THE NEW LEVIATHAN
Government is not reason, it is not eloquence — it is force.
– GEORGE WASHINGTON
The Restraint of Government is the True Liberty and Freedom of the People.
– EIGHTEENTH-CENTURY COMMON AMERICAN SAYING
Americans’ liberty is perishing beneath the constant growth of government power. Federal, state, and local governments are confiscating citizens’ property, trampling their rights, and decimating their opportunities more than ever before.
Americans today must obey thirty times as many laws as their great-grandfathers had to obey at the turn of the century. Federal agencies publish an average of over 200 pages of new rulings, regulations, and proposals in the Federal Register each business day. The growth of the federal statute book is one of the clearest measures of the increase of the government control of the citizenry. But the effort to improve society by the endless multiplication of penalties, prohibitions, and prison sentences is a dismal failure.
The attack on individual rights has reached the point where a citizen has no right to use his own land if a government inspector discovers a wet area on it, no right to the money in his bank account if an IRS agent decides he might have dodged taxes, and no right to the cash in his wallet if a DEA dog sniffs at his pants. A man’s home is his castle, except if a politician covets the land the house is built on, or if his house is more than fifty years old, or if he has too many relatives living with him, or if he has old cars parked in his driveway, or if he wants to add a porch or deck. Nowadays, a citizen’s use of his own property is presumed illegal until approved by multiple zoning and planning commissions. Government redevelopment officials confiscate large chunks of cities, evicting owners from their homes and giving the land to other private citizens to allow them to reap a windfall profit. Since 1985, federal, state, and local governments have seized the property of over 200,000 Americans under asset forfeiture laws, often with no more evidence of wrongdoing than an unsubstantiated assertion made by an anonymous government informant.
A. V. Dicey, the great English constitutional scholar, wrote in 1885, “Discretionary authority on the part of the government means insecurity for legal freedom on the part of subjects.” Government officials now exert vast arbitrary power over citizens’ daily lives, from Equal Employment Opportunity Commission bureaucrats that can levy a $145,000 fine on a Chicago small businessman because he did not have 8.45 blacks on his payroll to federal agricultural bureaucrats that can prohibit Arizona farmers from selling 58 percent of their fresh lemons to other Americans. Customs Service inspectors can wantonly chainsaw import shipments without compensating the owner, Labor Department officials can nullify millions of employment contracts with a creative new interpretation of an old law, and federal bank regulators are officially empowered to seize the assets of any citizen for allegedly violating written or unwritten banking regulations. Federal regulations dictate what price milk must sell for, what size California nectarines can be sold, what crops a person may grow on his own land, what apparel items a woman may sew in her own home, and how old a person must be to deliver Domino’s pizzas. The Internal Revenue Service is carrying out a massive campaign against the self-employed that seeks to force over half of America’s independent contractors to abandon their own businesses. From Drug Enforcement Administration agents seizing indoor gardening stores in order to prevent people from cultivating the wrong types of plants to Food and Drug Administration agents with automatic weapons raiding medical-supply companies, government agencies are more out of control than ever before. And the Supreme Court — the supposed protector of the Bill of Rights — has imposed scant curbs on the capricious power of federal employees.
Privacy is vanishing beneath the rising floodtide of government power. Government officials have asserted a de facto right to search almost anybody, almost any time, on almost any pretext. The average American now has far less freedom from having government officials strip-search his children, rummage through his luggage, ransack his house, sift through his bank records, and trespass in his fields. Today, a citizen’s constitutional right to privacy can be nullified by the sniff of a dog. Florida police recently announced that they must be allowed to smash down people’s front doors without knocking because modern plumbing makes it too easy for drug violators to flush away evidence. Army units, National Guard troops, and military helicopters conduct sweeps through northern California, Kentucky, New Mexico, and Arizona, trampling crops, killing dogs, and generally seeking to maximize intimidation in a search for politically incorrect plants. Federal officials have given rewards to hundreds of airline ticket clerks for reporting the names of individuals who paid for their tickets in cash, thereby allowing police to confiscate the rest of people’s wallets on mere suspicion of illegal behavior. Local police are conducting programs in 200,000 classrooms that sometimes result in young children informing police on parents who violate drug laws. The number of federally authorized wiretaps has almost quadrupled since 1980, and the Federal Bureau of Investigation is trying to prohibit the development of new types of phones that would be more difficult to wiretap.
Freedom of speech and freedom of the press are increasingly under assault by ambitious bureaucrats and spiteful politicians. In many locales, politicians have filed multimillion-dollar libel suits against private citizens who criticized them. Even congressmen and senators have used massive libel suits to spike critical comments by leading newspapers. Federal bureaucrats have the power to revoke the licenses of private radio and television stations, thereby blunting the broadcast media’s criticism of the government. A chain of twenty small newspapers in California was bankrupted as a result of a government-financed lawsuit over a classified housing ad that mentioned “adults preferred” — a violation of the Fair Housing Act’s ban on advertisements that discriminate against families with children. The Food and Drug Administration is preventing cancer patients from learning about legally approved drugs that could save their lives solely because the drug makers have not spent the millions of dollars necessary to satisfy the FDA’s certification process to advertise additional uses. The proliferation of vague federal regulations has had a severe chilling effect on the free speech of millions of businessmen who cannot criticize federal agencies without risking retaliation that could destroy them. As part of the war on pornography, parents have been jailed for taking pictures of their babies in bathtubs. Thanks to a 1992 federal appeals court decision and a late 1993 congressional uproar, even pictures of clothed children can now be considered pornographic — thus greatly increasing the number of Americans who can be prosecuted for violating obscenity laws.
The government is manufacturing more criminals now than ever before. The government is increasingly choosing the citizen-target, creating the crime, and then vigorously prosecuting the violator. During the past fifteen years, law enforcement officials have set up thousands of elaborate schemes to entrap people for “crimes” such as buying plant supplies, asking for a job, or shooting deer. Dozens of private accountants have become double agents, receiving government kickbacks for betraying their clients to the IRS.
Total federal spending has increased from under $100 billion in 1963 to over $1.5 trillion in 1994, and as spending has grown, so has bureaucratic control and political power. Since 1960, the federal government has created over a thousand new subsidy programs for everything from medical care to housing to culture to transportation. Government controls have followed a short step behind the subsidies; as a result, more and more in our society and economy are now dependent upon government approval. Subsidies are the twentieth-century method of humane conquest: slow political coups d’etat over one sector of the economy and society after another. Government subsidies have become a major factor in squeezing out unsubsidized developers, unsubsidized schools, unsubsidized theater producers, and unsubsidized farmers.
Beggaring the taxpayer has become the main achievement of the welfare state. The federal tax system is turning individuals into sharecroppers of their own lives. The government’s crusade to, in Franklin D. Roosevelt’s words, provide people with “freedom from want” has paved the way for unlimited taxation. In the 1930s, New Deal planners waxed eloquent about “potential plenty” and denounced businessmen for refusing to unleash a cornucopia of higher living standards. Now, in the 1990s, we have “potential plenty” — except for government policies that hollow out people’s paychecks and preempt their efforts to build better lives for themselves.
Total government spending now amounts to roughly 43 percent of the national income. On top of this, the Clinton administration’s Task Force on Reinventing Government estimated in September 1993 that “the cost to the private sector of complying with [government] regulations is at least $430 billion annually — 9 percent of our gross domestic product!” Nobel Laureate economist Milton Friedman observes, “The private economy has become an agent of the federal government…. At least 50 percent of the total productive resources of our nation are now being organized through the political market. In that very important sense, we are more than half socialist.” The average American now works over half of each year simply to pay the cost of government taxes and regulations.
High taxes have created a moral inversion in the relationship between the citizen and the State. Before the income tax, the government existed to serve the people, at least in some vague nominal sense; now, the people exist to provide financial grist for the State’s mill. Federal court decisions have often bent over backward to stress that citizen’s rights are nearly null and void in conflicts with the IRS. Internal Revenue Service seizures of private property have increased by 400 percent since 1980 and now hit over two million Americans each year.
Not only do we have more laws and regulations than ever before, but the laws themselves are becoming less clear, consistent, and coherent. James Madison observed in The Federalist Papers, “It will be of little avail to the people that the laws are made by men of their own choice if the laws be… so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.” It is now practically impossible for citizens to keep track of government’s latest edicts; as the Clinton administration’s September 1993 report on reinventing government noted, “The full stack of personnel laws, regulations, directives, case law and departmental guidance that the Agriculture Department uses weighs 1,088 pounds.” Today the law has become a tool with which to force people to behave in ways politicians approve, rather than a clear line that citizens can respect in order to live their lives in privacy and peace. With the proliferation of retroactive regulations, government agencies now have the right to change the rules of the game at any time — even after the game is over. The Rule of Law — the classical concept endorsed by the Massachusetts Constitution of 1780 as a restraint on government power — has been replaced by the “Rule of Memo,” whereby federal officials on a whim create new rules to bind and penalize private citizens.
Government now appears more concerned with dictating personal behavior than with protecting citizens from murderers, muggers, and rapists. In 1990, for the first time in history, the number of people sentenced to prison for drug violations exceeded the number of people sentenced for violent crimes. The number of people incarcerated in federal and state prisons in 1992 was almost triple the number incarcerated in 1980, and America now has a higher percentage of its population in prison than any other country. Unfortunately, the more government has tried to control people’s behavior, the more out of control American society has become. Violence is at an alltime record high: over five million Americans were robbed, assaulted, raped, or murdered in 1992.
Coercion has become more refined and more pervasive in recent decades. We rarely see scenes like the Los Angeles police beating Rodney King or IRS agents dragging Amish tax resisters out of their meager homes. But just because few people physically resist government agents does not mean that the State is violating fewer people’s rights. The level of coercion imposed by government agencies is less evident today primarily because the vast majority of citizens surrender to government demands before the government resorts to force. Economist J. A. Schumpeter wrote: “Power wins, not by being used, but by being there.” The lack of an armed uprising is no proof of a lack of aggression.
The key to contemporary American political thinking is the neutering of the State — the idea that modern government has been defanged, domesticated, tamed. Many Americans apparently believe that modern politicians and policy experts have been wise enough to create a Leviathan that does not trample the people it was created to serve. The question of individual liberty is now often portrayed as a question of a ruler’s intentions toward the citizenry. But lasting institutions are far more important than transient intentions. And the last seventy years have seen the sapping of most restraints on arbitrary government power. American political thinking suffers from a romantic tendency to appraise government by lofty ideals rather than by banal and often grim realities; a tendency to judge politicians by their rhetoric rather than by their day-to-day finagling and petty mendacity; and a tendency to view the expansion of government power by its promises rather than by its results.
The decline of liberty results not only from specific acts of government — but also from the cumulative impact of hundreds of thousands of government decrees, hundreds of taxes, and legions of government officials with discretionary power over other Americans. We have tried to improve the quality of life by vastly increasing the amount of coercion, by multiplying police powers, by giving one group of people the power to command others as to how they must live. The power that accumulates in a centralized government is not put in a display case at the Smithsonian Institution — it is used in everyday life. The larger government becomes, the more coercive it will be — almost regardless of the intentions of those who advocate a larger government.
Americans’ comprehension of liberty and the threats to its survival has declined sharply since the nation’s birth. The Massachusetts colonists rebelled after the British agents received “writs of assistance” that allowed them to search any colonist’s property. Modern Americans submit passively to government sweep searches of buses, schools, and housing projects. Virginia revolted in part because King George imposed a two-pence tax on the sale of a pound of tea; Americans today are complacent while Congress imposes billions of dollars of retroactive taxes — even on people who have already died. Connecticut rebelled in part because the British were undermining the independence of judges; nowadays, federal agencies have the power to act as prosecutor, judge, and jury in suits against private citizens. Maine revolted in part because the British Parliament issued a decree confiscating every white pine tree in the colony; modern Americans are largely complacent when local governments impose almost unlimited restrictions on individuals’ rights to use their own property. The initial battles of the Revolution occurred after British troops tried to seize the colonists’ private weapons; today, residents in Chicago, Washington, D.C., and other cities submit to de facto prohibitions on handgun ownership imposed by the same governments that grossly fail to protect citizens from private violence.
The 1775 Revolution was largely a revolt against growing arbitrary power. Nowadays, seemingly the only principle is to have no political principle: to judge each act of government in a vacuum, to assume that each expansion of government power and each nullification of individuals’ rights will have no future impact. The Founding Fathers looked at the liberties they were losing, while modern Americans focus myopically on the freedoms they still retain.
America needs fewer laws, not more prisons. By trying to seize far more power than is necessary over American citizens, the federal government is destroying its own legitimacy. We face a choice not of anarchy or authoritarianism, but a choice of limited government or unlimited government. Because government is a necessary evil, it is necessary to vigilantly limit government’s disruption of citizens’ lives. John Locke, whose Second Treatise of Government had a profound influence on the Founding Fathers’ thinking, wrote: “The end of Law is not to abolish or restrain, but to preserve and enlarge Freedom.” The Founding Fathers realized that some amount of government was necessary in order to prevent a “war of all against all.” But coercion remains an evil that must be minimized in a free society. The ideal is not to abolish all government — but to structure government to achieve the greatest respect for citizens’ rights and the least violation of their liberties.
Regrettably, the examples in this book do not divide themselves as neatly and cleanly as an author or reader might wish. Thus, there will be some overlap in analyses of specific government agencies among chapters. But I hope the book will help readers to navigate the maze of government policies and to better understand how much power government officials now hold over their daily lives.
The question is not whether Americans have lost all their liberties, but whether the average American is becoming less free with each passing year, with each session of Congress, with each new shelf row of Federal Register dictates. As a Revolutionary-era pamphleteer declared in 1768, “As the total subjection of a people arises generally from gradual encroachments, it will be our indispensable duty manfully to oppose every invasion of our rights in the beginning.” Although it is too late to start opposing invasions of our rights “in the beginning,” American liberty can still be rescued from the encroachments of government. The first step to saving our liberty is to realize how much we have already lost, how we lost it, and how we will continue to lose unless fundamental political changes occur.
1. Quoted in H. L Mencken, Prejudices, 2nd ser. (New York: Knopf, 1924), p. 221.
2. John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), p. 65.
3. Nancy Hollander, “The More Corrupt the Republic, the More the Laws,’” Champion, November 1992, p. 3.
4. A. V. Dicey, Law of the Constitution (Indianapolis, IN: Liberty Classics, 1982), p. 184.
5. Steven Wisotsky, “Crackdown: The Emerging ‘Drug Exception’ to the Bill of Rights,” Hastings Law Journal, vol. 38, July 1987, p. 889.
6. Dan Baum, “The Drug War on Civil Liberties,” Nation, June 29, 1992 .
7. Sharon LaFraniere, “FBI Asks Wiretap Access to Digital Phone Systems,” Washington Post, March 7, 1992 .
8. Lawrence A. Stanley, “The Child Porn Myth,” Cardozo Arts and Entertainment Law Journal, vol. 7, 1989, p. 322.
9. David Johnston, “Clinton Calls for Expansion of Child Pornography Laws,” New York Times, November 12, 1993 .
10. For the 1960 number, see William E. Simon, A Time for Truth (New York: Berkeley Books, 1978), p. 101. For the current number of federal subsidy programs, see U.S. Office of Management and Budget, Catalog of Federal Domestic Assistance Programs (Washington, D.C.: Government Printing Office, 1992), p. iii.
11. Milton Friedman, “The Real Free Lunch: Markets and Private Property,” Cato Policy Report, July/August 1993.
12. Report of the National Performance Review—Vice President Al Gore, Creating a Government That Works Better and Costs Less, p. 32.
13. Milton Friedman, “The Real Free Lunch.”
14. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961), p. 321.
15. Report of the National Performance Review, Vice President Al Gore, Creating a Government That Works Better and Costs Less (Washington, D.C.: Government Printing Office, 1993), p. 20.
16. Jerry Seper, “‘92 prison population in U.S. hits new high,” Washington Times, May 10, 1993.
17. Cary Copeland, “National Code of Professional Conduct for Asset Forfeiture,” The Police Chief, October 1993, p. 87.
18. Don Oldenburg , “In Self-Defense,” Washington Post, November 9, 1993.
19. Thomas Sowell, Inside American Education (New York: Free Press, 1993), p. 277.
20. For a good analysis of the intellectual controversies that helped pave the way to the Revolution, see Reid, The Concept of Liberty in the Age of the American Revolution.
21. John Locke, Second Treatise of Government (New York: New American Library, 1965), p. 297.
22. Silks Downer, “A Discourse at the Dedication of the Tree of Liberty,” in American Political Writing during the Founding Era, 1760-1805, ed. Charles S. Honeymoon and Donald S. Lutz (Indianapolis, IN: Liberty Press, 1983), p. 1071.
Book Review: Lost Rights: The Destruction of American Liberty by James Bovard The Foundation for Economic Education: The Freeman, Ideas on Liberty