Sunday, March 6, 2011

guarding against abuse of power

Robert A. Heinlein's first novel, For Us, the Living, was finally published posthumously in 2004. Most likely contributing to the reasons it was not accepted for publication in 1939, is that there is hardly any plot, just a sequence of political and economic suggestions for Utopia laid out in relative detail.

Many of Heinlein's suggestions here are compelling, and would find their way in various forms into his later, more novel-like novels. One particularly interesting suggestion concerns a means for guarding against government abuse of power.

In Heinlein's future history, the gradual accrual of power by the government comes to threaten fundamental liberties when a radical evangelist luddite comes close to coercing himself into the whitehouse. Once the freedom-loving recognize they still have the majority, and defeat his election, a new constitution is adopted, one very similar to the original, but with several provisions designed to prevent future abuses of power. Of particular interest is this clause suggested by Heinlein:
Every citizen is free to perform any act which does not hamper the equal freedom of another. No law shall forbid the performance of any act, which does not damage the physical or economic welfare of any other person. No act shall constitute a violation of a law valid under this provision unless there is such damage, or immediate present danger of such damage resulting from that act.

Here's Heinlein's gloss on the significance of this clause:

Do you see the significance of that last provision? Up to that time, a crime had two elements; act of commission and intent. Now it had a third; harmful effect which must be proved in each case, as well as the act and the intent. The consequences of this change can hardly be exaggerated. It established American individualism forever by requiring the state to justify in each case its interference with an individual's acts. Furthermore the justification must be based on a tangible damage or potential damage to a person or persons. The person damaged might be a schoolgirl injured or endangered by a reckless driver or it might be every person in the state endangered by the betrayal of military secrets or injured by manipulation of commodity prices, but it must not be some soulless super-person, the state incarnate, or the majesty of the law. It reduced the state to its proper size, an instrument to serve individuals, instead of a god to be worshipped and glorified. Most especially it ended the possibility of the majority oppressing any minority with that hackneyed hoary lie that `the majority is always right.'

Personally, I'm a fan, and I endorse the sentiments whole-heartedly. Would this clause do the trick, though? Of course, the dangerous wiggle room here is the "immediate present danger"—just how immediate does it need to be?

Take Heinlein's own example of reckless driving. His intended interpretation seems to be that there have to be particular people in danger if one is to be convicted of reckless driving. Not some schoolgirl, but this particular schoolgirl has to be shown to have been in danger. But how long would it be before someone tried to argue that reckless driving poses an immediate present danger to people who live near the road, say, even if they don't happen to be standing on their lawns when the car barrels by? And if that passes, how long until everyone in the city, or everyone in the state, is argued to be in "immediate present danger" from reckless driving?

And how is statistical evidence supposed to be used here? Consider second-hand smoking laws: is the waitress who works in a smoking environment in "immediate present danger"? Even though, she may never actually contract cancer?

I wonder what Heinlein would think of the escalating removal of liberties associated with air travel? Are these invasions justifiable under the new clause because every man, woman, and child of the United States is under "immediate present danger" of terrorist attack? Even though these measures have never caught a single terrorist? Nor has any empirical measure of their efficacy ever been provided?

I'm pretty sure he would weep, but I wonder what he would suggest as an alternative . . .

No comments: