Last revised 14 June 2007
This will be a general discussion about what I look for in a bill, to decide if it meets the criteria of liberty-harming or liberty-supporting. I will include examples on important topics that have shown up in recent Wyoming legislative sessions. People who wonder “where we're coming from” as we compile this Liberty Index might find this section helpful.
Warning: this is a "NO EUPHEMISM" zone. That is, in the interest of clear communication, I prefer to dispense with the comfortable euphemisms familiar in the political world, that allow one to avoid having to face up to the sorts of things one is actually supporting.
As a starting point, there is that famous Jefferson quote:
Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual. -- Thomas Jefferson to Isaac H. Tiffany, 1819
So if government restraint of our ability to act as we wish, is increased in a bill, that would make the bill liberty-harming, except in those cases designed to prevent encroachments against the legitimate liberty of others. Legitimate is a key word here. We must not trample a fundamental freedom of one person to prevent from offending mere aesthetic sensibilities in another.
Another hint is provided by John Stewart Mill:
That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. -- John Stewart Mill, "On Liberty"
This is a reformulation of Jefferson's recipe for freedom from a negative point of view - prohibiting government from coercion. He includes a prohibition against “nanny state” legislation, that designed to protect us from ourselves. Any individual should be able to reject the “help” of the state.
Although George Orwell despaired of finding any definition of fascism, some major hallmarks of fascism (when you research it) are the unlimited government control of economic life within a framework that retains some features of capitalism (while dispensing with the essence of it, which is freedom), yet the control was made with an aim to protecting the economic elite which often participated in the fascist regimes. Another hallmark is glorification of the state and the total subordination of the individual to it. Fascism shares some features with mercantilism, protectionism and "internal improvements" AKA "public works". How does this correspond to what we see in America?
Businesses are often regulated, frequently to protect existing businesses and bar entry of new competition to the market, other times to compel them to serve the aims of the state. Both motives smack of fascism. Businesses should serve the ends of their owners, and be regulated only by the desires of the consumers (through their purchasing choices) - which is capitalism.
There are also the railroads; in the 19th Century these were perhaps the primary example of fascist economic policy. One railroad that was relatively free from government help was the Great Northern.
Thomas DiLorenzo, in this excellent essay, shows that the economic component of fascism is alive and well in America today. It is also alive and well in Wyoming, unfortunately.
The essence of socialism is the government ownership and management of the means of production and distribution of goods. There are many varieties of socialism ranging from government owning a few key sectors, to government owning everything, but the hallmark is that government owns it and runs it. What examples do we see in modern America?
The largest example (and most invisible, because it is so ubiquitous) is of course government schooling. This institution was adopted from socialist Prussia first in Massachusetts in 1843 through the efforts of Horace Mann. Compulsory schooling was adopted in Massachusetts in 1852 and then in the District of Columbia in 1865 (which means, the federal government adopted it). It was imposed by the feds on new western states as a condition of statehood. The Prussian system supplanted the previous, wildly successful original American system based on freedom, taking over the last state, Mississippi, in 1918.
Another example of socialism in American governments is road-building. Counter-examples of private road-building are more difficult to find but were common early in the country’s history, and even now there are examples of private freeways in Los Angeles.
Welfare is a term that generally describes a wealth transfer system. Subsidies are another term. It is a transfer from the overall tax base to certain favored groups, be they the organized poor, certain ranchers and farmers, businesses, or classes of people including the rich (there were efforts to subsidize doctors and airlines recently in the Wyoming legislature). Welfare often usurps and destroys the function of charities when it is applied to the poor. Welfare degrades the morals of those who receive it, and makes them dependent.
In many states welfare is a transfer from one class of people to another class, especially where the taxation is “progressive” (a euphemism for “abusive”). Wyoming does not very much have that fault in her taxation system, so the wealth being transferred pretty much comes from the same class receiving it - after the bureaucrats have taken their cut.
The government schools are also seen to be a form of welfare, when one thinks about it. They are the largest such example in all states, including Wyoming. Charter schools, tax-funded vouchers and the Hathaway scholarships recently enacted in Wyoming are also forms of welfare. Various other programs to "help" the poor are also welfare. There are also many forms of corporate welfare; such is the main program of the Wyoming Business Council.
Individual conduct is also regulated today, for example the “protect us from ourselves” seatbelt laws and drugs laws and regulations on alcohol. Again we see the subordination of the individual. The mindset is that the people do not have common sense and must be told what to do by our “betters”.
When I see bills in the Wyoming legislature that have the above mentioned characteristics of socialism, fascism, welfare or the nanny state, or that extend current examples of them, they will be rated as anti-freedom.
At first glance this one is pretty simple. People have a right to defend themselves, and this right is about as fundamental as they get (even amoebas have a right to defend themselves). The right to keep and bear arms derives directly from the right to life, because it is absurd to talk about having a right to life while denying the means to defend it. This means essentially all forms of gun control (knife control, brass knuckle control, what have you) are anti-freedom.
Well, are there any things a government may do in this arena, not trampling freedom? What about concealed carry permits?
While in a tactical sense the broad spread of shall-issue permits into over 30 states at this point has certainly strengthened in the public mind that people may defend their lives with firearms, that has come at a cost: the notion we must apply to government for this right. However states are now starting to adopt a more correct interpretation (first Vermont, next Alaska, and Wyoming cannot be far behind) so this cost may not have been a fatal one and may actually have been a stepping stone to more freedom. But it is time we got "Vermont carry" or "Alaska carry" into Wyoming, to get the statutes in conformance with our rights and with the state and federal constitutions.
Another fault with current Wyoming carry law is that it is restricted: you cannot carry in churches, schools, bars, and governmental meetings among other places. One needs merely ask, do people in schools or churches retain their right to life or is it surrendered at the door? The sky would not fall if these absurd restrictions were removed; Oregon does not have them and no harm results. Restricted carry also forces people to leave their guns in cars, easing the theft of them.
The same is true of requirements that a class be taken to carry. Do people who haven’t taken a class have a right to defend their life? Besides, the vast majority of the utility with concealed carry, is merely having the gun. Most incidents requiring their use have not called for a single shot to be fired.
What about felons, is it OK to prevent them from owning and carrying guns?
At base these questions boil down to what you think governments should do with respect to crime. Is it the job of governments merely to punish criminals? Or is it something more, to prevent crime (at least in theory) by making citizens or certain classes of citizens do things (e.g., take firearms safety classes) or not do things (ex-felons not carry arms).
Clearly, the pro-liberty position warrants only the first. Governments must not attempt to anticipate and prevent crime because the only way to do so is to coerce people who are not doing anything criminal. Thus, ex-felons still have a right to life, which necessarily implies a right to protect that life and that of their family. The only way an ex-felon should be punished is if he becomes a felon again in a new crime. Another consideration is involved here: many people are made felons for committing any number of non-violent crimes in the first place, activities that liberty supporters would not even agree should be considered criminal. All the more reason not to prevent ex-felons from protecting their lives.
Section 6-8-101 of the Wyoming statutes adds extra penalties for using a firearm in the commission of a felony. This is nonsensical as it implies robbing with a knife is less harmful than robbing a gun. It also lends to the general environment criminalizing things having to do with firearms and thus plays into the hands of gun prohibitionists. 6-8-103, which punished possession of a firearm with criminal intent has the same defect; why single out firearms for special treatment here?
The only current part of the Wyoming statutes concerning firearms that is pro-freedom is 6-8-401, the statute pre-empting counties and cities from passing firearms regulations. New laws in the same vein, such as one prohibiting the unconstitutional BATFE from operating in Wyoming, would similarly be welcome.
There is hardly an institution that has embedded itself into the American psyche as have government schools; most people cannot imagine a world without them. Yet the institution is not at base an American one; it was imported from socialist Prussia in the mid-19th century. It in fact displaced the true American system, the one based on freedom. This Prussian system has several features that place it firmly in the liberty-harming camp (features that were not true of the American system):
One could go on and on with this list; the litany is familiar yet in the Old Media (TV, radio, newspapers & magazines) the solution is always somehow to throw good money after bad to “fix” them. To go into depth on this subject, one can hardly find a better place to start than The Alliance for the Separation of School & State.
Some (of whom it might be said, have a tenuous connection to reality) have suggested we abolish the government schools in the legislature. The correct way is to encourage individual parents to remove their children from it. Thus any legislation that reduces state interference with private schools and homeschooling is pro-freedom (not to mention, conforming better with the state constitution). Any legislation that reduces the amount of money going to government schools is pro-freedom. On the other hand, any legislation that extends government schooling (such as recent attempts for all-day kindergarten, or government college loans), is anti-freedom.
There have been some legislative examples that are less clear; for example, the push for a moment of silence in schools. One cannot reform these schools to make them better, because they are fundamentally defective. They have been reformed constantly since they were first created, and each reform only makes them worse. It is arranging the deck chairs on the Titanic. I have typically rated such bills neutral because while well intended, they will accomplish nothing. The answer is to get kids out of these schools.
In the early days of the old one-room schoolhouse, when few people went further than the 3 years of schooling mandated in the Wyoming constitution - before the unions and the bureaucrats and all the rest - the government schools were probably little worse than the free market system they replaced. But we are far, far beyond that point. The government schools are tottering bureaucratic dinosaurs, examples of socialism and welfare and an assembly-line mentality in education, and the more quickly our children escape from them, the better.
A recent event earning even a special session in 2004 to try to “fix” it is the medical “crisis” in Wyoming. The word crisis is in quotes, as by some accounts there is no crisis. However, even accepting that there is, it would seem the first thing that should be done, before looking to government to solve it, is to look at the government’s role in first creating it.
Insurance was something that spontaneously arose in the free market of Renaissance Italy, to protect shipping in case the ship should not make it back to port. It thus made economic sense, almost by definition, to use it. There are several things government has done to make it so expensive that it is no longer economic for many people:
Going beyond insurance to medical care itself, we see the same sort of pattern:
There are no doubt more sophisticated analyses of the problem than I can put together here, but my general impression of the remedies suggested in the legislature has ranged from doubtful to disastrous. The problem will never truly be solved until government gets out of medical care and insurance. Unfortunately, once they are into something it is almost impossible to get them out. But the bottom line here is that most of these legislative nostrums are anti-freedom in some way and will get a negative rating in the Wyoming Liberty Index.
Note: one rather quick fix that government could do is something it should be doing anyway: allow people to contract for the services they want, and then enforce that contract. Doctors should for example be allowed to contract with potential clients requiring limitations on lawsuits before providing service, and then have those limitations upheld in court. This would be a huge help to drive costs down, but it is the one thing government cannot, for some reason, bring itself to do.
It would seem to be a very simple thing, when it comes to taxes. More taxes, being more coercion, are anti-freedom. But it is not as clear-cut as that.
How does one rate a bill that carves out a special exemption for someone to the state sales tax? Answer: It is not pro-freedom even though it reduces taxes for some individuals. Why?
Government should not be in the business of picking winners and losers. This was well recognized by the founders who wrote many of the state constitutions, but we have unfortunately gotten away from observing these properly.
There are two basic forms of “tax”: broad-based taxes, and narrowly-focused user fees.
User fees
For a user fee to be considered not anti-freedom, it should have certain characteristics:
There are some who argue (not unreasonably) that services like this should not be provided by the state at all, but instead by the free market. The primary example of such a user fee is the gasoline “tax” being used to maintain roads; it fits the above conditions, but not perfectly.
Broad-based taxes
These taxes are of course, fundamentally anti-freedom because they require coercion. However there are characteristics that can minimize their anti-freedom tendencies:
It is unconscionable that tobacco users face a tax that is higher than the general sales tax. This is singling out a small population (an addicted one at that) for punishment; it is social engineering; it is balancing the state’s budget on (usually) the poorer members of society. It is far, far too high, and its advocates usually evince a smug superiority. One can hardly think of a more mean-spirited tax. (I am not a smoker, by the way.)
As mentioned above, business regulation smacks of fascism. Frequently certain business groups come to the legislature to create regulations that match their existing processes and prevent innovation and the new entry of competitors into their market, which would undercut the prices they get for their products and services.
A prime example is the cosmetology business, which has recently brought bills to add this or that refinement to the regulation of their business. It is absurd on its face to have cosmetology as part of the Wyoming statutes. This industry needs to create its own trade organization and standards, outside the statutes. It should not have the right to drive out of business those individuals who choose not to follow its practices. Only the consumer, by withholding her patronage, should have that power.
One example, where government regulation and control makes some sense, is in ensuring the correct recovery of lands used in surface mining. The basis for this is the protection of property rights—those of the surface owner. It is very difficult to find a balance between the rights of the surface owner and those who hold the mineral rights. The best that can be done is to look at it on a case-by-case basis at this point.
The War on Drugs is by any reasonable measure freedom-harming in a vast number of ways. See the Mill quote at the top of the page for a fundamental problem with it. Once can imagine a few drugs that might bear controlling (meth for example, as compared to the harmless marijuana) but we should never lose sight of the fact that in doing so, this nanny-state legislation is trampling liberty. And any such bills will be so rated in the index, even if they otherwise seem like a good idea, because this is a liberty index, not a “good idea” index.
There have been rumbles of more “demon rum” legislation in Wyoming. Montana has not gone to perdition because children can be present in taverns there. Most of these laws are driven by silly and excessive Puritanism, or a drive among certain legislators to control people. Some would argue the drive for open container laws is dictated by safety needs. These people apparently forget there are not many cars in Wyoming. One of tyranny’s favorite excuses is “public safety”. Open container laws might sound like a good idea, but they have nothing to do with liberty.
A law was recently passed against “huffing” (sniffing glue, etc.). It takes a fine sense of the absurd to imagine that children, having ignored all warnings that sniffing glue will turn their brains to oatmeal, will nevertheless consult the Wyoming statutes and decide not to do it solely because they might get a fine or a little jail time on the unlikely chance they are caught. If parents want their kids to avoid this menace (for such it truly is), the first thing they should do is pull them out of the government schools, which is where kids learn such dangerous behaviors. Anti-huffing laws will do nothing, except to give rebellious kids an opportunity to laugh at the state. That is, passage of such a law might well increase its use among children.
Nothing (except the boorish treatment by TSA drones at airports) makes a person feel like well-tended cattle more than seatbelt laws. I see the use of seatbelts; they make sense to me. But being told I must use them makes me feel like not using them. Laws regarding them are clearly anti-freedom.
Speeding laws are the same, especially in a lightly-populated state like Wyoming. The western state governments feel they must roll over for the federal government on this in order to get their strings-attached federal highway funds. Someone ought to figure out a way to keep those funds from going to Washington in the first place. Then western states could choose their own limits, or none.
Requiring “hunter orange” is another example of protecting us from ourselves. Oregon has no such law and does not suffer high rates of hunter deaths. Even if it did, such laws would still be anti-freedom.