14 Pages Posted: 19 Jul 2011 Last revised: 12 Oct 2011
Date Written: July 18, 2011
Terror in the Balance: Security, Liberty, and the Courts (2007) advances a “tradeoff thesis”: there exists a security-liberty frontier, such that policies below the frontier can be changed so as to improve both security and liberty, while if policy is already at some point on the frontier, neither security nor liberty can be increased without decreasing the other (the tradeoff curve). The tradeoff thesis should be considered banal. Surprisingly, however, many commentators have launched critiques of the thesis. These critiques make a number of excellent points about security policy, but none of them undermine the tradeoff thesis. Some redefine liberty as a component of security, or security as a component of liberty, but this leaves the substantive tradeoff untouched, albeit with different labels. Some misunderstand the logic of the security-liberty frontier, which itself supposes that there may be cases in which policy lies below the frontier, so that governments can and should adopt policies that improve welfare without requiring the sacrifice of either good. The critics have several plausible points: for example, that not all policies are currently at the security-liberty frontier, and that different points on the frontier have different distributive consequences. But these points are entirely consistent with the tradeoff thesis; the critics err to the extent that they take these points as grounds for rejecting the thesis itself. No one has yet advanced an alternative framework that is both well-specified and analytically distinct from the tradeoff thesis. Although the thesis is widely controverted, it should be common ground.
Suggested Citation: Suggested Citation
Vermeule, Adrian, Security and Liberty: Critiques of the Tradeoff Thesis (July 18, 2011). Harvard Public Law Working Paper No. 11-19. Available at SSRN: https://ssrn.com/abstract=1888334 or http://dx.doi.org/10.2139/ssrn.1888334
By Lisa Austin