts have extended these Supreme Court decisions to, in effect, tie the hands of law enforcement officials, who must walk a tightrope of technicalities or face losing critical evidence.

In the final analysis, truth is truth, and unless evidence is planted or otherwise false, does the means in which it was discovered jeopardize the innocent? Is it unreasonable to expect members of society to live within the laws they accepted to become members of that society? Through its decisions, the Warren Court appeared to answer “yes” to these questions, but the suppression of truth can weaken justice. As an example, consider the cases of O.J. Simpson and actor Robert Blake. Suppression of evidence allowed them to get away with murder.

Whether authorized or not, some Supreme Court decisions have done much more than interpret law. They have decided some basic questions of being human, such as the cited 1973 decision to overturn anti-abortion laws as being an “unconstitutional invasion of the ‘right of privacy.’” In its decision, the Court at that time decided when a life form becomes a human being and when the basic right to life begins. That question is beyond the realm of mortals to decide, yet the Court did decide. If its judgment was wrong, and there is no way to make that determination, then it took away an inalienable right under the Constitution.

If such questions concerning inalienable rights are within the Constitutional authority of the Supreme Court, then the question must be asked: Where are its limits? If the Court can decide that a life form is not a human being before birth, can it also decide that one stops being human when it stops being productive? By this decision, the Supreme Court seems to have put itself into a vulnerable position. While the ability to terminate a pregnancy safely was beyond the science of eighteenth century United States and forced euthanasia was not an issue, there can be no question that the 1973 decision put the spirit of “Life, Liberty and the Pursuit of Happiness” in jeopardy.

The author’s overall premise and conclusion about the Supreme Court are as relevant today as they were in 1974. In a rapidly changing world, the balance between government authority and individual freedoms are constantly being tested, and the role of the Court has never been more important, but the paper concludes, “Disregard of inherent limits in the . . . exercise of the Court’s ‘judicial power’ . . . may impair the Court’s position . . .” This was quite evident recently in the Presidential election of 2000, where some “liberals” believe the Court overstepped its authority, acted injudiciously, and in doing so, undermined its moral authority.

The point the paper makes about the involvement of the Supreme Court in economic issues is also interesting. Since the Great Depression, the Court has not used much of their authority in this area. The author’s assertion of the economic policy decisions residing almost entirely with the Executive and Legislative branches was still true as recently as last year, but may change in light of situations like the Enron bankruptcy, which has far-reaching social repercussions.

Government Versus Freedom Versus Society

The balance between government authority and individual freedom has been an issue since the formation of societies. To live as a perfectly free human being means putting one’s safety, needs, and desires before those of anyone else. People first formed into societies because they recognized that the strength of the group provided them greater security. There was a price for this, however, which was giving up some individual freedom of choice and action.

The paper raises the issues of the impact of change on this balance. Changes like the Internet and the global rise of terrorism have brought this into the spotlight. The author was almost clairvoyant in predicting that a terrorist group, “with relative ease, [could] inflict great harm on the mechanisms of society.” It can also cause a historical reaction on the part of the governments and courts. The 1968 federal anti-riot statute is insignificant when compared to the anti-terrorist laws and regulations of today.

The paper is almost frighteningly foretelling in its questioning of airline safety in relation to a search resulting from probable cause. In light of 9/11, it is now apparent that a majority of citizens are willing to trade their right to freedom from unreasonable search to increase their personal safety and security.

The paper also points out the power the media has to influence and shape society, and that the media may contribute to disorder by exaggerating “both mood and event.” This may have been an open argument in 1974, but in 2002, there can be no doubt about this issue. The network spectacle on election night, November 2000, without a doubt influenced potential voters across the country either to vote or to stay away from the polls, and may have affected the election results.

Over the last three decades, examination of the 1968 Tet Offensive in Vietnam has proven what a critical influence news reporting had on changing public opinion about that war. It has also been shown that those news reports were almost totally mistaken in casting what was an overwhelming military victory for the U.S. and U.S.-supported Vietnamese forces, as a defeat. The military learned the lesson of Vietnam well, and as the paper predicted, the government closely controlled and censored news reports during the Gulf War and, most recently, in Afghanistan.

Since 1974, news outlets have come under increasing pressure to produce viewership and increase income for their owners. So is it surprising that the motivation to exaggerate or “make news” sometimes becomes too great to resist for those who want to further their careers?

The paper focuses on government intrusion as a great danger to individual freedoms. We see today, however, that our personal freedom from intrusion appears to be at least equally threatened by the use or theft of our personal information by commercial interests or by cyber-criminals. Our government is in a difficult position regarding how much control should be exercised over the World Wide Web in light of these dangers. This is another aspect of the balancing act that the government and the Supreme Court must soon address.

In a further discussion of the control/freedom balance, the paper cites the theory of Professor Lynne Iglitzen that violence is contained in the fabric of society, and society should enforce a “humane totalitarianism” to employee positive rather than negative controls. This view seems contrary to the theory that violence is inherent in human nature, rather than in society, meaning the need of the individual to survive and to succeed is the motivation for violence. When the needs of two or more individuals conflict over resources that are insufficient to fill those needs, violence is the result. Society, on the other hand, provides a system for the mutual satisfaction of needs. Resources, however, are not unlimited, so the rules of society rarely result in a win-win scenario. When the expectations of the members of a society become too self-focused, conflicts between freedom and authority are inevitable.

Modern Western societies, especially the United States, have worked toward the goal of inclusiveness, that is, forcing everyone to conform, rather than excluding those who won’t. If we accept the notion that societies are formed for mutual benefit and security, and that the price to the individual is the surrender of some freedom, then it must be acknowledged that security and freedom are inversely proportional. To insist on the full exercise of individual freedom will, in effect, exclude us from participating in society. The view that is common in the United States, that rights are an entitlement not connected to social responsibility, puts society in severe danger. Society cannot exist without the support of its members. To think otherwise gives truth to the view attributed to B.F. Skinner that there is no general acceptance of what a “Good Society” is, so coercion and control are necessary to stifle anti-social behavior patterns. This would be true if one accepts the idea that society must be all-inclusive. If, on the other hand, a society clearly states its values in a document like the Constitution, then it becomes the choice of each individual to accept those values and choose to participate.

If we completely accept the author’s claim that “science has shown, with increasing clarity, that humans act as they do not because of free will, but because of the environment in which they survive,” then we reduce humanity to animal level, capable of acting only through instinct and conditioning. If this is true, the discussion of individual freedom is unnecessary. Control is then the only issue.

There can be no argument against the author’s view of change being a critical consideration in the balance between government and freedom. To say that the world has entered “an era unlike that of any time in the past,” however, seems rather futile. No time has been like any other time, and to say we are facing rapid change when no other generation has is simply not true. While clearly different, the Industrial Revolution perhaps changed life, for good or bad, more than our technological revolution. What we must realize in order for our society to survive any change is that the foundation of society, meaning human nature, does not change. That is the basis for behavior and for the actions of society. When we, our government, and our courts begin to think otherwise is when problems arise.

Trends do not necessarily continue in a straight line. It is the responsibility of our government and our courts to apply the basic values of our society to new conditions. Rather than deciding how society is to fit into a changing environment, our government needs to focus on how changes can benefit our society.

If the conclusion of the paper is that rapid developments in technology demand a reevaluation of civil rights and liberties under the Constitution, and greater activism by the Supreme Court, we must not overlook the fact that technology is merely an extension of human capabilities. Rather than a fundamental reevaluation of Constitutional freedoms, what is needed is a Supreme Court that does not misinterpret those fundamental freedoms. Fundamental does not mean absolute. We have given up some freedom to be Americans. That is the price we pay to live in a society residing in a dangerous world.