Posted by: theoptimisticconservative | June 16, 2013

Liberty 101: The scope of government

Readers, I am launching a new series called Liberty 101.  Each Liberty 101 post will treat a particular aspect of the philosophy of liberty and limited government.  I believe a series like this is necessary because we are now raising generations of Americans who have never heard these arguments – and who indeed have effectively been taught, in the schools, that liberty is an evil condition which prevents the well-intentioned among us from helping suffering people by using the tools of government.

Some basic ideas

The truth about liberty is quite the opposite.  Nowhere are suffering people helped as much or as well as they are when the conditions of liberty prevail.  The hand of government in their help is a very limited one: the main useful roles filled by government are providing national security; respecting and regularizing property ownership, among a set of important “negative rights” such a religious and intellectual freedom; enforcing contracts; and policing the streets.  Under the American system, these roles are filled by different levels of government, so that all power is not concentrated at a single level.

Liberty is not license.  It is not a warrant to do whatever you feel like doing, nor is it a guarantee that you and your life choices will be free from the disapproval of others.  As practiced in the American philosophy, liberty is very much an ordered condition, one in which liberty itself is consciously and systematically prioritized over transient sentiment.  Each of us may make choices in life which are not supported, and indeed are actively despised, by the other people around us.  We and they may feel hurt or angry.  But the condition of liberty is meant to enable us all, diverse as we are, to live together in comparative harmony and tolerance, without having to concede to each other, as the price of community, what we hold most dear.

Liberty, in other words, is more important than assuaging our hurt feelings.  It is also more important than taking government actions based on so-called rational or scientific analyses.  Such analyses usually turn out later to have been in error; the received wisdom of one era is the antique myth of the next.

There are literally thousands of things governments are not competent to do.  In each of these areas, government intervention becomes a positive drawback: a hindrance, a dysfunction, an intrusion that prevents innovation, discourages ingenuity, and makes each ordinary transaction more expensive (and usually scarcer as well).

Yet America has now gone all the way down the path of government intervention, even as – until just a few years ago, at least – we still proclaimed our resistance to “big government.”  What principle are we operating on now?  Must we drift at sea in our political thinking, with no reliable guide to when government should be involved, and when it shouldn’t?

To answer this question, we have to be able to think fearlessly about what liberty really is, and what government’s relationship to us and our liberty should be.  For many people today, doing this will be difficult.  Many of us have never really thought systematically about liberty.  Very few of us now have any first-hand experience with small government.  We have lived only under big government for most or all of our lives.  Government in America has been growing constantly for the last 100 years; it is not incorrect to say our federal government has been “big” since at least the 1930s, and “super-big” since the 1970s.  The dramatic growth in state government ramped up in the 1970s as well, although it has its roots in early 20th-century progressivism.

Fundamental concepts: The scope of government

To kick off the dialogue about this, I will quote from Friedrich Hayek’s The Constitution of Liberty*, a compendium of his writings on the philosophy of liberty which was originally published in 1960.  The University of Chicago Press published a new version in 2011, edited (most usefully) by Ronald Hamowy.  If this volume is not in your library, I highly recommend adding it.  It doesn’t read quickly; there is food for important thought on virtually every page.  I read only excerpts of it in college, and approach it as an adult with renewed and deepened appreciation.

Discussing the scope of government – how many of life’s issues it proposes to address – Hayek distinguishes between the purposes of “democracy” and “liberalism” (the latter of which he defines as what we call today classical liberalism; i.e., a philosophy with a libertarian bent rather than a tendency toward progressivist “governmentism”).  Hayek puts it this way on page 167 (all page references are to the 2011 trade paperback edition):

Liberalism is a doctrine about what the law ought to be, democracy a doctrine about the manner of determining what will be the law.

Democracy is about the method of making law; liberalism is about the content of law.  Using this distinction, Hayek develops the following passage beginning on page 170 (emphasis added):

The democratic and liberal traditions … agree that whenever state action is required, and particularly whenever coercive rules have to be laid down, the decision ought to be made by the majority.  They differ, however, on the scope of the state action that is to be guided by democratic decision.  While the dogmatic democrat regards it as desirable that as many issues as possible be decided by majority vote, the liberal believes that there are definite limits to the range of questions which should be thus decided.  The dogmatic democrat feels, in particular, that any current majority ought to have the right to decide what powers it has and how to exercise them, while the liberal regards it as important that the power of any temporary majority be limited by long-term principles.  To him it is not from a mere act of will of the momentary majority but form a wider agreement on common principles that a majority decision derives its authority. …

A group of men normally become a society not by giving themselves laws but by obeying the same rules of conduct.  This means that the power of the majority is limited by those commonly held principles and that there is no legitimate power beyond them.  Clearly, it is necessary for people to come to any agreement as to how necessary tasks are to be performed, and it is reasonable that this should be decided by the majority; but it is not obvious that this same majority must also be entitled to determine what it is competent to do.  Lack of sufficient agreement on the need of certain uses of coercive power should mean that nobody can legitimately exercise it.

In an earlier discussion of the principle of liberty (page 130), Hayek paraphrases Benjamin Constant on the influence liberty should have over our ideas about making law:

Not only is liberty a system under which all government action is guided by principles, but it is an ideal that will not be preserved unless it is itself accepted as an overriding principle governing all particular acts of legislation.  Where no such fundamental rule is stubbornly adhered to as an ultimate ideal about which there must be no compromise for the sake of material advantages – as an ideal which, even though it may have to be temporarily infringed during a passing emergency, must form the basis of all permanent arrangements – freedom is almost certain to be destroyed by piecemeal encroachments. …  If freedom were not treated as the supreme principle, the fact that the promises which a free society has to offer can always be only chances and not certainties, only opportunities and not definite gifts to particular individuals, would inevitably prove a fatal weakness and lead to its slow erosion.

In other words, if the principle of liberty for the people is not the highest priority in crafting all forms of legislation – if it is not the most important governing factor, regardless of the topic of the legislation – then liberty will inevitably be eroded.

Do we believe that today?  Whether we believe it or not, I would argue that it is demonstrably true.  Our liberty has in fact been steadily eroded with the march of antiliberal legislation since the 1910s.  Our economic liberty has been eroded even faster than our intellectual and political liberty; the lengthening list of economic things we are prohibited from doing today would astound an American from the year 1913.

Imagine a less-regulated condition

To get a general flavor of what used to be much less regulated, consider the example Ronald Reagan used in a radio address from the 1970s.  He recounted a speaking engagement with some students in which he had to come up with some area of life in which his generation had had significantly more freedom from government regulation.  What occurred to him to discuss in that moment was the absence of state-conferred driver’s licenses when he was a teenager.  (Audio of the 4-odd-minute address is here.)  This important rite of passage for young people – authorization to drive a car – was handled by dad, rather than the state.

Reagan acknowledges in the radio address that this might not seem like a significant point.  But that’s actually what makes it a graduate-level issue for a discussion of liberty and limited government.  I do not suggest here that it should be our priority to overturn state driver licensing laws.  But if we cannot seriously debate the topic of licensing, then we cannot seriously debate the scope of government and the meaning and imperatives of liberty.

Consider this alternative concept.  Suppose that instead of chartering our states to test applicants and issue driver’s licenses, we had made it state policy to allow culpable drivers to lose their property and assets as compensation for injury inflicted on others.  The parents of minors would be at risk for these losses – and would thus seek insurance for themselves and their teenage drivers.  Recognizing the possibility of being injured by a driver with no assets or insurance, people would want to carry insurance for their own vehicles and medical risks.

Insurance companies would have insisted on some form of credentials for their insured drivers, as a means of mitigating their risk.  Commercial driving schools would have been the obvious choice for issuing credentials to drivers.  Insurance companies would publish lists of the schools whose credentials they would accept.  There would always be schools that agreed to test drivers for a small fee rather than requiring a full set of lessons, because there would be a robust market for the test-only option.  Confident parents who had trained their children themselves could choose it and get the same credentials for their young drivers.

If we aspire to intelligent and thorough thought about liberty and the role of government in our lives, we need to be able to think about and discuss alternatives to our current arrangements without getting angry or defensive.  The need to manage risk would drive us voluntarily to many of the same measures government has mandated in recent decades, but suppose it could be accomplished without giving government itself increased control over our lives?

The driver’s license laws offer one example; another and perhaps even better one is seatbelt laws.  If we relied on insurance companies to require the wearing of seatbelts, and backed them up in court if they denied claims, in relevant situations, to those who weren’t wearing them, we would achieve the desired effect without putting government in a wrong relationship to the people – that is, one of preempting the people’s own responsibility for choice.

Can we enlarge our thinking capacity?

We have gone a very long way down the path of big government having a preemptive, managerial role in our daily lives.  The lack of resistance to the recent federal regulation (not even congressional legislation, but a regulation, written by bureaucrats) banning drop-sided cribs – and threatening punishment for people who so much as give one away – is an indicator of how un-free we have accepted being, and what a colossal scope we have accepted for government activity in our lives.  We have bought into a whole mythology about the efficacy of writing lengthy, often inconsistent and even foolish rules for 314 million people.  There is much to repair, and much to undo, in our arrangements for government.

But the distance from dogmatic to liberal thinking, as we mull these things in our minds, is not necessarily that great.  It is a matter of the light bulb coming on over our heads.  The Liberty 101 series will be about turning the light bulb on, and encouraging us to think – outside the box drawn by the trend of American public education (and public dialogue) in the last 60 years – about what liberty really means, and which aspects of modern government really are set in stone, or ought to be.

* F.A. Hayek, The Constitution of Liberty.  (Chicago: The University of Chicago Press, 2011)

J.E. Dyer’s articles have appeared at Hot Air, Commentary’s “contentions,Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard online. She also writes for the new blog Liberty Unyielding.

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  1. Liberty presumes that everyone must learn from the consequences of their mistakes. The liberty that acknowledges the individual’s right to pursue happiness, recognizes that failure is the other side of the coin of success.

    Not surprisingly, the Founding Fathers had much to say regarding liberty;

    “Firearms are second only to the Constitution in importance; they are the peoples’ liberty’s teeth.” George Washington

    “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power sufficient to endanger the public liberty.” John Adams
    “Property must be secured, or liberty cannot exist.” John Adams

    “Any society that would give up a little liberty to gain a little security will deserve neither and lose both”. Benjamin Franklin
    “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” Benjamin Franklin

    “Now what liberty can there be where property is taken without consent?” Samuel Adams

    “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them”. — Patrick Henry

    As did a notable and prescient visitor;
    “Despotism may govern without faith, but liberty cannot.” Alexis de Tocqueville
    “Democracy seeks equality in liberty, socialism seeks equality in restraint and servitude”. Alexis de Tocqueville
    “Liberty cannot be established without morality, nor morality without faith”. Alexis de Tocqueville

    Thatcher’s words are as astute as ever;
    “When all the objectives of government include the achievement of equality – other than equality before the law – that government poses a threat to liberty.” Margaret Thatcher

    Never was that threat more palpable than today. We stand on the brink of a soft tyranny that categorizes everything as either forbidden or mandatory.

  2. My youngest isn’t mature enough to grasp the series. But, in a few years, I promise to add reading Liberty 101 to the homeschooling part of the curriculum. Till then, make sure no one gets any ideas about shutting down your server.

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