Surveillance, Speech Suppression and Degradation of the Rule of Law in the “Post-Democracy Electronic State”

None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained:“[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided. . . . Such a power does not destroy. . . but it enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”In pre-democratic societies, Tocqueville noted, despotism tyrannized. In modern democracies it infantilizes. Democratic despotism is both "more extensive and more mild" than its precursors: it "degrades men without tormenting them." In this sense, Tocqueville continued, "the species of oppression by which democratic nations are menaced is unlike anything that ever before existed in the world." Tocqueville's analysis, although written in the 1830s, seems remarkably contemporary. Let me quote a few sentences. “The force of democratic despotism,” Tocqueville wrote, “would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood. . . . [I]t every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself.”Adolf Berle warned that gaining control of institutions is the only way people can extend their power beyond the limited reach of their fists or guns. It is, however, a matter of scale, intensity and degree of control that is achieved. Another vital element is concern for “what” is being controlled and by whom. Though Berle’s proposition about acquiring power over institutions through democratic processes seems legitimate in the abstract there are degrees of control and co-optation that shift the political form from legitimate to illegitimate. That is what I see happening with the faded former democracies of America and Western Europe, particularly in the United States and the United Kingdom. The mechanisms of control include the vast expansion in public and private surveillance activities, the use of legal interpretations and statutes to confer powers of “linguistic cleansing” on special interest and single-cause identity groups, the incredible networking power of the Internet, and the creation of what now seems to be a psychology of “permanent war” under the heading of a misnamed “War on Terror”. It is the coalescence of these factors that has produced transformations now redefining the nature of Western society and altering the spirit of the Rule of Law.At this point I think it is useful to remind ourselves of Lord Acton’s statement on the abuses and corruption of power. While Acton is oft-quoted for the statement that: “All power corrupts and absolute power corrupts absolutely” the fuller context is more useful for analyzing the behavior of any powerful group. Acton states: “Liberty is not a means to a higher political end. It is itself the highest political end ... liberty is the only object which benefits all alike, and provokes no sincere opposition ... The danger is not that a particular class is unfit to govern. Every class is unfit to govern [emphasis added] ... Power tends to corrupt, and absolute power corrupts absolutely.”