Houston criminal defense lawyer Mark Bennett has opened the debate on safety versus freedom at the best crime blawg in the world, Defending People. (Vote for it here for the ABA 100).  After the series of quotes that offers most people a quick and easy substitute for actual thought, the Texas Tornado gets to the point:

[Bennett's anonymous commenter] Y’s point (read the comments I linked to for her argument and context): “Safety is a necessary condition for the value of liberty.” Philosopher Jeff Mason writes,

It is true that you are free to choose to live or to die, and the manner of your life and death, but what kind of freedom is it that forces you to choose between evils just to preserve your life a little longer in constant danger?

I disagreed at first but, on reflection, I think this is true . . . to a point. A person must have a certain amount of bodily security before she can even think about liberty. So when Y says, “safety is a necessary condition for the value of liberty”, I can’t entirely disagree.

It's certainly true that the absolutist view has its problems.  I doubt anyone suggests that violent criminals should be free to roam the streets with guns in the interest of promoting freedom over safety.  But where's the tipping point?  Simpletons would urge us to use common sense, but since that invariably leads nowhere, we need a better answer.

Bennett proposes a Darwinian "fight or flight" type rule, where our evolutionary reaction to danger dictates the level of safety we must achieve before reaching the point where the interest in freedom prevails.

There is a difference, however, between the dangers that might naturally prevent our thinking about liberty, and those that should absolutely always yield to liberty.

The difference is the same as the difference between those dangers that we are physiologically prepared for by evolution, and those that are creations of civilization.

Our bodies have fear systems that are engineered by nature to respond to the sort of threats that human beings faced before they became civilized; these are the sort of threats that other animals face: generally, predators. Our fear systems kick in to help us react in three phases, all in a matter of minutes:

• Pre-encounter (”vigilance”, information-gathering, yellow);
• Post-encounter (”fear”, decision-making, orange); and
• Circa-strike (”action”, action, red).

If I understand his point (and I'm not sure I do), the answer is that we must do whatever we need to do to confront an imminent threat to life and limb, and live to tell about it, before we can worry about higher order concerns such as freedom.

Bennett distinguishes real fear from perceived or theoretical fear.  This, I believe, makes an excellent point.  If you're staring down the barrel of a gun, you do whatever you have to do to save yourself.  If you're reading a newspaper op-ed by a government appointee about the threat of terrorism in the comfort of your kitchen, your safety is not threatened.  Rather, you are at best happy to trade off your continued comfort for someone else's loss of freedom. 

To the extent that Bennett's commenter suggests that we can't worry about freedom while staring down the barrel of a gun, I doubt anyone would disagree.  But to the extent that government whips us into a frenzy about some inchoate threat, such that we allow our fear to take over and willingly offer up our freedom, there is significant disagreement.

Bennett invokes one of my personal favorite theories, Abraham Maslow's hierarchy of needs.  As I read his post, this immediately came to my mind as well.  Society requires a certain degree of order to function.  We must be capable of relying on the sanctity of our homes, the security of our bodies, the protection of our necessities of life, before we can turn our thoughts to freedom.  As Bennett argues:

A certain amount of government protection is arguably necessary. But we have far more government “protection” than the minimum that we need. We’re far beyond the point at which individual liberty should yield to individual safety, and most societies have been for most of the last five thousand years. Ever increase in governmental power beyond that point provides at best a tiny incremental increase in temporary safety at a major cost to freedom.

The only question that remains is where exactly that tipping point exists.  My best guess is that each of us has a different level of need for safety to allow us to turn our attention toward the higher order concept of freedom.  The problem, of course, is that those of us who value freedom more highly than "a tiny incremental increase in temporary safety" have to live with other people's choices.  Therein lies the conflict.

The answer could be that the tipping point is where the majority of people feel most comfortable, but this presents the "tyranny of the majority" problem that our Constitution sought to protect against.  This is why the Constitution creates foundational rights, rights that even the majority cannot eliminate in times of anxiety.  

The phrase "the Constitution isn't a suicide pact" is used by those who employ fear to trump freedom to rationalize ignoring its mandates.  But do we face suicide by adhering to these fundamental freedoms?  The Constitution doesn't prevent us from defending ourselves, but only from real threats to our physical safety rather than the theoretical ones used to persuade us to give up freedom "just in case."  When we allow fear to dictate the tipping point  between safety and freedom, we will have neither.