Harcourt on "Laissez-Faire with Strip-Searches"
There is a deep tension in contemporary US political thought between the notion of freedom that tends to dominate in the socio-economic domain and the concept of liberty that predominates in the penal sphere. In socio-economic matters, the idea of freedom tends to be shaped by classic economic liberalism: the belief that an invisible hand shapes favorable public outcomes, that individuals need robust protection from the government, that the state should refrain from interfering in commerce and trade. In the law enforcement and punishment context, by contrast, the dominant way of thinking about liberty gives far more ground to the government, to the police and to the state security apparatus.
This tension, when it gets acute, gives rise to what I would call "two-faced" or "Janus-faced liberalism". Over the last 40 years, during a period characterized by increased faith in free markets, in deregulation, and in privatization, America's Janus-faced liberalism has worsened and fueled the uniquely American paradox of laissez-faire and mass incarceration. In the country that has done the most to promote the idea of a hands-off government, our government runs, paradoxically, the single largest prison system in the whole world.
This past month, the great American paradox took a distinctly dystopian turn, particularly at the US supreme court. The oral argument on the constitutionality of President Obama's Affordable Care Act, in conjunction with the court's decision on the constitutionality of strip-searching all persons arrested even on the most minor traffic infractions, crystallize this worrisome trend. My sense is that I am not alone in this assessment; there appears to be growing recognition across the US that this two-faced liberalism may, in fact, be pushing the country, inch-by-inch, in the direction of a police state. This is surely true of the recent strip-search case, Florence v County of Burlington.