BY ALAN W. DOWD
"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”--and understandably so. 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.