“Nowhere was the American rejection of authority more complete than in the political sphere,” writes historian David Donald. “The decline in the powers of the Federal government from the constructive centralism of George Washington’s administration to the feeble vacillation of James Buchanan’s is so familiar as to require no repetition here. . . . The national government, moreover, was not being weakened in order to bolster state governments, for they too were decreasing in power. . . . By the 1850s the authority of all government in America was at a low point.”

The United States, already one of the most prosperous and influential countries on the face of the earth, had practically the smallest, weakest State apparatus.

The great irony of the Civil War is that all that changed at the very moment that abolition triumphed. As the last, great coercive blight on the American landscape, black chattel slavery, was finally extirpated—a triumph that cannot be overrated—the American polity did an about-face.

Insofar as the war was fought to preserve the Union, it was an explicit rejection of the American Revolution. Both the radical abolitionists and the South’s fire-eaters boldly championed different applications of the revolution’s purest principles. Whereas the abolitionists were carrying on the assault against human bondage, the fire-eating secessionists embodied the tradition of self-determination and decentralized government. As a legal recourse, the legitimacy of secession was admittedly debatable. Consistent with the Antifederalist interpretation of the Constitution that had come to dominate antebellum politics, secession undoubtedly contravened the framers’ original intent. But as a revolutionary right, the legitimacy of secession is universal and unconditional. That at least is how the Declaration of Independence reads. “Put simply,” agrees William Appleman Williams, “the cause of the Civil War was the refusal of Lincoln and other northerners to honor the revolutionary right of self-determination—the touchstone of the American Revolution.”

American nationalists, then and now, automatically assume that the Union’s breakup would have been catastrophic. The historian, in particular, “is a camp follower of the successful army,” Donald wrote, and often treats the nation’s current boundaries as etched in stone. But doing so reveals a lack of historical imagination. Consider Canada. The United States twice mounted military expeditions to conquer its neighbor, first during the American Revolution and again during the War of 1812. At other times, including after the Civil War, annexation was under consideration, sometimes to the point of private support for insurgencies similar to those that had helped swallow up Florida and Texas. If any of these ventures had succeeded, historians’ accounts would read as if the unification of Canada and the United States had been fated, and any other outcome inconceivable. In our world, of course, Canada and the United States have endured as separate sovereignties with hardly any untoward consequences. “Suppose Lincoln did save the American Union, did his success in keeping one strong nation where there might have been two weaker ones really entitle him to a claim to greatness?” asks David M. Potter. “Did it really contribute any constructive values for the modern world?”

The common refrain, voiced by Abraham Lincoln himself, that peaceful secession would have constituted a failure for the great American experiment in liberty, was just plain nonsense. “If Northerners . . . had peaceably allowed the seceders to depart,” the conservative London Times correctly replied, “the result might fairly have been quoted as illustrating the advantages of Democracy; but when Republicans put empire above liberty, and resorted to political oppression and war rather than suffer any abatement of national power, it was clear that nature at Washington was precisely the same as nature at St. Petersburg. . . . Democracy broke down, not when the Union ceased to be agreeable to all its constituent States, but when it was upheld, like any other Empire, by force of arms.”

“War is the health of the State,” proclaimed Randolph Bourne, the young Progressive, disillusioned by the Wilson administration’s grotesque excesses during World War I. Bourne’s maxim is true in two respects. During war itself the government swells in size and power, as it taxes, conscripts, regulates, generates inflation, and suppresses civil liberties. Second, after the war there is what economists and historians have identified as a ratchet effect. Postwar retrenchment never returns government to its prewar levels. The State has assumed new functions, taken on new responsibilities, and exercised new prerogatives that continue long after the fighting is over. Both of these phenomena are starkly evident during the Civil War.

Before Fort Sumter national spending was only about $2.50 per person per year, or $50 per person in today’s prices. The central government relied on only two sources of revenue: a very low tariff and the sale of public lands. The war brought not only protectionist import duties but also a vast array of internal excises, the country’s first national income tax, and an extensive internal revenue bureaucracy with 185 districts reaching into every hamlet and town. Federal outlays soared from 1.5 percent of the economy’s output to almost 20 percent, approximately what the central government spends today. The national debt climbed from a modest $65 million, less than annual expenditures, to $2.8 billion. This provided the justification for replacing the antebellum monetary system of free banking and financial deregulation (which some economic historians believe was the best the country has ever had) with inflationary fiat money and nationally regulated banking.

Protectionism would continue to dominate U.S. trade policy mercilessly until the Great Depression and was just one manifestation of the Lincoln administration’s effort to enlist special interests through government subsidies and privileges. The Yankee Leviathan also was responsible for the first federal aid to transcontinental railroads, land grants for higher education, a Department of Agriculture for farmers, and troops to break strikes for employers. The prewar regime of Jacksonian laissez faire was effectively supplanted by Republican neomercantilism, an alliance between business and government that became so scandalous during the Grant era that it has gone down in history as, to use Vernon Louis Parrington’s label for the postwar feeding frenzy, the “Great Barbecue.”

Lincoln’s war delivered a blow to civil liberties as well. The Union’s resort to nationally administered conscription touched off so much resistance that the President suspended habeas corpus throughout the North. Traditional estimates are that the administration imprisoned without trial or charges 14,000 civilians during the conflict, but some historians believe the figure to be much too low. To be sure, the greater number were citizens of either the border states or the Confederacy itself, and many of those arrested secured quick release within a month or two, usually after swearing a loyalty oath. Yet the federal government at the same time monitored and censored both the mails and telegraphs and shut down over 300 newspapers for varying periods.

Many of these measures were of course abandoned at the fighting’s end. Federal spending fell from its wartime peak to only 3 to 4 percent of GDP. Although not a trivial decline, it still left spending at twice prewar levels, and the largest postwar expenditures were war-related. Interest on the war debt initially accounted for 40 percent of federal outlays, and by 1884 veterans’ benefits were consuming 30 percent. These benefits were so lavish that they constitute the national government’s first old-age and disability insurance and stand as a precursor to Social Security. The impact of the Civil War was even felt in the seemingly unrelated area of obscenity. Congress passed the first act regulating mail content in response to complaints that troops were ordering pornographic material, and this became the basis for the Comstock witch hunts of the 1870s.

The Real Turning Point

This ratchet effect is a phenomenon historians frequently observe. Yet the Civil War did something more. Despite wars and their ratchets, governments must sometimes recede in reach, else all would have been groaning under totalitarian regimes long ago. Both conservatives and so-called liberals date the major political turning point in American history at the Great Depression of 1929. Previously Americans are supposed to have self-reliantly resisted the temptations of government largess and confined federal power within strict constitutional limits. Although Franklin D. Roosevelt’s New Deal is responsible for Social Security, which along with health care, now ranks as the national government’s primary expense, this legend ignores several inconvenient facts. To begin with, the New Deal simply emulated the Wilson administration’s previous war collectivism. Moreover the growth of government under the New Deal was trivial compared to its growth during the United States’ next major conflict: World War II.

More astute analysts push the watershed in U.S. history back to the Progressive Era. Progressivism emerged at the beginning of the twentieth century as a diverse inclination, varying in different parts of the country and including members of all political parties. But it became the country’s first dominant mindset to advocate government intervention in the free market and in personal liberty at every level and in every sphere. My contention, however, is that America’s decisive transition must be dated even earlier.

The Yankee Leviathan co-opted and transformed abolitionism. It shattered the prewar congruence among anti-slavery, anti-government, and anti-war radicalism. It permanently reversed the implicit constitutional settlement that had made the central and state governments revenue-independent. It acquired for central authority such new functions as subsidizing privileged businesses, managing the currency, providing welfare to veterans, and protecting the nation’s “morals”—at the very moment that local and state governments were also expanding. And it set dangerous precedents with respect to taxes, fiat money, conscription, and the suppression of dissent.

These and the countless other changes mark the Civil War as America’s real turning point. In the years ahead, coercive authority would wax and wane with year-to-year circumstances, but the long-term trend would be unmistakable. Henceforth there would be few major victories of Liberty over Power. In contrast to the whittling away of government that had preceded Fort Sumter, the United States had commenced its halting but inexorable march toward the welfare-warfare State of today.

In 2004, three years after the Patriot Act was enacted, politicians started to worry about the rising number of Americans grumbling about government intrusions. The 9/11 Commission proposed creating “a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.” Creating another office within the executive branch to report on executive branch activities was unlikely to produce anything more than extra jobs for Washington hangers-on. The White House edited the 9/11 commission’s report before it was publicly released, so the Bush team had no trouble with this toothless-tiger palliative.

In December 2004, acting on the commission’s recommendation, Congress mandated the creation of the Privacy and Civil Liberties Oversight Board. The same law that created the oversight board also made it easier for the FBI to get eavesdropping warrants on Americans, created a new standard to make it easier to prosecute citizens who donate to foreign charities of which the U.S. government disapproves, and provided a new layer of secrecy for federal agencies.

Some congressmen hailed the board as the start of a brave new era. Things would be different since there was a new sheriff in Washington—or at least that was what people were supposed to think. The civil liberties developments in the years after the board was created offer profound lessons into how the government works.

It would have been difficult to design a better rubber stamp than the Privacy and Civil Liberties Oversight Board. It had no subpoena power, so it was effectively obliged to accept unsubstantiated assertions from the agencies violating privacy and liberty. The president had the right to appoint board members and could fire them any time. Bush did not appoint any experts on civil liberties; instead, the board was stacked with Republicans who formerly held government positions as enforcement zealots. And the first appointments did not occur until seven months after the law passed. The American Bar Association noted that Bush’s nominations were timed “as part of the administration’s push to encourage Congress to reauthorize provisions of the USA Patriot Act that expire within the next few months.” The oversight board supposedly guaranteed that Patriot Act powers would not be abused.

Six months after Bush stacked the board, the biggest civil liberties expose of recent decades exploded on the front page of the New York Times. The prior year, when he was running for reelection, Bush assured Americans that no wiretaps were occurring without federal court authorization. But the Times revealed that the National Security Agency (NSA) had conducted warrantless wiretaps on thousands of Americans based on flimsy pretexts. The Times’ James Risen reported that Bush’s “secret presidential order has given the NSA the freedom to peruse . . . the email of millions of Americans.” The NSA’s program was quickly christened the “J. Edgar Hoover Memorial Vacuum Cleaner.”

In the Fourth Amendment of the Bill of Rights the Founding Fathers decreed that government searches must be based on probable cause and approved by a neutral magistrate. The Bush wiretapping program was based solely on the president’s edict. Shift supervisors at the National Security Agency decided which Americans got wiretapped. But a GS-13 civil servant is not constitutionally on par with a federal judge.

An Ineffective Rage

Did the existence of the Privacy and Civil Liberties Oversight Board change how the wiretapping scandal played out? Not a whit. Bush seized on the Times exposé to portray himself as heroically rising above the statute book to protect the American people. A month later, Republican members of Congress gave Bush a standing ovation when he bragged about his “terrorist surveillance program” in his State of the Union address. There was more enthusiasm in Congress for prosecuting New York Times editors and reporters for treason than for prosecuting NSA officials for violating federal law.

Supporters of civil liberties rallied a few months later to try to slow the bandwagon to renew the Patriot Act. One major concern was the provision in the original Patriot Act that made it far easier for the FBI to use National Security Letters (NSLs) to compel private citizens, businesses, nonprofits, and other entities to surrender information on demand. NSLs empower the FBI to seize records that reveal “where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work,” the Washington Post noted. The FBI was issuing more than 50,000 NSLs per year.

While Bush pressured Congress to renew the Patriot Act in 2005, Attorney General Alberto Gonzales announced, “The track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the act was passed. There has not been one verified case of civil liberties abuse.” In reality the feds had already discovered hundreds of criminal abuses of Patriot Act powers involving FBI agents and NSLs. But the abuses were kept under wraps until after Congress renewed the Patriot Act.

A bipartisan agreement to renew the Patriot Act was finally reached, giving the White House almost everything it wanted. As part of the deal Bush administration officials agreed to provide Congress far more details on how Patriot Act powers were being used. The Justice Department would be obliged to disclose to Congress how many Americans were having their privacy violated by NSLs.

However, Bush reneged in a “signing statement” quietly released after a heavily hyped White House bill-signing ceremony. He decreed that he was entitled to deny Congress any information that would “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” Bush announced that he would interpret the law “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information.”

In other words, any provision of the law that required disclosure would be presumptively null and void. The crux of the Bush administration’s “unitary executive” doctrine was that all power rests in the president and that “checks and balances” are archaic.

The Privacy and Civil Liberties Oversight Board had no complaint about this charade. Instead, the members belatedly and heartily endorsed the NSA’s warrantless wiretaps on Americans’ phone calls and emails.

In 2007, before the Board could issue its first annual report, White House staffers massively rewrote and censored a draft version. Lanny Davis, the sole Democratic member of the board, resigned, later protesting that “the board was logically viewed . . . as the functional equivalent of White House staff.”

Toothless Watchdog

But the mere existence of the board allowed members of Congress to pirouette as constitutional saviors. When the House passed legislation later in 2007 moving the board out of the White House and requiring Senate confirmation of its members, Rep. Carolyn Maloney proclaimed, “The American people must have trust in their government to support its tactics against terrorism, and a strong Civil Liberties Board is vital to upholding that public trust.” But the restructured board, like the original, was better designed to alleviate public fears than to restrain federal power. The “reformed” Board was given little or no power to acquire information that federal agencies chose not to give. And it is difficult to understand how requiring Senate confirmation of Board members was a silver bullet, since the Senate had given approval, retroactive or otherwise, to the Bush administration’s most controversial abuses.

The same season that Congress passed the civil liberties board reform proposal it also enacted a law requiring the Homeland Security Department’s chief privacy officer to “to report each year about Homeland Security activities that affect privacy,” the New York Times reported. The law required that “reports be submitted directly to Congress ‘without any prior comment or amendment’ by superiors at the department or the White House.” Congress passed this law because of an earlier controversy about White House censorship of the Homeland Security Department’s report on privacy violations.

Five months after the law passed, Bush covertly issued a legal opinion effectively declaring that provision null and void. Deputy assistant attorney general Steven Bradbury declared that “such interference [by Congress] is impermissible.” Sen. Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, denounced Bush’s action as “unconstitutional” and “a dictatorial, after-the-fact pronouncement by him in line with a lot of other cherry-picking he’s done on the signing statements.” But Bush’s action was largely ignored by the media. And his Civil Liberties Board certainly did not even whimper.

When Bush lagged in appointing members to the restructured board, Sen. Joe Lieberman, chairman of the Senate Homeland Security Committee, urged him in 2008 to move quickly “to preserve the public’s faith in our promise to protect their privacy and civil liberties as we work to protect the country against terrorism.” Lieberman wanted to preserve “the public’s faith” at the same time he championed “enhanced interrogation” methods and retroactive immunity for any company or person who violated Americans’ rights in the name of antiterrorism. (The Senate did not confirm any of Bush’s belated nominations.)

Change You Can Forget About

During his presidential campaign Barack Obama vigorously criticized Bush’s civil liberties abuses. Many of his supporters expected that, if elected, Obama would radically change federal policies regarding American liberty.

As of this past October, Obama had made no appointments to the oversight board. Rep. Bennie Thompson, then chairman of the House Homeland Security Committee, and Rep. Jane Harman, then chairman of that panel’s subcommittee on intelligence, wrote Obama early last year urging him to speedily make appointments because “we believe that the Board will give an anxious public confidence that appropriate rights are respected.” Harman is best known as the sponsor of the Violent Radicalization and Homegrown Terrorism Prevention Act, which could have spurred massive crackdowns on libertarians, constitutionalists, and others with nonmainstream ideas.

Many newspaper editorials have also complained about Obama’s failure to stock the oversight board. But this is perhaps the most honest action the Obama administration has taken regarding civil liberties. In area after area Obama has rubber-stamped Bush-era abuses and signaled that there would be no investigation or prosecution of official wrongdoers from the previous administration. Obama is also embracing Bush-style State-secrecy doctrines that prohibit disclosure of the rationale for U.S. government-planned assassinations of Americans.

The oversight board is far more likely to induce complacency than to protect liberty. Since 9/11, trampling the Constitution is a no-fault offense. In Washington nowadays, only “extremists” believe that federal officials should be jailed for violating citizens’ privacy.

For every member of Congress such as Rep. Ron Paul (R-Tex.), who vigorously and consistently opposes federal abuses, there are vanloads of congressmen cheering federal agents’ trampling the statute book in the name of public safety. The founders intended Congress to be a vigorous check on the abuses of the executive branch. However, few members of Congress have the gumption to pursue official lawbreakers or to fight to expose agencies’ crime sprees. In the 1970s, senators like Sam Ervin (D-N.C.) and Frank Church (D-Id.) spearheaded probes into executive-branch abuses, revolutionizing how Americans thought about the president, the CIA, and the FBI. Ervin and Church succeeded in part because of sheer willpower. But there is little or no such courage in Washington nowadays.

Washington vastly prefers the appearance of checks and balances to the reality of government under law. At a time when federal officials who violate Americans’ rights have nothing to fear from Uncle Sam, the existence of the oversight board is a cruel taunt to private citizens.

Perhaps the best epithet for the feds’ civil liberties record is the saying of Lily Tomlin: “No matter how cynical you become, it’s never enough to keep up.” “I’m from the government, and I’m here to safeguard your privacy” is the post-9/11 version of the old joke. But American liberty cannot afford any more sham protections. Abolishing the oversight board would be the most honest step Washington has taken on civil liberties in this century.

Perhaps the most chilling quote of the Soviet era came from Lavrentiy Beria, Stalin’s head of the secret police, who bragged, “Show me the man, and I will find you the crime.” Surely, that never could be the case in America; we’re committed to the rule of law and have the fairest justice system in the world.

Civil libertarian attorney Harvey Silverglate begs to differ, and his newest book, Three Felonies a Day: How the Feds Target the Innocent, is a frightening reminder that the federal “justice” system in this country seems to have picked up where the Soviets left off. We suffer from a combination of vague, expansive laws, the drug war, and prosecutors who are ruthless, relentless, and who face no consequences for their own lawbreaking. That has turned federal criminal law into a conviction machine, sweeping up the innocent along with the guilty.

The very expansiveness of federal law turns nearly everyone into lawbreakers. Like the poor Soviet citizen who, on average, broke about three laws a day, a typical American will unwittingly break federal law several times daily. Many go to prison for things that historically never have been seen as criminal.

Writing about the Kafkaesque nature of the federal system, Silverglate notes:

Prosecutors are able to structure plea bargains in ways that make it nearly impossible for normal, rational, self-interest calculating people to risk going to trial. The pressure on innocent defendants to plead guilty and “cooperate” by testifying against others in exchange for a reduced sentence is enormous—so enormous that such cooperating witnesses often fail to tell the truth, saying, instead, what prosecutors want to hear.

This should make everyone fearful. Silverglate declares that federal prosecutors don’t care about guilt or innocence. Instead, many subscribe to a “win at all costs” mentality, and there is little to stop them.

Silverglate is hardly alone in making that accusation. In 1998 Bill Moushey wrote a devastating ten-part series for the Pittsburgh Post-Gazette, “Win at all Costs.” Moushey described the caldron of lies that FBI investigators, prosecutors, and other federal officials regularly tell. Even when it was clear they had no case, prosecutors often soldiered on just to inflict financial punishment on people they targeted.

Paul Craig Roberts and Lawrence W. Stratton recently published a second edition of their book, The Tyranny of Good Intentions, which documented just how bad the federal “justice” system has become. Other writers, including well-known Houston attorney Tom Kirkendall, and a number of people associated with the Cato Institute have joined the growing chorus of critics.

Silverglate’s book first explains how law should work, and then demonstrates how federal law really works as he weaves through dozens of cases showing clear prosecutorial abuse. An ugly, recurrent feature is that prosecutors often manipulate the media. People are prone to believe what officials say about defendants in high-profile cases. Many believed at first that the Duke lacrosse players were guilty of rape, only to find out the entire episode was a hoax concocted by a lying prostitute and a local prosecutor desperate to win an election.

The book recounts a disturbing number of cases documenting how investigators and prosecutors decide on a target, then find a crime to pin on him. For example, Silverglate points out that Michael Milken pleaded guilty to “crimes” that the Supreme Court a few years later would rule were not crimes at all. One of the federal prosecutors in Milken’s case bragged to a group of Rutgers University law students that the prosecutors, led by Rudolph Giuliani, “were guilty of criminalizing technical offenses. . . . Many of the prosecution theories we used were novel. Many of the statutes that we charged under . . . hadn’t been charged as crimes before. . . . We’re looking to find the next areas of conduct that meets any sort of statutory definition of what criminal conduct is.”

It is not stretching the imagination to say that Beria himself would have been proud of the tactics these prosecutors used to get Milken.

Three Felonies a Day is a book worth reading. It challenges the honest “law and order” types who reflexively defend our system of “law enforcement.” It also provides intellectual ammunition to those who argue that the federal government is badly out of control. Indeed, for a country that supposedly prides itself on the rule of law, the idea of channeling the former Soviet Union is both outrageous and tragic.

Although he probably doesn’t remember that conversation, I wonder if he remembers the thoughts that caused him to return to the United States. The reason I wonder is that Americans are no longer free to travel by commercial air without showing a government official a government-issued ID. So the freedom that he sought in the United States no longer exists. In an important way, the United States has become Sovietized.

Now before you conclude, “Henderson is off his rocker; he can’t tell the difference between the USA and the USSR,” let me say that I do understand the difference. Governments in the United States don’t oppress us nearly as much as the Soviet government oppressed its citizens. On a scale of oppression where 1 is the least and 10 is the most, the USSR was a 9 or 10 and the United States is, say, a 3. But in 1981, when I took that flight, it was about a 2. Name the civil liberty, and chances are it has declined over that period.

Consider a basic freedom-of-speech issue, the right to organize and petition the government. In parts of the United States that right is under assault. When two or more people in Colorado, for example, join to speak out about a political issue and spend more than $200 to do so, they must register with the state and report all their contributions, even if only in kind, and expenditures. They must also disclose the identities of anyone who contributed money. Better-organized political activists have used this law as a club to go after their political opponents. In 2006, for example, the supporters of annexing the town of Parker North to the town of Parker filed a campaign-finance complaint against the six most vocal opponents and threatened to go after anyone else with a yard sign opposing annexation. Similar legal assaults have occurred against opponents of increased gasoline taxes in Washington state.

Or consider the drug laws. In the 1970s, when police raided a home for drugs, they often knocked on the door and waited for someone to answer. Then they entered and looked for drugs. Today, it’s much more common for them to show up in heavily armed and armored SWAT teams, ready to shoot if anyone in the house makes a false move. Reason writer Radley Balko has written often about the outrages of the drug war. In a May 2010 Reason article, he writes: “I’ve been writing about and researching these raids for about five years, including raids that claimed the lives of innocent children, grandmothers, college students, and bystanders. Innocent families have been terrorized by cops who raided on bad information, or who raided the wrong home due to some careless mistake.”

Enforcement Victims

Fortunately, such incidents are still relatively rare, but that they happen at all is intolerable. Enforcing the drug laws requires such raids because the violators are people engaged in mutually beneficial exchange. In murder or burglary there is clearly a victim, or a victim’s friend or relative, who objects to the crime and therefore has an incentive to report the crime to the police. But when illegal drugs are bought or sold, there is no victim. Whatever the wisdom or folly of exchanging illegal drugs, those who do so believe they benefit. Otherwise, they wouldn’t do it. So one way to catch people who trade in illegal drugs is to surprise them by invading their homes.

The drug laws have also led to other violations of people’s civil and economic freedom. When President Ronald Reagan stepped up the drug war, he started requiring people making purchases with $10,000 or more in cash to fill out a federal form. The government also seizes property that police suspect has been used or earned in the sale of drugs and has carved out an exemption to the Constitution’s prohibition on illegal search.

It’s not as if we get a big benefit from enforcement of the drug laws. Just as the prohibition of alcohol helped create criminal gangs, so does the prohibition of drugs. The nice thing about freedom is that it allows people to either use or avoid using the drug(s) of their choice. And among the tragedies of the drug war are the consequences it imposes on innocent people caught in the crossfire.

As for government restrictions on our freedom to travel by airline, the simple fact is that commercial airlines, even with the risk of terrorism, are by far the safest way to travel. According to Michael Sivak and Michael Flannagan in an article in American Scientist, your chance of being killed in one nonstop airline flight, even with the increased threat from terrorist attacks, is about one in 13 million. To reach that same level of risk when driving on rural interstate highways, which are America’s safest roads, you need travel only 11.2 miles. In other words, you are in about as much danger driving to the airport as in flying from the airport.

Reduced Safety

Why is driving relevant? Because when the government invades our privacy, as it systematically does when we fly, it causes some, especially those who would have traveled less than 500 miles each way, to travel by car instead. What is the unintended, but totally predictable, consequence of this loss of freedom whose stated goal was to make us safer? Less safety. Adding to the irony is the fact that since 9/11, passengers have been quite good at restraining those terrorists who try to blow up airlines. When Richard Reid, the shoe bomber, tried to blow up a flight, passengers restrained him. Ditto with Umar Farouk Abdulmutallab, the underpants bomber on the Christmas 2009 flight heading into Detroit.

Fortunately, there’s some good news, both here and in Great Britain. The Real ID Act, which Congress passed in 2005, requires drivers’ licenses and other state government-issued identification cards to conform to tight federal standards. Many state governments, in a fit of federalism, have said no. That part of the Real ID Act looks to be really dead. And in Britain in May the newly formed coalition government announced that it would scrap a similar plan.

Let’s not stop there. Let’s be able to say, like the Southwest Airlines ads, “You are now free to move about the country.”

These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy “warrants” from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (“Legal Authorities Supporting the Activities of the National Security Agency . . .”) explained the executive’s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans’ liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37–38). The result is something like “your Constitution on drugs”—with the searchers and seizers on steroids.

Turning to the Fourth Amendment itself, we read: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This sounds pretty good, doesn’t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments—state and federal—felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).

Gradualism and crisis, always headed the same way, have yielded a constitutional trail of tears catalogued in American state and federal case law. The U.S. Supreme Court hardly noticed the Fourth Amendment until the twentieth century. In the Prohibition-era case Carroll v. U.S. (1925), the Court sanctioned searches of private automobiles on the rather forced analogy of ships at sea. (The next time cops pull you over and search your car, you may blame Chief Justice William Howard Taft.) But the amendment’s core meaning survived awhile longer in areas where it was thought to have always applied.

Meanwhile, emboldened by the Fourteenth Amendment, the Supreme Court undertook to supervise state police practices from the late 1940s on; it would decide if the states were following the Fourth and other amendments. This new project annoyed the states but did little enough for the public. Examining federal search practices in U.S. v. Rabinowitz (1950), the Court declared the word “unreasonable” the key to the Fourth Amendment. Henceforth the Court would philosophize on the “reasonableness” of searches (“in the circumstances”) and periodically announce our ever-waxing-and-waning rights on the accordion model of civil liberties. Warrants pretty much disappeared.

We have been saddled with this unsatisfactory outcome ever since. The subjectivity of judicial balancing acts, along with fluctuating judicial moods, has made the Court’s understanding of “reasonable” rather less stable than that of the Oxford English Dictionary. The war on drugs has rendered the Court (particularly “conservative” justices) unsympathetic to complaints about searches. The upshot is that the Fourth Amendment is now mostly just another empty marker at which American politicians, bureaucrats, and ideologues can wave when praising the precious freedoms that supposedly cause Americans to be hated.

Legal History vs. Politicized Originalism

In constructing the above account, I have relied heavily on the work of Thomas Y. Davies, professor of law at the University of Tennessee. (The rhetoric is mine.) In essays running from 1999 to 2007 Davies painstakingly reconstructed the late eighteenth-century context of the Fourth Amendment, accounted for its later reinterpretation, and thus described its effective demise. At the same time, he assessed conservative constitutional “originalism,” which he finds harmful.

For Davies the key to Fourth Amendment mysteries is the displacement of eighteenth-century common-law rules by later legal tinkering. As “judge-discovered” law, common law constituted a whole system (albeit uncodified) able to address almost any issue that could get into court, naturally or under a legal fiction. It centered on private prosecutions between parties, who were often large landholders, and its rules aimed at protecting their rights and “quiet enjoyment” of their property. (The radical historian Barrington Moore, Jr., has noted the aristocratic origins of our civil liberties.)

Of course common law adopted, or was forced to adopt, a number of royalist and Parliamentary premises perhaps not essential to its workings, in such matters of State concern as sovereignty, treason, customs, and revenue. Given its environment, common law also incorporated social prejudices regarding women, employees (“servants”), and other disfavored classes, and remained mired in semi-feudal verbiage. Common lawyers worked new content into their “feudal” categories in a way that eased the transition from “feudalism” (for lack of a better term) to English agrarian capitalism and from one form of State to another. In the hands of Whig justices like Sir Edward Coke (1552–1634), locked in battle against Stuart royal prerogative, the common law became a potential weapon for individual and popular rights against State abuses. Coke’s views were very influential in revolutionary America.

In the nineteenth century, though, the common law came to be seen as a barrier both to industrial capitalism and to further expansion of the modern state; for these and other reasons it was interpreted into nothingness or quietly abandoned.

Common-Law Arrest, Search, and Seizure

With common-law rules in view, Davies sees the whole point of the Fourth Amendment as control of warrants to be achieved by defining them strictly. In the common-law environment of the late eighteenth century, warrantless searches—or arrests—were rare and subject to strict conditions. Thus confined, these few warrantless actions hardly threatened public liberty. Let us see why.

First of all, no one—constable or freeman—could arrest or search someone merely for looking “suspicious.” Accusers (public or private) had to have a case before applying for any kind of warrant. To have a case, an actual crime had to have been committed already. An accusation also had to include sworn testimony of one or more witnesses asserting direct, personal knowledge supporting the belief that a named defendant had done the deed. Strung-out informants selling hearsay “evidence” about crimes that might occur in the future were not consulted, although hearsay could be admitted to establish background facts. Judicial action—indictment, issue of warrants—rested on the kinds of evidence described above. Arrest warrants did not normally issue for misdemeanors. The defendant remained at large but would be wise to attend his trial. A search warrant gave permission to look only for the specific things named.

Further, a defendant never appeared as a witness, but could, with or without counsel, impeach the evidence against him and cross-examine witnesses. Accordingly, the rule against self-accusation (self-incrimination) did not protect a defendant’s trial rights, but meant instead that his diary, calendar, papers, and effects—as extensions of himself—were not subject to general ransacking and fishing expeditions. The other side had to make its case without such modern conveniences. Only Parliament claimed to be able to license fishing expeditions (such as the “general warrants” that so nettled colonial Americans) and mainly in the narrow areas of “treason,” customs, and revenue. (The last two items came under admiralty law with its civil [Roman] law rules.) The Fourth Amendment sought to limit the ability of Congress to play such games.

There was a short list of warrantless arrests and searches allowed under common law. An officer or freeman who saw a misdemeanor underway in his presence (affray or breach of the peace) could make an arrest. Someone traveling at night could be detained overnight to account for himself. In “hot pursuit” of a fleeing felon who had committed an actual crime, an officer or freeman could “break” (into) a house. Here again is the combination of actual crime and personal knowledge. There were a few other complications, but they and the above-mentioned practices were rooted in common sense and had definite boundaries.

Under common-law rules arrests were few and far between. In a system based on enforcement by private parties (freemen), or by constables with few additional powers, defendants could sue for “personal trespass” anyone who brought a bad prosecution. Logically enough, a right to resist false arrest also existed. (Nowadays the concept of false arrest is nearly dead and resistance is not generally recommended.) Damages for bad prosecutions were a useful incentive for keeping peace officers and private prosecutors reasonably careful. Tightly drawn warrants, where required, actually protected officers from resistance or suit.

Since arrests were few and generally followed indictment—and that on real evidence—defendants not formally accused were seldom detained. Hence modern dilemmas involving interrogation seldom arose. Asking questions was a judicial function carried out at trial. Constables, who were considered judicial (not executive) officers, had little discretionary authority and few occasions for third-degree Q&A sessions in the back room. And of course common law had no plea bargaining, that ubiquitous, contemporary solution of “overworked” courts that Paul Craig Roberts and Lawrence M. Stratton refer to as a form of torture.

In the United States, federalism set further limits. Only a few matters fell under federal jurisdiction, fewer still under exclusive federal jurisdiction. At the state level special language in revolutionary-era state constitutions about the “law of the land” or “due process of law”—“terms of art”—protected and perhaps “constitutionalized” common-law rules of arrest, search, and seizure. (“Due course of law” referred to trial procedures.) At the federal level specific constitutional language in the Fourth and Fifth Amendments and elsewhere served a similar purpose. And in practice America avoided what Jeffersonians most feared: a federal claim to enforce the whole common law, which potentially reached everything under the sun. The objects of federal action were limited in number, and the claim of extreme federalists to general common-law jurisdiction failed. But the common-law rules (“due process,” “law of the land”) seemed well entrenched at both levels of government. Could courts and legislatures legally (“constitutionally”) throw away these protections? It is hard to say what informed legal opinion would have said on this point in 1790. Later, of course, courts and legislatures contrived to do exactly that.

Rise and Fall of the Fourth Amendment

The framers’ quest to establish certain common-law rights largely failed. The disjunction between the clauses of the Fourth Amendment encouraged the leap to a “reasonableness” standard. In fact, as Davies shows, the words “unreasonable searches and seizures” were Revolutionary-era rhetoric condemning British general warrants of the 1760s and 1770s as without reason (outside of reason) and therefore illegal and unconstitutional; they were not meant to license future judicial speculation. The core ideas of the Fourth Amendment were better expressed in the Massachusetts Constitution of 1780 and the Ohio Constitution of 1802. Davies speculates that James Madison’s innovative phrase, “probable cause,” was meant to allow a little leeway for customs and revenue enforcement, which already enjoyed partial exemption from common-law rules. (A warehouse, for example, did not enjoy the same immunities from search and seizure as a private dwelling.) Still, even Madison’s slightly weakened version meant something, although “probable cause” (taken by itself) had a big future as a means of reducing restrictions on power to a nullity.

In Davies’s view the Fourth Amendment unraveled for several reasons. Judicial and legislative amnesia undercut the common-law rules. With growing industrialization, capitalists feared workers, Protestants feared Irish immigrants, and most people feared property crime more than they feared the State. To allay these fears and address some genuine problems caused by overcrowding, urban elites created police forces in major American cities by the 1830s. In eighteenth-century terms these new bodies were “standing armies.” Their practices brought about pressure for revised rules of arrest, search, and seizure, and new rules encouraged the new police practices. Davies speculates that the rise of “relativistic and probabilistic notions of truth and proof,” diminished reliance on oaths, and fear of too few convictions also eroded the old common-law regime.

Finally, state and federal courts rather forcibly dragged “due process” into property law—rather notoriously in Dred Scott (1857), with its substantive due process for slaveholders—with a little left over for trial procedures. “Due process” of arrest, search, and seizure receded into the shadows. In search of improved ideas, American state courts looked to Britain, where since 1780 judges had been adjusting the rules in favor of industrialism and modern State practices. (Right-wing commentators who gripe about “foreign law” influences ought to investigate this connection.) For once the federal government was fairly innocent. Precedents that undermined the old common-law regime largely trickled up from the states, especially in the second half of the nineteenth century. The upward trickle was slow at first: Down to 1935 federal marshals still had to have proper warrants to make an arrest.

Here then is today’s Fourth Amendment as seen by a life-form afflicted with supreme-judicial eye syndrome:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(As this ocular condition worsens, all but a few objects dwindle into dim grayness.)

On Davies’s argument the view that the Fourth Amendment came into its own from the mid-twentieth century forward, when reasonableness took center stage, puts the cart well before the horse. And yet the Fourth Amendment cannot really be recovered. This is where good legal history—concrete originalism—leaves us. Potentially beneficial constitutional provisions are of little use today, even when their meanings can be reconstructed in legal-historical context. We can’t go back, since “activist” judges and legislators have worked for almost 200 years to institutionalize a legal regime with only slight resemblance to any original plan.

Can Anything Be Done?

Oddly enough, nineteenth-century Anglo-American legal bragging about freedom crested at roughly the time when many common-law rules worth saving were on the way out. Common law had reactionary social biases, to be sure, but an accelerated “trickle-down”—to everyone—of important rights that common law protected might have been preferable to their elimination. Purging common law of its English royalist and absolutist accretions was precisely the goal of St. George Tucker’s annotated edition of Blackstone (1803). And there was no reason to stop with Tucker’s “republicanized” Blackstone. More right than wrong on this, Murray Rothbard wrote that the common law minus some “statist accretions” fairly approximated a libertarian law code. Thinkers outside the mainstream periodically rediscover the radical potential of English law: people like Gerrard Winstanley, John Lilburne, John Adams, Thomas Jefferson, Lysander Spooner, and others closer to our own time. They may not agree with one another, but their example is interesting.

This is the path not taken. Most arrests and searches today are without warrant, and getting a formal warrant is fairly easy. Concrete, sworn personal knowledge has yielded to vague (“reasonable”) suspicion or whimsy as a “standard.” Once we enjoyed rules that provided for concrete privacy. By the 1960s privacy seemed so imperiled that the Supreme Court with its usual jobbery was driven to invent an artificial “right of privacy” just to restore some balance. Later, “originalist” conservative justices wrathfully informed us that passage of a law by Congress is nine-tenths of “due process” (you voted, didn’t you?) and the rest is enforcement—stern law-and-order formalism indeed. Translated, conservative “due process” seems to leave us subject to arrest, search, or seizure at the whim of any functionary capable of forming a whim.

Americans have let themselves be systematically excluded from land, from effective political participation, and from effective legal participation. When collapse of the new-model system comes, as one day it must, we may perhaps give ourselves a new constitution. Where might we begin? Chapter XXIX of Magna Carta looks rather promising.

Works Consulted

Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Michigan Law Journal (1999), and “Correcting Search-and-Seizure History: Now-Forgotten Common-Law Arrest Standards” [&c], Mississippi Law Journal (2007). (These two are essential. See also Davies in Wake Forest Law Review (2002), 239ff, Tennessee Law Review (2003), 987ff, Brooklyn Law Review (2005), 105ff, and Brooklyn Law Review (2007), 557ff.)
Morton Horwitz, The Transformation of American Law (1992).
Theodore B. Lacey, “The Supreme Court’s Fluctuating Reaction to National Prohibition in Fourth Amendment Decisions from 1920–1933” (Senior Thesis, Princeton University, 2005).
Roger Roots, “Are Cops Constitutional?” Seton Hall Constitutional Law Journal (2001).
St. George Tucker, “Of the Unwritten, or Common Law of England,” in View of the Constitution of the United States (1999 [1803]), 313–369.
(All the above except Horwitz may be found online.)

The country I have in mind is not a Latin American banana republic or a Middle Eastern dictatorship. It’s the United States of America.

The warrant-like orders requiring no judge’s signature are called national security letters. In the last nine years the FBI, Defense Department, and CIA have issued well over a hundred thousand national security letters. The FBI has exceeded even the broad powers granted by Congress, and that overreach continued for years after it came to the attention of bureau lawyers. Earlier this year the inspector general of the Justice Department documented the FBI’s frequent violations of the law. (See it here in pdf form.) If the government is now operating within the law, that is no reason for complacency: The law itself is an abuse.

Not Far Enough

Nevertheless, it doesn’t go far enough for President Obama, who campaigned against Bush administration civil-liberties violations like warrantless wiretapping. Obama wants Congress to expand the scope of national security letters even more. It’s another case of a Progressive political figure one-upping the conservatives at “national security” measures once he gets his hands on power.

Unfortunately, these things get little public attention — do most people even know that national security letters exist? I can’t help asking: Shouldn’t we be concerned about this? I’d have expected people who claim to revere the Constitution to be rather upset by a law that authorizes federal intelligence and investigative agencies, on their own initiative, to demand private records without a court-issued warrant and in the absence of specific criminal activity — while keeping the target in the dark so he can’t challenge the demand before a judge. What happened to the separation of powers and the First and Fourth Amendments? We’re talking about some venerable and hard-won protections in Anglo-American law, protections that have now been blithely nullified. (Watch for the September issue of The Freeman, with Joseph Stromberg’s examination of the history and present condition of the Fourth Amendment.)

According to the Washington Post, the Obama administration says it wants to clarify existing law so that national security letters can unambiguously include among the information demanded: “the addresses to which an Internet user sends e-mail, the times and dates e-mail was sent and received, and possibly a user’s browser history.”

Browser history? Could a browser history be used to build a criminal case against someone? “Electronic communication transactional records,” the undefined phrase that Obama wants added to the law, would not include the content of communications – or so say administration lawyers. After all that’s been going on of late, why should anyone believe that?

The legal clarification is said to be necessary because some Internet service providers refuse to turn over such information on grounds that doing so would violate the law, although most reportedly do.

Why not just get a warrant?

A national security letter, an administration official said, “allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient.”

This is a boilerplate rationalization – complete with the tied-hands trope — for unchecked executive power. It was the same excuse used to justify warrantless eavesdropping even though the FISA court expedites the obtaining of warrants. (This is not to say the FISA court is an adequate safeguard of civil liberties. It has functioned more like a rubberstamp than a real independent court.) If the powers that be had liberty among their priorities, they’d find a way to have a real court issue warrants quickly.

National security letters did not begin with the 9/11 attacks and the Patriot Act. They originated in 1978 but were used infrequently and were limited to suspected foreign agents directly under investigation. Institutions served with a letter could not be forced to comply. In the 1980s and ’90s the power was broadened: Targets no longer had to be foreign agents under investigation; the information sought merely had to be declared “relevant” to a terrorist investigation or intelligence operation. No “probable cause” is necessary. Compliance became compulsory. The 2001 Patriot Act expanded the power even more. (Some of the issues, such as the gag order, are being litigated thanks to the ACLU. Apparently there has been no final resolution.) As noted, that virtual blank check wasn’t enough for the FBI. For example, it often sought information unrelated to any existing investigation, and informal “sneak peaks” and “exigent letters” were used to get around the loose law when the FBI found it inconvenient.

Isn’t this the sort of thing that sparked that revolt against the British Empire?

One has to be concerned with how much the American people are willing to put up with nowadays. National security letters are not the only problem. Congress passed, a president signed, and the Supreme Court upheld a law forbidding Americans to give vaguely defined “material support” to government-designated foreign terrorist organizations, even if that support is nothing more than conducting a seminar on nonviolent conflict resolution for a group that directs none of its activities at Americans. (Ominously, Solicitor General and soon-to-be Supreme Court Justice Elena Kagan argued the case for the Obama administration. Chief Justice John Roberts chided her for refusing to acknowledge that the law infringes freedom of speech, which was otherwise okay with him.)

Moreover, last week the Washington Post documented the rise of “Top Secret America,” or what I’ve dubbed the “obscene feeding frenzy at the public trough” — namely the unbelievable expansion of the government’s costly and hopelessly complicated global surveillance apparatus. It may not make us safer — in fact it may be reading our emails — but it’s making a lot of people and contractors richer.

Are we so afraid that we are eager to trash irreversibly what’s left of our civil liberties? Is that what we have reduced ourselves to? Have we no sense of the ideals we have betrayed?

Those who know the movie A Man for All Seasons will be reminded of the scene in which Sir Thomas More and William Roper clash over the value of law as a check on the arbitrary government power. This might be a good time take More’s argument to heart.

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

In his new collection of essays, Black Rednecks and White Liberals, Sowell once again performs this task with great insight. The title essay, which opens the volume, shows that what passes for “black culture” in the United States, with its particular language, customs, behavioral characteristics, and attitudes toward work and leisure, is in fact a collection of traits adopted from earlier white southern culture.

Sowell traces this culture to several generations of mostly Scotsmen and northern Englishmen who migrated to many of the southern American colonies in the eighteenth century. The outstanding features of this redneck culture, or “cracker” culture as it was called in Great Britain at that time, included “an aversion to work, proneness to violence, neglect of education, sexual promiscuity, improvidence, drunkenness, lack of entrepreneurship, reckless searches for excitement, lively music and dance, and a style of religious oratory marked by rhetoric, unbridled emotions, and flamboyant imagery.” It also included “touchy pride, vanity, and boastful self-dramatization.”

Any commercial industriousness and innovation introduced in the southern states in the nineteenth and early part of the twentieth centuries, Sowell demonstrates, primarily came from businessmen, merchants, and educators who moved there from the northern and especially the New England states. The north generally had a different culture—of work, savings, personal responsibility, and forethought—that resulted in the southern United States lagging far behind much of the rest of the country—a contrast often highlighted by nineteenth-century European visitors.

The great tragedy for much of the black population, concentrated as it was in the southern states, was that it absorbed a great deal of this white southern redneck culture, and has retained it longer than the descendants of those Scottish and English immigrants. In a later chapter in the book, devoted to “Black Education: Achievements, Myths and Tragedies,” Sowell explains that in the decades following the Civil War, black schools and colleges in the south were mostly manned by white administrators and teachers from New England who, with noticeable success, worked to instill “Yankee” virtues of hard work, discipline, education, and self-reliance.

In spite of racial prejudice and legal discrimination, especially in the southern states, by the middle decades of the twentieth century a growing number of black Americans were slowly but surely catching up with white Americans in terms of education, skills, and income. One of the great perversities of the second part of the twentieth century, Sowell shows, is that this advancement decelerated following the enactment of the civil-rights laws of the 1960s, with the accompanying affirmative action and emphasis on respecting the “diversity” of black culture. This has delayed the movement of many black Americans into the mainstream under the false belief that “black culture” is somehow distinct and unique, when in reality it is the residue of an earlier failed white culture that retarded the south for almost 200 years.

A related theme that Sowell discusses in a chapter on “The Real History of Slavery” is that the institution of human bondage is far older than the experience of black enslavement in colonial and then independent America. Indeed, slavery has burdened the human race during all of recorded history and everywhere around the globe. Its origins and practice have had nothing to do with race or racism. Ancient Greeks enslaved other Greeks; Romans enslaved other Europeans; Asians enslaved Asians; and Africans enslaved Africans, just as the Aztecs enslaved other native groups in what we now call Mexico and Central America. Among the most prominent slave traders and slave owners up to our own time have been Arabs, who enslaved Europeans, black Africans, and Asians. In fact, while officially banned, it is an open secret that such slavery still exists in a number of Muslim countries in Africa and the Middle East.

Equally ignored, Sowell reminds us, is that it was only in the West that slavery was challenged on philosophical and political grounds, and that antislavery efforts became a mass movement in the eighteenth and nineteenth centuries. Slavery was first ended in the European countries, and then Western pressure in the nineteenth and twentieth centuries brought about its demise in most of the rest of the world. But this fact has been downplayed because it does not fit into the politically correct fashions of our time. It is significant that in 1984, on the 150th anniversary of the ending of slavery in the British Empire, there was virtually no celebration of what was a historically profound turning point in bringing this terrible institution to a close around the world.

Sowell also turns his analytical eye to the question “Are Jews Generic?” Why have Jews been the victims of so much dislike and persecution throughout the centuries? He argues that the answer can be found in understanding the trades and professions they often specialized in because of legal discrimination and restrictions. Denied the right to own land and other real property in many European countries, and excluded from many politically privileged occupations, they become merchants, middlemen, and financiers. The middleman and the merchant, Sowell explains, have often been the least understood and most mistrusted members in any market economy. They seem to create profit for themselves “merely” by moving goods from one place to another without producing anything “real.” Furthermore, as financiers they seem to earn interest at the expense of others while doing none of the “real work.”

Sowell shows that the same suspicions, angers, and resentments often directed at Jews through the centuries have also been the fate of Chinese traders and merchants in Southeast Asia, or Indians and Pakistanis who have specialized in these activities in Africa. They, like many Jews, have been the victims of persecution, plunder, and physical harm more because of how they earn a living than who they are per se. It is economic ignorance and envy of success that have generated hatred against minorities. And by giving vent to these prejudices, majorities have invariably harmed their own economic well-being by driving out or killing those who performed essential market tasks that benefited all.

In a chapter on “Germans and History,” Sowell challenges the conception that the Holocaust demonstrated something uniquely cruel and evil in the German people. Through the centuries, Germans were known for hard work, discipline, and skill in various specialized occupations and professions, and as respecters of the pursuit of knowledge and education. While anti-Semitism was an element of German society in the nineteenth and early twentieth centuries before Hitler came to power, in comparison to many eastern European nations, Germany was an example of tolerance and respect for civil liberties that attracted many Jewish families escaping from persecution in countries to the east.

To a dangerous extent, however, Germans fell victim to the ideologies of nationalism, socialism, and collectivism, which Hitler could play to in the years leading up to his gaining power in 1933. Sowell points out that while the Nazis were rabid in their hatred for Jews, through the 1930s Hitler had to carefully measure the degree to which he could violently persecute the German Jews without arousing the average German’s resistance to disorder and random violence. Also, during those years the Nazis often found it difficult to win the German people’s support for boycotting Jewish-owned businesses or breaking off social interactions with Jews. While the Nazi genocide of six million Jews was one of the great crimes of history, Sowell asks us to resist collectivist judgments and generalizations that detract from judging people as individuals.

In the concluding chapter on “History versus Vision,” Sowell pleads the case for letting history be free from bias, ideological agenda, or political manipulation.While every history is a story about man through the interpretive eyes of the historian, Sowell says that if we are to truly learn from history it should not be reduced to mere propaganda and political fashion.

The old restrictions on free speech were mostly confined to “commercial” speech, communications by businesses. That was bad enough. The new threat to civil liberties, Bernstein argues, comes from America’s sweeping “anti-discrimination” laws, and almost anyone might find himself in trouble for his speech or thoughts. “Intolerant activists are determined to impose their moralistic views on all Americans, regardless of the consequences for civil liberties,” Bernstein writes.

Before discussing the numerous ways this new threat shows itself, Bernstein takes on the preliminary question: Should the First Amendment take priority over the supposed need to stop discrimination? That might seem like a “no-brainer,” but there are quite a few scholars who disagree, contending that, as Bernstein writes, “First Amendment rights should be subordinated to anti-discrimination claims because the ‘constitutional value’ of equality as reflected in the Fourteenth Amendment is in tension with the First Amendment ‘value’ of freedom of expression.”

Bernstein quickly dispatches that argument. The Fourteenth Amendment only applies to government. When an individual says even the most flagrantly racist things, the First Amendment protects him from government sanctions — or should. The alleged “tension” between the “values” of the two amendments is merely a thin excuse for giving the state power to punish anyone who harbors the wrong sentiments. Going beyond the Constitution, though, Bernstein maintains that freedom of speech is too important to entrust to bureaucrats, judges, and those intolerant activists. “Although much private speech is wrongheaded or even dangerous,” he writes, “it is even more dangerous to put the government in charge of policing it.”

The book is loaded with cases that illustrate the author’s concerns. For example, when the San Francisco Ballet’s preprofessional school rejected applicant Fredrika Keefer because she did not have the body type expected for ballerinas, her mother sued on the basis of a city ordinance banning discrimination based on weight and height. Even though Fredrika was able to dance elsewhere, the irate mother took the matter before the San Francisco Human Rights Commission. At the time of the book’s publication, the case was still pending, but Bernstein skewers the whole controversy: “Properly interpreted, the Constitution’s protection of free expression from government interference bars San Francisco from legislating ballet standards.”

Several cases deal with bureaucrats’ attempts to punish individuals for opposing their plans for remaking the world. In one egregious case from the early 1990s, several people spoke out against a public-housing proposal in Berkeley. Personnel in the Department of Housing and Urban Development (HUD) warned them that under the federal Fair Housing Act, they could be fined up to $100,000 each and sentenced to a year in prison for acts of “discrimination against the disabled.”

Bad publicity over the prosecution caused HUD to back down, but then Assistant Attorney General Deval Patrick stepped in. Revealing the mindset of antidiscrimination zealots, Patrick drew an analogy between political leaflets and baseball bats, arguing that it would be as bad to use one as the other if your intent was to violate civil-rights laws. Fortunately, a federal judge tossed the case out, but it would be foolish to think that the wolf has been driven far from the door.

Bernstein concludes his book with a superb chapter on the American Civil Liberties Union. Once a formidable defender of First Amendment rights, in recent years the organization has largely succumbed to pressure from various “liberal” groups that want nothing to stand in the way of their agendas of increased state control.

Let me begin with a short account of a crime that had a victim. In the height of the Dinkins-era crime wave in New York City,* I arose early one morning and decided after saying my prayers to have a breakfast of bagels. Since the bagel shop was only about five blocks from where I lived, I put on my coat, walked out the door, and started my walk. At the corner, two youths appeared as if out of nowhere; one held the blade of a knife palpably to my throat and demanded my money — which, not being foolish, I quickly surrendered. The incident left me angry and humiliated and after regaining my composure, I immediately hailed a police car. The officers and I patrolled the area looking in vain for the youths who had mugged me; then they took me to the station house to view mug shots.

I realized then why eyewitness testimony is so often flawed: While I was sure I could have identified the youths on the street had we passed them in the car, the task of identifying them from the mug shots was hopeless. I just could not do it with any degree of confidence. I left the police precinct house dejected, dejected because the only hope for the criminals’ capture had been that ride in the patrol car. The victim’s early identification — when what was stolen was cash and when the weapon was an ordinary knife — was the last, best chance of the police’s making the arrest. I was both their first recourse and their last hope. I went away from the station house knowing that even if they were to be caught later for another offense, they would never be charged for the indignity and humiliation they had visited upon me.

This is, in essence, how it is with most crimes: The victim’s ability to identify the criminal by sight, sound, or even smell; the victim’s wounds and marks, if any; and traces of fibers and dropped materials in the victim’s surroundings provide the best shot at catching the criminal. In other words, the victim’s active help is critical to an arrest and a successful prosecution. (In the case of murder, the victim has stand-ins—his family and friends.) The victim also provides the push for an arrest and successful prosecution. Rarely are crimes solved without the cooperation and impetus of the victim, although there are, of course, exceptions.

Therein lies the problem with victimless crimes. Since there is no complainant, no one whom the outlawed behavior has violated, how is it to be reported and detected? How are misfeasors to be brought before the court, and how is the prosecution to be carried out? What impetus is there for a prosecution?

The answer historically has been twofold. First, the rules for the police have been relaxed—the drug exception to search-and-seizure procedures. Second, the government has stepped in in the place of the victim, acting as a willing participant in the crime only to turn on the other party later. These are what are called “sting” operations, and mostly they are used for victimless crimes. But the officers participating in the sting are not true victims; they have not been harmed. Indeed, they collect a paycheck.

The problems this leads to are legion. These officers have dual loyalties for the sake of which they may play the government for the fool as often as those involved in the drug trade. This begins with the practical necessity of alliances in both worlds and ends with the very real allegiances to and in both worlds. Officers may take bribes; they may participate in crimes—justifying it to themselves and sometimes their superiors by the necessity of establishing a rapport with the criminals they are after or with their organizations. Sometimes they even participate in real (non-victimless) crimes or watch silently as their confederates knock off each other or innocent others. They justify this participation or silence to themselves or their superiors by the need to stay quiet till they can identify and arrest “the big guys” — even though the non-victimless crimes are committed on the street by the little guys. Case building of this sort takes a lot of time and many officers because the moment the officers blow their cover and make a series of arrests, they lose the ability to track and detect future (victimless) crimes, to make future arrests, and to prosecute further cases. So the emphasis is always on casting a wide and deep net that will ensnare as many important perpetrators as possible. The many sordid things that happen while casting this net are among the costs of going after victimless crimes.

Victimless crimes, in summary, invite graft and corruption of all sorts and the suspension of civil liberties, because these are the only effective ways of combating this species of “crime.”