Mises Wire

Égalité, Fraternité, Captivité

“Nothing is so permanent as a temporary government program.”

So goes the well-traveled quote by economist Milton Friedman. This could be applied to certain laws enacted by governments over the years under the guise of keeping its citizens “safe.” One such law that springs to mind is the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001), signed into law by President George W. Bush on October 26, 2001, just over a month after the September 11 terror attacks. The act gave government the following permissions:

  • The indefinite detention of immigrants.
  • The right for law enforcement to search a home or business without the owner’s or the occupant’s consent or knowledge.
  • The expanded use of national security letters (NSL), which allows the Federal Bureau of Investigation (FBI) to search telephone, e-mail, and financial records without a court order.
  • The expanded access of law enforcement agencies to business records, including library and financial records.

Prolific writer and liberal heavyweight Gore Vidal wrote of the Patriot Act, “The physical damage Osama and friends can do to us—terrible as it has been thus far—is as nothing compared to what he is doing to our civil liberties.” In an interview not long after the release of his book Perpetual War for Perpetual Peace, Vidal was asked if Americans were wrong in being chiefly concerned about their safety. He quoted Benjamin Franklin: “Those who prefer security to liberty deserve neither.” Vidal’s argument was that although during crisis people are willing to give up certain aspects of their civil liberties in order live in a “safer” environment, they aren’t fully aware of what they are buying into. They only discover when it is too late what giving up those liberties truly means. In that same interview, American economic historian and economist Robert Higgs said, “Besides the normal constitution—protective of individual rights—we now have a ‘crisis constitution’ hostile to individual rights and friendly to the unchecked power of government officials. The great danger [is that] the crisis constitution will swallow up the normal constitution.”

If it wasn’t evident at the time that both Vidal and Higgs were on to something despite their philosophical differences—the former a progressive, the latter a libertarian anarchist—it certainly became apparent when in 2013 Edward Snowden exposed the National Security Agency’s (NSA) mass surveillance program. But even that revelation wasn’t enough to curb the reaches of government into the private lives of its citizens. Before then, in 2011, President Barack Obama had signed the PATRIOT Sunsets Extension Act of 2011—a four-year extension of three key provisions in the PATRIOT Act. Following Snowden’s leak and as of this writing, the act is still in place. What all of this shows is that an act signed into law almost twenty years ago—with the “short-term” infringement on individual rights for the “long-term safety” of those individuals—can stay in place much longer than necessary (if, of course, it was even necessary in the first place).

With the outbreak of COVID-19, governments throughout the world have taken drastic measures in a bid to “flatten the curve.” This has meant a limitation on civil liberties, i.e., on individual rights. Some countries’ actions have been more excessive than others: in France, people now need documentation in order to leave their property and go to the grocery store or they risk a fine, while in Italy breaking lockdown can result in imprisonment. In the United Kingdom, failure to comply with self-isolation rules can result in a £1,000 fine, and anyone who’s suspected of being sick and is found outside can be detained. Of course, this all comes across as rather authoritarian. And although an argument about the moral implications of taking or not taking such measures could go on for days, weeks—likely even longer than these measures will be in place—it appears that most citizens in most countries, irrespective of their political and philosophical leanings, have been willing to give up much of their civil liberties in the short term in an attempt to protect the most vulnerable in society. And it has been evident that—despite unseemly moments during unnecessary panic buying—people are genuinely trying to come together (in the proverbial sense, of course) in an effort to get through this crisis with as few lives lost as possible.

The long-term efficacy of the restrictive measures put in place is to be seen, but as human rights experts have warned, action to stop the spread of COVID-19 that limits civil liberties is “acceptable” only in the short term. “We need to ensure that when the emergency ends, states return to normal and do not continue to use these powers in ways they were not intended to do,” said Fionnuala Ni Aolain, the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Ni Aolain added that the emergency powers introduced in the US after 9/11 and still in place after twenty years—the aforementioned “Patriot Act”—constitute an undesirable precedent. Of course, “states returning to normal” means only that we return to the status quo, with all the major issues that come with it. Martha Spurrier, director at UK-based rights group Liberty, added that “criminalization and over-policing must not be the go-to answer” during the coronavirus pandemic.

What we can learn from the PATRIOT Act is that during a time of crisis, governments can pass legislation that impacts citizens’ lives long after the crisis of the day has passed. How long these current COVID-19 measures will be in place is anyone’s guess. How effective they’ll be is anyone’s guess. How destructive they’ll be to business and people’s livelihoods and mental health is anyone’s guess—although it’s safe to say that the economic impact will be significant and a global recession awaits us. But what we can hope for is that individuals in their respective societies look to the PATRIOT Act in the United States as a reminder to keep a close eye on the powers that be, and to perhaps look to the French national motto Liberté, égalité, fraternité as something of a guiding light, so that they don’t end up with Égalité, fraternité, captivité.

We can all hope that these measures and any legislation that is passed are genuinely temporary government “programs.”

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