Read Liberty and Tyranny Online
Authors: Mark R. Levin
Liberty and Tyranny (5 page)
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f some people have a lot and others little, law and legal coercion is a large part of the reason. Of course many people work hard and many others do not. But the distribution of wealth is not simply a product of hard work; it depends on a coercive network of legal rights and obligations. The realists complained that we ignore the extent to which we have what we have and do what we do because of the law. They contended that people tend to see as “voluntary” and “free” interactions that are shot through with public force. In their view, the laws of property, contract and tort are social creations that allocate certain rights to some people and deny them to others. These forms of law represent large-scale government “interventions” into the economy. They are coercive to the extent that they prohibit people from engaging in desired activities. If homeless people lack a place to live, it is not because of God’s will or nature. It is because the rules of property are invoked and enforced to evict them, if necessary by force. If employees have to work long hours and make little money, it is because of the prevailing rules of property and contract. The realists believe that private property is fine, even good, but they denied that the rules of property could be identified with liberty. Sometimes those rules disserve liberty.
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There are thousands of brilliant lawyers who can teach constitutional law. But there are relatively few faculty positions at Harvard Law School. Are the rules rigged in academia, where Sunstein was a tenured professor prior to government service, from competition by others who might want a chance at acquiring the prestige and income that come with such a distinguished position? Does not tenure, in this case and generally, disserve liberty? Presumably Sunstein believes he has earned his way. But since his liberty and property (his job) were not linked, and since the government has the authority to determine what is or is not a property right—and its proper distribution—if Sunstein had been forced to surrender his post to make room for a more needy or deserving lawyer who coveted Sunstein’s professorship, it would seem, in Sunstein’s formulation of rights, a legitimate function of government.
Of Sunstein, Ackerman, and West, the late William F. Buckley, Jr., would no doubt repeat his oft-cited quip that “I would rather be governed by the first two thousand people in the Boston telephone directory than by the two thousand people on the faculty of Harvard University.”
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As Buckley later elaborated, “[T]here is a better chance of a repository of the kind of wisdom I choose to be governed by among average people than among Ph.D’s at Harvard.”
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Sunstein’s manner of thought ignores certain anthropological realities of the human species. In nature, man’s progenitors were almost never the fastest, strongest, most agile, deadliest, or toughest creatures in any situation. Moreover, man had little in the way of innate protections against climate extremes and naturally occurring threats to his existence. What differentiated man from the rest of the animal kingdom was, in part, his ability to adapt his behavior to overcome his weaknesses and better master his circumstances. One of the fundamental ways man adapts is to acquire and possess property. It is how he makes his home, finds or grows food, makes clothing, and generally improves his life. Private property is not an artificial construct. It is endemic to human nature and survival.
Sunstein’s “realism” is not new. He creates the false choice between anarchy (where there are no laws protecting the individual, private property, and contracts) and tyranny (where the sovereign and the sovereign alone arbitrarily grants fundamental rights, including property rights). Having declared the sovereign paramount to God and nature, and having delinked liberty from property, the individual must rely on the government for his sustenance. Of course, history shows that man will starve and freeze if he relies on the government for his sustenance—and surrender his liberty as well.
The “realists” are an arrogant lot who reject the nation’s founding principles. They teach that the Constitution should not be interpreted as the Framers intended—limiting the authority of the federal government through “negative rights,” that is, the right not to be abused and coerced by the government; instead, they urge that the Constitution be interpreted as compelling the government to enforce “positive rights,” that is, “economic and social justice” or “the Second Bill of Rights.” The “realists” plot to transform the civil society through the judiciary—without the consent of the people and without regard to the Constitution. And they are well positioned to do so. There is no denying that the judiciary has assumed the role of final arbiter of the Constitution and that the other branches have acquiesced. As such, the judiciary encourages this kind of pernicious delinquency.
The judiciary today behaves in the manner of an ongoing constitutional convention, unilaterally amending the Constitution almost at will. A majority of Supreme Court justices have, on occasion, even justified the use of foreign law in interpreting the Constitution.
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The application of customs, traditions, and values that attach to foreign cultures and laws provides no legitimate insight into America’s Constitution and diminishes the contemporary role of the state and federal representative branches in writing America’s laws and amending (or not) the Constitution. The arbitrary application of foreign law—which provides an activist justice with an infinite smorgasbord of legal options—is a rejection of the predicate for America’s governmental system. And it lasts only as long as the next opinion.
In 1850, French philosopher Frédéric Bastiat, writing about the law, summed it up well:
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has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.
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EDERALISM
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N THE SUMMER OF
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there were many passionate, detailed debates over the power and scope of the new federal government and the importance of preserving and protecting existing state authority. The Framers knew they needed to replace the Articles, for they did not establish a workable governing system in which the federal and state governments could coexist, each with their own discrete functions and independent—yet in other ways, interdependent—authority. The Framers determined that only in limited areas—including national defense, immigration, issuing currency, raising revenue to operate the national government, foreign relations, resolving conflicts between states, and certain other specific, enumerated circumstances—could the federal government have primary if not exclusive power. In all other respects, the states retained their authority.
The Tenth Amendment generally underscores the division of authority between the federal and state governments:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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But what was the purpose of this new “federal” system? Along with limiting federal power and separating that power among three competing branches, the federal system would help ensure that the Revolution’s principles, as set forth in the Declaration of Independence, and the civil society itself would be safeguarded.
States are governmental entities that reflect the personalities, characteristics, histories, and priorities of the individuals who choose to inhabit them. They have diverse geographies, climates, resources, and populations. No two states are alike. The same can be said of the cities, towns, and hamlets within the states, which number in the tens of thousands and dot the nation’s landscape.
States are more likely to better reflect the interests of their citizens than the federal government. Localities are even more likely to better reflect these interests because the decision makers come from the communities they govern—they are directly affected by their own decisions. Moreover, the interaction between the people and their representatives at the state and local levels is easier and more direct. When the federal government acts beyond its constitutional limits, it assaults the purest form of representative government by supplanting representative decision making at the state and local levels. The federal government cannot possibly comprehend the diversity of interests that are affected by its decision making. It cannot adequately weigh the costs and benefits of its decisions on communities. Besides, that is not its purpose. It seeks to dictate rather than represent.
Federalism has other profound benefits. As Associate justice Louis D. Brandeis wrote, “A single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
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For the Framers, “experimentation,” like change, was a matter of prudence. As previously described, change should be informed by the experience, knowledge, and traditions of society, tailored for a specific purpose, and accomplished through a constitutional construct that ensures thoughtful deliberation by the community. Change unconstrained by prudence produces unpredictable consequences, threatening ordered liberty with chaos and ultimately despotism, and placing at risk the very principles the Conservative holds dear.
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Therefore, while Brandeis was right to acknowledge the import of states in experimenting with public policy, his use of the word
novel
suggests open-ended or unconstrained experimentation.
Whatever kind of experimentation states and local communities may engage in, it is correct to say that they serve as useful examples for adoption, modification, or rejection by other states and localities. In the 1980s, Oregon’s welfare reform experiment was so successful that it became a model not only for other states, but also for the federal government.
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Milwaukee’s experiment with school vouchers sparked similar efforts across the country.
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Experimentation properly understood is a dynamic characteristic of federalism, which exists among, between, and within the various states. That is not to say that all experimentation produces desirable results. When Maryland passed a computer-services tax, its burgeoning technology sector threatened to relocate to neighboring Virginia, which had no such tax.
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Maryland repealed the tax.
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But other states learned from Maryland’s experience.
Mobility
is perhaps the most important aspect of federalism. If the individual concludes he is hopelessly bound by what he considers to be a harmful decision by state or local authorities, he may, in the end, choose to live elsewhere—where the economic, cultural, or social conditions are more to his liking. Indeed, throughout American history, individuals of all races, ages, and income levels have moved from one state to another, either because they are escaping adverse conditions, or simply because they are seeking greener pastures. For example, today large industrial states, which burden their citizens and businesses with high taxes and excessive regulations, are depopulating themselves. Individuals are taking their assets and moving to other parts of the country. Some are moving to states like Florida or Nevada because they have no income tax, or they are relocating their businesses to Alabama because it is a right-to-work state. People move to different states for infinite reasons. Federalism promotes decentralized government, which empowers the individual to choose whether to stay in one place and try to influence the state and local decision making or to take up residence in another state or locality. There is no escaping the reach of the federal government, however, unless one gives up on the country altogether and leaves for other shores.
Federalism also defuses conflict and even promotes harmony. A strong proponent of the death penalty can live in Texas, which has the most active execution chamber, and not care much that New Jersey just abolished the punishment. Individuals with widely divergent beliefs are able to coexist in the same country because of the diversity and tolerance federalism promotes.
However, one of the most dramatic events undermining state constitutional authority came with the ratification of the Seventeenth Amendment on April 8, 1913.
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The Seventeenth Amendment changed the method by which senators were chosen, from being selected by the state legislatures—ensuring that the state governments would have a direct and meaningful voice in the operation of the federal government—to direct popular election by the citizens of each state. A rising tide of progressivism and populism resulted in enough states ratifying the amendment that they largely disenfranchised themselves from the federal lawmaking process.
Even with the elimination of their direct representation in the Senate, the states independently possessed considerable authority under the Constitution. Consequently, for the Statist, federalism, like free markets and private property, remained a major obstacle to amassing power. Therefore, he would have to subvert the Constitution to achieve his ends—which he did.
The Constitution’s interstate commerce clause had as its purpose the promotion of commerce and trade among the states.
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However, in 1942 the Supreme Court ruled in
Wickard v. Filburn
that a farmer growing wheat on his own land and for his own use was still subject to federal production limits, even though none of his wheat ever left the state.
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The Court “reasoned” that by withholding his wheat from commerce, the farmer was affecting interstate commerce, even though there was no commerce, let alone interstate commerce. This meant that private economic activity conducted for the sole purpose of self-consumption and occurring wholly within a state’s borders would now be subject to federal regulatory authority under the Agricultural Adjustment Act.
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Wickard
swept away 150 years of constitutional jurisprudence, decentralized governmental authority, and private property rights protection. And with it the judiciary seized a role for itself—the manipulation of law to promote a Statist agenda—that continues to this day. Indeed, through a succession of laws and rulings, all three branches—the judicial, the legislative, and the executive—now routinely exercise power well beyond their specific, enumerated authority under the Constitution.
In many respects, the once-powerful states, thirteen of which ratified the Constitution in the first place, have themselves become administrative appendages of the federal government. It is not enough that the federal government exercises authority reserved to the states, but it also blackmails the states to implement its policies by threatening to deny them “their fair share” of federal tax dollars should they object. In fact, so complete is the federal government’s authority over the states that it heavily regulates and even monitors them to ensure their compliance with federal dictates. Does anyone believe that the states would have originally ratified the Constitution had they known this would be their fate?
The Statist has also constructed a Fourth Branch of government—an enormous administrative state—which exists to oversee and implement his policies. It is a massive yet amorphous bureaucracy that consists of a workforce of nearly 2 million civilian employees.
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It administers a budget of over $3 trillion a year.
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It churns out a mind-numbing number of rules that regulate energy, the environment, business, labor, employment, transportation, housing, agriculture, food, drugs, education, etc. Even the slightest human activity apparently requires its intervention: clothing labels on women’s dresses,
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cosmetics ingredients, and labeling.
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It even reaches into the bathroom, mandating shower head flow rates and allowable gallons per flush for toilets.
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It sets flammability standards for beds.
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There are nearly one thousand federal departments, agencies, and divisions that make laws and enforce them.
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The official compilation of rules issued by the federal government, the Federal Register, contained 74,937 pages of regulations in 2006. Tolstoy’s
War and Peace,
only 1,400 pages in length, seems as light and airy as a romance novel by comparison. The rules in the Federal Register are written in a dense and confusing style, often confounding the lawyers, accountants, businessmen, and others required to digest them. The estimated cost of simply complying with these regulations was $1.14 trillion.
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The National Taxpayers Union estimated that in 2006, U.S. businesses and individuals spent 6.65 billion hours struggling to comply with the complexities of the tax code, at a cost of $156.5 billion in lost productivity for businesses alone.
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All branches of the federal government, elected and unelected, have consumed more and more of the governing authority of states and localities, leaving them less room to exercise their discretion. In doing so, the federal government is imposing its will directly on communities and citizens in contravention of the Constitution. Consequently, there has been a fundamental breakdown of the federal system.
Having spent decades fighting and losing legal challenges to federal encroachment, states have for the most part accepted the role the Statist has assigned to them. Many governors have become politically expedient on the subject, arguing schizophrenically for federal intervention while defending state preeminence. Even worse, a type of
crony federalism
now exists whereby states lobby the federal government for advantage or relief. It works like this: States convince the federal government to fund projects within their own borders by taxing the citizens of other states. In the name of stimulating the economy, states, counties, cities, and towns have compiled long lists of pork projects they want paid for by the federal taxpayer. They are also asking the federal government to bail them out from their own deficits. For the Statist, the voluntary surrender of state and local authority to the federal government is to be encouraged. Moreover, states with more onerous regulatory standards often urge the federal government to impose those standards on other states to “level the playing field.” (Individuals, unions, and businesses also seek federal intervention to supplant state decisions that they do not like.)
The Statist’s most successful rhetorical attack on federalism involves slavery and civil rights. He asks, “How can the Conservative defend federalism when state governments were responsible for enslaving and oppressing African-Americans?”
It is a misreading of history to singularly condemn federalism for slavery. While there is no debating or excusing that southern states sanctioned slavery, at times they did so with the help of the federal government. Moreover, there is also no questioning that other states, mostly in the North, instituted policies and laws not only prohibiting slavery within their own borders, but defying efforts by the southern states
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the federal government to enforce slavery in the South.