Lost Rights
James Bovard

Lost Rights
The Destruction of American Liberty
by James Bovard


Government is not reason, it is not eloquence -- it is force.

The Restraint of Government is the True Liberty and Freedom of the People.

AMERICANS' liberty is perishing beneath the constant growth of government power. Federal, state,
and local governments are confiscating citizens' property, trampling their rights, and decimating their
opportunities more than ever before.

Americans today must obey thirty times as many laws as their great-grandfathers had to obey at
the turn of the century. Federal agencies publish an average of over 200 pages of new rulings,
regulations, and proposals in the Federal Register each business day. The growth of the federal
statute book is one of the clearest measures of the increase of the government control of the
citizenry. But the effort to improve society by the endless multiplication of penalties, prohibitions,
and prison sentences is a dismal failure.

The attack on individual rights has reached the point where a citizen has no right to use his own
land if a government inspector discovers a wet area on it, no right to the money in his bank account if
an IRS agent decides he might have dodged taxes, and no right to the cash in his wallet if a DEA dog
sniffs at his pants. A man's home is his castle, except if a politician covets the land the house is built
on, or if his house is more than fifty years old, or if he has too many relatives living with him, or if he
has old cars parked in his driveway, or if he wants to add a porch or deck. Nowadays, a citizen's use
of his own property is presumed illegal until approved by multiple zoning and planning
commissions. Government redevelopment officials confiscate large chunks of cities, evicting owners
from their homes and giving the land to other private citizens to allow them to reap a windfall profit.
Since 1985, federal, state, and local governments have seized the property of over 200,000 Americans
under asset forfeiture laws, often with no more evidence of wrongdoing than an unsubstantiated
assertion made by an anonymous government informant.

A. V. Dicey, the great English constitutional scholar, wrote in 1885, "Discretionary authority on
the part of the government means insecurity for legal freedom on the part of subjects." Government
officials now exert vast arbitrary power over citizens' daily lives, from Equal Employment
Opportunity Commission bureaucrats that can levy a $145,000 fine on a Chicago small businessman
because he did not have 8.45 blacks on his payroll to federal agricultural bureaucrats that can
prohibit Arizona farmers from selling 58 percent of their fresh lemons to other Americans. Customs
Service inspectors can wantonly chainsaw import shipments without compensating the owner, Labor
Department officials can nullify millions of employment contracts with a creative new interpretation
of an old law, and federal bank regulators are officially empowered to seize the assets of any citizen
for allegedly violating written or unwritten banking regulations. Federal regulations dictate what price
milk must sell for, what size California nectarines can be sold, what crops a person may grow on his
own land, what apparel items a woman may sew in her own home, and how old a person must be to
deliver Domino's pizzas. The Internal Revenue Service is carrying out a massive campaign against
the self-employed that seeks to force over half of America's independent contractors to abandon their
own businesses. From Drug Enforcement Administration agents seizing indoor gardening stores in
order to prevent people from cultivating the wrong types of plants to Food and Drug Administration
agents with automatic weapons raiding medical-supply companies, government agencies are more
out of control than ever before. And the Supreme Court -- the supposed protector of the Bill of
Rights -- has imposed scant curbs on the capricious power of federal employees.

Privacy is vanishing beneath the rising floodtide of government power. Government officials have
asserted a de facto right to search almost anybody, almost any time, on almost any pretext. The
average American now has far less freedom from having government officials strip-search his
children, rummage through his luggage, ransack his house, sift through his bank records, and
trespass in his fields. Today, a citizen's constitutional right to privacy can be nullified by the sniff of
a dog. Florida police recently announced that they must be allowed to smash down people's front
doors without knocking because modern plumbing makes it too easy for drug violators to flush
away evidence. Army units, National Guard troops, and military helicopters conduct sweeps through
northern California, Kentucky, New Mexico, and Arizona, trampling crops, killing dogs, and
generally seeking to maximize intimidation in a search for politically incorrect plants. Federal
officials have given rewards to hundreds of airline ticket clerks for reporting the names of individuals
who paid for their tickets in cash, thereby allowing police to confiscate the rest of people's wallets on
mere suspicion of illegal behavior. Local police are conducting programs in 200,000 classrooms that
sometimes result in young children informing police on parents who violate drug laws. The number
of federally authorized wiretaps has almost quadrupled since 1980, and the Federal Bureau of
Investigation is trying to prohibit the development of new types of phones that would be more
difficult to wiretap.

Freedom of speech and freedom of the press are increasingly under assault by ambitious
bureaucrats and spiteful politicians. In many locales, politicians have filed multimillion-dollar libel
suits against private citizens who criticized them. Even congressmen and senators have used massive
libel suits to spike critical comments by leading newspapers. Federal bureaucrats have the power to
revoke the licenses of private radio and television stations, thereby blunting the broadcast media's
criticism of the government. A chain of twenty small newspapers in California was bankrupted as a
result of a government-financed lawsuit over a classified housing ad that mentioned "adults
preferred" -- a violation of the Fair Housing Act's ban on advertisements that discriminate against
families with children. The Food and Drug Administration is preventing cancer patients from
learning about legally approved drugs that could save their lives solely because the drug makers have
not spent the millions of dollars necessary to satisfy the FDA's certification process to advertise
additional uses. The proliferation of vague federal regulations has had a severe chilling effect on the
free speech of millions of businessmen who cannot criticize federal agencies without risking
retaliation that could destroy them. As part of the war on pornography, parents have been jailed for
taking pictures of their babies in bathtubs. Thanks to a 1992 federal appeals court decision and a late
1993 congressional uproar, even pictures of clothed children can now be considered pornographic --
thus greatly increasing the number of Americans who can be prosecuted for violating obscenity laws.

The government is manufacturing more criminals now than ever before. The government is
increasingly choosing the citizen-target, creating the crime, and then vigorously prosecuting the
violator. During the past fifteen years, law enforcement officials have set up thousands of elaborate
schemes to entrap people for "crimes" such as buying plant supplies, asking for a job, or shooting
deer. Dozens of private accountants have become double agents, receiving government kickbacks for
betraying their clients to the IRS.

Total federal spending has increased from under $100 billion in 1963 to over $1.5 trillion in
1994, and as spending has grown, so has bureaucratic control and political power. Since 1960, the
federal government has created over a thousand new subsidy programs for everything from medical
care to housing to culture to transportation. Government controls have followed a short step behind
the subsidies; as a result, more and more in our society and economy are now dependent upon
government approval. Subsidies are the twentieth-century method of humane conquest: slow political
coups d'etat over one sector of the economy and society after another. Government subsidies have
become a major factor in squeezing out unsubsidized developers, unsubsidized schools,
unsubsidized theater producers, and unsubsidized farmers.

Beggaring the taxpayer has become the main achievement of the welfare state. The federal tax
system is turning individuals into sharecroppers of their own lives. The government's crusade to, in
Franklin D. Roosevelt's words, provide people with "freedom from want" has paved the way for
unlimited taxation. In the 1930s, New Deal planners waxed eloquent about "potential plenty" and
denounced businessmen for refusing to unleash a cornucopia of higher living standards. Now, in the
1990s, we have "potential plenty" -- except for government policies that hollow out people's
paychecks and preempt their efforts to build better lives for themselves.

Total government spending now amounts to roughly 43 percent of the national income. On top of
this, the Clinton administration's Task Force on Reinventing Government estimated in September
1993 that "the cost to the private sector of complying with [government] regulations is at least $430
billion annually -- 9 percent of our gross domestic product!" Nobel Laureate economist Milton
Friedman observes, "The private economy has become an agent of the federal government.... At least
50 percent of the total productive resources of our nation are now being organized through the
political market. In that very important sense, we are more than half socialist." The average American
now works over half of each year simply to pay the cost of government taxes and regulations.

High taxes have created a moral inversion in the relationship between the citizen and the State.
Before the income tax, the government existed to serve the people, at least in some vague nominal
sense; now, the people exist to provide financial grist for the State's mill. Federal court decisions
have often bent over backward to stress that citizen's rights are nearly null and void in conflicts with
the IRS. Internal Revenue Service seizures of private property have increased by 400 percent since
1980 and now hit over two million Americans each year.

Not only do we have more laws and regulations than ever before, but the laws themselves are
becoming less clear, consistent, and coherent. James Madison observed in The Federalist Papers,
"It will be of little avail to the people that the laws are made by men of their own choice if the laws
be... so incoherent that they cannot be understood; if they be repealed or revised before they are
promulgated, or undergo such incessant changes that no man, who knows what the law is today, can
guess what it will be tomorrow." It is now practically impossible for citizens to keep track of
government's latest edicts; as the Clinton administration's September 1993 report on reinventing
government noted, "The full stack of personnel laws, regulations, directives, case law and
departmental guidance that the Agriculture Department uses weighs 1,088 pounds." Today the law
has become a tool with which to force people to behave in ways politicians approve, rather than a
clear line that citizens can respect in order to live their lives in privacy and peace. With the
proliferation of retroactive regulations, government agencies now have the right to change the rules of
the game at any time -- even after the game is over. The Rule of Law -- the classical concept
endorsed by the Massachusetts Constitution of 1780 as a restraint on government power -- has been
replaced by the "Rule of Memo," whereby federal officials on a whim create new rules to bind and
penalize private citizens.

Government now appears more concerned with dictating personal behavior than with protecting
citizens from murderers, muggers, and rapists. In 1990, for the first time in history, the number of
people sentenced to prison for drug violations exceeded the number of people sentenced for violent
crimes. The number of people incarcerated in federal and state prisons in 1992 was almost triple the
number incarcerated in 1980, and America now has a higher percentage of its population in prison
than any other country. Unfortunately, the more government has tried to control people's behavior,
the more out of control American society has become. Violence is at an alltime record high: over five
million Americans were robbed, assaulted, raped, or murdered in 1992.

Coercion has become more refined and more pervasive in recent decades. We rarely see scenes
like the Los Angeles police beating Rodney King or IRS agents dragging Amish tax resisters out of
their meager homes. But just because few people physically resist government agents does not mean
that the State is violating fewer people's rights. The level of coercion imposed by government
agencies is less evident today primarily because the vast majority of citizens surrender to government
demands before the government resorts to force. Economist J. A. Schumpeter wrote: "Power wins,
not by being used, but by being there." The lack of an armed uprising is no proof of a lack of

The key to contemporary American political thinking is the newtering of the State -- the idea that
modern government has been defanged, domesticated, tamed. Many Americans apparently believe
that modern politicians and policy experts have been wise enough to create a Leviathan that does not
trample the people it was created to serve. The question of individual liberty is now often portrayed
as a question of a ruler's intentions toward the citizenry. But lasting institutions are far more
important than transient intentions. And the last seventy years have seen the sapping of most
restraints on arbitrary government power. American political thinking suffers from a romantic
tendency to appraise government by lofty ideals rather than by banal and often grim realities; a
tendency to judge politicians by their rhetoric rather than by their day-to-day finagling and petty
mendacity; and a tendency to view the expansion of government power by its promises rather than
by its results.

The decline of liberty results not only from specific acts of government -- but also from the
cumulative impact of hundreds of thousands of government decrees, hundreds of taxes, and legions
of government officials with discretionary power over other Americans. We have tried to improve the
quality of life by vastly increasing the amount of coercion, by multiplying police powers, by giving
one group of people the power to command others as to how they must live. The power that
accumulates in a centralized government is not put in a display case at the Smithsonian Institution --
it is used in everyday life. The larger government becomes, the more coercive it will be -- almost
regardless of the intentions of those who advocate a larger government.

Americans' comprehension of liberty and the threats to its survival has declined sharply since the
nation's birth. The Massachusetts colonists rebelled after the British agents received "writs of
assistance" that allowed them to search any colonist's property. Modern Americans submit passively
to government sweep searches of buses, schools, and housing projects. Virginia revolted in part
because King George imposed a two-pence tax on the sale of a pound of tea; Americans today are
complacent while Congress imposes billions of dollars of retroactive taxes -- even on people who
have already died. Connecticut rebelled in part because the British were undermining the
independence of judges; nowadays, federal agencies have the power to act as prosecutor, judge, and
jury in suits against private citizens. Maine revolted in part because the British Parliament issued a
decree confiscating every white pine tree in the colony; modern Americans are largely complacent
when local governments impose almost unlimited restrictions on individuals' rights to use their own
property. The initial battles of the Revolution occurred after British troops tried to seize the colonists'
private weapons; today, residents in Chicago, Washington, D.C., and other cities submit to de facto
prohibitions on handgun ownership imposed by the same governments that grossly fail to protect
citizens from private violence.

The 1775 Revolution was largely a revolt against growing arbitrary power. Nowadays, seemingly
the only principle is to have no political principle: to judge each act of government in a vacuum, to
assume that each expansion of government power and each nullification of individuals' rights will
have no future impact. The Founding Fathers looked at the liberties they were losing, while modern
Americans focus myopically on the freedoms they still retain.

America needs fewer laws, not more prisons. By trying to seize far more power than is necessary
over American citizens, the federal government is destroying its own legitimacy. We face a choice
not of anarchy or authoritarianism, but a choice of limited government or unlimited government.
Because government is a necessary evil, it is necessary to vigilantly limit government's disruption of
citizens' lives. John Locke, whose Second Treatise of Government had a profound influence on the
Founding Fathers' thinking, wrote: "The end of Law is not to abolish or restrain, but to preserve and
enlarge Freedom." The Founding Fathers realized that some amount of government was necessary in
order to prevent a "war of all against all." But coercion remains an evil that must be minimized in a
free society. The ideal is not to abolish all government -- but to structure government to achieve the
greatest respect for citizens' rights and the least violation of their liberties.

Regrettably, the examples in this book do not divide themselves as neatly and cleanly as an author
or reader might wish. Thus, there will be some overlap in analyses of specific government agencies
among chapters. But I hope the book will help readers to navigate the maze of government policies
and to better understand how much power government officials now hold over their daily lives.

The question is not whether Americans have lost all their liberties, but whether the average
American is becoming less free with each passing year, with each session of Congress, with each
new shelf row of Federal Register dictates. As a Revolutionary-era pamphleteer declared in 1768,
"As the total subjection of a people arises generally from gradual encroachments, it will be our
indispensable duty manfully to oppose every invasion of our rights in the beginning." Although it is
too late to start opposing invasions of our rights "in the beginning," American liberty can still be
rescued from the encroachments of government. The first step to saving our liberty is to realize how
much we have already lost, how we lost it, and how we will continue to lose unless fundamental
political changes occur.

James Bovard
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