Taking Liberties
The natural progress of things is for liberty to yield, and government to gain ground.”
Thomas Jefferson made that observation in 1788, when America’s experiment in individual liberty and limited government was new.
America has changed in many ways since Jefferson warned about the fragility of freedom and relentlessness of government – some for the better, some for the worse. Eradication of slavery, expansion of the franchise to Americans regardless of gender or race, and securing of civil rights for all undeniably advanced the cause of liberty. But if there was ever proof of the prescience of Jefferson’s observation, it is today’s America. As government gained ground in recent decades, liberty has lost ground.
LAND OF THE (SORT OF) FREE We call our nation “the land of the free.” This is where the Pilgrims fled to find religious and political freedom, where the founders drafted charters of government declaring our right to “life, liberty and the pursuit of happiness” and securing “the blessings of liberty to ourselves and our posterity,” where the “Don’t Tread on Me” flag once waved – and still does in places.
According to a number of measurements of freedom, however, the United States of 2019 is not exactly the land of the free.
On the Human Freedom Index – a broad-based measure of individual freedom factoring in the rule of law, freedom of movement, freedom of religion, freedom of assembly, freedom of expression, size of government, property rights, freedom to trade, labor-market freedom and economic freedom – the United States ranks just 17th. America trails the likes of Sweden, Norway, Finland, Switzerland, the Netherlands and Germany – countries not generally considered bastions of liberty.
On the International Property Rights Index, the United States ranks 14th. On the Heritage Foundation’s Index of Economic Freedom, it ranks 12th (down from fourth in 1999).
The United States is considered “free” on the Freedom House survey of political freedom, but registers a lower score than Canada and Costa Rica, Slovakia and Slovenia, France and Finland.
Together, these rankings paint a portrait of an America that is not as free as it once was. The decline is largely a function of government expansion.
“As government expands, liberty contracts,” President Ronald Reagan observed, echoing Jefferson. “Man is not free unless government is limited. There’s a clear cause and effect here that is as neat and predictable as a law of physics.”
REGULATED STATES OF AMERICA Reagan wasn’t saying there’s no need for government. Government is essential to protect life and property, to carry out justice, to maintain law and order, to deter and defeat enemies abroad – all so individuals might engage in what Jefferson called the “pursuit of happiness.” Reagan understood that “government and private enterprise complement each other” and “must continue to coexist and cooperate.” But he knew that too much government makes the pursuit of happiness – the ability of free people to make full use of their God-given talents – much more difficult.
“We must always ask: is government working to liberate and empower the individual? Is it creating incentives for people to produce, save, invest and profit from legitimate risks and honest toil?” he argued in 1981. “Or does it seek to compel, command and coerce people into submission and dependence?”
Almost four decades later, those questions still serve as an effective way to measure the state of individual liberty and the reach of government.
We can measure the growth of government in many ways: percentage of the workforce employed by federal, state or local government (1.3 percent in 1900, 6.7 percent today), federal spending as a share of GDP (10.8 percent in 1948, 20.4 percent today), number of jobs that require a government-issued license (10 percent in 1975, 29 percent today), average tax burden (5.9 percent in 1900, 30 percent today), or length of the income-tax form (four pages in 1913, 107 pages today).
One of the most telling measures of government growth is the size of the Federal Register, which contains federal-agency rules, notices and regulations. The Federal Register numbered 2,620 pages in 1936, 20,072 in 1968, 53,842 in 1989 and 97,069 in 2016. In 2016 alone, the number of pages explaining new rules and regs jumped by 56.52 percent. However, the regulatory pendulum has begun to swing in the opposite direction.
“We have eliminated more regulations in our first year than any administration in history,” President Trump boasted in his first State of the Union address. This wasn’t hyperbole. Trump ordered that “for every one new regulation issued, at least two prior regulations be identified for elimination.” The result: more than 30,000 pages struck from the Federal Register, with the number of regulations slashed accordingly. Plus, Congress in 2017-2018 employed a little-known tool that allows it to repeal regulations. Passed into law by a Republican Congress and Democratic president in 1996, the Congressional Review Act was used only once prior to 2017; by mid-2018, it had been invoked 16 times.
Regulations and rules are not just stale stats that have little effect on the average American. In fact, complying with federal regulations in 2014 cost employers, on average, $9,991 per employee. The Mercatus Center at George Mason University found that growth in federal regulations between 1980 and 2012 shaved about 25 percent from America’s wealth – $13,000 in lost income per American.
The Trump administration’s rescinding of the Obama administration’s Clean Power Plan will save energy companies $33 billion – costs that would have been passed on to consumers in higher rates.
Likewise, the Trump administration’s decision to ease regulations requiring carmakers to meet average fuel-economy standards of 54.5 miles per gallon by 2025 will save Americans an average of $2,340 on the purchase of a new car.
Yet even after the regulatory rollbacks, the cost of federal regulations in 2018 was still $1.9 trillion, according to the Competitive Enterprise Institute.
One set of regulations that continues to affect Americans is the Wall Street Reform and Consumer Protection Act, commonly known as “Dodd-Frank.”
To address problems created by government interventions that forced lenders to make mortgages available to borrowers who could not afford to make down payments or own a house, Dodd-Frank – in classic government fashion – overcorrected and made it more difficult for lenders to make mortgages and other loans available to everyone.
Dodd-Frank “made it a much bigger pain in the butt to get a loan,” Jaret Seiberg of Guggenheim Securities said in a CNBC interview. “You’ve got to fill out more paperwork, you’ve got to dig up more tax returns ... stuff that was never asked for before.”
Because of Dodd-Frank, the Mortgage Bankers Association reports that the average bank underwriter can process 33 loans per month today – down from 165 per month in 2005.
It’s no mystery why: Dodd-Frank spawned 400 new rules and triggered a tidal wave of banking-related regulatory restrictions – from just over 20,000 before Dodd-Frank to 52,475 after. Dodd-Frank also created the Consumer Financial Protection Bureau, which supporters view as a much-needed watchdog against predatory lending and financial risk but critics deride as an unchecked regulatory behemoth. The 2018 Economic Growth, Regulatory Relief and Consumer Protection Act reined in aspects of Dodd-Frank.
For those who see regulation as a constraint on individual freedom, the recent deregulation trend is reason to cheer. For those who see it as a constraint on bad behavior, regulatory-rollback efforts are cause for concern. Regardless of which side you find yourself on, one thing is beyond debate: Today’s enormous number of regulations affects economic activity, property rights, and the size and cost of government – all of which affect individual freedom.
RIGHTS AND WRONGS The reach of the regulatory state is only one example of how individual liberty is on the defensive. Consider the encroachment on perhaps our most cherished freedoms – those embodied in the First Amendment.
Among the freedoms protected by the First Amendment are freedom of religion, freedom of speech, freedom of the press and the right to peaceably assemble.
Under the Affordable Care Act, the Department of Health and Human Services (HHS) required all employers offering health insurance to include coverage for “preventive health services,” defined to include abortion-inducing drugs, sterilization and contraception – services many religious employers found at odds with their beliefs. State and federal agencies even sued religious institutions to force them to provide these services in health-care plans – a blatant violation of freedom of conscience and the free exercise of religion. To be sure, there are instances when government must intervene to prevent a religious practice from harming someone, but the HHS mandate turned the government’s responsibility-to-protect principle on its head.
As for freedom of speech, the Foundation for Individual Rights in Education reports that 89.7 percent of U.S. colleges “maintain policies that restrict – or too easily could restrict – student and faculty expression.”
California has passed legislation defining words that can and cannot be used to refer to transgender people – and criminalizing failure to use “preferred pronouns.” Likewise, the New York City Commission on Human Rights promulgated an ordinance in 2016 requiring employers, landlords and businesses to use “preferred name, pronoun and title” – including “ze” and “hir” – when addressing employees, tenants, customers or clients. Those who fail to speak in a manner the government approves face civil penalties of between $125,000 and $250,000.
Then there are the instances of homeowners associations (HOAs) barring or limiting residents from flying the U.S. flag. A Georgia HOA allows its residents to fly Old Glory 23 specified-in-writing days a year. In response to such nonsense, Congress passed legislation in 2006 ensuring our right to fly our flag. That’s a good thing. Yet it’s sad that Congress had to do so, sadder still that HOAs are oblivious to the law – or willfully ignoring it.
As to freedom of the press, Trump has mused via Twitter about stripping TV networks of their FCC licenses and raised the prospect of “retribution” against NBC for airing satirical skits critical of him.
Where Trump has threatened the press, President Obama acted. New York Times reporter James Risen details how the Obama administration “spied on reporters by monitoring their phone records, labeled one journalist an unindicted co-conspirator in a criminal case for simply doing reporting, and issued subpoenas to other reporters to try to force them to reveal their sources and testify in criminal cases.”
Some will defend Trump’s tweets as examples of free speech. But the presidency’s megaphone is so loud, its bully pulpit so large and its regulatory reach so great that presidents must measure their words more than the average citizen. Others will defend the Obama administration’s heavy-handed tactics as an act of self-defense against leaks. But presidents must understand that the leaker is the one who’s guilty – not those who report what is leaked.
The Constitution serves as a bulwark for a free press because the founders recognized that a free press would be essential to keeping an eye on government, exposing government activities and thus checking government power.
As for the right of peaceful assembly, at least seven states have passed, or are considering, legislation criminalizing protests related to oil pipelines.
To peaceably assemble in New York City, you will need to open a special online account, complete a registration-enrollment form, provide exhaustive event information, fill out a detailed questionnaire and pay a nonrefundable processing fee. But that only gets your request in front of the Street Activity Permit Office (SAPO). During the actual review process, “SAPO will contact all pertinent city agencies for their recommendations.” SAPO may then “require the applicant to modify the event, change the event date or locations, or deny the event” or “require a meeting or site visit with the applicant.”
To be sure, our system is not designed for government by protest march, and peaceful assembly must be just that: peaceful. But one wonders how those who persuaded the American colonies to declare their independence, challenged America to abolish slavery, secured the franchise for women, and pushed America to ensure equal rights for blacks and whites could have rallied their nation to the cause of liberty under such constraints.
While some of these examples don’t involve federal encroachment on individual freedom, all involve arms of government or quasi-government entities (public agencies, state government, state universities, municipalities, HOAs). And all take aim at freedoms enshrined in the Constitution, which was designed to promote individual liberty and limit government – not promote government and limit liberty.
Just as freedom without a foundation of law and order devolves into anarchy, laws and orders fashioned without regard for the Constitution’s foundational promise to “secure the blessings of liberty” have the effect of undermining it.
Alan W. Dowd is a contributing editor for The American Legion Magazine.