The Permission Society

How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It

Timothy Sandefur

• Publisher: Encounter Books
• Year: 2016
• ISBN:
  9781594038402
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politische Freiheit

Throughout history, kings and emperors have promised "freedoms” to their people. Yet these freedoms were really only permissions handed down from on high. The American Revolution inaugurated a new vision: people have basic rights to life, liberty, and the pursuit of happiness, and government must ask permission from them. Sadly, today’s increasingly bureaucratic society is beginning to turn back the clock and to transform America into a nation where our freedoms—the right to speak freely, to earn a living, to own a gun, to use private property, even the right to take medicine to save one’s own life—are again treated as privileges the government may grant or withhold at will. Timothy Sandefur examines the history of the distinction between rights and privileges that played such an important role in the American experiment, and how we can fight to retain our freedoms against the growing power of government. Illustrated with dozens of real-life examples—including many cases he litigated himself—Sandefur shows how treating freedoms as government-created privileges undermines our Constitution and betrays the basic principles of human dignity.

CHAPTER ONE

CHARTERS OF LIBERTY GRANTED BY POWER

IN 1792, in a short essay called “Charters,” James Madison succinctly explained what he thought was the essential difference between the United States Constitution and the constitutions of every other nation in history. “In Europe,” he wrote, “charters of liberty have been granted by power. America has set the example ... of charters of power granted by liberty. This revolution in the practice of the world may, with an honest praise, be pronounced the most triumphant epoch of its history.”¹

The “charters of liberty ... granted by power” that Madison had in mind were the celebrated documents of freedom that kings and parliaments had issued throughout the ages, many still honored today: Magna Carta of 1215, the English Petition of Right of 1628, the English Bill of Rights of 1689. Documents like these had made the British constitution – unwritten though it was – the freest in the world prior to the American Revolution. A British subject enjoyed more room to express his opinions, more liberty to do as he liked with his property, more security against government intrusion, and greater religious toleration than the subject of any other monarchy in the known world.

Yet for Madison and his contemporaries, that was not enough. He and his fellow patriots considered “charters of liberty ... granted by power” a poor substitute for actual freedom because however noble their words, such charters were still nothing more than pledges by those in power not to invade a subject’s freedom. And because those pledges were “granted by power,” they could also be revoked by the same power. If freedom was only a privilege the king gave subjects out of his own magnanimity, then freedom could also be taken away whenever the king saw fit.

Whether Parliament could repeal the charters of British freedom was a point of controversy among lawyers and political thinkers up to, and after, the muskets began firing at Lexington and Concord. The British judge William Blackstone, whose four-volume Commentaries on the Laws of England was published in the 1760s and became a landmark in legal history, was proud that Great Britain was foremost in the world in terms of respecting the rights God gave all people. Yet at the same time, he believed that Parliament’s power was “supreme” and “absolute”² and that, if it chose, it could change the rules of monarchical succession, alter the country’s religion, and “do everything that is not naturally impossible.”³ Parliament’s “omnipotence” was so vast that it had power over “[a]ll mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws.”⁴ Other thinkers, most notably John Locke, had argued that individual rights took precedence over government power, so that the people always retain the right to overthrow tyrannical rulers. But Blackstone rejected this idea because it “would jeopardise the authority of all positive laws before enacted.” As long as the British government exists, he wrote, “the power of parliament is absolute and without control.”⁵

The idea that Parliament’s “absolute” power included a right to revoke protections for individual rights repelled America’s founders. They believed that people are inherently free and that government answers to them, not the other way around. James Wilson, a signer of the Declaration of Independence who served alongside Madison at the Constitutional Convention, pointed out that if Blackstone was right in thinking that freedom is given to people by all-powerful rulers, then the “undeniable and unavoidable” consequence would be that “the right of individuals to their private property, to their personal liberty, to their health, to their reputation, and to their life, flow from a human establishment, and can be traced to no higher source.” That would mean that “man is not only made for, but made by the government: he is nothing but what society frames: he can claim nothing but what the society provides.”⁶ The fundamental problem with the monarchical idea of charters of liberty granted by power was that freedom could then only consist of those rights the king chose to grant and only for so long as he chose to grant them.

This was not just a theoretical problem. Monarchs often revoked “charters of liberty” after granting them. Even the glorified Magna Carta was repudiated not long after it was issued, and many kings refused to acknowledge its authority. Perhaps the most notorious example of the fragility of such charters came from France. In 1598, King Henry IV issued the Edict of Nantes, promising religious toleration to Protestants. For decades, Protestants and Catholics had murdered one another, most infamously in the St. Bartholomew’s Day Massacre of 1572, during which unknown thousands were slaughtered. Henry himself was spared only when he converted to Catholicism. (Three decades later, he was assassinated anyway, after more than a dozen attempts on his life.) Although the Edict proclaimed Catholicism the national religion, it also allowed Protestants to “live and abide in all the cities and places of this our kingdom ... without being annoyed, molested, or compelled to do anything in the matter of religion contrary to their consciences,” so long as they complied with the secular laws. This, Henry proclaimed, would “leave no occasion for troubles or differences between our subjects.”⁷

The Edict remained in place for nearly a century – until 1685, when King Louis XIV revoked it and proclaimed Protestantism illegal. Faced with new rounds of persecution, as many as 400,000 French Protestants fled to Britain, Sweden, and the North American colonies. Among them was Apollos Rivoire, whose son, taking the Anglicized name Paul Revere, became a leading Boston patriot. The revocation of the Edict terrified the Protestants of Great Britain, too; that country’s king was also a Catholic, and they feared he might imitate the French monarch.

British kings often betrayed their past promises. In the years after 1660, King Charles II and his successor, James II, sought to reorganize the North American colonies and bring them more directly under the Crown’s control. This, they hoped, would ensure that the colonists produced more profit for the mother country. Charles II decreed that what is now Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut would be reorganized as a new “Dominion of New England” governed by a single man who answered solely to the king. New York and New Jersey were soon added.

In 1684, Charles’s agent, Edmond Andros, and Andros’s aide, Joseph Dudley, arrived to take control of the new Dominion. They dismissed the Massachusetts colonial assembly and instituted autocratic rule, jailing those who resisted and rejecting the colonists’ assertions of British liberties. “You have no more privileges left you than not to be sold as slaves,” Dudley told one prisoner who asserted his right to a fair trial under Magna Carta.⁸ Andros and Dudley’s autocracy ended only when James II was overthrown in the Glorious Revolution of 1688. New England colonists, learning of the rebellion, immediately arrested the pair and sent them back to England. Only three years after the Dominion had been proclaimed, it was dissolved and the old colonies restored.

Almost a century later, good Massachusetts men like John Adams still seethed at the memory. George III’s ministers, Adams wrote in 1775, were “but the servile copyers of the designs of Andross [and] Dudley [sic].”⁹ Adams had good cause for this allegation: in the Declaratory Act of 1766, Parliament had asserted that it had authority to legislate for the colonies “in all cases whatsoever.”¹⁰ Some colonists viewed that act as essentially repealing Magna Carta. When it came time to declare independence, Adams and the other revolutionaries listed among Parliament’s malefactions “taking away our Charters, abolishing our most valuable Laws, ... altering fundamentally the Forms of our Government, ... suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”¹¹ Americans had learned that royal “charters of liberty” were pie crust promises, which crumbled all too easily.¹²

Even after the Revolution, the founders were so skeptical of paper pledges of rights that the Constitution’s authors initially demurred when Americans demanded that it be amended to include a Bill of Rights. In their view, such “parchment barriers” typically proved useless in times of crisis, because those in power could so easily revoke them, ignore them, or argue them away. Better to focus instead on designing a government that would include checks and balances and other structural protections to prevent the government from acting tyrannically. Even when they agreed to add a Bill of Rights, they remained convinced that freedom could never be secured solely through written promises.

To them, freedom was not a privilege the state provides but a birthright the state must protect. George Mason put this point succinctly in June 1776, when he wrote in the Virginia Declaration of Rights that “all men are by nature equally free and independent and have certain inherent rights,” which include “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”¹³ Government does not give people these rights – people already have them, and the people “cannot, by any compact, deprive or divest their posterity” of these rights. Thomas Jefferson would make the point even more concisely a month later, when he wrote in the Declaration of Independence that “all men are created equal” and are “endowed” with “inalienable rights,” which include “life, liberty, and the pursuit of happiness.” Government exists “to secure these rights,” not to grant them, and if it turns instead to destroying those rights, “it is the right of the people to alter or to abolish” that government.

Freedom Is Not Permission

These phrases are not mere rhetoric. They express a profound and elegant political philosophy. To understand it, we must begin with a basic presumption or default position. Logicians, lawyers, and laymen use such presumptions as the foundation for any argument. Presumptions of the “when in doubt do x” variety serve as starting points for any sort of discussion or agreement, so that we know where to go in the event that the agreement or argument fails. These sorts of “default rules” surround us every day. Many subscription services, for example, require people to opt out of annual renewal; unless they unsubscribe, the company presumes at the end of the first year that users want to pay for a second. These defaults are not set in stone, of course – the subscriber can decline the second year if he wants – but as a rule of thumb, it makes things easier by placing the burden on the subscriber to refuse a second year, rather than on the company to ask again after the first.

As this example suggests, choosing who bears the burden can have important consequences. If we start from a flawed initial position, we risk a dangerous and costly error. A subscriber who forgets to cancel might be surprised to see the second year’s charge appear on his bill.

Choosing an initial presumption is extremely important in the realm of politics or law, where the stakes are much greater. When we establish a presumption or a starting point for a political or legal argument, we are choosing what the normal rule will be, in the absence of good reason to deviate or in the event that we make a mistake. The obvious example is criminal law: courts presume a defendant to be not guilty and place the burden on prosecutors, which means that if the prosecutor fails to persuade the judge, or makes a mistake, the accused person is free to go.

In discussing politics, there are two possible candidates for an initial presumption. We might presume in favor of totalitarianism – everything is controlled by the government, and citizens must justify any desire to be free – or we can presume in favor of liberty and require anyone who proposes to restrict freedom to justify that restriction. Either everything is allowed that is not forbidden, or everything is forbidden that is not allowed. As Professor Richard Epstein observes, there is no third, middle-ground option, because there is no obvious midpoint between the two extremes: people will bicker endlessly about what qualifies as exactly halfway.¹⁴ So we must start by presuming either in favor of freedom or against it.

Yet these two candidates for starting points are not mirror images, and their differences are crucial. The differences are both procedural and substantive.

As a matter of procedure, starting with a presumption in favor of freedom is preferable because each step people take away from a state of liberty can be justified in theory by measuring whether they are better off. When two people sign a contract, they bind themselves, and in that sense are less free. But they consider themselves better off, and that is good enough, as long as they harm nobody else. It is not so easy to justify the reverse – a movement from a state of total unfreedom to one that is freer – because each step affects far more people. The totalitarian state is frozen solid, so that every action inflicts consequences on everyone else, and the slightest deviation from rigid order must therefore receive the approval of everyone affected. This means it is not always possible to determine whether people are better off at each step when they move in that direction. This, writes Epstein, “is why the restoration of even modest elements of a market system seem to pose such radical problems for Eastern European and Third World nations.”¹⁵

The point becomes clearer when we think about an individual: a free person can choose to become less free – he can sign contracts that limit his future choices, can voluntarily give up certain rights, or can surrender property he once could have used – but an unfree person cannot choose to become more free. Precisely because he starts out with no freedom, his capacity to choose alternatives for himself has vanished. He must ask his master for permission instead. This is why the road between freedom and unfreedom usually moves in only one direction. As Jefferson said, the “natural progress of things is for liberty to yield, and government to gain ground.”¹⁶

There is a deeper procedural reason why it is better to presume in favor of freedom than against it. The liberty presumption rests...