The future of liberty is never assured, never bright. But, the clouds are as dark today as ever before. Yesterday, as you met to fortify yourselves for the never ending battle for liberty, President Clinton, in his weekly radio address to the nation, issued an order to Attorney General Reno: Within one week, present me with a plan for the overthrow of the Constitution of the United States. This appalling, one might well say treasonous, presidential order presents a terrifyingly appropriate backdrop to my discussion this morning of the future of liberty.
Human nature, perhaps especially the American nature, appears to predispose us to a view of history as a sequence of major, generally cataclysmic events which alter and define the setting and context of all subsequent events. In the history of liberty, from this perspective, one would identify, inter alia, the Magna Carta, through which the English nobility constrained the absolute power of the crown, the "Glorious Revolution of 1688," which established the primacy of parliament, the signing of the Declaration of Independence and the American Revolution, which established the right of a free people to "alter or abolish" any government destructive of the "unalienable Rights ... [of] Life, Liberty and the pursuit of Happiness," the adoption of the U.S. Constitution, in which the "People" defined and constrained, especially through the Bill of Rights, the powers of government, and the Civil War, at least to the extent that, through the Thirteenth and Fourteenth Amendments to the Constitution, slavery was ended and the conception of "unalienable rights" was universalized.
Related to this dramatic-event conception of history, but not dependent upon it, is a simplistic belief in progress through history. Each event, building on those which preceded it, is believed to represent an advance, an extension of the boundaries, a more perfect realization of some ultimate ideal. While that ideal may remain shrouded in the shadows, each event brings it into clearer relief.
A diametrically opposed view was developed in the 1950s and 1960s by a "radical incrementalist" school of political scientists and economists. As elaborated by Robert Dahl and Charles E. Lindblom in Politics, Economics and Welfare and in Lindlom's later books, especially The Intelligence of Democracy, cataclysmic events are the exception rather than the rule and are as likely to be regressive as progressive. True progress comes through a complex sequence of small steps, each taken in the attempt to solve one small problem or to achieve one "minor" objective.
Reality, I fear, may be best described by a perverse combination of these contrasting conceptions of history. Cataclysmic events are significant, but as likely for ill as for good; for each American Revolution, which extends the boundaries of liberty, there is a Russian Revolution, which dashes hopes for liberty, and even for life, of millions of human beings. In the political arena, small, incremental steps are significant, but they are as or more likely to erode as to extend liberty.
My intention, several weeks ago, was to focus these remarks on the last point, on the incremental whittling away of our fundamental liberties, even to the extent of not even mentioning more dramatic, cataclysmic events in the history of liberty. However, the tragic event of April 19th in Oklahoma City requires at least a digression. Certainly, the bombing of the federal building in Oklahoma City is not an event of the magnitude of the American or Russian Revolutions. However, it has at least the potential of ranking with the burning of the Reichstag in Berlin on February 27th, 1933, an event which, effectively and creatively exploited, led directly to Hitler's seizure of absolute power in Germany.
Erosions of liberty, whether in response to cataclysmic events or to the more mundane circumstances of daily life, have several cardinal characteristic in common: They represent the political establishment's cynical response to and manipulation of public fears, they are justified by their pretended contributions to the public's welfare and security, and they serve to extend the political establishment's powers and to cement its hold on these powers.
Nothing more effectively serves these purposes than a cataclysmic event or situation which terrorizes the public and for which an assignment of responsibility to an identifiable group, no matter how small or imaginary, is emotionally compelling, however superficial.
War, by depriving the enemy of all humanity, provides an ideal setting. While the battlefield may offer the only venue for confronting the true enemy, any domestic group which can be identified, however fraudulently, with the enemy becomes fair game. As surrogates for "the Hun," pastors of German-language churches became targets during World War I, although retribution was generally limited to the confiscation of German-script typewriters. The aftermath of Pearl Harbor was more chilling, as Americans of Japanese ancestry, as representatives of the "Yellow peril," were herded into internment camps for the duration of World War II.
After neither world war did the abuse of power end with the cessation of hostilities. The Red Scare of 1920 witnessed the wholesale violation of civil liberties, especially of immigrants accused of anarchistic tendencies. The emergence of the Cold War after 1945 permitted atrocious violations of civil liberties purely on the basis of real or alleged communist sympathies. Even within those ostensible citadels of intellectual freedom, the universities, including Harvard and the University of Michigan, witchhunts were conducted which had devastating consequences for the careers of many, not to mention for the integrity of academe and the vitality of academic discourse.
In none of these situations can it be claimed that any "legitimate" governmental purpose, however incidental, was served. The price, in loss of civil liberty, purchased nothing. Gus Hall, long-time chairman of the Communist Party of the United States, often joked that the membership dues of FBI infiltrators constituted the largest single source of revenue to the party. Yet, that infiltration contributed not at all to the detection of criminal activity. Soviet espionage certainly occurred, occasionally (but only occasionally) involving persons with deep-seated ideological commitments. But, when the party chief could joke about FBI surveillance, only a fool would have used the CPUSA as a base for espionage, and not one espionage prosecution resulted from the infiltration of the party by federal, state and local police agencies.
But, in all of these situations the political apparatus, in the name of domestic security, was able to seize powers which could be deployed, however illegitimately, not only against the acknowledged targets but against political enemies more generally. Witness the infiltration of the civil rights movement, under cover of investigating subversion but eventuating in what can only be characterized as outright political blackmail and extortion.
Perhaps more importantly, the spectacle of governmental wrath brought down upon these targets had a chastening effect on the population at large, and especially on those most likely to dissent. I well recall the cautionary admonitions of my professors in the early 1960s: "Keep your nose clean." "Keep your name out of FBI files if you want a government job or grant." What better state of affairs for the political apparatus: Equate independence and dissent with disloyalty, punish that disloyalty, and independence and dissent are quelled.
As the spectre of foreign threat has waned with the demise of communism, the political apparatus has creatively discovered, or created, a domestic surrogate, violent crime. Depending on the state of the economy, crime has come to rank either first or second among issues of greatest concern to voters. Although pollsters and pundits have confirmed the politicians' portrayal of the popular fear of crime, they have, unfortunately, failed to examine the basis for that fear, validating the politicians' cynical fanning of the flames of popular hysteria. Told often enough that they are terrorized by a rising tide of crime in America, people have come to believe it. And politicians outdo themselves, promising to make homes and streets safe for the beleaguered citizenry. Shortly before the last election Congress passed a $30 billion crime bill. While failing to mitigate the greatest electoral bloodletting in recent memory, just as it will fail to deter crime, that legislation fueled anti-crime rhetoric, as reflected in Republican efforts to amend the Crime Bill to mandate tougher state sentencing.
Having discovered an apparently effective political ploy, successful politicians have transformed hyperbole into action. Between 1970 and 1990 employment in the criminal justice system increased 120 percent, while total employment nationally increased only 50 percent. Criminal justice expenditure, in constant dollars, increased 140 percent, while real gross domestic product increased only 70 percent.
No segment of the crime system has enjoyed greater growth than corrections. Expenditure increased almost 320 percent, employment 275 percent. And growth has not ended: Michigan Corrections director Kenneth McGinnis has just received $200 million to continue the prison-building binge begun in the 1980s.
Federal, state and local governments certainly are jailing more people than ever before. The inmate population increased more than 280 percent between 1972 and 1992; the number of inmates in state prisons increased a phenomenal 350 percent. In contrast, the U.S. population grew only 22 percent. Thus, prisoners relative to population more than tripled, from 1.6 to 5 per 1,000.
While we truly are jailing vastly more people, it is not clear why. Although crimes reported to police are a very poor indicator of the prevalence of crime because of notorious underreporting, these reports indicate that violent and property crimes increased only 75 percent between 1972 and 1992. Interestingly, murder, the crime with the least reporting error, increased by only 27 percent, and the murder rate remained virtually constant at less than one per 10,000 people. Although reported rapes almost doubled, from 2.2 to 4.3 per 10,000 people, much of this growth reflects increased reporting.
Because of crimes unreported to the police, the Bureau of the Census conducts a confidential victimization survey for the Department of Justice. Focusing on crimes reported in these household surveys, the situation is even more surprising. Between 1973 and 1992 total crimes against persons, relative to population, declined 25 percent, as did rape. The property crime rate declined 20 percent. Only the motor-vehicle theft rate rose, about 20 percent.
In short, the least biased crime statistics suggest absolute declines in most crime rates, and even the most flawed fail to reveal a tidal wave of criminality. Either something is missing here, or the crime wave is imaginary.
In fact, something has been left out: Drug crime. I recently argued that our crime epidemic consists of drug and drug-related crime. I was wrong. It consists of, and only of, drug crime narrowly defined; drug-related crime has simply dampened overall declines in other crime rates.
Between 1980 and 1992, drug arrests almost doubled, from 580 thousand to 1.1 million, increasing the drug arrest rate from 2.6 to 4.3 per 1,000 people. The federal Drug Enforcement Administration alone increased its arrests from 16,000 in 1985 to 24,000 in 1992, while its convictions increased from 10,000 to 17,000.
Having established crime as the key to electoral success, politicians created a drug-crime reality conforming to the lurid imaginary picture which they have produced. In the process, they have transformed the personal tragedies of drug abuse into a massive social tragedy of burgeoning crime, overflowing prisons, a populace intimidated by imaginary criminals and by a truly threatening governmental apparatus, and a drug cartel reaping massive profits from its governmentally-protected monopoly.
For the political apparatus, this dubious achievement has been the key not only to electoral success but also to expanding social control. Under the guise of combating the scourge of illicit drugs, the populace at large has accepted and been cautioned and subdued by mushrooming confiscations of private assets, often with little pretense of due process. The DEA alone increased its asset seizures from $246 million in 1985 to $880 million in 1992.
If the arbitrary seizure of property is not sufficient to intimidate even the innocent, the threat of electronic surveillance may perhaps have the intended chastening effect. Fewer than one-half of the states report communications interceptions, but in those that do the reported number of intercepted communications increased from 550 thousand in 1980 to 1.6 million in 1992, while the number of these which were "incriminating" increased only from 165 thousand to 293 thousand. In other words, the number of "non-incriminating" communications intercepted by intrusive authorities increased from about 400,000 to 1.3 million.
The U.S. government's war on drugs, eagerly joined by the states, has been a disaster from which only politicians, bent on control, and drug king-pins, bent on profits, have benefited. And the common interest uniting these political-criminal classes has only further corrupted the political process and civil society.
In the aftermath of the World Trade Center and Oklahoma City bombings, "terrorism," foreign and domestic, has joined crime as a surrogate for the communist threat. Never mind that the wrong man is pursued a third of the way around the globe, just because he happens to have flown out of Oklahoma City on April 19th and, although a long-time resident of Oklahoma City, happens to be of Middle Eastern origin. For 24 hours hysterical calls for new powers to combat international terrorism were apparently considered by our political leaders to be legitimate responses to the tragedy. When the presumption of foreign perpetration collapsed, the establishment did not miss a beat in refocusing its overheated rhetoric on "domestic terrorism." Militias, organizations of "superpatriots," right-wing extremists, all joined (joined, not replaced) "foreign terrorists" as fair game in the cynical political exploitation of the tragedy.
And, again, the proposals for "decisive action" would accomplish nothing other than the destruction of our civil liberties: Expanded federal police powers, infiltration of domestic organizations and monitoring of communications and financial transactions purely on the basis of political belief and association, broadened domestic-security powers for the military, the vitiation of due-process rights (including authorization of "anonymous" testimony in judicial proceedings).
However great the threat to liberty posed by the political establishment's cynical manipulation of high-profile public fears and traumas, the minor exigencies of daily life have provided virtually inexhaustible grist for the liberty-pulverizing political mill. From the sublime to the ridiculous, there are no bounds on the public fears and insecurities to which an unbridled political apparatus is not prepared to respond. If you fear (or can be convinced that you fear) an atrocious haircut at the hands of an incompetent beautician or barber (or, in more modern parlance, unisex hair stylist), an incorrectly-wired nine-volt doorbell circuit, an inadequately-trained marriage counselor, ..., politicians will protect you by enacting laws which require the licensure of practitioners. Never mind that the beneficiaries are, first, the incumbents in these occupations (grandfathered regardless of competence), protected from competition by the legal barrier to entry, second, those authorized to train new entrants in preparation for licensure, who enjoy an assured market for their "education" and "training," and third, and most importantly, the politicians for whom the sale of "protection" (not from incompetence but from competition) is the primary source of their continued hold on power.
Lest you think that I exaggerate, several years ago the then-chairman of the Public Health Committee of the Michigan Senate opened a public hearing on a bill favorable to chiropractors. After hearing the pleas of the chiropractors, he adjourned the hearing and walked across Capitol Avenue to that preeminent lobbyists' den, the Michigan National Building, where he was the guest of honor and beneficiary of a fund-raising reception attended by the grateful visiting chiropractors. Later he resumed the hearing and favorably reported the chiropractors' bill to the full Senate.
While effective, from the vantage point of the political apparatus the buying and selling of legislated indulgences has a significant disadvantage: It is too much work. Each indulgence requires a law. Even with a "full-time" legislature there is a limit on the number of bills which can be introduced and passed. Never inclined to overexertion, the political establishment has engineered a substitute, "administrative law," characterized by Supreme Court Justice Felix Frankfurter as "this illegitimate exotic."
The development of administrative law was, to some extent, an inevitable consequence of legislative intrusion into ever wider domains of life. If, for example, licensure of barbers is to be required, a bureaucracy must be created to administer the law (determine whether legislated requirements have been met, issue licenses, approve training programs, ...). And if the courts are not to be overburdened by appeals of bureaucratic decisions, quasijudicial appeal procedures must be established within the bureaucracy. Hence administrative law.
However, legislative bodies quickly discovered that this process could be made much more efficient, simply by the expedient of passing vague, overarching laws and delegating responsibility for their interpretation and administration to a designated bureaucracy. In addition, administrative law has the advantage of presuming guilt rather than innocence and of permitting the evasion of judicially established standards of proof and requirements for due process. These "fine points" can be accommodated if an appellant survives, financially and physically, to the point of appealing an administrative decision to a "real court."
My erstwhile-Soviet friends used to comment that here, in the U.S., that which is not prohibited is permitted, but in the U.S.S.R. that which was not permitted was prohibited. (Of course, everyone in the Soviet Union was prepared to violate the law, although some, e.g., politburo members, could do so with greater impunity than others.) Administrative law has brought us into close conformity with Soviet standards.
Vague, overarching laws and administrative implementation have placed virtually all of us, in virtually all facets of our lives, at the mercy of administrative procedures. However, in these "courts" all are definitively not equal. While the formal appeal of administrative decisions is through the courts, the truly effective appeal is to the political apparatus. Ultimately, the bureaucratic apparatus is dependent upon the legislature for its sustenance, and "he who pays the piper calls the tune." Thus, a party dissatisfied with an administrative decision can appeal to the political apparatus for intercession.
Environmental laws provide classic examples of the working of this process. Wetlands laws, for example, give an administrative agency control over development of an indeterminate range of private properties, made determinate by arbitrary bureaucratic decisions which can be modified when a legislator desires to sell an indulgence to a particular developer. But, woe betide that poor person who becomes the example used to assert the "integrity" of the law and instill fear in his fellow men.
In fact, the opportunities for the political establishment are even greater, because private parties, with a political blessing, can use administrative law as a bludgeon against others to secure their own ends. For example, major solid waste operators buy up competitors after they are "softened up" by fines and penalties. In one case the major operator clinched the purchase after the previously mentioned Senate committee chairman secured an agreement under which the penalties were waived as part of the ownership transfer.
Prior to two years in Lansing a reference to protection rackets brought to mind gangster movies of the 1930s, in which a heroic restaurant owner or grocer stood up to a mob boss threatening arson (or worse), a young Marlon Brando in "On the Waterfront," confronting the hireling-thugs of the labor racketeers who controlled the Port of New York, or, more contemporaneously, the gift-wrapped head of a bob cat left on the hood of the automobile of an opponent of a toxic-waste injection well or vandalized equipment and a fire-bombed garbage transfer station in Greater Detroit. No longer. Now I think of Lansing, and the way in which virtually all of us are reduced to buying protection from those to whom we have granted power.
Nineteenth Century English libertarian Auberon Herbert characterized well the protection-racket state in which we find ourselves:
If you wish to understand the deadly influences of protection, if you wish for a practical example, look carefully at all the distorted and perverted growths of trade enterprise that exist in some protected countries, the unwholesome combinations, the universal selfish scramble, the poisonous mixture of politics and trade influences, the use of the state power to watch over and favor the great monied monopolies, the long endurance of the public that tolerates the vilest things at the hands of its politicians, and you will realize how deadly is every form of protection, ... [Auberon Herbert, The Right and Wrong of Compulsion by the State, Eric Mack, ed., Liberty Classics, Indianapolis, 1978, pp. 362-3]Thomas Jefferson commented that "the ground of liberty must be gained by inches." That is true, I fear, only in the negative sense, that the ground of liberty, when not lost in miles, is lost in inches. Tragically, even those inches have accumulated to miles. Several years ago I outraged my Reagan-inspired Russian friends by presenting an address, widely publicized in Moscow, entitled "The Failure of the Reagan Revolution," in which I argued that Reagan failed to roll back federal power because he attempted to do so by the same incremental means that had been employed to create the governmental behemoth we confront, while incrementalism can only produce the malignant expansion of government; more radical surgery must be employed in the face of that malignancy.
Libertarians have an obligation to lead in both the defense against the loss of further inches and in the radical action required to regain the miles already lost. The stakes are high. The Future of Liberty hangs in the balance.
Stephen P. Dresch, elected to the Michigan House of Representatives in 1990, was an unsuccessful 1992 Congressional primary candidate. A Ph.D. economist (Yale), he is former dean of Michigan Technological University's School of Business and Engineering Administration, research scholar at the International Institute for Applied Systems Analysis (Austria), chairman of the Institute for Demographic and Economic Studies, director of Yale University's program of Research in the Economics of Higher Education, and research associate of the National Bureau of Economic Research.