There is a deep tension in contemporary US political thought between the notion of freedom that tends to dominate in the socio-economic domain and the concept of liberty that predominates in the penal sphere. In socio-economic matters, the idea of freedom tends to be shaped by classic economic liberalism: the belief that an invisible hand shapes favorable public outcomes, that individuals need robust protection from the government, that the state should refrain from interfering in commerce and trade. In the law enforcement and punishment context, by contrast, the dominant way of thinking about liberty gives far more ground to the government, to the police and to the state security apparatus.
This tension, when it gets acute, gives rise to what I would call "two-faced" or "Janus-faced liberalism". Over the last 40 years, during a period characterized by increased faith in free markets, in deregulation, and in privatization, America's Janus-faced liberalism has worsened and fueled the uniquely American paradox of laissez-faire and mass incarceration. In the country that has done the most to promote the idea of a hands-off government, our government runs, paradoxically, the single largest prison system in the whole world.
But there really isn't a paradox if you step away from the scene and take a look at the big picture.
The state serves the interests of the ruling class. In the area of economics that means keeping out of the way of the invisible hand and allowing the owners of the means of production to do as they wish. It means creating a structure in which gain is privatized but losses are socialized. All that pollution as you head east out of Houston? That's just a by-product of capitalism in action.
The chemical plants and refineries reap the profit from processing the basic building blocks of our economic system while the residents are left to deal with the smog, the soot and the stench. Heaven forbid we require those who produce the pollution to prevent it.
All those pesky environmental regulations? Get rid of them. Who cares what's left of the environment a generation or two from now. By then we'll all have profited mightily from the rape of the planet - and, besides, we'll be dead, so what difference does it make?
And, of course the state should do nothing to encourage workers to join together for their mutual benefit. It's okay for the corporations to combine so as to exploit their resources as much as possible but if we allow those workers to form a union we might have to give up that summer home or the new BMW.
Forcing Americans to buy health insurance, on Justice Kennedy's view, violates a fundamental notion of liberty and basic values of a liberal democracy – despite the fact that all Americans already pay for Medicare and Medicaid, as well as other social programs, not to mention military interventions. In the economic sphere, Kennedy evidently is attached to a robust economic-liberal approach. He almost sounds libertarian.
Only a few days later, though, Justice Kennedy dramatically expanded the government's reach over the individual by deciding to allow federal, state, and local law enforcement officers to force anyone arrested for even the most minor traffic violation to be stripped naked, forced into a delousing chamber, compelled to squat, cough, and lift their genitals under the peering supervision of a jailor. The fundamental values of a liberal democracy, on Justice Kennedy's view, do not require even one iota of reasonable suspicion, before the state can strip its citizens of all dignity, bodily integrity, and personal autonomy.
The role of the state in modern day capitalism explains the over-criminalization of our society. As productivity increases and corporations reduce the numbers of workers in their facilities, something must be done with the excess labor supply. So we lock them up. We lock them up in record numbers. And the more petty the crime, the more severe the hand of the government.
The state uses mandatory minimums to lock up those caught up in the drug trade while the alcohol, tobacco and pharmaceutical industries peddle mind-altering substances taxed by the state. The common man without anything to trade is sentenced to life in prison while the corporate executives who make the decisions that destroy the environment or cost people their lives live in their mansions in their gated communities - keeping all the riff-raff at bay.
It's the American way, after all. If you've got the goods, you can do whatever the hell you want, but, if you don't, there'll be hell to pay. Those who control the wealth control the means of power - whether it be in the marketplace or in the courthouse.