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Conservatism in the 1970s and 1980s

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Interviewer: You identify two varieties of conservatism as resurgent in the 1970s and 1980s. One, the more libertarian, antigovernment movement, and the other aimed at restoring a moral dimension to public life. How did these two types of conservatism differ on the issue of individual rights?

Eric Foner: Those two types of conservatism both have deep, deep roots in American history. The libertarian view, which is that government should be limited, as limited as possible, so as not to interfere with personal action, personal choice. "The government that governs best governs least;" that goes back to Jefferson. That liberty is the right to choose and government should not restrict it. Of course, you can have a red light at your street corner, and that is not a violation of your liberty, because otherwise there would be total chaos and traffic and deaths, etc. But in almost all areas of economic life, personal life, etc., the libertarians believe that the government should stay out of the way of personal choice.

The so-called Christian conservatives, instead of saying liberty is the right to choose, say liberty is choosing the right. That is to say that there is a moral dimension to freedom, and that people who choose to sin are not really free, so the government should not simply allow you to do whatever you want to do. It should impose a moral standard on people, to encourage or force them to make the proper choice. Again, this goes all the way back to puritan New England. John Winthrop had distinguished between what he called natural liberty— that is, doing whatever you feel like—and moral liberty—choosing to act in a moral manner. The Christian conservatives are not libertarians at all. They think the government should enforce a moral standard. Many libertarians, for example, support the right of abortion because they think it is an individual choice. Most of the moral, Christian conservatives oppose the right of abortion and believe that is not a choice a person should be allowed to make. And you can see that in many other public issues of the time. Should religious values underpin legislation?

Those two types of conservatism have cooperated on most cases; they both supported the election of President Reagan and many others. On the other hand, they have clashed a number of times also, when the question of individual choice or moral imposition meet head to head. For example, Barry Goldwater, who was the standard bearer of conservatives in 1964, later was strongly defending the rights of homosexuals. He said, look, that's a choice, I believe in limited government; it's not the government's right to tell people what personal behavior they ought to engage in. Whereas most of the more morally oriented conservatives are bitterly opposed to homosexual behavior and believe the government should do everything it can to discourage or even outlaw it.

September 11, 2001 and the threat of terrorism

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Interviewer: Since 9/11 and during the war in Iraq, the threat of terrorism has put a premium on public security, and this has produced friction with the boundaries of civil liberties. How would you assess the situation in light of the persisting tensions between security and freedom in American history?

Eric Foner: Well, the terrorist attacks of September 11th, 2001 put this issue again on our national agenda—the balance of liberty and security. Certainly, history shows that when people are afraid, they become willing to see liberty sacrificed in the name of security. This has happened at many times in our history, and in the history of several other countries, and certainly in the aftermath of September 11th and for several years afterward, the government, in the name of security, promulgated some fairly serious restrictions on traditional civil liberties in this country, first for Muslims and people of Muslim origin. Thousands of them were rounded up, without a charge or anything, after September 11th, and interrogated, often held in jail for weeks or months, without even notification to their family. Then the government announced that foreigners who were captured or seized who were deemed to be—or said to be, by the President—enemy combatants or enemies of the United States could be held without charge, without a lawyer, without access to charges against them, indefinitely, and if eventually charged, would be charged before a military tribunal, not a regular court.

The government also said we no longer have to abide by international standards in the treatment of prisoners, the so-called Geneva Conventions, which regulate that you can't torture people, etc. The government basically said these are obsolete in a war like this. Then the government eventually said we can do all this to citizens of the United States, too. We can actually seize American citizens and strip them of the Bill of Rights if the President declares them to be an unlawful combatant, and at least two, Homidy and Padilla, both of them citizens, were arrested, thrown in jail—no charge, no right to a lawyer, no trial by a civilian court. These are retreats from the protection of civil liberties, no doubt about it. They have raised a great deal of controversy.

What is unusual in the last couple of years is that, during wartime, the Supreme Court has begun to reign in the federal government; that usually happened after the war was over, like in World War I, World War II. During the war, the Supreme Court says, look, we're not on the battlefield, we're not making policy; we've got to give the government the leeway in a war. After the war, they begin to say, wait a minute, I think the government went too far, and we've got to start restoring our liberties again. But now, in a series of cases—2004, 2005, 2006—the court actually said the government is going too far, even now, because the rights being violated are so deeply rooted. Habeus corpus goes back hundreds of years in Anglo-American jurisprudence. The right to trial by a real court, not just some fly-by-night military operation, that's a deeply, deeply rooted right. The right to have a lawyer, the right to talk to your lawyer. So the court has begun to restrict the federal government's right to just set up its own whole judicial system without any interference by the regular courts. What the upshot of this will be, nobody knows. How long the war on terror will last, nobody knows. But certainly, I think one thing that I think we can say for sure is that this question of the fate of civil liberties in a time of crisis is one of the major ones on our national agenda, right now, and for the foreseeable future.

Right to privacy origins

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Interviewer: Would you discuss the origins of the right to privacy in the Supreme Court's Griswald decision, and then in Roe v. Wade?

Eric Foner: Well, the notion of a constitutional right to privacy, which is not mentioned specifically in the Constitution, is first explicitly stated in this decision Griswald v. Connecticut, in 1965, where the Supreme Court overturned a law of the state of Connecticut, which made it illegal for a married couple to use contraception. Basically, they said look, this is probing into the private lives, the intimate lives of individuals, in a way in which the government has no right to do, but they couldn't quite find a provision of the Constitution which said that explicitly; so Justice Douglas, William Douglas, who wrote the decision, said this right to privacy is existing in the penumbra of the Bill of Rights. In a total eclipse of the sun, when the moon travels across the face of the sun, from the Earth's vantage point, and blocks out all vision of the sun, there are all these flairs and flames and colors coming around the edge. That is the penumbra. So he said, coming out of the Bill of Rights, basically, there is this right to privacy. It's not in there in any specific way, but it's one of those liberties that is so essential that people have to enjoy it.

There were precedents for this back in the 1920s. In a famous case, Meyers v. Nebraska, the Supreme Court had overturned a law of the state of Nebraska that prohibited teaching in schools in any language other than English. This was an anti-German law from the aftermath of World War I, and the court then said, the right to educate your child is a basic liberty, and you have a right to educate your child in any language you feel like. They didn't use the word "privacy," but that notion of a group of rights within the family that the government can't interfere with leads on to the right to privacy in Griswald thirty years later.

Several years after that, the Supreme Court issues its Roe v. Wade decision, which builds on the right to privacy announced in Griswald, to declare that states cannot outlaw a woman's right to terminate a pregnancy, that is, to have an abortion, if she wishes. Again, it's not in the Constitution, but it's in this notion of a right to privacy. That is the most personal, intimate decision a person can make, and there is no role for the government in determining how a person makes that decision, so the right to privacy builds, and then it builds some more. In 2003, the court used the right to privacy in Lawrence v. Texas, overturning a law of Texas making homosexual acts illegal, and again they said, in your personal, private life, you have a right to liberty—as long as you're not interfering with other people—you have a right to liberty to consensual activity, which the government cannot get into your bedroom and interfere with.

Trade-off between national security and civil liberties

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Interviewer: How is our current debate over the trade-off between national security and the maintenance of civil liberties reminiscent of earlier such episodes in American history?

Eric Foner: The terrorist attacks of September 11, 2001, brought issues relating to freedom back to the fore in public debate. And one of the most critical of them was the relation between liberty and security. Soon after the attacks, Congress passed with little consideration an immense bill most congressmen hadn't even read: the USA Patriot Act, which critics claimed included numerous restraints on civil liberties, the right of the government to spy on civilians in many ways, the right to investigate you without a subpoena, things like that. Moreover, the president announced that there would be military tribunals; people could be arrested without being charged, held without a lawyer, and so on. We saw debate on issues like this in the Civil War, when the right of habeas corpus was suspended and many thousands of people were arrested. During World War I there were massive violations of civil liberties. This question of the balance of liberty and security, there is no easy answer to it. Still, the one thing that one does not want to do, especially if as the president says we are fighting for our freedom in a war against terrorism, is to give up our freedom. If we give up our freedom in that war, then who will be the ultimate victor?

Divisions in party politics

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Interviewer: What is your historical view of the very sharp divisions in party politics today?

Eric Foner: Historians don’t like to comment on the present all that much. We always say we need a long historical perspective to understand this. But I think it’s important to remember that sharp partisan divisions are nothing new in American history. Yes, there are very strong criticisms, a lot of language against President Obama, against Congress—some of it pretty heated and abusive. But similar things were said against George Washington. Abraham Lincoln was denounced as a gorilla by the Democratic press. Franklin Roosevelt was vilified in the press as a communist and a socialist. We have a long tradition of vibrant and often abusive and insulting, and scurrilous really, political discourse in this country. Now what I think is different today is because of the Internet, because of what is called the 24-hour-a-day news cycle, anything anyone says, even the most obscure stupid person, circulates around the country immediately. And it puts a premium on an extremism of language in order to get attention. The more extreme the thing you say, the more likely it is to circulate around and people pick it up. There seems there’s a constant circulation of inflamed, vitriolic partisan rhetoric. That’s how you get attention nowadays, unfortunately. The existence of extreme partisanship is not new, but the speed and volume with which it circulates around is new, and it does have a detrimental impact on our political dialogue—it makes it impossible to talk about things rationally when so many people are throwing abusive epithets out there. One can hope that down the road a more reasoned kind of political debate can come back, although there never was a golden age when every politician was Socrates in ancient Greece and debating things on a purely rational level. We’ve never had that and probably never will have it.

Obama's election

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Interviewer: In 2008, we had the election of the nation’s first African American president. Since the theme of American freedom runs through Give Me Liberty!, I wonder if you would comment on the significance of Obama’s election in the history of American freedom.

Eric Foner: If you look at the long and difficult history of race relations, slavery, segregation, and civil rights struggles in America, I think anybody would have to say that the election of Obama was a very important turning point in our history. Whether you’re Republican or Democrat, whether you voted for him or Senator McCaine, the fact that this racial barrier to the highest office of the land was breached is an important milestone in American history. I think that whatever the end result of Obama’s presidency, he will be seen historically as a milestone for that reason. It’s a culmination of the civil rights revolution, but one might as well say it's also a culmination of things that go all the way back to the Reconstruction era when African Americans first got the right to vote in any significant numbers and to the struggles in the early twentieth century against segregation. So as a piece of the history of American freedom and its expansion over time, the election was a very significant moment.

Obama's victory and the end of a political era

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Interviewer: You say in the last chapter that Obama’s victory seemed to mark the end of a political era that began with Richard Nixon and his southern strategy. How so?

Eric Foner: Nixon in 1968 was elected in part because of the repudiation of the Vietnam War and the turmoil in the streets in the United States. George Wallace had also run and gained a significant vote in the South. Nixon developed this southern strategy of trying to win over to the Republican party these disaffected southern Democrats who were repudiating the civil rights gains of the 1960s as did many in the North—the so-called racial backlash against the changes. In the 70s, 80s, 90s, the Republican party won majorities for many reasons, but one was by appealing to this sense of racial backlash. President Reagan began his presidential campaign in 1980 in Philadelphia, Mississippi, the place three civil rights workers had been killed in 1964. Of course, he didn’t justify the killing, but he made it clear he sympathized with the local residents who were under criticism for racism. Of course, in 1988 President Bush ran the famous Willie Horton TV ad with a very dangerous-looking black criminal who was linked with the Democratic candidate Dukakis. And the Republicans won the solid South all the way through—Jimmy Carter won some southern states, but basically ever since Carter the Republicans had a lock on the South. I say Obama’s election marks the end of the southern strategy for two reasons. First, he carried several southern states—he carried Virginia, he carried North Carolina, he carried Florida. So this was a sign that the age of backlash may be over, that southern politics is no longer in this post–civil rights era. The Republicans could not just count on winning the solid South and building from there. And second, as an African American, he won a majority of the national vote, which shows that the majority of the population was willing to go beyond the debates of the civil rights era. There were other issues involved in 2008, so in a way, maybe Obama’s election means putting behind us, finally, the social divisions that were spawned by the 60s and the civil rights era.

The current state of American freedom

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Interviewer: Give Me Liberty features the running theme of American freedom and its changing meanings and limits. Would you comment on the current state of American freedom and what you see are the major challenges we face on this front?

Eric Foner: Freedom, as I argue in Give Me Liberty, is first of all a changing, contested idea. There’s no one single definition of what freedom is and no one group that is entitled to freedom, as opposed to other groups. Over the course of our history, thanks to the many struggles that I have written about in the book, our freedoms have expanded. There’s no question about that. You can even see that in the greater toleration of today toward groups like gay Americans or others who really were pretty much on the margins until pretty recently. And so if you define freedom in the terms of diversity and respect, of people being able to live their own lives without outside interference in their personal choices, I think there has been a great expansion of that kind of freedom.

On the other hand, I think there are other forms of freedom that are under threat or under pressure at the moment. The most important, given the economic downturn we’ve been in for the past few years, is economic freedom. Unemployment remains high and more important than statistics is the sense among many people that there’s little hope and little prospect of future improvement, that their children are not going to have the same opportunities they did. The notion of economic improvement and economic mobility has been an important part of the American concept of freedom for many years, but that seems to be diminishing at the moment. Many people feel it’s not as open to as many Americans now as it has been in the past. So I think there’s a real feeling of economic freedom beginning to be constrained in many ways. And I think that one of the great challenges of any political leader now and in the future will be how to think about "restoring the American Dream," restoring economic opportunity that may not exist today in the same way it has in the past. It’s an astonishing thing but statistics show that there is actually more social mobility in Europe now than in the United States. That is, the ability of people born poor to move up into middle class status. This is the first time that I can remember that that has been the case.

We also face the perennial challenge in any wartime situation of the balance between civil liberties and national security. Since the terrorist attacks of September 11, 2001, Americans have become used to infringements on their personal liberty that would have been unacceptable before then: surveillance all over the place, cameras watching you, airport security checks, government wiretapping, government reading your email, government listening on your phone. Even the government claiming the right to assassinate American citizens if it decides that person might be working with Al Qaeda. There’s no judge, jury, or conviction. The president can just order the assassination of an American. That’s a pretty unusual thing in our history.

I think that, as always, there are debates about freedom. And freedom is never a straight line toward greater and greater freedom; it’s always a zigzag, it’s always under pressure. And if there’s any message in Give Me Liberty it is the need for vigilance, even in times of difficulty, even in times of threat, to maintain these freedoms. This requires citizens to be active in doing so, not to just sit back and assume that they’ll always be there.