As government expands, the social fabric that supports the less fortunate disintegrates. We become more isolated and alienated from one another, and less willing to cooperate with each other, help those in need, or assist our neighbors and communities. This in turn gives government an excuse to assert even more responsibility over our daily lives.
THE RISING COSTS OF THE WELFARE STATE
Despite some successful reforms, the expansive welfare state is assuming more and more of the role that our Founders reserved for churches, community organizations, and private philanthropy. This trend threatens the health and ultimately the survival of our robust and dynamic civil society.26
Expansive government rapidly becomes expensive government, and that requires new and higher taxes. The transfer of money from citizens to the bureaucracy then further weakens civil society and leads to even more expansive and even more expensive government.
The effort to finance Big Government through higher taxes is a direct assault on civil society, and the “death tax” is a prime example. This tax, which is in a constant state of flux and was resurrected in 2011 after effectively disappearing in 2010, falls especially hard on small business. That sector contributes immensely to America’s social and economic dynamism, often acting as the cornerstone of community organizations and local philanthropy. Entrepreneurs and shopkeepers are community leaders and, when prosperous, are generous with their time and money. Prosperity and generosity are highly correlated, as those with more to give feel obliged to give more.
Take Sukup Manufacturing in rural Iowa. This family-owned business helped build the local playground, swimming pool, and childcare center, and helps maintain the senior citizen center, local church, and Boys and Girls Club. But when its founder dies someday, the federal estate tax will likely force the family to sell the business to pay the hefty tax bill, erasing overnight the Sukup family’s philanthropy and job creation.27 The community relationships fostered by the Sukup-funded institutions will fray, and no amount of government largesse and rule-making can replace those social ties.
An Obama administration proposal to change the rules on charitable deductions would also erode the incentives for charitable giving. Currently, philanthropists receive a deduction of their gift from their taxable income. For a $10,000 gift by someone who earns over $250,000 a year, the giver would save $3,500 in federal taxes. Obama’s budget would reduce that write-off by almost 30 percent, or $700, inevitably suppressing charitable giving and weakening civil society.
Elsewhere, lawmakers threaten to further devalue civil society by dictating the inner workings of private associations. In California, the state assembly introduced a bill mandating that charities and non-profits disclose the racial and gender composition of their board members and staff—a bald attempt to force charities and voluntary associations into adopting racial and gender quotas. The proposal further demanded that charities and non-profits demonstrate how their activities “serve minority-interests.” 28 The bill was withdrawn after California’s biggest foundations agreed to spend tens of millions of dollars on minority-led organizations,29 but the effort encouraged similar attacks on foundations in states like Florida. However, legislators in the Sunshine State, in sharp contrast to their liberal counterparts in California, responded by passing a law defending the independence of foundations and protecting them from these kinds of intrusive regulations.30
In their relentless attempt to replace the private sector, government bureaucrats won’t hesitate to attack even the most beneficent institutions. In January 2011, a Houston couple, the Herrings, launched “Feed a Friend” to serve hot meals to the homeless. Their program expanded quickly, attracting volunteers who helped to feed up to 120 people every night for more than a year. Nevertheless, the City of Houston shut them down. Their violation? The group could not get the required permit because its meals were not prepared in a kitchen inspected by local bureaucrats and run by officially approved managers.31 A similar program in Dallas organized by local restaurant-owners, Hunger Busters, met the same fate in 2005 after city bureaucrats complained that the program’s policy of feeding the hungry “wherever they are” created litter.32
Even the most high-minded government programs can harm civil society, since the taxes and fees needed to fund these programs leave less money with private individuals who might otherwise donate it to civic groups. Government can also distort the market for donations by attaching various conditions to their aid—such “strings” tend to narrow a civic group’s mission and undermine its independence from government. Through such means, the government ends up picking winners and losers in civil society, thereby reducing the diversity and dynamism of free institutions. Civic groups are taught to look to the government for approval rather than to their donors and volunteers. This is fundamentally destructive of a free society’s most important habits.
Such government intrusions into civil society, according to Ryan Messmore from the Heritage Foundation, turn “the dial of social responsibility one more notch in the direction of the state at the expense of local institutions that serve the poor more personally and efficiently.” 33 The static and coercive nature of the state limits choice and proves a poor substitute for civil society. Nevertheless, bureaucrats remain convinced they know best how we should pursue happiness. And of course, it’s not their natural tendency to surrender any authority they have seized—their encroachments are only reversed when engaged citizens demand it.
REASSERTING AND REBUILDING CIVIL SOCIETY
Civil society can and will reclaim its rightful place from government, especially in the one realm that represents perhaps the biggest failure of government over-reach: education. For decades, as the government assumed a greater and greater role in education, the resulting bureaucracies became lobbies for their own interests above the interests of children and families. Good schools stagnated while bad schools grew worse, and failing schools were accountable only to the self-serving bureaucrats and unions that contributed to their failure.
However, in recent years, civil society has struck back on behalf of higher quality and local control of education. Faced with abject failure—Detroit, for example, graduates barely 25 percent of its high school students on time despite applying low standards34—civil society is saying “no more.”
The scope of today’s reform efforts is broad and deep: grassroots reformers are working to spread innovation throughout the education system and to return authority over education to the states, localities, and parents; enterprising teachers are establishing independent public schools to cater to the students left behind by the education bureaucracy; parents are demanding that their children have access to well-performing private schools through vouchers or other initiatives; and charter schools like KIPP have thrived, proving more innovative and practical than traditional public schools.35
Of course, nearly every reform effort encounters the determined opposition of those vested in the current system. Consider Compton, California. By 2010, the city’s perpetually failing schools had been repeatedly taken over by the state without any improvement, as state education bureaucrats proved no more effective than local education bureaucrats. Under pressure from parents’ groups and school reform coalitions, California lawmakers passed a “trigger” law allowing charter school operators to take control of a failing school if a majority of the parents ask for it to do so. The first city where this occurred was Compton, where 61 percent of parents signed a petition calling on a charter school operator to run their dysfunctional local elementary school. Marion Orr, a Brown University public policy professor, commented on the historic reform: “We’ve never seen anything like this before.… [It] could create real challenges for public officials who believe they know best how to run school districts.”36
Predictably, those public officials—teachers’ union representatives and school board members—are vociferously opposing the attempt to force accountability on them. The school board has resorted to particularly desp
erate and underhanded measures to thwart the parents’ will. It first announced that all parents who signed the petition had to appear before them with a photo ID to verify their signature—a clear attempt to intimidate parents who may be in violation of immigration laws. When a court rejected this requirement, the board looked through the petition’s 275 signatures and ruled every single one invalid.37 At the time of this writing, the battle between parents and bureaucrats in Compton is still ongoing.
Aside from education, civil society is reasserting itself in other realms, and indeed has begun energetically reclaiming its traditional role from government. The most potent force here, of course, is the tea party movement. Dedicated to countering the growing and unaccountable power of government, the tea party is a diffuse network of tens of thousands of local organizations that is changing the way their fellow citizens and especially our elected leaders conceive of government power.
Consider just one example of tea party activism: in Ohio, tea party groups have united with other liberty-minded citizens to launch the Ohio project. This grassroots effort aims to gather support for a state constitutional amendment to preserve Ohioans’ freedom to choose their health-care and health insurance. The effort has dozens of affiliates, thousands of volunteers, and has gathered more than 300,000 signatures to get this issue on the ballot.
The project’s organizers and volunteers are driven to action because ObamaCare, according to the group, is an “unprecedented concept of federal power [that] would redefine the nation as we know it.”38 That is the same redefinition of government’s role that Tocqueville predicted would create a culture of increasing dependency.
The tea party is demonstrating that the free institutions of civil society can reassert their rights and restore government to its limited role through strong cooperative efforts. As shown by tea partiers’ remarkable grassroots activism, by the noble fight of Compton’s parents, and by many other community efforts that occur every day but don’t make the newspaper headlines, despite the government’s myriad intrusions, the civil society tradition in America lives on.
CHAPTER SEVEN
THE RULE OF LAW ONE NATION, UNDER GOD, EQUALLY PROTECTED
Since 1952 the family-owned Bailey Brake Service of Mesa, Arizona, has been located on the corner of Main Street and Country Club Drive, one of the busiest intersections in town. Wanting the property for himself, the owner of a hardware store convinced local authorities that he would provide more tax revenues if he owned the spot. So town officials initiated eminent domain proceedings against Bailey’s in order to give its private property to the hardware store owner.
But Randy Bailey fought back. With the help of lawyers from the Institute for Justice, Bailey prevailed in court after a two-year legal battle with the Mesa City Council and the town mayor. The Arizona Court of Appeals ruled unanimously in 2002 that the condemnation of Bailey’s property did not satisfy the “public use” requirement of the Arizona Constitution.
Bailey told Mike Wallace of 60 Minutes, “If I had a ‘for sale’ sign out there, it’d been a whole different deal. For them to come in and tell me how much my property was worth and for me to get out because they’re bringing in somebody else, when I own the land, is unfounded to me. It doesn’t even sound like the United States.”
Americans have a long tradition of hostility to arbitrary, unlawful, or unconstitutional government actions. We fight these usurpations every day in courts of law and in the court of public opinion.
Americans know that arbitrary government replaces the rule of law with the rule of men. When government violates the rule of law, government officials are acting in their own interests in violation of the people’s unalienable rights.
The ancient doctrine of the rule of law is described with clarity and power in James Madison’s articles in the Federalist Papers. The rule of law means that government is vested with authority from the people to exercise power in predictable and even-handed ways according to the laws it enacts through constitutionally established means. In describing the House of Representatives in Federalist no. 57, Madison explains why the rule of law is such a powerful defense against tyranny:[T]hey can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America—a spirit which nourishes freedom, and in return is nourished by it.
If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty. James Madison, meet Randy Bailey. His “vigilant and manly spirit” should be as familiar to you as it is reassuring to us.
THE RULE OF LAW AND THE FOUNDING GENERATION
The Founders knew from bitter experience about the rule of men.
King George III, who came to the throne in 1760 at age twenty-two, was constrained by the English Bill of Rights of 1689 from imposing taxes without the consent of Parliament. But he claimed this restriction did not limit his power to tax residents of Britain’s colonies. After Britain’s victory over France in the French and Indian War, King George looked for ways to find new tax revenue to repay Britain’s enormous war debt. With Parliament unwilling to raise taxes in Britain itself, the young king moved to begin imposing taxes on his subjects in America. But the colonists steadfastly resisted these efforts, believing them unjust because the colonists had no direct representation in Parliament. Outraged by the colonists’ defiance, King George and his majority in Parliament then committed myriad abuses against the colonials: holding them without trial, refusing to enact laws for their general welfare, undermining judicial independence in the colonies, and perpetrating other injustices that substituted the king’s will for the rule of law.
The otherwise loyal citizens of Britain’s North American colonies at first vociferously argued against the king’s authority to undertake these measures, and eventually took up arms to settle their fundamental disagreement with him over their constitutional rights as Englishmen.
These circumstances are reflected in the Declaration of Independence. When we read the Declaration today, we’re naturally drawn to the famous prologue with its universal description of the natural rights of man. We then tend to skip the large middle section—a chronicle of twenty-seven specific grievances against King George—and go right to the rousing closing lines in which the Founders pledge to each other “our lives, our Fortunes, and our Sacred Honor.”
Yet it is those grievances that fired the fury of American patriots and justified the American Revolution. And the fact that the bulk of them—twenty-one out of twenty-seven—concerned violations of the rule of law shows that the Founders believed the rule of law to be indispensible to a just society.
THE RULE OF LAW AND PROPERTY RIGHTS
Property rights stand at the forefront of the securities provided by the rule of law. In America, an individual is entitled to the legal protection of his or her property and the fruits of such property. Unless a person breaks the law, no government bureaucrat or business competitor should have the power to infringe on that individual’s property rights.
Although the government today exceeds its constitutional powers in many realms, protecting private property is a legitimate—and indeed vital—government responsibility. Throughout the world, property has historically “belonged” to whomever had the power to take it and defend it. In fact, in the state of nature described by John Locke,
protecting property was the singular reason people agreed to institute governments in the first place.
The government must do three things to protect property: recognize private titles, provide a reliable system for registering those titles, and maintain a judiciary that protects those titles and enforces contracts. These protections provide a simple benefit: people can keep what they earn. It means no scheming competitor or conniving government official—like those who conspired against Randy Bailey and his brake shop—can arbitrarily take your land or belongings. And for the dreamers and innovators in our society, it means you are entitled to whatever benefits your risks, creations, and hard work may yield.
From Jamestown to Google, the American commitment to private property rights has provided the framework for American prosperity. Although we tend to take this commitment for granted, billions around the world are subject to the whims of an arbitrary government or a thuggish neighbor.
It was the absence of legally protected private property that sparked the revolutions now sweeping through the Middle East. It all began in Tunisia with a simple street vendor, Mohammed Bouazizi, who operated a fruit cart in an outdoor market. Bouazizi’s little business was unlicensed—a common situation throughout the region, where many would-be entrepreneurs can’t afford the galaxy of fees and bribes needed to secure work permits. Lacking basic legal protection for their property, vendors like Bouazizi were at the mercy of corrupt policemen, as Marc Fisher described in the Washington Post: “Arrogant police officers treated the market as their personal picnic grounds, taking bagfuls of fruit without so much as a nod toward payment. The cops took visible pleasure in subjecting the vendors to one indignity after another—fining them, confiscating their scales, even ordering them to carry their stolen fruit to the cops’ cars.”1
A Nation Like No Other Page 14