Epstein's Response to Cato's Jim Harper on Surveillance after Boston

After Boston, Division in the Libertarian Ranks: My Response to Jim Harper
Richard A. Epstein
Cato at Liberty
May 3, 2013

My recent observations on Hoover’s Defining Ideas about the relationship of civil liberties to national security have drawn a stern response from Cato’s own Jim Harper, whose central claim is that I have sounded “needless anti-privacy notes” in my attack on the privacy protective policies that have been championed by Massachusetts Republican State Senator Robert Hedlund, whom I criticized for being too squeamish on aggressive and targeted government action to counter the threats that became all too visible on April 15, 2013. 

Harper’s initial parry is to stress a proposition that no one should care to deny, namely, that the Fourth Amendment imposes a bar against unreasonable searches and seizures, which in turn requires an examination of the purported relationship between the restriction that government seeks to impose and the evil that it seeks to defend against.  But in his choice of example and articulation of principle, Harper is guilty of grievous non sequiturs that add needless confusion to a problem that is already difficult enough to handle.

To examine the relationship between privacy and security, it is always a mistake to start with an example that the author describes as “an illustration ad absurdum,” which is just what Harper does when he bravely denounces a rule that allows for “100% crotch checks at street corners in major cities.”  The simple response is that this kind of action is under current law regarded as per se illegal even in connection with the so-called Terry stopswhich allow a police officer “to stop and frisk” individual on the public street if he or she has “reasonable suspicion” to think that the targeted person has engaged in illegal activity.

Richard A. Epstein