Insure domestic tranquility

Charles Krauthammer commits what must be blasphemy for libertarians by arguing that there are limits to what must be tolerated in a free society; advocating

situational libertarianism: Liberties should be as unlimited as possible -- unless and until there arises a real threat to the open society.

Personally, I abandoned even that position some time ago. America isn't really all that tolerant anymore if you take into account our zoning laws and the power of single individuals to veto things like prayer in a public setting, and the practically unlimited application of the Commerce Clause to allow federal interference in local affairs.

What concerns me is the the loss of the doctrine of public nuisances. That should be all that is necessary to ban planting of flaming crosses on people's lawns, the Nazis marching in Skokie, Illinois, vagrancy and panhandling by homeless people and a lot of other intrusions on the public tranquility.

Krauthammer anticipates the reaction:

Civil libertarians go crazy when you make this argument. Beware the slippery slope, they warn. You start with a snoop in a library, and you end up with Big Brother in your living room.

The problem with this argument is that it is refuted by American history. There is no slippery slope, only a shifting line between liberty and security that responds to existential threats.

I would add that it is refuted by common sense and the Preamble to the Constitution, as well.

Update: Geoffrey R. Stone argues the opposite case, with citations to Felix Frankfurter and Learned Hand. They defend inciting to violence as free speech. I think that they would have distinguished the cases from the current situation, but if not, they'd be dead wrong. They typify the emphasis on the Bill of Rights at the expense of the Preamble to the Constitution, which should be read together. If the purpose of the Constitution is to insure domestic tranquility and some among us are encouraging and plotting terrorism against our citizens, the First Amendment has to recognize that there is a point at which speech changes from merely stating opinions into conspiracy to destroy the Constitution. Preaching jihad goes beyond mere passion in debate when it explicitly encourages bombing civilians.

We have been glorifying such second order rights as freedom of speech and privacy for so long in this country that we have forgotten that there are first order rights such as life, safety and a peaceful society that comes before them. That's why the Fourth Amendment protects us not from all searches and seizures, but only unreasonable ones. There is no absolute right to privacy. It is trumped by the need to stop crime.