Wednesday, October 19, 2005

Which Branch of Government Threatens our Freedom the Most?

Joe Sobran has a good article, originally written in 1998, but as relevant today as then, dealing with legislative tyranny. I know Sobran can be a bit of a bigoted crackpot at times (more on that later), but he makes sense here (maybe it's because he is praising the late Henry Hazlitt, a libertarian). From his article:

In a democracy, where all sorts of groups demand legislation favoring themselves, laws are easy to pass and nearly impossible to repeal.

“Since its beginning,” Hazlitt observes, “Congress has enacted more than 40,000 laws. It is a fair assumption that most of these are still operative in some form.” He cites a 1968 study by a congressional staff that concluded that “no one, anywhere, knows exactly how many federal programs there are.”

The rate of legislation and spending is always accelerating to meet the demand for special favors. Hazlitt quotes Frédéric Bastiat’s dictum: “The State is the great fiction by which everybody tries to live at the expense of everybody else.”

The logic of the situation dooms us to constantly encroaching tyranny, not Stalin-style, but (I paraphrase Hazlitt loosely here) pain-in-the-butt style. The piling up of petty laws and regulations is bound to continue indefinitely, gradually choking off freedom of action — and eventually even freedom of speech and thought.

If you are one of those people who think it's "activist courts" and decisions like Lawrence or those protecting hard core pornography which are the primary threats to freedom and self government, then, pardon my French, you are a damn fool who can't see the forest for the trees.

It's the legislatures (expressing "the will of the people") who are the true threats to freedom, stupid, who "pil[e] up petty laws and regulations...bound to continue indefinitely, gradually choking off freedom of action — and eventually even freedom of speech and thought." In many of these supposed "activist" decisions, we have nothing more than the court striking down (or nullifying) a stupid law that impinges on liberty. Personally, I would defend the constitutional integrity of such decisions; but even if they are wrong, even if the court is acting "unconstitutionally" in striking down such legislation, the net outcome is no ones liberty is diminished and someone's liberty is advanced. Unquestionably, much of what the Federal legislature does is every bit as unconstitutional (from an originalist perspective). And the end result of the legislature acting unconstitutionally is many peoples' liberties are greatly diminished.

Now, it's possible for the Court to act in such a way that limits liberty, just as the legislature does. This is when the Court commands the other branches of government or orders the people to do or not to do X. Cass Sunstein, I do believe, has argued for this type of jurisprudence. The closest the Court, acting affirmatively, ever got to this was in the forced-busing cases. That's when the people really felt their liberty inconvenienced (metaphorically speaking, their pockets picked or their legs broken). And there was outrage, which most likely provoked the Court into giving up on such a fruitless quest.

However, the Court has through passive action (or restraint) has too often allowed for Congress to behave in such an unconstitutional manner (see Wickard and everything after it).

So what we need is 1) Congress to know its constitutional limits and not pass laws which violate the Constitution or repeal laws that otherwise do; 2) the President to know constitutional legislative limits and to veto any unconstitutional bill Congress tries to pass; and 3) (if we should get to step 3), the Court striking down such actions of Congress as unconstitutional. We need more judicial decisions striking down legislative laws, not less. In short, we need a more active judiciary.


cubic rooms said...

I have thought about this problem before. Laws almost never get rescinded and legislators pass new laws every session whether they are needed or not because that is what the voters expect. It is a never ending cycle. Very good article.

In reference to the comments (ads) ahead of mine: I have always imagined that the Framers intended to protect the free flow of ideas and dissent from popular opinions (or authority). I cannot imagine that the Framers intended for the rights they guaranteed us to be used to aggravate the shit out of other poeple. But I could be wrong.

Jonathan said...

Thanks. In re the spammers, I think privacy and property rights, not censorship, would be better used to tackle them.

porchwise said...

As the majority of our congressmen have law degrees, one would think they would think before introducing legislation that violates, even in a small way, constitutional law, but alas, through ignorance, pork barrel polices or other self-interest, they usually just ignore the constitution and seem to never worry about judicial implications. So I see getting past step one is about a century or four away.

Daniel said...

Characterizing decisions such as Lawrence as decisions against liberty is simply silly. Against self government? Maybe, at the margins.

But assessments of the Courts as the least dangerous branch tend to overlook the areas of criminal law and personal injury law. It is here that the Courts' full destructive power may be brought to bear.

If the government takes your life or your liberty (that is, all of it), that would probably be the judicial branch. OF course, we have many protections in this arena.

But if the government destroys you business or bankrupts you, chances are pretty good that it is the judiciary. When the legislative or administrative branch make rules, you have the right to know the rules in advance. But if you manufacture a product, you can follow every known rule, but a jury or judge may impose another requirement after the fact. Or if you want to attack an entire industry, look to the Courts.

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