Date: Wed, 16 Nov 1994 20:54:09 -0800 (PST) From: Alexander Volokh Subject: CEI LIST - TYRANNY NOW To: Recipients of the CEI List TYRANNY NOW by Jonathan H. Adler, CEI director of environmental studies Book review of *Lost Rights: The Destruction of American Liberty*, by James Bovard. St. Martin's Press, 1994, 335 pp., $24.95. appeared in *Liberty*, 11/94 Peter Fishbein's only mistake was agreeing to represent a client on bad terms with the federal government. A lawyer at the firm of Kaye, Scholer, Fishbein was accused of failing to disclose privileged information to the federal Office of Thrift Supervision (OTS) about his client, Lincoln Savings & Loan. Fishbein argued, correctly, that abiding by the OTS's demands would have been a violation of his professional responsibility to vigorously defend his client. In retaliation, the OTS unilaterally froze the firm's assets without a hearing or formal administrative procedure, and assessed a $275 million penalty. Kaye, Scholer contested the action, but without its full assets to draw upon was forced to settle out of court. The lesson, according to the New York City Bar Association, was that if lawyers "represent the client vigorously, they risk financial ruin before an action against them is even brought before a judge." As George Washington said, government is like fire: "a dangerous servant and a terrible master." That is why the founders tried to restrain it with formal procedures and institutional counterweights. But today, arbitrary persecution like that which befell Kaye, Scholer is increasingly common. "Americans' liberty is perishing beneath the constant growth of government power," opens James Bovard's new book, *Lost Rights*. If freedom is to be restored, Bovard counsels, we need "to realize how much we have already lost" -- and how much we still risk losing. His book is a crash introductory course in the threats the federal government poses to individual liberty, unleashed in a flurry of data -- evidence of the power of NEXIS-aided research. Americans are forced to obey 30 times as many laws today as a century ago. The federal government employs almost 130,000 regulators, and itches for more. Each business day the government issues nearly 200 pages of densely-worded regulatory strictures and explanations in the Federal Register. The average citizen now works over 120 days simply to pay his share of the tax burden; the number of pages filled with tax regulations has ballooned from 14 in 1914 to over 9,000 in 1992. In Bovard's words, "Governments have now amassed far more power than politicians are capable of responsibly and intelligently wielding." Americans tend to distrust the federal government, but this has yet to stop voters from encouraging the creation of new programs and entitlements. "American political thinking suffers from a... tendency to view the expansion of government power by its promises rather than by its results." Americans may dislike how the government performs its existing duties, but that has yet to translate into a broad-based campaign to cut it down to size. Few are willing to admit that the federal government simply tries to do too much. Through the rapid proliferation of laws reaching every corner of human existence, "the government is manufacturing more criminals now than ever before." The list of illegal activities includes more minutiae than one would think possible. Beer-makers are barred from listing alcohol content on bottles, and liquor distilleries cannot advertise on TV. Filling one's own prairie pothole can land a property owner in jail, as can protecting private property from unlawful intruders. Placing handbills in neighbors' mailboxes is strictly prohibited, and attempting to sell nectarines of an improper size is a federal offense. Companies are no longer allowed to give salaried professionals partial days off without pay, and in Texas it is a crime to call oneself an interior designer without the government's permission. It is perhaps easier to recount all that remains legal than all that is now prohibited. Of course, these rules are supposed to improve people's lives. But consider the guardians of the public trust and their priorities in bringing us such "help." Congress is a bastion of self-righteousness when there is a wronged constituency to be protected. Yet it has not seen fit to force itself to comply with its own laws. Senator Howard Metzenbaum was dreadfully concerned with NBC's prime-time portrayal of the Waco siege tragedy. Yet he was not troubled by the actions of the federal agents depicted in the broadcast. The Food and Drug Administration is notorious for delaying approval of desperately needed medications and treatments out of concern for their "effectiveness." That people die while waiting for the drugs to be approved scarcely catches the FDA's attention. Perhaps of greatest concern is the arbitrary enforcement of federal strictures. One of the most important elements in rule of law is *predictability*: if you don't know what the law requires, it can be terribly difficult to comply. When a company cannot anticipate a regulatory agency's expectations, investments in increased capacity and new production methods are less likely. The hazardous waste regulations promulgated under the Resource Conservation and Recovery Act are so complex, even EPA officials are often unsure of what they mean. The Americans with Disabilities Act, which seeks to bar discrimination against the handicapped, is so vague that corporations will not know how to comply until years of litigation have defined employers' precise responsibilities. Sometimes federal agencies deliberately obscure the regulations they enforce. The IRS, for instance, has opposed clarifying its rules governing the self-employed for fear more individuals would exercise the option. Ironically, this campaign may actually reduce the revenue received by the federal government. As Public Choice economists have pointed out, agency priorities are often as much a function of what benefits empire-building bureaucrats as they are of public-minded priority-setting. The current era of state-worship has yet to produce divine infallibility for government officials. People make mistakes, and a government manned by individuals is certain to have its share of problems. Procedures do exist for individuals to pursue grievances against arbitrary state actions. Yet these processes also have their problems. When one contests an agency's action, one must follow the Byzantine prescriptions of administrative procedure. Initial complaints are handled by Administrative Law Judges (ALJs) before the disputes can go to court. Yet ALJs are employed by the agencies in question. In some cases, ruling for a citizen against the government can injure an ALJ's career. An individual must "exhaust administrative remedies," typically at the cost of thousands of dollars, before a federal court will even entertain reviewing the case. Faced with this situation, many simply choose not to fight, and let the government have its way. It doesn't have to be this way. The American system was designed to allow individuals to determine their own destiny; government would provide a bulwark against domestic chaos and foreign invasion, but otherwise let the people be. Today, writes Bovard, "the trademark of modern political thinking is an implicit faith in discretionary power wielded by benevolent politicians and administrators -- in letting government employees treat private citizens as they think best." Such endeavors always require power and control over people's fortunes, possessions, and daily lives. Every increase in government power, for causes noble and nefarious alike, "means a decrease in citizens' ability to rely on themselves and plan their own lives." This is the defining message of Bovard's treatise, a message too rarely heard in mainstream political discourse. As in his earlier books, *The Farm Fiasco* and *The Fair Trade Fraud*, Bovard makes his case anecdotally, with one example of government malfeasance after another. This is not a book of aggregated statistics, nor is there more than occasional philosophizing. Bovard seeks to convince the reader that injustices are routinely committed in the name of prohibiting the use of marijuana; that all drug prohibition should be put to an end is less explicit. Bovard shows how government programs have eroded fundamental freedoms, but rarely goes further to argue that these programs are simply wrong in principle, and still would be if their excesses could be controlled. One also wonders at times about the selection of examples. There seems to be a conscious attempt on Bovard's part not to offend the Right anywhere near as much as he is sure to offend the Left. His book lays into the distribution of condoms in public schools, since such programs "exemplify parents' loss of control over their children's schooling," but there is little mention of efforts to impose the teaching of creationism. Bovard lambastes federal subsidies of political correctness and blasphemous art, but does not detail conservatives' efforts to move such funding in *their* direction. Homosexuality is not mentioned in the index. Nor is there any reference to conservatives' efforts to use the AIDS epidemic to justify a federally-funded billy pulpit to promote the virtues of abstinence. Bovard discusses the failures of civil rights policy, but there is scant mention of repressive immigration-control measures. Perhaps Bovard is more comfortable with conservatives than leftists. After all, he receives far more honoraria from *National Review* and *The American Spectator* than *The Nation* or *Mother Jones*. Or perhaps the Left is simply a more inviting target; the Right has not wielded federal power as effectively as the Left, so it is possible that they've left fewer programs to assail. In any event, one wishes that Bovard had been a little more balanced in his anti-government assault. It would have made *Lost Rights* more compelling, and provided conservative readers with more of what they need to hear. But this is a minor quibble with a mighty fine book. In *Lost Rights*, James Bovard has provided us with an encyclopedic guide to the abuses and petty tyrannies of American government -- even if, by his own account, there are many stones still left unturned. There was no room to analyze "the Endangered Species Act, the Community Reinvestment Act, the Securities and Exchange Commission's creative definitions of insider trading, antitrust policy, sovereign immunity, federalism, and Social Security." Much of the book will seem old hat to the well-read libertarian -- Bovard is nothing if not prolific in recycling his own work. Yet even the committed will gain from his litany of governmental misdeeds. And, with luck, this book will allow such tales to reach a broader audience. As Bovard points out, "America needs fewer laws, not more prisons." If *Lost Rights* succeeds in spreading that message, it will have provided a real public service. _______ __________ ___________ / | / | | | |__________ | | | | \ | | \ _______ |__________ ___________ COMPETITIVE ENTERPRISE INSTITUTE 1001 Connecticut Ave. NW #1250 Washington, DC 20036 202-331-1010, fax 202-331-0640 cei@digex.com Permission to copy granted as long as these lines are left intact. 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