Motive and the Real Police State
There was an interesting discussion in my Criminal Procedure class last night. My professor just happens to be the president of the ACLU, making the conversation especially interesting in light of her self-proclaimed civil libertarianism.
The conversation involved the following scenario/question: should the government be able to search the homes of an entire neighborhood if they had reason to believe that a terrorist was planning to detonate some sort of explosive but they did not know the precise location? Our professor explained that this pits public safety against principles of due process and our basic constitutional values. After several comments, some in the class seemed to draw the conclusion that such conduct by the government represents nothing less than an Orwellian police state; a state where people live in fear of the government, have no sense of security or privacy in their persons, and thus reshape the way in which they live their lives in order to survive in such a climate.
The thought of government searching its citizens’ homes without constraint is indeed problematic. And there are few things scarier to me than an Orwellian police state. But the jump from the facts of the hypothetical to an Orwellian police state is an enormous one and many seemed to miss an important distinction. Police states, as I understand them, are themselves spawned out of fear. They are created because the government lacks any real legitimacy and the only way for the government to endure is to constrain its citizens in such a way that they do not constitute a threat to the regime. Thus, police states are essentially at war with their own people and their actions are tailored to protecting the regime itself.
Conversely, the hypothetical suggests that the state would not be searching its citizens’ homes in order to protect itself, but rather to protect its people. To me, the motive of the state is the central inquiry. Protecting the lives of its citizens who are under a serious threat from an immediate terrorist attack is, generally speaking, a more worthy justification for any government action. That’s not to say that any action by the government is necessarily justified under such circumstances, but it’s further along on the legitimate/illegitimate continuum than, say, searching peoples’ homes in order to find and seize pamphlets criticizing the state.
