Tag: volokh

A Life of One’s Own

Since Tuesday’s oral arguments in Virginia v. Sebelius—the first Obamacare challenge to reach the circuit court level, and one in which Cato also filed an amicus brief—the legal blogosphere has been discussing the Fourth Circuit panel’s incredulity concerning the activity/inactivity distinction at the heart of our arguments against Obamacare. As Ilya Shapiro explains, we contend that if Congress’s power to regulate “interstate commerce” reaches the inactivity of not buying health insurance, then there is nothing it does not reach. The Supreme Court will eventually have to grapple with this question and decide whether the distinction is constitutionally meaningful.

As Volokh conspirator Jonathan Adler points out, the activity/inactivity distinction is long-standing. At common law, there was no legally enforceable duty to rescue. In other words, if you didn’t act to create the danger, you would not be liable for your inactivity in not helping. To put it bluntly: you would have no legal liability if you ignored a drowning child.

Legal philosophers have grappled with the meaning of “act” and “omission” for centuries. While there are some difficult issues to ponder, there is also an element of navel-gazing in the question and the Supreme Court may have to gaze long at their navels to answer it. But it is worth remembering why the act/omission distinction matters in a free society. At the risk of getting too philosophical, I will add some thoughts of my own.

Anyone who has been to law school has likely had long conversations, probably in torts class, over whether the act/omission distinction is both meaningful and moral. If your torts class was like mine, your professor lamented the “no duty to rescue” rule as evidence of our individualistic and selfish society. Many law professors believe our slavish adherence to the act/omission distinction not only allows us to let children drown, but that it is just another “Western” belief that holds back a robust welfare state.

The aversion to mandating action, however, is not about letting children drown. I wouldn’t let a child drown and I imagine you wouldn’t either. The extreme hypothetical helps gloss over a meaningful principle for normal, run-of-the-mill cases. Just as bad facts make bad law, bad hypotheticals can blur vital principles. The act/omission distinction helps delineate, albeit imperfectly, the personal sphere of control and the governmental sphere of control.

Despite many who want to equate the two, what is legal is not the same as what is moral. In fact, these two categories can work against each other—performing an act of kindness because you fear authority diminishes the act’s moral character.

But we distinguish between the legal and the moral for deeper reasons as well: it helps maintain the crucial separation between the government and civil society, ensuring that the government doesn’t become the absolute ruler of our lives and the values we choose to hold dear. The theory that there are proper spheres of governmental control and proper spheres of private control is one of the great and under-appreciated victories of Western culture.

The act/omission distinction also matters because resources are scarce. Acting uses resources that could be used for alternate purposes. Omitting uses none. While you can take on a literally infinite set of omissions, you can only take on a finite number of acts. Using resources—time, money, strength, natural resources, etc.—for one thing means they are not being used for something else.

To put this in real-world terms: Obamacare’s individual mandate to maintain minimum health care coverage could eventually cost someone tens of thousands of dollars that they would have spent on other things. One of those things may have been another 50” television. However, it is just as likely that the money may have been spent on sending a child to college (or, given the age of those likely to go without insurance, sending oneself to college), donated to a church or a favorite non-profit, or invested in a fledgling business. Mandating action—that is, the use of scarce resources—overrides individual value preferences and substitutes other values through force. In other words, the government is telling you that your value preferences are wrong.

This is how the necessary distinction between government and civil society is slowly eroded. Creating legally enforceable duties to use your resources politicizes resource allocation problems. But our lives are already resource allocation problems, with or without government. How you manage your time and efforts is not just a question for your day-planner, it’s a profound existential quandary. Politics is one of the worst ways that resource allocation problems can be addressed. At the extremes, it becomes dehumanizing. Special interests will fight over your resources and decide how they should be allocated. It’s actually worse than watching sausages get made.

This is why libertarians are treating the Obamacare litigation as a critical moment in constitutional law. Sure we’ve been taxed before, and civil society has already been significantly eroded by government overreach. But we’ve rarely been commanded, particularly in a way so obviously designed to avoid political liability for raising taxes. Our parades of horribles—for example, the hypothetical “buy broccoli mandate”—may elicit eye-rolling from some, but violating the act/omission distinction in principle, as the government threatens to do here, means a principle is no longer standing in the way.  “Just this once” is hardly reassuring.

I understand that much of what I’ve said here, if taken to its logical conclusions, would prohibit any taxation. I am not advocating that. I am only pointing out a subtle and important distinction through which these questions can be viewed. A government that has total power to dictate when, how, and whether resources will be used is a government that has the power to dictate your life-plan and decide for you which things matter the most. The act/omission distinction has helped maintain the crucial line between the private and the public spheres, allowing for the possibility that government can be avoided by keeping to oneself.

The fact that the Fourth Circuit judges were “baffled” by the action/inaction distinction is disturbing to say the least. We lose something very important if they rule for the government, something that generations of enlightenment-era political philosophers articulated as a critical line between freedom and total government control. Let’s hope the Supreme Court doesn’t also forget those lessons.

Was There a Libertarian Golden Age?

Recently I wrote an article arguing that there never was a golden age of liberty and that in particular libertarians should not hail 19th-century America as a small-government paradise, at least not without grappling with the massive problem of slavery. Jacob Hornberger, author of an article that I criticized, responded in Reason, and I then responded here. Meanwhile, an interesting discussion took place on a email list of libertarian scholars, and I’m pleased to have gotten the permission of several participants to include some of that discussion here:

Aeon J. Skoble: The ideals of freedom which led to the tangible improvements [Boaz] mentions – I’m concerned that those ideals are eroding/have eroded.  Example: say you have a robust theory of rights, but your society denies rights to women.  That’s a contradiction, and the strength of your rights theory contains the foundation for protesting the injustice and remedying it.  But if you don’t even have a robust rights theory in the first place, there’s no foundation for complaining about lost liberty.  So my concern is that, all the good progress notwithstanding, liberty as an ideal is weaker than it once was.  One thing that’s widespread, e.g., is the constant conflation of positive rights and negative rights.  And at the same time that positive rights are being accorded the status of negative rights, negative rights are increasingly being viewed as encroachable.

David Mayer: In terms of economic liberty and property rights, Americans today are certainly far less free than they were a century ago, or even two centuries ago.  What was once a vast realm of human activity that American law left to individuals’ freedom of contract (the whole realm of business activity as well as personal life, in terms of what substances individuals may choose to ingest in their own bodies, the wages and hours they can work, whom they can hire or fire, to whom they can sell their property or refuse to sell their property, etc., etc.), has now been almost wholly subjected to the dictates of government, thanks to the rise of the 20th century regulatory / welfare state.  Business owners today (to pick one obvious category of Americans – arguably, the most important category, if as I do, you agree with Calvin Cooolidge’s maxim, “The business of America is business”) are certainly far less free today than they were 100 years ago (before the “Progressive” era), or 70 years ago (before the “New Deal revolution”), or 50 years ago (before the “Civil Rights movement” and the various federal anti-discrimination laws), or 20 years ago (before, say, enactment of the Americans with Disabilities Act) – or even a year ago (before enactment of the Democrats’ health insurance nationalization law).

Glenn Reynolds: I think that David’s piece is useful in another way:  If your narrative is one in which freedoms are always shrinking, and government always growing, it may tend to discourage people from working to make things better.  I see a lot of that kind of thing from people on the Right, and it irritates me no end.  I remember when the passage of the assault weapons ban was presented as just another downward ratchet in freedom, and yet now the gun issue is such that even lefty Dems are for the most part unwilling to touch it.  That, it seems to me, is an example of how freedom can expand even in the comparatively short term.

Steve Horwitz: The way I see this is that we’re trying to answer the question “Are we more free?”  To do so, we need to address both the “we” and the “free” pieces.  I read David as making two points:  1) We need to think carefully about the “we” and recognize, as we all have noted, the major gains in freedom for non-white, non-males (and maybe non-Christians too).  2) But he was also saying there are more freedoms in the calculus than the economic.  Even white men are freer along a number of dimensions than they were in the 19th century, when one takes the social realm seriously.  Some folks have noted those.

My own view is that one can look at this in the economist’s old tool:  the 2 x 2 matrix:

economic freedoms        social freedoms

White men           notable losses            good-sized gains

Others                       huge gains                    huge gains

I think by any accounting, the NW quadrant is smaller than the sum of the others.  We can debate over how much smaller, but if we could somehow aggregate these freedoms, I think there’s no question the total amount of freedom per capita is bigger today than “before.”

Mark LeBar: Speaking for myself, I don’t think it’s a matter of economic vs. other freedoms. If I were to put my finger on what I would say seems to me most significant in thinking the losses in NW swamp whatever gains there are elsewhere, I would say it has to do with the loss of respect for contract. That’s not to say there are no gains: as others have pointed out, 2 centuries ago I could not have contracted with women, or Africans, and to the extent non-whites and non-males have been accepted to the relevant moral community, that is indeed an expansion of my liberty as well as theirs. But, as I noted earlier, my authority to bind myself in ways that are not subject to veto by the state is a shadow of what it once was. I won’t enumerate the list again. But not only is that list much smaller, the rightfulness of the state to determine just how much smaller it may be continues to expand virtually without pause, as those on this list will need no reminder. I would say there has been a sea-change from the idea (however imperfectly implemented) that the flow of authority goes from individuals to the state, to just about exactly the opposite. And that is simply a catastrophic loss to liberty, not just for white males, but for everybody. It’s hard for me to see that there can be good reasons for rejecting either the claim that the authority relation is now generally seen as running the other way, or that that amounts to a massive loss of liberty. And I don’t see imminent prospects for broad change in those attitudes. Hence the pessimism.

David Olson: I think that perhaps I am missing something. In reading today’s exchange, I thought that people were working toward a consensus that had largely been reached and summarized by Steven’s email. But now Mark writes that liberty gains to everyone but straight white Christian males are swamped by the liberty losses to white males (and to hypothetical non-whites and females compared to the liberty they might have enjoyed if they’d had full equality 200 + years ago).

I’m very surprised by this statement. The logic of this would seem to lead to the proposition that it would be better if things were still as they were 200 years ago. Would anyone actually make that statement? If not, is there some value in addition to freedom that people are focusing on in deciding the question? (And let’s take medical and dental care advances out of the question to avoid skewing the answer.)

John Hasnas: I suspect that no one on the list would disagree with the assertion that between the time of the adoption of the Constitution and the present, the political and legal commitment to a government of limited, enumerated powers has greatly declined. I also suspect that no one on the list would disagree with the assertion that a vastly greater proportion of the population enjoys freedom from illegitimate political and legal restrictions and disabilities than was the case at the time of the adoption of the Constitution. Out of this universal agreement, we have managed to manufacture disagreement by asking a vague question that equivocates on the meaning of the word freedom; to wit, “Are we more free?”

It seems pretty obvious that to the extent that we are free, that freedom is much more widely distributed than in the past. It also seems pretty obvious that to the extent that there is less legal protection against the interference of the federal government with our activities, there is less freedom. Beyond this, the value of determining whether we are more “free” in some unspecified sense escapes me.

Aeon Skoble: Actually, I wasn’t asking “Are we more free?” – I conceded David’s claim that we were.  I was expressing some concern over whether the trend will continue positively or negatively, given that the positive and negative senses of freedom are so frequently conflated (not by members of this list, but in general, both in the academy and among the general public), and that in many quarters the very concept of freedom is in disfavor, and the idea that all rights are subject to encroachment by the state, which is more and more thought of as having limitless power.

Steve Horwitz: I agree with Aeon’s concerns.  One way to put it is, as I think Mark LeBar did earlier, even if it’s true that we are collectively (per capita) more free, those gains have come at the weakening of the sacredness of certain principles that affect everyone’s freedom, especially in the long run.  I too share the concern that the last two years have accelerated that process in very problematic ways.

Stephen Davies: There’s actually general agreement here with the broad argument David made but some mild disagreement over the (probably unanswerable) question of whether the aggregate of total freedom is greater or larger. That wasn’t the main thrust of David’s piece as I read it though, he was talking about the implications and consequences of the (clearly wrong imho) line that for liberty it’s been downhill all the way since the later 18th century. This is a common line as we all know and I think its really problematic. As David says it means you come over as indifferent to the undoubted gains made in some areas by various groups and so as only concerned with the position of one subgroup. This may well be wrong but impressions matter. This line also shows a deeply conservative sensibility and mindset. If you are libertarian in the sense of not liking large or expansive government but deeply conservative in other ways (e.g on questions of social hierarchy or relations between the sexes or family organisation) then you will feel that it’s been downhill for a long time. …

I think the real problem though with the approach David criticises is the way it leads you to behave with regard to current events. Basically you are going to see yourself as playing defence all the time and probably as fighting a losing battle against an inexorable tide of rising coercive statism. This means you will come over as angry, negative, and despondent, which are not attractive qualities. Also you will let the other side set the agenda and then respond to them rather than taking the initiative. This means you spend all your time criticising and attacking proposals that are liberty hostile instead of spending most of your time advocating positive liberty enhancing changes. …

Finally, if I could put my historian’s hat on for a minute. We need to distinguish between two different measurements - the size of government (as shown by its share of GDP) and it’s extent or range (as shown by the number of activities or areas of life that are considered to be its concern). In the first case there’s a clear growth (we’ve all seen the graph). Even there there’s Tyler Cowen’s argument that a 40% share of a really big GDP is less bad than a 15% share of a much smaller pie. In the second case there’s been considerable gains as well as losses. Religious belief, observance etc was once seen as the central concern of government. Now it’s a private matter. Governments used to concern themselves with things such as dress, diet and public interactions (under sumptuary laws) and intimate details of people’s sexual behaviour (through both church and secular courts). This is no longer true. OTOH there are clearly areas where there’s been a shift in the wrong direction such as mood altering substances and firearms or where there’s a danger of a bad movement (diet for example).

The following comments are prompted by Jacob Hornberger’s response in Reason.

Brad Smith: Hornberger notes that the concept of what it meant to be free was much broader in the 19th century (something Aeon also touched on).  True, some people were not free – but for those who were, the concept had much more meaning.  That’s why I think one can agree with both perspectives, that freedom has both gained and lost ground in important ways.

Implicitly, Hornberger notes the extent to which government was simply not a presence in the lives of most people.  The average free man could go days, weeks, or even months with no direct contact whatsoever with the government. Hornberger might also have noted that a free man didn’t need a passport to travel, or an operator’s license to drive his wagon, or a license plate for his horse.  In most cases, he didn’t need a building permit to add to his home.   Even laws that might be on the books (but were perhaps not so ubiquitous as many think) laid lightly on people – laws against prostitution, sodomy, polygamy and such.  A gay man in the 19th century might fear great social sanction if his predilections or activities became known, but the idea that the government would interfere with his activities was not really an issue at all, whatever the state code might say.  In the 19th century, one certainly didn’t need to license one’s pets, and one was never harangued by government sponsored advertising to properly cook your eggs or spend time with your children.  Today, for white men and for women and minorities, government permeates every aspect of our lives, essentially 24/7/365.

Even as we have expanded the blessings of freedom to more people, society’s concept of freedom seems to have narrowed tremendously, to where even many self described libertarians seem to think a 39% income tax bracket is pretty darn acceptable.  The boundaries of what it means to be free seem to have retreated, and to have retreated enormously.  Thus, even as more people have benefited from freedom, the long term outlook for freedom seems in many ways much more grim.

Keith E. Whittington: The overseer or master exercised lawful, violent coercive force over the slave on a daily basis and did so with the full support and backing, if necessary, of the government.  Moreover, “the government” (such as slave patrols) often consisted precisely of ad hoc groupings of armed civilians operating under the titular direction of a government official.  And the government wasn’t always willing to stand ready protect people from coercive private groups who wanted to enforce social conformity.  So, on the one hand, some prostitutes might be tolerated if they kept to themselves in the wrong part of town, but on the other hand abolitionist newspapers editors could have their houses burned down and Catholics and Protestants could find themselves becoming armed gangs and rioting to secure their respective neighborhoods.  No level of government had an expansive police force in the 19th century, but that just means that social order was generally maintained by other mechanisms.  It doesn’t necessarily mean that people were free from social order.

Mark LeBar: David is certainly right that slavery and the legal subordination of women are blights on the very institutions that were modeling liberty, and especially for those directly affected it is a gross mistake not to recognize what those changes in law and society mean in gains in liberty. But that is an observation that pretty much any decent person, libertarian or not, can be expected to make. There is a distinctiveness to the point of insisting, as Hornberger and Brad do, that the very liberty that is reaching to more people is radically constrained in many ways. We can grant, it seems to me, that many people are freer in significant ways than they once were, while insisting that the point of liberty itself is in danger of getting lost in the process. That, it seems to me, is a case that libertarians are uniquely in position to make.

Eugene Volokh: Prof. LeBar writes, that “what it means to be free is a shadow of its former self.”  But is that right, even as to white males?  Economic regulation, including of a sort that libertarians much oppose, is not a novel matter.  Neither is taxation (which, to be sure, is at a much higher rate than in the past, but I’m not sure that the precise rate is that much a part of “what it means to be free”).  Neither is regulation of trade.  Neither is restriction on freedom of association.  Neither is regulation of guns.  Neither is regulation of personal behavior; alcohol prohibition first emerged in the U.S., for instance, in the mid-1800s, and of course the regulation of sexual behavior was far greater in the past tan today.

What’s more, all these were favored, I think, by people who believed in freedom, which meant to them (as it does to many lovers of freedom today) freedom subject to at least some constraints aimed at protecting the freedom of others and at protecting the well-being of society.  Liberty has long been respected and fought for by Americans; but that the late 1700s and late 1800s were liberty-loving times doesn’t mean that the legal systems of that era were particularly libertarian as we libertarians would want them to be.  “We all declare for liberty; but in using the same word we do not all mean the same thing.”  I don’t think there’s been a past Golden Age of Liberty, in which freedom was generally accepted as meaning something far deeper and broader than what it means today, even for white men.

Steve Horwitz: I do think part of what’s going on here are two cross-cutting conversations.  Or at least two distinct claims.

1.  “Americans, on the whole, are freer than they were, say, 150 years ago.”

2.  “Government is more obtrusive in a moment-to-moment or day-to-day way than 150 years ago.”

I actually think both of these are true.  The enormous restrictions on the freedom of blacks and women (and others) of 150 years ago, though ultimately backed by the force of the state, did not require the state to be, as it were, “in their faces” on a moment-to-moment basis, as slavery and the second-class status of women were simply part of the institutional furniture (and often policed “privately” as Keith noted and as I noted about domestic violence in my earlier comments).

So it seems to me 1 and 2 are both true if one accepts that slavery and patriarchy don’t require the kind of constant and widespread, if small on each margin, government intervention we have in our own time.

We are collectively more free, I would argue, even though the underlying principles that assured the freedom of those who had such freedom 150 years ago have broken down significantly.

Keith Whittington: There is no doubt that you can run through statutes, court decisions and executive actions in the mid-19th century and compare the total to the mid-20th century and conclude that there is more overall government regulation in the latter than the former.  The latter is more voluminous and more detailed.  My only qualification/concern on this would be to note that while the 19th century regulation is less detailed it could be extremely intrusive (Sunday laws literally shut down all commercial, social and transportation activity in large parts of several states during parts of the 19th century) and that formal government activity was supplemented with informal private activity that was equally stultifying.  Without a robust vision of individual self-ownership, to borrow from Mark, that combination of social and governmental regulation could be extremely restrictive of anything we would want to recognize as individual liberty.  The battle for the idea of individual liberty, as well as the legal and social reality of it, was an on-going one throughout the 19th and 20th centuries, and I’m not confident how you net out the debits and credits.

Glen Whitman: Might it be helpful to ask why so many libertarians and conservatives want to say that America used to be more free than it is now?

Aside from sheer misplaced patriotism (which I’m sure is a big piece of the story), I think it comes from the desire to have an answer to the question, so often posed by statists, “When has a laissez-faire system ever worked?”  Rather than saying, “I’m advocating an untested idea,” we’d like to be able to say, “Yes, laissez-faire has indeed worked.”

And is that really wrong to say?  I think that with respect to specific issues, we can say that (a) the U.S. was freer before, and (b) somehow the country didn’t go to hell in a handbasket.  We can say, for instance, that drugs used to be largely legal and we didn’t become a nation of useless addicts.  We can say that labor markets functioned without extensive regulation.  (Of course, blacks and women were often excluded from those markets – but I’d say the markets functioned *despite* their exclusion, not because of it.)  We can say that there wasn’t a welfare state, and private charities and mutual aid societies did a fine job of helping those who fell on hard times.

None of which refutes David’s point.  Some groups were markedly less free, and everyone was less free in certain ways.  But that doesn’t mean we can’t sometimes point to history as a guide, which I suspect is what we really want.

Stephen Davies: I think Glen makes an important point here. Quite apart from the argument about how to quantify or compare different restrictions on liberty at different times and in different areas of lie is the question of rhetoric. Why present the story of liberty in the US as one of a decline from a golden age rather than as a story of slow growth in a positive direction or (my own favourite) one of decline in some areas and growth in others? Apart from the reason he gives I think one reason is the dominance of the jeremiad as a form of political argument. This isn’t confined to libertarians of course, in fact it seems sometimes that every political persuasion thinks things are going to the dogs. I think it’s a bad strategy however as well as being questionable.

I do think Mark and Aeon are on to something however in saying that there’s been a decline in the ideal of self-government or at least in the degree to which it’s articulated and the extent to which it’s understood as a complex idea rather than just a matter of doing your own thing. It was a much thicker concept in times past partly because it was associated with lots of other ideas of psychology (the notion of character) and sociology for example - there was a strongly held idea that you couldn’t be fully self-governing or independent if you were not economically self supporting and so the idea of freedom was tied in with all sorts of other ideas.

If you look outside the US, Dicey made the argument towards the end of the nineteenth century that there’d actually been a movement away from intrusive paternalistic regulation in the earlier nineteenth century followed by the growth of a new kind of intrusive state action after the later 1880s. He ralated this to public opinion which for him meant widely held but often unarticulated notions, beliefs and understandings on the part of the population at large or at least the politically active part of it. This kind of account makes more sense to me, particularly if you combine it with an approach that says that while freedom may have increased for some groups it declined for others and that at any one time it was growing in some areas of life while being in recession elsewhere. Complicated and messy but that’s history for you.

Loren Lomasky: To the extent that a consensus emerges in preceding comments it’s that the losses of liberty to white males over the past century or two are juxtaposed against liberty gains for people of color, women, some marginalized others.  Enjoying somewhat less than a genuinely full consensus is the proposition that on the liberty ledger the minuses of the former class are outweighed by the pluses of the latter.

Because the balance seemed so patent to me, I’ve said nothing previously.  I now wish to add, though, that it is far from obvious that even establishment white males suffered a liberty deficit over this period, and that not just because of gains with regard to social freedom but even with regard to core economic liberty.  Each of the following is an enormous gain for liberty:

1) The capacity to pursue one’s ends with willing others by forming corporations without any need of special legislative grants;

2) Rights of workers to associate freely with each other in pursuit of economic advancement  (unions, etc.)

3) Military services now performed by paid professionals who volunteer for the job rather than via a draft.

I could go on, but these themselves are not trivial.  Each is orders of magnitude more significant on the plus side than, say, Obamacare is on the negative.  An enormous number of state actions piss me off, but not to the extent that they blind me to the evident truth that the history of the United States since 1776 is a history of liberty in ascendance.

David Mayer: Albert Venn Dicey’s Law and Public Opinion in England in the Nineteenth Century does indeed identify a “golden age” for liberty, in (roughly) the middle third of the 19th century, when (according to Dicey’s analysis) classical liberal ideas were the dominant opinion (in terms of public policy).  That was a “golden age,” in Britain, because it was sandwiched in between (again, according to Dicey’s analysis) a period of “Old Tory” paternalism (the early 19th-century, continuing from the 18th century) and a period of “collectivism,” or socialism (with the rise of the late-Victorian-era welfare state in Britain, in the last third of the 19th century and continuing into the 20th century).

U.S. history is quite different.  We were founded as, essentially, a classical liberal nation:  the American Revolution was based on “radical Whig” ideas – the same ideas that so influenced British public policy during its classical liberal reform period (for example, many of the mid-18th-century radical Whigs who were friends of American independence – men like John Cartwright – were also leaders in the Parliamentary reform movement, culminating in the Reform Act of 1832).  But, as I have written elsewhere (see my essay on “Completing the American Revolution” (my Atlas Shrugged 50th anniversary essay) in Journal of Ayn Rand Studies, Spring 2008) the American “liberal” revolution of 1776 was far from complete.  Sure, we founded government explicitly on the protection of individual rights, and we instituted written constitutions to help limit the power of government (a huge advance in the history of world “political science”).  But, of course, as David and other participants in this discussion have noted, we did not consistently implement the “new science of politics” implied by the principles of 1776:  not only did we retain the institution of slavery and denied full legal equality to women but, in many ways, we retained in the law (mostly in the English common law as received and only slightly modified in American law) much of the older, paternalistic role of government that England had had for centuries and that had been brought over to the English colonies in America.  (One simple example:  the notion that government may regulate prices of businesses “affected with a public interest” – a concept from English law (one that in the early 17th century was used by apologists for royal absolutism to justify various kinds of economic regulations by the King’s government) not only survived in early American law but was used by the U.S. Supreme Court, in its 1877 decision in Munn v. Illinois, to justify government fixing of maximum rates for certain businesses – and ultimately, in the 20th century, to justify all sorts of needless government licensing and other restrictions on businesses.)

So, it’s quite true (as several participants in the discussion have noted) that there’s not been really any single “golden age” for liberty in the history of the United States.  Depending on how you measure it (by the size of government, the magnitude of taxes and spending, or the variety of forms of “legal paternalism,” for example), or what aspect you’re focused on (“economic” liberty versus “personal” liberty, for example, notwithstanding the artificiality of that distinction), or whose liberty you’re focusing on (business owners versus workers and/or consumers, men vs. women, whites vs. blacks, native-born Americans vs. immigrants, etc.), there’s no clear pattern:  liberty (as a whole) is at once on the ascendance, on the decline, and staying about even, in the American “mixed bag” of freedom/paternalism.  But (if I might be permitted to return to the main point of my original post) there’s little doubt that government regulation of business – government interference with the free market – at all levels, and especially at the national level, has been steeply rising, and thus a very important aspect of liberty (economic freedom) has been steeply falling, since the rise of the “progressive” regulatory/ welfare state in the early 20th century.  That part of American history (the past century or so) most closely resembles the age of “collectivism,” or socialism, that Dicey identified in Britain in the latter third of the 19th century.

A Civil Liberties Roundup

Here are some interesting new items on the web:

  • Cato Senior Fellow Nat Hentoff is interviewed by John W. Whitehead of the Rutherford Institute.  Nat says “Obama has little, if any, principles except to aggrandize and make himself more and more important.”  And “Obama is possibly the most dangerous and destructive president we have ever had.”  Go here for the full interview.
  • Cato adjunct scholar Harvey Silverglate is blogging this week over at the Volokh Conspiracy on his new book, Three Felonies a Day.
  •  Cato Adjunct Scholar Marie Gryphon, who is also a Senior Fellow with the Manhattan Institute, has just put out a new paper, It’s a Crime: Flaws in Federal Statutes That Punish Regular Businesspeople.
  • Cato Media Fellow Radley Balko takes a look at the pathetic machinations in the Chicago Police Department.  Reminds me of the proud boast from a patronage worker in the political machine: “Chicago ain’t ready for reform!”

Good stuff here.  For more Cato scholarship, go here.

The “Read the Bill” Debate and Government Growth

There’s an interesting back-and-forth over at the Volokh Conspiracy about whether legislators should have to read the actual legislative text of bills they vote on. Most people’s intuitive reaction is: “Duh, of course!” But if you’ve ever actually spent time poring over legislative text, you know that reading the bill itself seldom leaves you with a very good sense of what it does. Legislation is typically a tangle of modifications along the lines of “Strike paragraph 2, replace the period with a semicolon, insert the word ‘reasonable’ in the following sentence…”—which is why legislators have staffers who prepare plain-English summaries of the effects of legislation. Now certainly it would be possible to render bills somewhat more readable to ordinary people. Saving paper is not a huge concern in the digital era, so there’s no good reason legislation couldn’t simply contain the full text of the statutory provisions it amended, perhaps including a side-by-side comparison highlighting the changes. Even this, however, wouldn’t necessarily be all that illuminating. I’ve got a reference book on my desk that contains the 80-or-so pages of the Foreign Intelligence Surveillance Act, and then a few hundred pages explaining what it actually means. It’s not enough to know what the verbatim text says; you need to understand how it interacts with other statutes, how key terms are defined in the law, how courts have interpreted the law’s provisions, and so on.

Legislation could be written in a somewhat more transparent way, but in light of all these complex interactions, it can’t actually be that much more transparent, for the same reason computer programs are a lot longer and more impenetrable than a plain-English description of what the program does. Achieving a result in a complex rule-based system requires a level of precision and sensitivity to how terms are used within the system that’s at odds with colloquial description. Of course, for precisely the same reason that summaries will give an ordinary person a better understanding of a law than scrutiny of the verbatim text, they also give a very incomplete understanding. An ordinary language description will tell you what a computer program is supposed to do. If you want to know whether it’s going to crash or open up a security vulnerability under certain conditions, perhaps when it interacts with other software running simultaneously, you need to have a look at the source code. Again, if you’ve spent any time digging through legislation, you know that the staff summary of a bill often glosses over many interesting little details and ambiguities you can ferret out while reading the text.

Most legislators, of course—even those with legal training—cannot possibly have the kind of expertise needed to undertake meaningful scrutiny of the details of legislative text outside a tiny number of issue areas. So does it make sense to insist that every member of Congress literally “read the bill”? Probably not. The actual text will contain important details not captured in a summary, but only an expert will really understand what those are on the basis of the text anyway. Crucially, this is not a function of needless obscurantism on the part of Congress: it is a necessary feature of legislation in a legal system as complex as ours. Which means that there’s a pretty basic tension between the value of democratic transparency and a large, complex government. Past a certain point, it’s more or less impossible for any individual legislator—let alone ordinary citizens—to really understand the vast majority of bills Congress takes up in any detailed way.

Who’s Blogging about Cato

greenwald-catoOn April 3, Cato hosted a special blogger briefing with Glenn Greenwald, who was here to speak about his new paper on the success of drug decriminalization in Portugal.

Here are a few highlights from bloggers who wrote about it:

  • Jesse Singal, associate editor of Campus Progress, a project of the Center for American Progress

Also, a few links to bloggers who are writing about Cato:

If you are blogging about Cato, let us know by emailing cmoody [at] cato [dot] org or catch us on Twitter @catoinstitute.

Chuck Schumer Endorses Hoover Plan

On Meet the Press last Sunday, Sen. Chuck Schumer (D-NY) said

Those on the hard right say, “Cut government spending, let’s go back to the old Reagan days.” Well, the last president who did this when we were in this type of situation was Herbert Hoover.  Herbert Hoover said the government should do nothing when we were in a recession, not a depression.  We did nothing and it related [sic] to a depression.

Reality check: Did President Hoover cut federal spending during the recession that became a depression? Not by a long shot.

 

boaz-figureSource: OMB

Federal spending was $3.1 billion (those were the days!) in 1929, the year Hoover took office and the stock market crashed. It rose modestly for two years, then shot up in 1932. It dropped a bit in nominal terms in 1933, though deflation meant that the real budget increased. Then, presumably reflecting Roosevelt’s policies, it shot up again in 1934. In real terms, the federal budget was almost twice as high after Hoover’s four years as it was when he took office.

President Bush, President Obama, and Senator Schumer are all supporting Herbert Hoover’s failed policy of increasing spending to fight recession. Let’s hope they don’t have the same results and turn a recession into a Great Depression.

Cato adjunct scholar Ilya Somin dissects the “Herbert Hoover did nothing” fallacy at Volokh.com.