Is the Pool of Liberty Drying Up?
By David Henderson
This is the title of a blog post by Ted Levy. I’ll save you the suspense: his answer is yes. In his post, he takes on the views of David Boaz and Brink Lindsey that liberty is increasing. Levy gives boatloads of evidence. One excerpt:
He [John Stossel] noted in the last year alone the Federal government has generated 160,000 pages of NEW laws and regulations, restrictions on freedom, excuses to imprison citizens. These are not further descriptions and elaborations of rape and murder, robbery and home invasion. Stossel tells of the man who was imprisoned for SIX YEARS because he sold seafood in the wrong containers, lobsters that, while not mislabeled to consumers, were nonetheless smaller than the legal salable size. Opening a lemonade stand in your front yard requires, in NYC, preliminary attendance at a 15 hour Food Protection class, and filling out many legal forms. No one knows the content of the all the laws, and several legal requirements contradict one another. These are basic violations of the principles the late Harvard law professor Lon Fuller detailed in his The Morality of Law, principles that flesh out the “rule of law.”
Still, David Boaz is a smart man. Surely he must have an argument for his view. And he does. As part of his case, Boaz quotes Brink Lindsey:
Compare conditions now to how they were at the outset of the 1960s. Official governmental discrimination against blacks no longer exists. Censorship has beaten a wholesale retreat. The rights of the accused enjoy much better protection. Abortion, birth control, interracial marriage, and gay sex are legal. Divorce laws have been liberalized and rape laws strengthened. Pervasive price and entry controls in the transportation, energy, communications, and financial sectors are gone. Top income tax rates have been slashed. The pretensions of macroeconomic fine-tuning have been abandoned. Barriers to international trade are much lower. Unionization of the private sector work force has collapsed. …cultural expression, personal lifestyle choices, entrepreneurship, and the play of market forces all now enjoy much wider freedom of maneuver.
So who’s right? Here’s where Levy’s genius comes in: he does it with a beautiful analogy:
Liberty is like the water in a swimming pool. You can dive in, and be surrounded by freedom. In the past, the pool was large and deep. Those who could dive in were engulfed in liberty. It was everywhere. There was so much liberty you could drown in it if you were not careful, but people exposed to liberty were buoyant, and liberty lifted you.
And entry into the pool, for many, was their birthright. It could not be taken away. The lifeguard at the pool was like a night watchman, seldom needed, helpful in emergencies.
But what about Jews, black people, women? Levy proceeds:
Sadly, though, and wrongly, the pool was restricted. No blacks allowed, with only token exceptions. No Jews. No gays. No women. Property owners preferred. Yet despite all this, the pool and the opportunity to dive into it attracted millions from all over the world.
What happened next? Levy writes:
Over time, two things happened, one good, one bad. Rules were changed to allow more people to enter the pool. Over time first blacks, then Asians, Jews, women–now, though not yet fully, even gays–have been allowed to join the club and enter the pool. Sadly, at the same time, the pool has been shrinking. Once the pool was gigantic in size. As James Wilson might have said, “Measure the size of the pool? I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing.”
Slowly the pool shrank, first to mere Olympic size, then to that of a school gymnasium’s offering. Then to a backyard pool. Then to a kiddie pool. Now it is somewhat less than a wading pool. Perhaps in future it will merely be a small sliver of water in a desert, which only the EPA would call a pool.
Levy hastens to offset an objection that might occur to many thoughtful readers:
To be clear, my analogy does not depend on the application of Archimedean displacement. There is NOT less water in the pool because more people are in the pool. The pool is actually shrinking in size, but it didn’t have to be that way. There is no Conservation of Liberty principle that requires the total amount of liberty be fixed…that requires freedom, when spread among more people, be diluted in its coverage.
But here’s the problem:
Blacks can now enter the pool. Women can now get their toes wet. Gays are now free to wear the most outrageous swimsuits poolside. But no one–white or black; gay or straight; male or female; young or old–NO ONE can now do high dives into the deep end. It is too shallow. It would be dangerous. It is prohibited for our own safety. The waters of liberty now engulf no one, equally.
And then the ugly sandbox:
Meanwhile, there is a sandbox by the pool. It is a sandbox enclosed in iron bars, chain-link, and barbed wire. Once placed in the sandbox, it takes years to get out. Many die in the sandbox. And even once released, you are no longer really allowed fully to enter the pool again. And the sandbox is growing. Once small and defined, the sandbox is now massive–the largest sandbox in the world–and overcrowded. Ironically, while blacks are now more than ever allowed into the shrinking pool, they are also thrown disproportionately into the burgeoning sandbox. It is different from the old days, when they were not allowed in the pool to begin with. But it shares many similarities.
And then the plaintive nostalgia for one of the freedoms we lost that many of us remember and few young people remember:
But it adds up. Liberties some of our ancestors once had–in travel, in business, in property, in contract–are not missed because it is notoriously challenging to appreciate the loss of something you never had, like young people today cannot imagine what it was like to run unobstructed for your plane when you were late for your flight, like we can’t imagine what it was like in the 1960s to store your rifle in the overhead bin.
That reminded me of how I shocked a young woman in the audience last September when I pointed out that when I was middle-aged, not even young, you didn’t have show to show an ID to get on a flight.
When we watch a race where some runners are shackled, we recognize it as unfair. We see the liberty of the shackled runners restricted if they are weighted down by the force of law. When we call out for greater equality, should we be satisfied if the laws are changed so as to shackle all runners equally, or should we remain unsatisfied until shackles are removed, and no one is weighted down?