For those neophytes who have never heard of Spooner, let me simply quote Murray Rothbard’s description from the September 1974 Libertarian Forum: “[H]e was undoubtedly the only constitutional lawyer in history to evolve into an individualist anarchist,” and “of all the host of Lockean natural rights theorists, Lysander Spooner was the only one to push the theory to its logical—and infinitely radical—conclusion: individualist anarchism.”

The table of contents of Steve Shone’s book outlines the major areas of political philosophy and economics about which Spooner wrote: Natural Law, Private Mail, and Property; Poverty and Economics; Political Obligation; Jury Nullification; Slavery; and Religion, Morality, and the Legal Profession.

Spooner’s concern with natural law and justice manifested itself in his lifelong arguments against slavery; government monopolization of money, credit, and the post office; government licensure of lawyers and restrictions on juries; taxation; seizure and confiscation of private property; and government interference with the natural laws of intellectual property.

Just one example will suffice to demonstrate Spooner’s unique interpretation of the U.S. Constitution and the natural right of human beings to use their property peacefully as they see fit. Before Spooner’s own private postal delivery company was harassed and put out of business by federal authorities in 1844, he published “The Unconstitutionality of the Laws of Congress Prohibiting Private Mails.” In it he noted that the Constitution did not grant Congress a sole and exclusive right to establish post offices and post roads. In other words, the power given to Congress did not allow it “to forbid similar establishments by the States or the people.”

Furthermore, Spooner noted that no branch of the government had ever questioned the right of American citizens to mint their own gold coins so long as they did not attempt to imitate current coins of the United States. Spooner argued it was just as much a common-law right to deliver private mail entrusted to one’s care as it was a right “to weigh and assay pieces of gold and silver, mark upon them their weight and fineness, and sell them for whatever they bring, in competition with the coin of the United States.”

Although the author bills his work as “the first full-length work devoted to the ideas of Lysander Spooner,” Spooner’s writings are so extensive and comprehensive that some of his most important commentaries are not mentioned. One, reminiscent of Spooner’s famous No Treason series, is the appendix to his 1852 book, Trial By Jury. This short, seven-paragraph addendum epitomizes Spooner’s outlook on the nature of government, even before the citizens of the southern states were beaten into submission by federal armies and navies. Spooner wrote:

It was a principle of the Common Law . . . that no man can be taxed without his personal consent. The Common Law knew nothing of that system . . . of assuming a man’s own consent to be taxed, because some pretended representative, whom he never authorized to act for him, has taken it upon himself to consent that he may be taxed. . . .

. . . Taxation without consent is as plainly robbery, when enforced against one man, as when enforced against millions; . . . Taking a man’s money without his consent, is . . . as much robbery, when it is done by millions of men, acting in concert, and calling themselves a government, as when it is done by a single individual, acting on his own responsibility, and calling himself a highwayman. Neither the numbers engaged in the act, nor the different characters they assume as cover for the act, alter the nature of the act itself. . . .

. . . The government’s pretence of protecting him, as an equivalent for the taxation, affords no justification. It is for himself to decide whether he desires such protection as the government offers him. If he do not desire it, or do not bargain for it, the government has no more right than any other insurance company to impose it upon him, or make him pay for it.

For anyone interested in the antecedents of contemporary libertarianism and individualism, Lysander Spooner: American Anarchist is a good place to start. Be prepared to meet a man whose ideas are radical.

I’m afraid it was an unrealistic hope. You can say many good things about the Founding Fathers, but these gentlemen fell short in one critical way: The Constitution they drafted contains no significant intellectual impediment to the endless growth of government; that is, it does not explain what’s wrong with too much government. If anything, it goes in the opposite direction, inviting politicians to use the federal government to address everything. This invitation stands in the preamble, where after noting government’s obvious jobs—“establish Justice” (a court system), “insure domestic Tranquility” (armed forces to put down riots), “provide for the common defence” (armed forces to take care of foreign invaders)—the drafters added that government’s function was also “to promote the general Welfare.”

This phraseology may not have had much importance in 1787, when communication about national issues was limited. In modern times, however, the mass media turn every human need into a national problem that can be said to affect the general welfare: unemployment, wages and working conditions, medical care, education, food production, science, natural disasters, and so on. Following the lead of the preamble, lawmakers feel justified in using government to address every one. The result is a big and ever-growing government.

What Else Is There?

What’s the way to stop this drift? For the answer, we need to examine the logic that drives governmental growth. The modern argument for government involvement looks like this:

1. Problem X affects the general welfare;

2. Government is the only institution that can address national problems;

3. Therefore, government has to address X.

Notice how the argument depends on statement 2, that government is the only answer. If you accept that assumption, then you are pretty much bound to agree that government has to be involved. Not to agree makes you look cruel and insensitive, unwilling to fix the nation’s problems. And it doesn’t matter how badly government has performed in the past. Those urging more government concede that government is wasteful, often inept, and corrupted by special interests. But that doesn’t affect their position. “We’ve got to do something,” they say. “After all, what else is there?”

Well there is something else, but we often overlook it because it’s not big, imposing, and centralized like government. It’s the millions of independent thinkers and doers who each day strive to make the world around them a better place, working individually, and joining together with friends and neighbors, in groups, churches, associations, and businesses. We can call this problem-solving system the private sector, or civil society, or the voluntary sector.

Although we often don’t stop to realize it, this collection of independent actors is working to address just about every national problem you can think of. Take disaster relief. On this subject standard political logic has taken us to a big-government solution. Hurricanes and earthquakes certainly affect the general welfare; therefore, we say, government must step in. So we end up with the Federal Emergency Management Agency. Many agree that this massive bureaucracy is inept and wasteful, but if you suggest closing it down people say, “We have to have it. When disaster strikes, we can’t just sit by and do nothing.” That’s the fallacy of assuming only government can solve problems.

When disaster strikes, the fact is that millions of individuals react in constructive ways. The people immediately affected do much to take care of themselves and their families. Neighbors pitch in to help neighbors. Businesses sell—or donate—needed supplies. Churches send aid and volunteers. Voluntary groups in other regions take up collections and send supplies. Businesses rebuild. Philanthropists support reconstruction projects. This vast multitude of helping hands is a disaster-relief system. The same is true for other problems: education, working conditions, medical care, and so on. The private sector can and does address all of these issues.

Its biggest enemy, the entity standing in the way of this vital, intricate system of private, voluntary action is . . . government! It undermines the private sector in three ways:

1. Resources. Government’s taxation drains wealth from the private sector. Every dollar government puts into its programs comes, directly or indirectly, from individuals, businesses, and groups that would have used their resources to do what the government agencies try to do.

2. Regulations. Government’s rules and regulations are, like taxation, a burden on the private sector. Every minute someone spends filling out a government form is a minute he cannot use to help a neighbor.

3. Motivation. Private action is prompted by the belief that we make a difference. When people assume government is supposed to solve problems, it weakens their motivation to help themselves, and it weakens their inclination to reach out and solve problems in their communities.

In conclusion, if the Founding Fathers had wanted to block the drift toward big government, they should have written a preamble that extolled the virtue of the private sector, perhaps like this:

We the people of the United States of America,

recognizing—

That the general welfare is promoted by individuals, families, neighbors, and societies freely striving to improve the condition of mankind,

And further recognizing—

That government action often counteracts their independent, creative activities;

Do hereby establish a government which shall establish Justice, insure domestic Tranquility, and provide for the common defence.

President Woodrow Wilson pulled America into World War I based on bogus idealism and real fear-mongering. Evocations of fighting for universal freedom were quickly followed by bans on sauerkraut, beer, and teaching German in government schools. H. L. Mencken observed in 1918: “The whole aim of practical politics is to keep the populace alarmed and hence, clamorous to be led to safety—by menacing it with an endless series of hobgoblins, all of them imaginary.” In Mencken’s time he was often considered cynical. Subsequent developments have proven Mencken to be a prophet.

The Democratic Party relied heavily on the fear card in the 1920 presidential race. On the eve of the November vote that year Democratic presidential candidate James Cox declared: “Every traitor in America will vote tomorrow for Warren G. Harding!” Cox’s warning sought to stir memories of the “red raids” conducted in 1919 and 1920 by Attorney General A. Mitchell Palmer, during which thousands of anarchists, communists, and suspect foreigners were summarily jailed and in many cases deported. The American people rejected Cox and embraced Warren Harding’s promise of a “return to normalcy.”

President Franklin Roosevelt put “freedom from fear”atop the American political agenda in his 1941 State of the Union address. But FDR’s political legacy—especially Social Security—has institutionalized fear-mongering in presidential and congressional races. Democrats perennially portray Republicans as planning to yank life support from struggling seniors.

For almost 50 years American politicians have used television ads to spur dread, most famously in the 1964 “Daisy” ad for Lyndon Johnson’s campaign. The ad showed a young girl, in the words of Jim Rutenberg in the New York Times, “picking the petals off a daisy before the screen was overwhelmed by a nuclear explosion and then a mushroom cloud and Mr. Johnson declared, ‘These are the stakes.’” The ad did not specifically claim that Barry Goldwater, the Republican nominee, would annihilate the human race, but the subtle hint wafted through. Though this ad only aired once, it instantly became a legend.

Whipping up fear was the flipside of President Bill Clinton’s “feeling your pain” political style. Clinton fanned people’s fear of guns, militias, and life without medical insurance. At the same time, the Clinton administration stretched the power of government on all fronts—from concocting new prerogatives to confiscate private property to championing FBI agents’ right to shoot innocent Americans to bankrolling the militarization of local police forces. Clinton was the Nanny State champion incarnate, teaching Americans to look to government for relief from every peril of daily life—from unpasteurized cider to leaky basements. As long as the President seemed to care about average Americans, his abuses were largely forgotten. (The 1996 Republican presidential candidate, Sen. Bob Dole, also promised to provide voters with “freedom from fear” via untying “the hands of the police.”)

Fear and Bush

The 2004 race was the most fear-mongering presidential campaign in modern American history. In his acceptance speech at the Republican National Convention, George W. Bush referred to terror or terrorism 16 times. Bush reelection campaign television ads showed firemen carrying a flag-draped corpse from the rubble at Ground Zero in New York and a pack of wolves coming to attack home viewers as an announcer warned that “weakness attracts those who are waiting to do America harm.” (One commentator suggested that the ad’s message was that voters would be eaten by wolves if John Kerry won.) Just before Election Day a senior GOP strategist told the New York Daily News that “anything that makes people nervous about their personal safety helps Bush.” People who saw terrorism as the biggest issue in the 2004 election voted for Bush by a 6 to 1 margin. Moises Naim, editor of Foreign Policy, observed that the Bush campaign was “using the fear factor almost exclusively. This is a highly researched decision with all the tools of public opinion management. It’s nothing but a reflection that it works.”

Bogus terror alerts might have made the difference in the 2004 election. Robb Willer of the Sociology and Small Groups Laboratory at Cornell University examined the relationship between 26 government-issued terror warnings reported in the Washington Post and Bush’s approval ratings. “Each terror warning from the previous week corresponded to a 2.75 point increase in the percentage of Americans expressing approval for President Bush,” Willer concluded. Bush beat Kerry by 2.4 percentage points in the popular vote. Former Homeland Security chief Tom Ridge later admitted that many of the 2004 alerts were unjustified. The Cornell study also found a “halo effect”: Americans’ approval of Bush’s handling of the economy also rose immediately after the announcement of new terror warnings, Willer reported. Apparently the more terrorists were allegedly poised to attack America, the better job Bush was doing.

Voters in 2004 could choose whether they would be killed by terrorists if they voted for Kerry or whether they would be left destitute and tossed out in the street if they voted for Bush. Boston University professor Tobe Berkovitz commented to the Washington Post: “It’s not surprising that both campaigns are looking for the leverage point: scaring the hell out of the American public about what would happen if the other guy wins.” But the more an election is about fear, the more the winner will presume to be entitled to all the power he claims to need to combat the threat.

In his 2005 State of the Union address Bush declared: “We will pass along to our children all the freedoms we enjoy. And chief among them is freedom from fear.” The Founding Fathers would have derided the notion of politicians giving citizens “freedom from fear.” And they would have denounced the notion that this new-fangled freedom is superior to the freedoms the U.S. government had pledged to respect for more than 200 years.

After promising freedom from fear a politician can always invoke polls showing widespread fears to justify seizing new power. The natural result of making freedom from fear the highest freedom is that any policy that reduces fear can be portrayed as pro-freedom. Bush claimed that to keep Americans safe he had to suspend habeas corpus and detain any suspected terrorist in perpetuity based solely on his unproven assertions. Bush authorized the CIA to use waterboarding and other methods of torture on detainees. He ordered the National Security Agency to launch a massive illegal wiretapping program that eavesdropped on thousands of Americans’ phone calls and emails without warrants. Yet Bush remained a great champion of freedom—at least in the eyes of his supporters.

The political mass production of insecurity is a dominant trait of our age. The easiest way for rulers to destroy the leashes the Constitution imposed on them is to make voters think they must choose: “We can obey the Constitution or we can prevent you from all being killed. What is it going to be?”

Rising fear can also undermine the freedom of speech that is a bulwark against government abuse. To the extent people desperately cling to faith in the leader to save them from all perils, they develop an intolerance to anyone who points out government follies or falsehoods. The Bush 2004 reelection campaign did all it could to fan such intolerance. Stumping around the nation for Bush, former New York City police commissioner Bernie Kerik told audiences in the final months of the campaign: “Political criticism is our enemy’s best friend.” As criticism is suppressed government becomes more incorrigible. Eventually the mistakes that could have been corrected cheaply early on become catastrophic national failures.

Fear and Obama

President Obama has picked up the fear-mongering relay baton with his attempts to frighten Americans about health care, global warming, economic collapse, and government shutdowns. Obama has also invoked the fear card to sanctify bombing bad guys anywhere and everywhere.

Government fear-mongering creates a downward politico-psychological spiral. The more fearful people become the more gullible they will be. British philosopher John Stuart Mill warned in 1842: “Persons of timid character are the more predisposed to believe any statement, the more it is calculated to alarm them.” It is almost irrelevant whether 10 or 20 or 30 percent of the citizenry can see through government’s fraudulent warnings. In a democracy as long as enough people can be frightened, all people can be ruled.

In the same way that some battered wives cling to their abusive husbands, the more debacles the government causes the more some voters cling to rulers. The craving for a protector drops an iron curtain around the mind, preventing a person from accepting evidence that would shred his political security blanket. In the days after the 9/11 attacks polls showed a doubling in the number of people who trusted government to “do the right thing.” The media fanned this blind faith—as if trust in government was the high road to public safety. The Bush administration exploited the trust to unleash itself at home and abroad, and the nation is still paying the costs of its post-9/11 infatuation with government.

Bogus fears can produce real servitude. The Founding Fathers expected the American people to bravely stand up for their rights if their rulers trampled the law. Citizens cannot cower on cue without forfeiting any possibility of keeping government on a leash. If this nation is to have a rebirth of liberty, it must begin with a rebirth of courage.

So here is a very good book of its kind. Some problems lie, however, in the teleology, optimism, and undemonstrable assumptions that mark the genre to which it belongs—that is, the literary form that John Rao irreverently calls “founderology.” Forewarned, we know how things must unfold: zealous, gifted statesmen with a superior Continental Vision struggled against “provincial” stupidity, “power,” and “interest.” Anti-constitutional skeptics acted out of “fear” or “old republicanism,” while nationalists acted (mostly) out of reasonable concerns and timely ideas, and with an eye to economic growth.

Much like his “plain, honest” founders, Beeman (professor of history at the University of Pennsylvania) frequently invokes “THE people” and the sovereignty residing in them. Without further analysis the second notion seems of no more use than Cuba’s “ultimate sovereignty” over Guantánamo Bay. As for “THE people,” one thinks of historian Edmund Morgan’s claim that founder-in-chief James Madison “invented” the (singular) American people. This is true enough in a way but raises the question whether Madison had any business doing so. Nationalists apparently conceived the People—not yet fully existing as one—as prime matter needing the form the framers wished to supply. The whole business confuses words, relations, and things, reverses itself as needed, and ends with nationalist ideology taking the board.

Elsewhere, Beeman is realistic about the clauses counting three-fifths of slaves in figuring representation in the House and forbidding Congress to end imports of slaves before 1808. The latter provision was cold-bloodedly traded for allowing Congress to pass navigation acts by ordinary majorities. Despite later complaints in New England (whose intellectuals—different ones—invented both abolitionism and the pro-slavery ideology), there was no chance that the Convention would address slavery in ways that would please modern people.

Beeman stresses turning points in the Convention but also misses some. One he misses is Hamilton’s defense on June 19, 1787, of the Convention’s right to violate the representatives’ instructions in such a great emergency (see Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of the American States, 1927, 776ff., which, if nothing else, foretells his later construction of such constitutional mysteries as the Necessary and Proper clause.) Beeman also overlooks the creative writing of Gouverneur Morris (the biggest wheel on the Committee of Style), who later admitted working his own ideas into Article III on the judiciary (see Wythe Holt, “The First Federal Question Case,” Law and History Review, 1985, 187-189). If committee men could amend the draft, why debate and vote on the details?

Throughout, Beeman slides past conceptual traps like divided sovereignty, only to concede their problematic character in the last several chapters. See, for example, his discussion of the preamble—as improved by Morris—where dropping the names of the states (just after “We the People”) “seemed to suggest that the people of the nation possessed that sovereign power” claimed by the states. Yet Beeman clearly sees that changes in already ambiguous language may not entirely resolve things.

Beeman skirts some telling remarks made in the Convention. The “intemperateness” of Martin, Lansing, Paterson, Bedford, Gerry, and Mason seems insufficient ground for dismissing as mere provincial error the serious questions those critics raised. “Mason railed against the separate existence of a ‘federal territory’ predicting that it would become a ‘sanctuary of the blackest crimes.’” Surely not!

I will now add my two cents. On June 9, 1787, William Paterson of New Jersey observed, “We are met here as the representatives of 13 independent, sovereign states, for federal purposes. Can we consolidate their sovereignty and form one nation, and annihilate the sovereignties of our States who have sent us here for other purposes?” Well, could they? Hamilton’s integral nationalism, Madison’s incoherent divided sovereignty, and John Taylor of Caroline’s anti-Federalist (that is, anti-nationalist) republicanism have given answers. We are overrun with “original intentions” and interpretations of them. Still, it may be that continued (and peaceful) relations among 13 concrete political societies did not require nearly as much structure as certain framers hoped to supply. If so, Taylor may yet have the last laugh.

Such accounts do not have to be and usually aren’t downright false. The writers need only select the “right” facts to create the desired impression.

The task of historians who understand that the pro-State accounts are misleading is difficult, requiring not just that they write differing, corrective narratives, but also that they fend off the inevitable reaction that they are doing something “unpatriotic” in undermining belief in the saintliness of our government.

In this book Jeff Riggenbach introduces his readers to revisionist historians who have sought to change the way Americans understand their history. If you have never heard of Charles Beard, Harry Elmer Barnes, James Martin, William Appleman Williams, or other revisionists, the book will inform you how they came to reject the conventional view of our history and the impact of their work.

Consider first the Constitution. Most Americans believe that the nation was facing a crisis under the Articles of Confederation, so a group of wise and public-spirited men assembled to draft a much better and indeed nearly ideal plan of government. Revisionists have punctured both of those notions. There was no crisis under the Articles, and as for the Constitution, its somewhat vague language did not—and perhaps was not meant to—prevent the reemergence of a government that could assist favored commercial interests. History professor Arthur Ekirch wrote that the Constitution provided “a skeleton for the further development of a strong paternalistic state.”

What about the Civil War? The standard view is that the states of the Confederacy acted illegally in seceding from the Union and did so to preserve slavery. If you accept that, the war looks justified. Beard and Williams, however, saw things differently. Williams argued that “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.” Regarding slavery, Beard observed that abolition had never appeared in the platform of any major political party and few northern citizens cared about it, much less wanted war over it.

American involvement in World War I has also come in for a great deal of criticism from revisionists. The pro-State line is that President Woodrow Wilson had to bring the United States into the war to keep the vicious Germans and Austrians from crushing the peaceful, democratic Allies, and that mission was brilliantly accomplished. Harry Elmer Barnes, among others, thought the prowar, pro-Wilson adulation was absurd. Moreover, it took Americans’ attention away from the fact that the war had caused a shocking deterioration of liberties we had always taken for granted.

Okay, but World War II (“the good war”) is certainly above question—right? No. A number of revisionists maintain that the Roosevelt administration contrived to put the Pacific Fleet in Hawaii as bait for the Japanese (a top-ranking admiral was sacked when he complained about moving it from San Diego to Pearl Harbor), made diplomatic moves in November 1941 intended to provoke the Japanese, and gave the commanders in Hawaii no warning of the likelihood of an attack.

Revisionists have similarly taken a skeptical view of the Cold War, Vietnam, and Iraq. Nor have their efforts been limited to challenging pro-State justifications for war. Some have worked to correct conventional beliefs about our economic history, especially the Depression and the New Deal.

A remarkable fact about the revisionists is that although they come from different political philosophies (Riggenbach groups them as “Progressive,” “New Left,” and “Libertarian”), they have come to conclusions that are quite consistent. State power is predatory and harmful, except to some special interests. No, the Progressives, new leftists, and libertarians don’t agree on everything, but there’s more commonality than you might expect, particularly when it comes to war.

Riggenbach argues that the terms “left,” “right,” “liberal,” and “conservative” themselves need revision. Those terms arose from the French national assembly following the overthrow of Louis XVI, where deputies who wanted to conserve the old order of strong governmental control mostly sat on the right side, while those who advocated more individual liberty sat on the left. Therefore, he argues, we currently have two “conservative” parties since both Democrats and Republicans mostly want to maintain the statist, corporatist status quo.

An enlightening and provocative book.

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.)

To the Editor:

I was belatedly reading in the November 2003 issue of Ideas on Liberty when I came across something that caught my eye. This was the statement in George Leef’s book review of Pieces of Eight by Edwin Vieira, Jr., claiming that the Constitution defined a dollar as 371.25 grains of fine silver. I could not recall ever seeing such a definition in my admittedly dilettantish studies of this document. As the statement was even referenced to a specific portion of the constitution, Article I, Section 9, clause 1, it was a simple matter to quickly check the reference. This confirmed that the matter detailed here was that there should be no prohibition by Congress of migration or importation of persons (slaves) prior to 1808.

The only reference to coining money in the Constitution is the authorization to Congress “To coin Money and regulate the Value thereof and of foreign Coin” in Article I, Section 8. There is also the prohibition for the States to “coin Money . . . [or] make any Thing but gold or silver Coin a Tender in Payment of Debts” in Article I, Section 10. (Regrettably, no such prohibition was given to the federal government.)

As neither of these portions of the Constitution codifies the specific value of a dollar in terms of silver content, I was wondering if this notion was an error of the author or of the reviewer? Could you shed any light on this matter?
—R. R. SCHOETTKER
By e-mail

George Leef replies:

My thanks to R. R. Schoettker and the other readers who caught my mistake. The legal definition of the dollar as a coin with 371.25 grains of pure silver is in the Coinage Act of 1792. See http://landru.i-link-2.net/monques/coinageact.html.

Social Security Reform Can Be Less Paternalistic

To the Editor:

John Attarian argues in “Is Social Security Reform Paternalistic?” (The Freeman, January/ February 2004) that plans to replace or reform Social Security with a system of compulsory private pensions are “far from being advances,” and are at least as paternalistic as Social Security. His arguments, though, are puzzling.

By calling Social Security “paternalistic,” Attarian means that it takes away the individual’s responsibility to provide for one’s retirement and thus encourages individuals to give less thought to the future, treating them like feckless children rather than responsible adults. Attarian is clearly right about this, but a compulsory private system — for example, such as proposed by the Cato Institute — significantly increases the amount of freedom to plan for one’s retirement and increases one’s responsibility to make such decisions.

In a private system, one has a property right in one’s pension, which one lacks in the pay-as-you-go system of Social Security, and thus one gets to choose, within limits, how to invest one’s contributions, and within limits, how to receive the results of one’s contributions during one’s retirement. Of course, a compulsory private system is not a voluntary, purely libertarian, retirement system, since it forces the individual to contribute to a pension savings account and prevents the individual from making certain savings and investment decisions, but the issue at hand is whether a compulsory private system is better than Social Security, not whether it is the best system or the least paternalistic system. The only place I can find in Mr. Attarian’s article where he tries to refute the argument that a compulsory private retirement system increases freedom and responsibility compared with Social Security is when he says that the compulsory private systems are “messier” than Social Security. This may be true, in that a system where there is zero freedom to decide what happens with your payroll taxes may be less messy than a system where one has a right, hedged with restrictions, to choose how to invest one’s contributions. However, the issue isn’t a quasi-aesthetic judgment about messiness, but rather which system gives people more freedom to plan their lives and their retirement and in that sense treats them more like competent adults.

I have written this letter, not merely because I am puzzled by Mr. Attarian’s argument, but because the matter is a very important one. Unless Mr. Attarian thinks Social Security will simply collapse and that a purely libertarian system will arise out of its ashes, libertarians need to come up with a feasible liberty-increasing alternative to Social Security and other major welfare-state programs. A system of private compulsory savings and insurance is one such alternative that has been elaborated and defended by a number of libertarian writers (including me; see the forthcoming “The Moral Case for a Market-Based Retirement System” in Social Security and Its Discontents, ed. Michael Tanner, Cato Institute) and fellow travelers. If Mr. Attarian has a better feasible alternative, I and other readers of The Freeman would be quite interested in learning about it.
—DANIEL SHAPIRO
dshapiro@wvu.edu
Associate Professor of Philosophy
West Virginia University

I was very puzzled by John Attarian’s article on Social Security reform. Social Security is roughly 24 percent of the money going into the politicians’ hands in Washington. We are talking real money here, over $500 billion annually. Why do you think the Washington establishment is fighting reform proposals with personal retirement accounts (PRAs)? PRAs are about real political power and real political change.

Giving each worker more control and ownership over their retirement assets is key to decentralizing power away from Washington. Once every worker has savings in the capital markets of our country, it will make a world of difference. . . .

Real savings in PRAs, with the miracle of compound interest, will give all Americans the ability to create real wealth. Taking those funds out of the hands of the politicians and putting them into workers’ individual accounts will be a big step forward for freedom. Yes, it is not a perfect world, with each individual having complete control over his or her life. But it is a big step in the right direction. . . .
—BOB COSTELLO
bobcostello89@hotmail.com
President, SocialSecurityChoice.org

John Attarian replies:

I did not make an “aesthetic” judgment about “messiness,” simply a judgment of the obvious fact that these schemes of forced saving and investment are more paternalistic than Social Security because the government is meddling and exerting control in many more ways: the decision to save; the forced saving of tax money; where the savings may be invested; how long the investments are to be held; when they may be drawn on; how much one may receive; and in what form (lump sum, annuity, etc., etc.). This is obviously far more, and far worse, micromanagement of one’s life than Social Security undertakes. My image of the hovering mother overseeing Billy’s every move is quite accurate.

As for a feasible alternative, given the political realities I think the most we can hope for is to phase Social Security out. The Social Security Act should be repealed, and with it the payroll tax, which was intended to create a mentality of entitlement and make the program untouchable. Social Security should be converted to a rigorously meanstested benefit financed out of general revenue for those born before 1965. The younger generations, born after 1965, should be fully on their own, free to make their own arrangements for old age with fully voluntary IRAs, which should be totally tax-free as compensation for their loss of all claims to Social Security benefits.

Since this essay was first presented at the historic Chautauqua Institution in 1995, the federal government has grown in size and scope. Today Congress spends nearly $4 trillion, the federal share of GDP has risen to 25 percent, and the U.S. debt exceeds $12 trillion. Washington has bailed out financial, insurance, and automobile firms while also taking control of the mortgage market. We are now more dependent on government for our health care, pensions, and future than ever before.

Politicians thrive on using other people’s money and promising free lunches. The growth of government has politicized life and weakened the nation’s moral fabric. Government intervention—in the economy, the community, and society—has increased the payoff from political action and reduced the scope of private action. People have become more dependent on the State and have sacrificed freedom for a false sense of security.

One cannot blame government for all of society’s ills, but there is no doubt that economic and social legislation, especially since the mid-1960s, has had a negative impact on individual responsibility. Individuals lose their moral bearing when they become dependent on government. Subsidies, bailouts, and other aspects of the “nanny state” socialize risk and reduce individual accountability. The internal moral compass that normally guides individual behavior will no longer function when the State undermines incentives for moral conduct and blurs the distinction between right and wrong.

More government spending is not the answer to our social, economic, or cultural problems. The task is not to reinvent government or to give politics meaning; the task is to limit government and revitalize civil society. Government meddling will only make matters worse.

If we want to help the disadvantaged, we do not do so by making poverty pay, restricting markets, prohibiting educational freedom, discouraging thrift, and sending the message that the principal function of government is to take care of us. We do so by eliminating social engineering and all kinds of welfare, cultivating free markets, and returning to our moral heritage.

At the beginning of the twentieth century there was no welfare state as we know it. Fraternal and religious organizations flourished. Total government spending was less than 10 percent of GDP, and the federal government’s powers were limited.

Immigrants were faced with material poverty, true, but they were not wretched. There was a certain moral order in everyday life, which began in the home and spread to the outside community. Baltimore’s Polish immigrants provide a good example. Like other immigrants, they arrived with virtually nothing except the desire to work hard and to live in a free country. Their ethos of liberty and responsibility is evident in a 1907 housing report describing the Polish community in Fells Point:

A remembered Saturday evening inspection of five apartments in a house [on] Thames Street, with their whitened floors and shining cook stoves, with the dishes gleaming on the neatly ordered shelves, the piles of clean clothing laid out for Sunday, and the general atmosphere of preparation for the Sabbath, suggested standards that would not have disgraced a Puritan housekeeper.

Yet, according to the report, a typical Polish home consisted “of a crowded one- or two-room apartment, occupied by six or eight people, and located two floors above the common water supply.”

Even though wages were low, Polish Americans sacrificed to save and pooled their resources to help each other by founding building and loan associations, as Linda Shopes noted in The Baltimore Book. By 1929, 60 percent of Polish families were homeowners—without any government assistance.

Dependent Not Self-Reliant

Today, after spending billions of dollars on anti-poverty programs since the mid-1960s, Baltimore and other American cities are struggling for survival. Self-reliance has given way to dependence and a loss of respect for persons and property.

The inner-city landscape is cluttered with crime-infested public housing and public schools that are mostly dreadful, dangerous, and amoral—where one learns more about survival than virtue. And the way to survive is not to take responsibility for one’s own life and family—which government intervention makes more difficult through occupational licensing, the minimum wage, and other impediments to self-help—but to vote for politicians who have the power to keep the welfare checks rolling.

Dysfunctional behavior now seems almost normal as people are shot daily and births out of wedlock are common. (The replacement of Aid to Families with Dependent Children with Temporary Assistance to Needy Families, as a result of the welfare reform during the Clinton administration, was a bipartisan recognition of the perverse incentives under AFDC. ) In addition to the moral decay, high tax rates and regulatory overkill have driven businesses and taxpayers out of the city and slowed economic development. It’s not a pretty picture.

In sum, the growth of government and the rise of the “transfer society” have undermined the work ethic and substituted an ethos of dependence for an ethos of liberty and responsibility. Virtue and civil society have suffered in the process, as has economic progress.

The Founding Fathers recognized that the nature of government is force, and they sought to limit its use to the protection of life, liberty, and property. Markets, both formal and informal, could then be relied on to bring about economic prosperity and social harmony.

In a free society the relationship between the individual and the State is simple. Thomas Jefferson said it well: “Man is not made for the State but the State for man, and it derives its just powers from the consent of the governed.” The fact that the Founders never fully realized their principles should not divert attention from the importance of those principles for a free society and for safeguarding the dignity of all people.

From a classical-liberal perspective, the primary functions of government are to secure “the blessings of liberty” and “establish justice”—not by mandating outcomes, but by setting minimum standards of just conduct and leaving individuals free to pursue their own values within the law. The “sum of good government,” wrote Jefferson, is to “restrain men from injuring one another,” to “leave them . . . free to regulate their own pursuits of industry and improvement,” and to “not take from the mouth of labor the bread it has earned.”

The Jeffersonian philosophy of good government was widely shared in nineteenth-century America. Indeed, Jeffersonian democracy became embodied in what John O’Sullivan, editor of the United States Magazine and Democratic Review, called the “voluntary principle” or the “principle of freedom.” In 1837 he wrote, “The best government is that which governs least . . . . [Government] should be confined to the administration of justice, for the protection of the natural equal rights of the citizen, and the preservation of the social order. In all other respects, the voluntary principle, the principle of freedom . . . affords the true golden rule.”

During the nineteenth century most Americans took it for granted that the federal government has no constitutional authority to engage in public charity (to legislate forced transfers to help some individuals at the expense of others). It was generally understood that the powers of the federal government are delegated, enumerated, and therefore limited, and that there is no explicit authority for the welfare state. From a classical-liberal, or market-liberal, perspective, then, the role of government is not to “do good at the taxpayers’ expense,” but “to prevent harm.”

The general-welfare clause of the Constitution cannot be used to justify the welfare state. That clause simply states that the federal government, in exercising its enumerated powers, should exercise them to “promote the general welfare,” not to promote particular interests. The clause was never meant to be an open invitation to expand government far beyond its primary role of night watchman.

Yet “Progressives” who sought to use government to do good (with other people’s money) overtook the vision of limited government. “Public charity” gradually became the norm. Unlike private charity, however, government transfers always involve coercion or the threat of force. Doing good with other people’s money without their consent is not a virtue but a vice—or, rather, a crime.

The transformation of the framers’ constitutional vision began with the Progressive Era, accelerated with the New Deal, and mushroomed with the Great Society’s war on poverty, which created new entitlements and enshrined welfare rights. Today, more than half the federal budget is spent on entitlements—the largest being Social Security, Medicare, and Medicaid. The newly passed health insurance legislation will add fuel to the fire of the welfare state. The $100 trillion in unfunded liabilities in Social Security and Medicare will place a heavy burden on future generations.

Freedom from Responsibility

During the transition from limited government to the welfare state, freedom has come to mean freedom from responsibility. Such freedom, however, is not true freedom but a form of tyranny, which creates moral and social chaos.

The modern liberal’s vision of government is based on a twisted understanding of rights and justice—an understanding that clashes with the principle of freedom inherent in the higher law of the Constitution. Welfare rights, or entitlements, are “imperfect rights,” or pseudo-rights; they can be exercised only by violating what legal scholars call the “perfect right” to private property. Rights to welfare—whether to food stamps, public housing, health care, or business subsidies—create a legal obligation to help others. In contrast, the right to property, understood in the Lockean sense, merely obligates individuals to refrain from taking what is not theirs. For the modern liberal, justice refers to “social (or distributive) justice”—an amorphous term, subject to all sorts of abuse if made the goal of public policy, as F. A. Hayek has aptly noted in The Constitution of Liberty and other writings. As a norm for action, the concept of “social justice” leads to uncertainty and competition for government favors. The result is bigger government and corruption. The cost of the pursuit of social justice is the loss of freedom. Instead of creating certainty by limiting the range of government actions under a just rule of law, the modern “liberal” State has produced discord. Indeed, when the role of government is to do good with other people’s money, there is no end to the mischief government can cause.

Many Americans seem to have lost sight of the idea that the role of government is not to instill values but to protect those rights that are consistent with a society of free and responsible individuals. Everyone has a right to pursue happiness, but no one has the right to do so by depriving others of their liberty and their property.

When democracy overreaches, there is no end to the demands on the public purse, and the power of government grows. The Founding Fathers sought to create a republic with limited government, not an unlimited democracy in which the “winners” are allowed to impose their will and vision of the good society on everyone else. In such a system politics becomes a fight of all against all, like the Hobbesian jungle, and nearly everyone is a net loser as taxes rise, deficits soar, and economic growth slows.

Bankrupt in Every Way

Most voters recognize that the welfare state is inefficient and has a built-in incentive to perpetuate poverty. It should be common sense that when government promises something for nothing, demand will grow and so will the welfare state. That has clearly been the case with health care spending under Medicaid and Medicare—and it will be the case with Obamacare. For all the money spent on fighting poverty since 1965, the official poverty rate has remained roughly the same, about 14 percent. Government waste is only part of the problem; the welfare state is also intellectually, morally, and constitutionally bankrupt.

Intellectually bankrupt. It is intellectually bankrupt because increasing the scope of market exchange, not welfare, is the viable way to alleviate poverty. The best way to help the poor is not by redistributing income but by generating economic growth and removing impediments to self-help and mutual aid. Poverty rates fell more before the war on poverty when economic growth was higher.

The failure of communism shows that any attenuation of private property rights weakens markets and reduces choice. Individual welfare is lowered as a result. The welfare state has attenuated private property rights and weakened the social fabric. When people look to government to provide retirement income, health care, mortgage guarantees, and various business subsidies, private initiative gives way to collectivist thinking. Economic decisions become politicized, and people lean more and more on government.

Morally bankrupt. In addition to being inefficient and intellectually bankrupt, the welfare state is morally bankrupt. In a free society people are entitled to what they own, not to what others own. Yet under the pretense of morality politicians and advocacy groups have created rights out of thin air. The rights to education, health care, housing, a minimum wage, and other “necessities” are now deemed sacrosanct. Politicians have become the high priests of the new State religion of welfare rights and self-proclaimed “benefactors” of humanity. If there is a problem—any problem—Congress is there to solve it, regardless of whether the Constitution gives it the power to do so.

The truth is, “the emperor has no clothes.” Politicians pretend to do good, but they do so through coercion not consent. Politicians put on their moral garb, but there is really nothing there. Government benevolence, in reality, is a naked taking. Public charity is forced charity, or what the great French liberal Frédéric Bastiat called “legal plunder.”

Constitutionally bankrupt. The welfare state is also constitutionally bankrupt; it has no basis in the framers’ constitution of liberty. By changing the role of government from a limited one of protecting persons and property to an unlimited one of achieving “social justice,” Congress, the courts, and presidents have broken their oaths to uphold the Constitution.

In contrast Congressman Davy Crockett, who was elected in 1827, told his colleagues, “We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right to appropriate a dollar of the public money.”

Polls show that most Americans distrust government and that more young people believe in UFOs than in the future of Social Security. Those sentiments express a growing skepticism about the modern welfare state. President Obama’s election does not mean most Americans have abandoned the principles of the Constitution and are in a rush to move toward a socialist state. What can be done to meet the challenge of safeguarding freedom?

What Can Be Done

First and foremost, we need to expose the intellectual, constitutional, and moral bankruptcy of the welfare state. We need to change the way we think about government and restore an ethos of liberty and responsibility. The political process will then be ready to begin rolling back the welfare state.

Although Americans have grown accustomed to the welfare state, its disappearance would strengthen the nation’s moral fabric and reinvigorate civil society. We should end the parasitic State—not because we want to harm the poor, but because we want to help them help themselves.

The federal government has become bloated and unable to perform even its rudimentary functions. It is awash with debt and is endangering America’s future. The collapse of communism and the failure of socialism should have been warning enough that it is time to change direction.

It is time to limit the size and scope of government and to get the State out of the business of charity. Private virtue, responsibility, and benevolence can then grow naturally along with civil society—just as they did more than 150 years ago when Alexis de Tocqueville wrote in his classic Democracy in America:

When an American asks for the cooperation of his fellow citizens it is seldom refused, and I have often seen it afforded spontaneously and with great good will. . . . If some great and sudden calamity befalls a family, the purses of a thousand strangers are at once willingly opened, and small but numerous donations pour in to relieve their distress.

The role of government in a free society is not to legislate morality—an impossible and dangerous goal—or even to “empower people”; the role of government is to allow people the freedom to grow into responsible citizens and to exercise their inalienable rights.

The modern liberal’s idea of “good government” has divorced freedom from responsibility and created a false sense of morality. Good intentions have led to bad policy. The moral state of the union can be improved by following two simple rules: “Do no harm” and “Do good at your own expense.” Those rules are perfectly consistent in the private moral universe. It is only when the second rule is replaced by “Do good at the expense of others” that social harmony turns into discord as interest groups compete for scarce resources at the public trough.

The first, Race & Liberty in America, is an anthology edited by Jonathan Bean, a professor of history at Southern Illinois University. It includes dozens of selections, from 1776 to today, arguing eloquently for colorblind equality before the law and against slavery, Jim Crow, and racial preferences (affirmative action). Fittingly, Bean also includes much from the immigration context. (Bean earlier authored another important book in this area, Big Government and Affirmative Action: The Scandalous History of the Small Business Administration.)

In his introduction, “Civil Rights and Classical Liberalism,” Bean notes that, given the domination today of “the politically correct view that left-wing liberals or radicals completely dominated the struggle for racial freedom,” it is no surprise that “classical liberals are the invisible men and women of the long civil rights movement.” Bean illuminates their role in the fight against government discrimination.

Some of the names and selections in the book are unsurprising. There are several pieces by Frederick Douglass, for example, and the “I Have a Dream” speech by Martin Luther King, Jr. But there are also some surprises, like the excerpts from Warren Harding, Calvin Coolidge, and Herbert Hoover. Most of the pieces pertain to the oppression of blacks, but there are several excellent ones regarding government discrimination against Asians, especially the Chinese. The point is unmistakable: Those who hold a principled belief in liberty oppose all government oppression.

Especially useful are the selections Bean includes that show how the business community, so often accused of being in favor of racial discrimination, often opposed it. A series of letters regarding imposed segregation in trolley cars, for example, proved to be an eye-opener.

Bean balances readable and relatively short excerpts with intelligent commentary in the introductions. The big message of the book is that many of our great thinkers shared the vision that equality and progress will result from freedom, not the heavy and coercive hand of the State.

That’s also the thrust of Dred Scott’s Revenge: A Legal History of Race and Freedom in America by Andrew Napolitano, a former New Jersey state judge and frequent commentator on the Fox News Channel. Napolitano claims in his introduction, “The real culprit throughout our racial history has been the government,” and his book accordingly documents and condemns a variety of bad government policies and actions from the colonial era to today.

Freeman readers will not be surprised to hear that governments, rather than the private sector, have been the most systematic and powerful purveyors of racism and discrimination. (This theme is both explicit and implicit in Bean’s book as well.) Conversely, slavery, Jim Crow regulations, and our current mania for racial preferences would have been much more difficult or impossible under a system that limited government power to its proper defensive functions and maximized individual freedom.

In other ways, too, there is considerable overlap in the two books. Both Napolitano and Bean abhor racial discrimination as not only unconstitutional but deeply immoral as well.

Despite the fact that I’m sympathetic to Napolitano’s instincts, I cannot recommend his book for a number of reasons. He believes courts should ignore the Constitution if it is inconsistent with the judge’s view of what natural law requires, which is an endorsement of judicial activism. His historical arguments conflate the failure of federal government intervention with active discrimination. And sometimes Napolitano tries to get by with assertion where proof is called for.

So the cost-conscious libertarian (is there any other kind?) should purchase Bean’s book rather than Napolitano’s. To be fair, no matter how persuasive Napolitano’s opinions were, they would not be as valuable as the treasury of original sources that Bean has compiled. Napolitano himself—as well as Shelby Steele, Richard Epstein, Linda Chavez, Stephan Thernstrom, and Ward Connerly, among many others—favorably blurbs Bean’s book, calling it “a history buff’s dream,” and he’s right.

Let’s start by acknowledging that there is no question whatsoever that the sale and use of narcotics in our country could be virtually eliminated. It could be accomplished at a monetary cost far less than the hundreds of billions spent so far in the nation’s “war on drugs.” We could suspend habeas corpus and constitutional guarantees against unreasonable searches to more easily gather evidence on people who use or sell drugs. We could make those arrested bear the burden of proof of innocence and on conviction summarily execute them. Countries with far less wealth and far fewer police resources than ours have used that strategy to reduce drug use, and so could we. Thankfully, I think most Americans would, and should, recoil in disgust at that kind of drug-war strategy. So we have to examine less draconian measures. A few thoughts on the economics of drug trade might give us guidance.

There’s no mystery why people use mind-altering drugs: It makes them feel good, at least temporarily. That’s not only true of cocaine, heroin, and marijuana; it’s also true of mind-altering products like cigarettes, cigars, coffee, tea, wine, and whiskey. There’s considerable evidence that many people prefer their vices in a diluted form. Hence the popularity of filtered cigarettes, light beer, wine coolers, and mixed drinks. The same seems to be true, at least to some extent, about illicit drugs.

When what are seen as vices are legally prohibited, supply responses change people’s behavior. Imagine there’s a supplier of illegal marijuana. Government steps up its efforts to stop its supply by increasing interdiction efforts, along with stiffer fines and prison sentences. Which is easier to conceal and transport—a million dollars’ worth of marijuana or a million dollars’ worth of cocaine? Obviously, it’s cocaine because there is far less bulk per dollar of value. Thus one effect of prohibition is the tendency toward increased sales and use of more-concentrated forms of drugs that can include products such as crack cocaine, ice, and meth.

Another impact of prohibition is on prices. To supply the addiction needs of those who are not able to pay the prohibition-induced higher prices of cocaine, producers will seek to find cheaper substitutes such as crack. This is borne out by the fact that crack is far more popular among poorer addicts than wealthier ones.

Invitation to Make a Killing

Illegality, high prices, and high profits, coupled with greater government drug-interdiction efforts, also encourage entry by suppliers who are more ruthless and innovative, and who have a lower regard for civility and the law. Panty-waisted, petty, and otherwise law-abiding practitioners are ousted. In addition, since the courts are unavailable to enforce agreements made among traders, as in the case of legal transactions, disputes are more likely to be settled through violence.

Yet another supply response to prohibition, largely ignored in the drug debate, is the inevitable tendency toward corruption of public officials. Today’s drug trade, like the Prohibition liquor trade, could not flourish without official corruption. It’s not difficult to see how police officers, customs inspectors, and other law-enforcement officers earning $50,000, $60,000, or $70,000 a year could succumb to the temptation of $5,000 or $10,000 bribes to look the other way. No doubt there are elected officials who are also tempted by bribes. Even otherwise law-abiding nondrug-using parents are quieted by money and expensive gifts from their children who are involved in the drug trade.

The war on drugs restricts supply and raises prices. When one drug operation is busted up, another one emerges virtually overnight to take its place. When the DEA, FBI, and local police make a big drug bust, law-abiding citizens should not be jubilant. Instead, they should expect higher prices, leading to more ruthlessness among drug users and buyers, more crime and corruption, and greater social costs.

Sanctioning Civil Rights Abuses

Another very dangerous cost of the war on drugs is that it has given respectability to the violation of our constitutional guarantees. Civil-forfeiture laws have been enacted, in clear violation of the Fifth Amendment, under which property can be confiscated without due process. A parent can have his automobile or house confiscated if, even when unbeknown to the parent, his offspring uses it in connection with drug use or sales. Anti-money-laundering laws violate our rights to privacy in our transactions. Murderers and rapists have been freed from crowded prisons to make room for nonviolent drug users.

From the demand, or personal use, side of the drug issue, what should we do? Lysander Spooner (1808–1887), one of the great American thinkers of the nineteenth century, suggested that while vices may be self-destructive or offensive, like all peaceful, voluntary activities they should remain outside the province of law and government. The vices Spooner referred to include “gluttony, drunkenness, prostitution, gambling, prize-fighting, tobacco-chewing, smoking and snuffing, opium-eating, corset-wearing, idleness, waste of property, avarice, hypocrisy, etc., etc.” Spooner added that if practitioners of these and other vices cannot be reformed voluntarily, if they go on to what other men call destruction, then they must be permitted to do so. He reminds us that the maxim of law is there can be no crime without criminal intent to invade the property or person of another.

People practice vices for what they perceive as their own happiness—not to violate the rights of another. In a free society people have the right to destroy their own lives but not those of others. When government coercion is used to promote virtue, there cannot be liberty. However, there is conduct that people might engage in under the influence of narcotics, such as impaired driving, robbery and burglary to fund their habit, and other acts that threaten the rights of others. Such acts are already criminal and should be punished.

We Americans have to ask ourselves if there is a better way to deal with the drug problem. I think there is. We need to focus more on the demand side of the drug problem. After all, most people don’t use marijuana, cocaine, and heroin. The reason they don’t has nothing to do with its price or the fact it’s illegal. Their decision has much more to do with their values and common sense. Rather than near-exclusive reliance on the law and government, I believe greater and longer-lasting gains can be made through civil society, where we can cajole, admonish, and teach people about the destructive effects of narcotics—and ostracize them if necessary.

It is foolhardy to have a public policy that forces people hell-bent on destroying their own lives to become violent criminals and destroy the lives of innocents in the process. It is also foolhardy for society to create circumstances in which official integrity is compromised and our constitutional guarantees are violated.