Most of us enjoy a good deal of freedom in our daily lives. We pretty much say or print what we want, practice the religion of our choice, and find some support for our property rights. Less so, to be sure, under the COVID-19 shutdowns, whose consequences have been laid out so well by AIER writers. To put this in a broader context, I offer a metaphor: a steel trap surrounding us all, just out of sight of our daily playground. The jaws of this trap threaten our liberty, prosperity and happiness.
One jaw of the trap is labelled “occupational licensing” and it has dozens of teeth. Considerable attention has been given to the corruption at the heart of occupational licensing statutes that require government permission to engage in activities ranging from brain surgery to hair braiding. While promoted as consumer protection, licensing’s real intent is revealed by its main results: higher prices and restricted competition. (A shout out here to the Institute for Justice which has had some success in rolling back licensing excesses.)
Licenses have now moved beyond cronyism with its attendant corruption, inefficiency and injustice to weaponization by politicians and bureaucrats. Case in point: a Denver restaurant owner who reopened in defiance of shutdown rules. He got no due process; instead bureaucrats simply revoked his restaurant license. And for every such revocation, untold thousands cower in fear of revocation of their licenses and their livelihoods.
Another jaw: the RICO statutes (Racketeer-Influenced and Corrupt Organizations) that were weaponized a long time ago. When RICO was enacted, it sounded straightforward; who could object to suppressing organized crime? Subsequently the law was stretched far beyond its original intent, most famously when Rudy Giuliani prosecuted (persecuted) Michael Milken, the junk bond pioneer. As Daniel Fischel explains in his book, “Payback: the Conspiracy to Destroy Michael Milken and his Financial Revolution,” Giuliani had “already pioneered the criminalization of such standardless offenses as insider trading, stock parking, and manipulation” and had decided these offenses constituted a “pattern of racketeering activity” and could thereby “drop the equivalent of a nuclear bomb on any target, at any time, no matter how trivial or harmless the underlying conduct.”
If I may stretch the trap metaphor to third jaw, consider the sheer volume of legislation that has been passed, each statute perhaps promulgated with salutary intent but adding up to a massive entangling web. In “Three Felonies a Day,” author Harvey Silverglate argues that we can hardly step outside our house without running afoul of some statute:
The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague … prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets.
The teeth of all these jaws were for the most part implanted with good intentions by decent people (Giuliani excepted). When these moderate statists fail, as they always do, they are swept aside by totalitarian thugs who have been waiting in the wings. In Ayn Rand’s “Atlas Shrugged” she shows us one such thug in a moment of candor:
We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you’d better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them…you create a nation of lawbreakers – and then you cash in on guilt. Now that’s the system, Mr. Rearden.
No, we’re not there yet. None of today’s prominent political figures is a thug on the scale of Rand’s Dr. Ferris, but the thugs are out there watching and waiting. Yet it’s not inevitable that the jaws will continue to tighten. While we continue to enjoy such freedoms that remain, let’s heighten our awareness of the trap that surrounds us.