Knife Man
New South Wales Legislative Assembly – Photo by William Harkleroad
The United States has developed one of the strongest traditions of individual rights in the Western democratic world. Freedom of speech, expression, and religion are treated not simply as important democratic values, but as areas in which government intervention is viewed with exceptional suspicion. There are exceptions, of course, but American political culture generally begins from the premise that the individual should be free to speak, believe, associate, and express themselves unless the state can overcome an extraordinarily high barrier to interference.
I am increasingly unconvinced that this is always the best way to organize a democratic society. Democracy requires individual liberty, but it also requires a functioning state capable of protecting the society in which that liberty exists. Rights do not operate in a vacuum. Speech can be used to intimidate people, organize political violence, spread deliberately false information, recruit people into extremist movements, or undermine confidence in democratic institutions. Religion can provide people with meaning and community, but religious liberty can also collide with laws intended to protect other citizens. Expression can enrich society, but modern communications technology has given individuals and organizations a capacity to influence millions of people instantaneously that would have been inconceivable when the American constitutional tradition began developing.
The question, then, is not whether freedom of speech or religion is good. Of course it is. The more important question is whether any individual right should become so powerful that democratic government loses the practical authority to respond when its exercise causes serious social harm. I do not believe it should. Government is not inherently the enemy of liberty. In a functioning democracy, government is also the mechanism through which citizens collectively establish the rules by which their society operates. There are circumstances in which maintaining public order, protecting vulnerable people, defending democratic institutions, or preventing serious harm may justify restricting what an individual would otherwise be free to do.
I remember one afternoon in Sydney walking around the city and visiting different places with an Australian friend when we both noticed a man carrying a knife on his person. What struck me almost as much as the knife itself was my friend’s reaction. He did not debate whether the man had technically done anything wrong yet, and there was no instinct that we should simply mind our own business. He walked over to nearby police officers and told them what we had seen. The officers immediately approached the man, and from a distance we watched as they took the knife away and dealt with him.
That experience has stayed with me because it represented, in a small way, what I think a functioning society should be willing to do. The state should not always be forced to wait until danger becomes violence before it acts. Public order has value in itself. Prevention has value. Giving authorities enough power to intervene when something is plainly dangerous or seriously out of place has value. In the United States, we have developed such a strong attachment to individual rights that intervention itself is often viewed with suspicion. We frequently ask whether the government has crossed a constitutional line before asking whether the public is being adequately protected. My experience in Sydney reflected a different instinct: individual liberty matters, but it exists within a society whose government has a responsibility to preserve safety and order.
This is where systems such as those of Canada and Australia become interesting alternatives to the American model. Canada constitutionally guarantees fundamental freedoms but explicitly accepts that those freedoms may be subjected to reasonable and demonstrably justified limitations. Australia provides elected institutions even greater latitude, lacking a comprehensive federal bill of rights comparable to the American model. Neither country is therefore founded upon the assumption that liberty requires placing enormous areas of social policy almost permanently beyond the reach of ordinary democratic government.
There is something attractive to me about that approach. I am skeptical of a system in which judges interpreting language written centuries ago can effectively tell an elected legislature that a particular policy option is permanently unavailable regardless of technological, social, or political change. Constitutional restraints are necessary, particularly where governments threaten elections, due process, equality before the law, or the basic ability of citizens to oppose those governing them. But beyond those democratic fundamentals, I think elected governments should possess considerably more authority to regulate society than contemporary American constitutional culture usually permits.
That position undoubtedly carries risks. A government empowered to suppress genuinely dangerous extremist propaganda might eventually describe legitimate opposition as extremism. A law designed to control deliberate misinformation might be expanded until it protects those in power from criticism. The possibility of abuse is real. But the possibility of governmental abuse cannot automatically settle every question in favor of individual liberty. Refusing to exercise state power also has consequences. A democracy can be weakened not only by an authoritarian government that possesses too much power, but by a government so constrained that it lacks the authority to respond effectively to forces actively damaging the society it governs.
The challenge, therefore, is not to choose between liberty and authoritarianism as though they exist at opposite ends of a simple line. It is to construct a state powerful enough to govern while remaining democratic enough to remove those who govern it. I increasingly prefer a system in which rights are strong presumptions rather than absolute commandments: government should have to explain why restricting a liberty is necessary, demonstrate that the restriction serves a legitimate public purpose, and remain accountable to courts, legislatures, elections, and the public. But once that justification has been established, the mere invocation of an individual right should not necessarily end the conversation.
About the author
William Harkleroad is the writer and founder of WillNation, an independent journal covering politics, history, geography, culture, travel, and personal reflection.
