Reclaiming Rights
The never-ending struggle to go about your business without fear of government sanction
Our cover story this month describes the historic and stunningly rapid restoration of the Second Amendment as a guarantee of an individual right that must be respected throughout the United States. As you luxuriate in that momentous victory of individuals over their governments, allow me to direct your attention to a tale that is microscopic by comparison: On page 43, in the midst of a long and remarkable exchange between reason's finest and the Cleveland City Council, two different city councilors attempt to explain to TV funnyman and Reason Foundation trustee Drew Carey why the owner of a local car wash faced a four-month approval process to install a commercial sign on his own property.
Council President Martin J. Sweeney's explanation was, alas, good enough for government work: "If you apply for a sign that's within our regulation, it would take somewhere between three and five days. If it's outside the regulations, it needs to be [no bigger than] four foot by eight foot, no more than two or three colors. If you want to go 10 by 10, and put it up a little bit higher, and have 10 colors on it, you have to get approval to go outside the variance," Sweeney said. "The three to five days is if you stay within the regulations, if you agree with them. If you want to go outside, it's six weeks to put it on the calendar and have it heard. And then all the other steps…because there has to be some type of structure."
There has to be some type of structure. From this one default setting springs all manner of tyrannies, from the trivial to the profound.
Carey had the best comeback to this Office Space-meets-Kafka gibberish: "You should be able to put up whatever sign you want, man." But it's elected officials like Sweeney, from Bakersfield to Bangor, from the statehouses to Capitol Hill, who too often have the last laugh. Every day brings fresh reminders that we are not technically free to go about our business.
In August, Multnomah County health inspectors in Portland, Oregon, shut down a lemonade stand at an art fair because its 7-year-old proprietor failed to obtain the necessary food distribution license. Days earlier, a Quincy, Illinois, man was arrested via a sting operation (for a second time) for the crime of offering free rides home to inebriated bar patrons; the service conflicted with some new taxi cartel–influenced language in the relevant city ordinance. And all summer long, councilmen in recession-ravaged Los Angeles, who earn higher salaries than any municipal lawmakers in the country, threatened to crack down on one of the few interesting and growing business models left in L.A.—food trucks—despite the fact that the only people complaining about them are nonmobile restaurant owners who don't like the competition.
On the federal level things get even worse. In July the Department of Labor unveiled new child labor regulations that make it a crime for 17-year-olds to clear brush (a classic summer job in timber-heavy states such as Oregon) or for 15-year-olds to wave signs on the roadside, which the last time I looked was about the only job teenagers could still get in Southern California. ObamaCare requires every single vending machine and restaurant chain with 20 or more outlets in the country to list calorie counts for its products, under threat of federal sanction.
The financial regulation bill enacted in July, like the health care law that preceded it, asserted vast new governmental powers over an industry's operations while delegating to future rule makers the task of telling the industry exactly what is and is not now legal. As Associate Editor Peter Suderman wrote when the law was being passed, "For regulators in Washington, this is a He-Man moment: They get to lift thousands of pages of legislation above their heads and declare, 'I have the power!' The trouble seems to be figuring out what to do with that power once they have it."
There are any number of unhappy consequences from this relentless public push into private activity, not least of which is, as Senior Editor Jacob Sullum explains on page 11 ("Bono vs. Buttman"), the inevitably arbitrary enforcement of vaguely written laws. People who don't know if their day-to-day behavior will trigger criminal prosecution are not truly free. As the great civil liberties lawyer Harvey Silverglate observed in a 2009 book of the same name, Americans on average now commit "three felonies a day." That means our basic liberty exists at the discretion of law enforcement. If cops or motivated government attorneys decide they don't like you, life can soon become hell.
What's perhaps more frightening than the existence of such an all-powerful enforcement apparatus is the argumentation supporting it even in the face of public outrage and ridicule. Car wash signs need four months of approval because there has to be some type of structure. Lemonade stands need to be forcibly shut down because, in the words of Portland City Commissioner Amanda Fritz, "The county has the responsibility to fairly enforce the rules on permits." U.S. News & World Report columnist Mary Kate Cary, while pointing out that ObamaCare is "not fiscally responsible" and "creates a nearly trillion-dollar new entitlement program that doesn't pay for itself," nonetheless gushes that the new calorie count requirement "may change American diets." Once you take it as a given that the government has an important say in what you do with your property or put in your body, a whole universe of appalling actions and apologia becomes possible.
It's time to change the default setting. Every victory of a citizen over the government in the never-ending struggle to do as we please is worthy of a 21-gun salute, whether on the individual level, as in pornographer John Stagliano's successful fight against federal obscenity charges, or on a group level, in the case of those who want to own handguns. The battles are usually uphill, as with the 21 states suing the federal government over ObamaCare's abuse of the Commerce Clause (see "Rogue States," page 44), but the liberation is exhilarating. We can all learn from the examples of those who fought back and won, such as the 7-year-old lemonade entrepreneur Julie Murphy, who was helped and encouraged at the art fair by a group of Portland anarchists and eventually won an official apology from Multnomah County.
But sometimes it feels like we're losing a game of whack-a-mole. For every outrage reversed through bad publicity or expensive lawyering, there are untold dozens of quiet capitulations to a rampaging state. Think of all the government restrictions on what you can and can't do with your own house, to say nothing of the taxes the government collects on it. At some point the burden of proof should shift to the government, which should have to persuasively explain why an industry needs to be managed from Washington or why an individual needs a license to act like a human being.
The U.S. is in an economic, fiscal, and public policy crisis with no end in sight. Indeed, it looks almost certain to get far worse. We can and will talk about what rights need to be reasserted, what programs need to be cut, what sectors of this American life need to be left the hell alone. But until we make a dent in the widespread notion that there always has to be some type of government structure or some taxpayer-financed watchdog to police every imaginable peaceable transaction, any contemplated fix to the mess we're in will be temporary at best.
Matt Welch is reason's editor in chief.