Is the Pool of Liberty Drying Up?

David Boaz, Executive Vice President of the libertarian Cato Institute, is one of the smartest people I know. I hate to disagree with him, not merely as a matter of comity, but because the odds are that when I disagree with David I’m wrong. But a few years ago he made a well received but, I think, incomplete analysis of liberty. I was not really in a position to argue with him at the time, but I wanted to say a few words now about why I disagree.

Boaz’s thoughts were well articulated in a 2010 piece, found here on Reason.com: Up From Slavery: There’s No Such Thing As A Golden Age of Lost Liberty. 

In this thoughtful analysis, Boaz notes Cato pamphlets used to include as the Institute’s raison d’être, "Since [the American] revolution, civil and economic liberties have been eroded." And then, Boaz notes, a visiting Clarence Thomas, prior to his ascension to the Supreme Court, pointed out black people didn’t look at matters quite that way.

And not only black people, of course, though the awfulness of slavery is hard to trump. But the political liberties, or lack thereof, of Jews, gays, and women were also not proud applications of individual liberty in America’s past.

Then there’s Brink Lindsey’s argument, quoted by Boaz, from Lindsey’s The Age of Abundance (2007): Looking at liberty’s gains in the last half-century, Lindsey writes: “Compare conditions now to how they were at the outset of the 1960s. Official governmental discrimination against blacks no longer exists. Censorship has beaten a wholesale retreat. The rights of the accused enjoy much better protection. Abortion, birth control, interracial marriage, and gay sex are legal. Divorce laws have been liberalized and rape laws strengthened. Pervasive price and entry controls in the transportation, energy, communications, and financial sectors are gone. Top income tax rates have been slashed. The pretensions of macroeconomic fine-tuning have been abandoned. Barriers to international trade are much lower. Unionization of the private sector work force has collapsed. ...cultural expression, personal lifestyle choices, entrepreneurship, and the play of market forces all now enjoy much wider freedom of maneuver.”

Lindsey’s is a hopeful message, and makes points similar to those made by Nick Gillespie and Matt Welch in their 2011 book The Declaration of Independents. Gillespie and Welch note that in all areas of life not touched by the mailed fist of government, things have improved dramatically in much less than a century. Save for the areas government controls--our educational system, our health care, our retirement plans--things are quite rosy.

But of course our educational system, health care, and retirement needs are not de minimis aspects of our lives. And, contra Lindsey, calls for censorship in the guise of opposition to the Citizens United decision are growing; the rights of the accused, while perhaps nominally better protected now, are swamped by the growth of arbitrary and capricious laws that fill our prisons to overflowing, leading more and more innocent people to accept plea bargains to avoid being financially crushed and incarcerated for life by zealous and politically motivated prosecutors (see Harvey Silverglate’s Three Felonies A Day). The financial sector has undergone massive re-regulation since Lindsey wrote, and there is a resurgence of opposition to both international free trade and simple rules to limit the political power of public-sector unions. Finally, “the pretensions of macroeconomic fine tuning” have hardly, in the days of Obama, been “abandoned,” and Gingrich, Santorum, and Romney disagree only with Obama’s choices, not the principle of fine-tuning the economy from Washington.

Ironically, the idea there was no golden age for libertarians is meant as an optimistic one. Things are better for blacks, for women, for a diverse and important subset of Americans. But this captures only part of the dynamic. We now, all of us, have our rights recognized equally. And we now, all of us, equally, have less rights than some of us did before. Is this a gain from a libertarian perspective?

Liberty is like the water in a swimming pool. You can dive in, and be surrounded by freedom. In the past, the pool was large and deep. Those who could dive in were engulfed in liberty. It was everywhere. There was so much liberty you could drown in it if you were not careful, but people exposed to liberty were buoyant, and liberty lifted you.

And entry into the pool, for many, was their birthright. It could not be taken away. The lifeguard at the pool was like a night watchman, seldom needed, helpful in emergencies.

Sadly, though, and wrongly, the pool was restricted. No blacks allowed, with only token exceptions. No Jews. No gays. No women. Property owners preferred. Yet despite all this, the pool and the opportunity to dive into it attracted millions from all over the world.

Over time, two things happened, one good, one bad. Rules were changed to allow more people to enter the pool. Over time first blacks, then Asians, Jews, women--now, though not yet fully, even gays--have been allowed to join the club and enter the pool. Sadly, at the same time, the pool has been shrinking. Once the pool was gigantic in size. As James Wilson might have said, “Measure the size of the pool? I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing.”

Slowly the pool shrank, first to mere Olympic size, then to that of a school gymnasium’s offering. Then to a backyard pool. Then to a kiddie pool. Now it is somewhat less than a wading pool. Perhaps in future it will merely be a small sliver of water in a desert, which only the EPA would call a pool.

To be clear, my analogy does not depend on the application of Archimedean displacement. There is NOT less water in the pool because more people are in the pool. The pool is actually shrinking in size, but it didn’t have to be that way. There is no Conservation of Liberty principle that requires the total amount of liberty be fixed...that requires freedom, when spread among more people, be diluted in its coverage.

Blacks can now enter the pool. Women can now get their toes wet. Gays are now free to wear the most outrageous swimsuits poolside. But no one--white or black; gay or straight; male or female; young or old--NO ONE can now do high dives into the deep end. It is too shallow. It would be dangerous. It is prohibited for our own safety. The waters of liberty now engulf no one, equally.

Meanwhile, there is a sandbox by the pool. It is a sandbox enclosed in iron bars, chain-link, and barbed wire. Once placed in the sandbox, it takes years to get out. Many die in the sandbox. And even once released, you are no longer really allowed fully to enter the pool again. And the sandbox is growing. Once small and defined, the sandbox is now massive--the largest sandbox in the world--and overcrowded. Ironically, while blacks are now more than ever allowed into the shrinking pool, they are also thrown disproportionately into the burgeoning sandbox. It is different from the old days, when they were not allowed in the pool to begin with. But it shares many similarities.

Boaz, in his article, was by no means Panglossian. But it is clear he meant an optimistic slant on his message: If there was never really a golden age of liberty, we can see many improvements in comparing liberties today with yesteryear, even while noting there is much left yet to do. And there is yet much left to do.

Boaz noted, writing two years ago, “Many who talk about limited government still support the Iraq war, an aggressive foreign policy, the war on drugs and federal moves to discourage gay marriage, which is hardly consistent with limiting government,...And those who want to end those incursions on liberty tend to support a nanny state in other areas of our lives.” He concluded, “The consistent concern for liberty that motivated our founders still has too small a place in modern American political discourse." 

We do, clearly, today have more liberty in the sense it is available to more people. More people are allowed into the pool. But it is hard to appreciate how much the pool has shrunk. The shrinkage takes place over time, and on any given day the shrinkage may be difficult to notice. But it adds up. Liberties some of our ancestors once had--in travel, in business, in property, in contract--are not missed because it is notoriously challenging to appreciate the loss of something you never had, like young people today cannot imagine what it was like to run unobstructed for your plane when you were late for your flight, like we can’t imagine what it was like in the 1960s to store your rifle in the overhead bin. 

When we watch a race where some runners are shackled, we recognize it as unfair. We see the liberty of the shackled runners restricted if they are weighted down by the force of law. When we call out for greater equality, should we be satisfied if the laws are changed so as to shackle all runners equally, or should we remain unsatisfied until shackles are removed, and no one is weighted down? 

On the March 8th episode of his eponymous Fox Business Network (FBN) show, John Stossel provided the second in a series on the huge expansion of laws under which we suffer in America, “Is Everything Illegal in America Today?” He noted in the last year alone the Federal government has generated 160,000 pages of NEW laws and regulations, restrictions on freedom, excuses to imprison citizens. These are not further descriptions and elaborations of rape and murder, robbery and home invasion. Stossel tells of the man who was imprisoned for SIX YEARS because he sold seafood in the wrong containers, lobsters that, while not mislabeled to consumers, were nonetheless smaller than the legal salable size. Opening a lemonade stand in your front yard requires, in NYC, preliminary attendance at a 15 hour Food Protection class, and filling out many legal forms. No one knows the content of the all the laws, and several legal requirements contradict one another. These are basic violations of the principles the late Harvard law professor Lon Fuller detailed in his The Morality of Law, principles that flesh out the “rule of law.”

These laws are not uniformly enforced, of course. They are necessarily selectively enforced, and that typically means against politically unfavored groups, which in some cases means against blacks, or gays, or gypsies...different but similar to days of yore.

We are now, in the words of Proudhon, watched, inspected, spied upon, directed, law-driven, numbered, regulated, enrolled, indoctrinated, preached at, controlled, checked, estimated, valued, censured, commanded. We are all in the pool now. And our feet are all equally barely wet. And while there was no Golden Age of Liberty, Americans today seem oblivious to a real and tragic loss, seem unaware they can no longer immerse themselves in liberty, can no longer swim unimpeded. Can no longer be everywhere surrounded by freedom.