Future Prospects for Economic Liberty
WALTER WILLIAMS is the John M. Olin distinguished professor of economics at George Mason University. He holds a B.A. from California State University at Los Angeles and an M.A. and a Ph.D. in economics from UCLA. He has received numerous fellowships and awards, including a Hoover Institution National Fellowship and the Valley Forge Freedoms Foundation George Washington Medal of Honor. A nationally syndicated columnist, his articles and essays have appeared in publications such as Economic Inquiry, American Economic Review, National Review, Reader’s Digest, Policy Review and Newsweek. Dr. Williams has authored six books, including The State Against Blacks (later made into a PBS documentary entitled Good Intentions) and Liberty Versus the Tyranny of Socialism.
The following is adapted from a lecture delivered on August 2, 2009, during a Hillsdale College cruise from Venice to Athens aboard the Crystal Serenity.
One of the justifications for the massive growth of government in the 20th and now the 21st centuries, far beyond the narrow limits envisioned by the founders of our nation, is the need to promote what the government defines as fair and just. But this begs the prior and more fundamental question: What is the legitimate role of government in a free society? To understand how America’s Founders answered this question, we have only to look at the rule book they gave us—the Constitution. Most of what they understood as legitimate powers of the federal government are enumerated in Article 1, Section 8. Congress is authorized there to do 21 things, and as much as three-quarters of what Congress taxes us and spends our money for today is nowhere to be found on that list. To cite just a few examples, there is no constitutional authority for Congress to subsidize farms, bail out banks, or manage car companies. In this sense, I think we can safely say that America has departed from the constitutional principle of limited government that made us great and prosperous.
On the other side of the coin from limited government is individual liberty. The Founders understood private property as the bulwark of freedom for all Americans, rich and poor alike. But following a series of successful attacks on private property and free enterprise—beginning in the early 20th century and picking up steam during the New Deal, the Great Society, and then again recently—the government designed by our Founders and outlined in the Constitution has all but disappeared. Thomas Jefferson anticipated this when he said, “The natural progress of things is for liberty to yield and government to gain ground.”
To see the extent to which liberty is yielding and government is gaining ground, one need simply look at what has happened to taxes and spending. A tax, of course, represents a government claim on private property. Every tax confiscates private property that could otherwise be freely spent or freely invested. At the same time, every additional dollar of government spending demands another tax dollar, whether now or in the future. With this in mind, consider that the average American now works from January 1 until May 5 to pay the federal, state, and local taxes required for current government spending levels. Thus the fruits of more than one third of our labor are used in ways decided upon by others. The Founders favored the free market because it maximizes the freedom of all citizens and teaches respect for the rights of others. Expansive government, by contrast, contracts individual freedom and teaches disrespect for the rights of others. Thus clearly we are on what Friedrich Hayek called the road to serfdom, or what I prefer to call the road to tyranny.
As I said, the Constitution restricts the federal government to certain functions. What are they? The most fundamental one is the protection of citizens’ lives. Therefore, the first legitimate function of the government is to provide for national defense against foreign enemies and for protection against criminals here at home. These and other legitimate public goods (as we economists call them) obviously require that each citizen pay his share in taxes. But along with people’s lives, it is a vital function of the government to protect people’s liberty as well—including economic liberty or property rights. So while I am not saying that we should pay no taxes, I am saying that they should be much lower—as they would be, if the government abided by the Constitution and allowed the free market system to flourish.
And it is important to remember what makes the free market work. Is it a desire we all have to do good for others? Do people in New York enjoy fresh steak for dinner at their favorite restaurant because cattle ranchers in Texas love to make New Yorkers happy? Of course not. It is in the interest of Texas ranchers to provide the steak. They benefit themselves and their families by doing so. This is the kind of enlightened self-interest discussed by Adam Smith in his Wealth of Nations, in which he argues that the social good is best served by pursuing private interests. The same principle explains why I take better care of my property than the government would. It explains as well why a large transfer or estate tax weakens the incentive a property owner has to care for his property and pass it along to his children in the best possible condition. It explains, in general, why free enterprise leads to prosperity.
Ironically, the free market system is threatened today not because of its failure, but because of its success. Capitalism has done so well in eliminating the traditional problems of mankind—disease, pestilence, gross hunger, and poverty—that other human problems seem to us unacceptable. So in the name of equalizing income, achieving sex and race balance, guaranteeing housing and medical care, protecting consumers, and conserving energy—just to name a few prominent causes of liberal government these days—individual liberty has become of secondary or tertiary concern.
Imagine what would happen if I wrote a letter to Congress and informed its members that, because I am fully capable of taking care of my own retirement needs, I respectfully request that they stop taking money out of my paycheck for Social Security. Such a letter would be greeted with contempt. But is there any difference between being forced to save for retirement and being forced to save for housing or for my child’s education or for any other perceived good? None whatsoever. Yet for government to force us to do such things is to treat us as children rather than as rational citizens in possession of equal and inalienable natural rights.
We do not yet live under a tyranny, of course. Nor is one imminent. But a series of steps, whether small or large, tending toward a certain destination will eventually take us there. The philosopher David Hume observed that liberty is seldom lost all at once, but rather bit by bit. Or as my late colleague Leonard Read used to put it, taking liberty from Americans is like cooking a frog: It can’t be done quickly because the frog will feel the heat and escape. But put a frog in cold water and heat it slowly, and by the time the frog grasps the danger, it’s too late.
Again, the primary justification for increasing the size and scale of government at the expense of liberty is that government can achieve what it perceives as good. But government has no resources of its own with which to do so. Congressmen and senators don’t reach into their own pockets to pay for a government program. They reach into yours and mine. Absent Santa Claus or the tooth fairy, the only way government can give one American a dollar in the name of this or that good thing is by taking it from some other American by force. If a private person did the same thing, no matter how admirable the motive, he would be arrested and tried as a thief. That is why I like to call what Congress does, more often than not, “legal theft.” The question we have to ask ourselves is whether there is a moral basis for forcibly taking the rightful property of one person and giving it to another to whom it does not belong. I cannot think of one. Charity is noble and good when it involves reaching into your own pocket. But reaching into someone else’s pocket is wrong.
In a free society, we want the great majority, if not all, of our relationships to be voluntary. I like to explain a voluntary exchange as a kind of non-amorous seduction. Both parties to the exchange feel good in an economic sense. Economists call this a positive sum gain. For example, if I offer my local grocer three dollars for a gallon of milk, implicit in the offer is that we will both be winners. The grocer is better off because he values the three dollars more than the milk, and I am better off because I value the milk more than the three dollars. That is a positive sum gain. Involuntary exchange, by contrast, means that one party gains and the other loses. If I use a gun to steal a gallon of milk, I win and the grocer loses. Economists call this a zero sum gain. And we are like that grocer in most of what Congress does these days.
Some will respond that big government is what the majority of voters want, and that in a democracy the majority rules. But America’s Founders didn’t found a democracy, they founded a republic. The authors of The Federalist Papers, arguing for ratification of the Constitution, showed how pure democracy has led historically to tyranny. Instead, they set up a limited government, with checks and balances, to help ensure that the reason of the people, rather than the selfish passions of a majority, would hold sway. Unaware of the distinction between a democracy and a republic, many today believe that a majority consensus establishes morality. Nothing could be further from the truth.
Another common argument is that we need big government to protect the little guy from corporate giants. But a corporation can’t pick a consumer’s pocket. The consumer must voluntarily pay money for the corporation’s product. It is big government, not corporations, that have the power to take our money by force. I should also point out that private business can force us to pay them by employing government. To see this happening, just look at the automobile industry or at most corporate farmers today. If General Motors or a corporate farm is having trouble, they can ask me for help, and I may or may not choose to help. But if they ask government to help and an IRS agent shows up at my door demanding money, I have no choice but to hand it over. It is big government that the little guy needs protection against, not big business. And the only protection available is in the Constitution and the ballot box.
Speaking of the ballot box, we can blame politicians to some extent for the trampling of our liberty. But the bulk of the blame lies with us voters, because politicians are often doing what we elect them to do. The sad truth is that we elect them for the specific purpose of taking the property of other Americans and giving it to us. Many manufacturers think that the government owes them a protective tariff to keep out foreign goods, resulting in artificially higher prices for consumers. Many farmers think the government owes them a crop subsidy, which raises the price of food. Organized labor thinks government should protect their jobs from non-union competition. And so on. We could even consider many college professors, who love to secure government grants to study poverty and then meet at hotels in Miami during the winter to talk about poor people. All of these—and hundreds of other similar demands on government that I could cite—represent involuntary exchanges and diminish our freedom.
This reminds me of a lunch I had a number of years ago with my friend Jesse Helms, the late Senator from North Carolina. He knew that I was critical of farm subsidies, and he said he agreed with me 100 percent. But he wondered how a Senator from North Carolina could possibly vote against them. If he did so, his fellow North Carolinians would dump him and elect somebody worse in his place. And I remember wondering at the time if it is reasonable to ask a politician to commit political suicide for the sake of principle. The fact is that it’s unreasonable of us to expect even principled politicians to vote against things like crop subsidies and stand up for the Constitution. This presents us with a challenge. It’s up to us to ensure that it’s in our representatives’ interest to stand up for constitutional government.
Americans have never done the wrong thing for a long time, but if we’re not going to go down the tubes as a great nation, we must get about changing things while we still have the liberty to do so.
Reprinted by permission from Imprimis, a publication of Hillsdale College.
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Education, Economics, and Self-Government
Larry P. Arnn, the twelfth president of Hillsdale College, received his B.A. from Arkansas State University and his M.A. and Ph.D. in government from the Claremont Graduate School. From 1977 to 1980, he also studied at the London School of Economics and at Worcester College, Oxford University, where he served as director of research for Martin Gilbert, the official biographer of Winston Churchill. From 1985 until his appointment as president of Hillsdale College in 2000, he was president of the Claremont Institute, an education and research organization based in Southern California. In 1996, he was the founding chairman of the California Civil Rights Initiative, the voter-approved ballot initiative that prohibited racial preferences in state employment, education, and contracting. He sits on the board of directors of several organizations, including the Heritage Foundation, the Army War College, and the Claremont Institute. He is the author of Liberty and Learning: The Evolution of American Education.
The following is adapted from speeches delivered in Indianapolis, Indiana, on September 24, and in Pocahontas, Arkansas, on October 19, 2009.
I HAVE BEEN ASKED TO talk today about education and economic development. The standard thing to say on this topic is that the former is vital to the latter. We live in the modern world, so we all have to be highly informed and highly skilled and understand the power of modern science. It is a task of the very first importance to train a workforce that will be able to compete in the global marketplace. That is the standard thing to say, and we hear it said often by education bureaucrats from the federal level on down. And of course it is perfectly true, as far as it goes. But there is more to be said.
The practical point of this standard thing to say is that America needs more technical education—more scientists and mathematicians. And of course we do need scientists and mathematicians. But I like to remind people when they say this that the word "technical" comes from the Greek word "techne," which means "art." And Aristotle points out that art is about making, and that the question of what one should make is always superior, in point of order and logic, to the question of how to make it.
What does this mean? Consider one of the greatest scientific achievements of the last century—the development of the atomic bomb. The question of whether to build an atomic bomb, and then the question of whether to drop it on Hiroshima and Nagasaki in order to end World War II without the need of invading and conquering the Japanese mainland, were more important questions—superior in order and logic—to the question of how to make the bomb. The brilliant physicists who accomplished the latter had immense technical training, but that training gave them no special knowledge about those more important questions. Or to put the point in a slightly different and more general way, a technical education can make a person wealthy and famous, but it does not teach that person what is best to do with wealth and fame.
So the first point I would make about education and economics is the importance of liberal arts education, which is the kind of education offered at Hillsdale College. Many think of liberal arts education as a broad education, but in fact it is a high education. We understand things to be arranged in a hierarchy. Hillsdale College has plenty of science and math majors, and our students go on to the very best graduate and professional schools. But whatever their majors, they learn the distinction I just made about questions of greater and lesser significance, and they study how to think about the very greatest ones.
The second point I want to make has to do with politics and education. The greatest example of economic development in human history was in the United States during the 19th century. At the beginning of that century, we were about five million people huddled along the East Coast. By the end of it we had grown at a rate of about 25 percent—much faster than China is growing today—and had settled an entire continent, largely without the help of modern science. To the question of how it was done, I think the short answer is the Homestead Act—the greatest piece of legislation I know. Signed by President Lincoln in 1862, the Homestead Act is short and beautiful—two qualities good legislation should have, and two qualities in which legislation today is utterly lacking.
What the Homestead Act did was to take the western land of the United States—surely one of the greatest assets ever held by any government in history—and give 160-acre plots to anyone with the backbone to live on them and work them. These plots of land were granted regardless of who someone was and with the certainty that no one settling on them could ever vote for this congressman or that. It is one of the greatest impartial acts of legislation in all of human history. It, and things like it, built America and the character of the people who spread across it.
How does this connect to my first point? It connects because the spirit of the Homestead Act, which led to unprecedented economic growth, could not be more different from the spirit of our legislation today. And the key to this difference is the difference between the education our leaders today have had, and the education students get at Hillsdale.
The principle that justified the Homestead Act has two parts, and both are found in the first 15 lines of the Declaration of Independence. The first is the idea of human equality—the idea that it does not matter what race or what family you come from, it only matters what you do—which has been the source of our greatest struggles in an attempt to live up to it. The second is the idea of the "Laws of Nature and of Nature's God." At Hillsdale College, we study the Declaration of Independence as the greatest thing of its kind. The signers of the Declaration were risking their lives. There is a beautiful passage at the end of it where they write, "we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." But the document begins in an opposite mood, because the cause they are willing to die for is not specifically about them at all: "When in the course of human events"—that means not our time, but any time—"it becomes necessary for one people"—that means not our people, but any people—and then this sentence goes on to speak of the "Laws of Nature and of Nature's God," laws true always and everywhere.
Understood comprehensively, the Declaration points us to an unalterable law of God, visible in nature, that man is inferior to God and superior to the beasts, such that it is unjust for one human being to rule any other without his consent. And it is this same understanding of human nature on which Madison rests his case in Federalist 51, in explaining why government is both necessary and must be limited:
. . . [W]hat is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
This is the understanding that animates legislation like the Homestead Act. And note the humility in it. America's founders understood themselves to be bound and limited by something higher. And it is precisely this understanding that is missing among our political leadership today. Nearly 20 years ago now, when Clarence Thomas was testifying before the Senate Judiciary Committee during his confirmation hearings, several senators questioned him about the idea of natural law, which seemed to them a foreign and dangerous idea. And why would it seem that way?
These senators have been taught to understand government as a means by which they can do marvelous things, changing society for the better in countless and unlimited ways. And in this light, the old-fashioned idea of natural law—which, as we saw in the passage from Madison, leads to the idea of limited government—becomes simply an impediment to progress.
President Obama is an impressive man, and there is much good to be said about him. But he falls firmly into this newer school of thought. Let me read you a passage from his book, The Audacity of Hope:
Implicit in [the Constitution's] structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology or theology or "ism," any tyrannical consistency that might lock future generations into a single, unalterable course. . . .
One can see immediately the practical results of this in the health care debate. Advocates of one of the latest plans are proud to place the cost at only $900 billion—apparently it takes $1 trillion to impress in this day and age! But consider that, in most of the plans that have advanced in the Congress, people making in the range of $30,000 to $80,000 a year will be forced to pay health insurance costs—or fines of about the same amount—that come to between ten and 20 percent of their income. They will be compelled to buy plans that have certain specific features. There will be an allocation of health care resources as part of the plan. And it will not be legal to buy or sell a plan that does not fit the criteria. Compare the spirit of this legislation with the spirit of the Homestead Act. There is a bullying spirit behind it. And that bullying spirit is becoming ever more pervasive.
The means are already in place for the federal government to control what people say in elections. As a recent example of how it tries this between elections, consider that Henry Waxman—a congressman of some power and influence—sent a letter in August to the CEOs of health care companies asking for schedules of all salaries above a certain amount, and of the conferences they had been to, and how much they cost, and who was there. Was it a coincidence that he wanted this information just as a health care debate was starting up? Could it be that he was trying to intimidate and silence potential opposition? One of the many "czars"—isn't that an ominous word?—in the Obama administration is Cass Sunstein, the czar of regulatory policy. Mr. Sunstein is a very smart man—a law professor, like the president—but he is on record saying that speech rights should be redistributed by government bureaucrats much as wealth is redistributed through post-New Deal tax and entitlement policy. This is not supposed to be a country where there are czars dealing with things like speech. But it is such a country right now.
The economic policies being proposed these days are very bad. But the principles behind them are worse. They represent a return to the idea that the American Revolution repudiated—the idea that some are equipped by nature or training to manage the lives of others without their consent. I have been making the point lately that people are wrong who accuse the Obama administration of being socialist. I take the president at his word when he says that he has no desire to own the automobile companies. Instead, he wants to control them—and the rest of us as well—through a regulatory apparatus overseen by czars and bureaucrats. And again, his intentions are good. What is bad is the view underlying them of what human beings are. Rather than looking on us as equal beings with a set nature—such that none of us should rule another in the way that God rules man or man rules beast—our political leaders today have been taught to see us as material to be shaped and perfected by experts who have the proper technical training.
It has been close to 100 years now that the majority of people teaching in American colleges and universities have agreed with Woodrow Wilson, one of the founders of the Progressive movement and the first to write explicitly that the Declaration of Independence is obsolete, and that we need to liberate the Constitution from the Declaration's restraints. This liberation leads to the idea of a "living Constitution," characterized by constant change or progress. Absolute truth, to the extent that ordinary people still believe in it, obstructs change or progress—which is why President Obama refers to it, in the passage I read, as tyrannical. But if change or progress is the rule, who is to determine what version of change or progress is good? And the logical problem here—as any Hillsdale student could tell you—is that once you deny the existence of absolute truth, the definition of "good" becomes subjective and the only standard of behavior is what we want—"we," in the political sense, meaning the government or bureaucracy. It reduces politics not to right, but to force. That is why there is this bullying spirit about our government today, and why so many Americans are worried.
It is time for that to stop, and there are two conditions for stopping it. The first is for the ordinary folk of the United States to see in this the despotism that it is, and to rise up and repudiate it. The second thing is longer term, but equally vital: It is to replace leaders who have bad educations with leaders who have good educations. This is our work at Hillsdale College. We aim to recover the meaning of the "Laws of Nature and of Nature's God" and to place that meaning firmly in the minds and hearts of ambitious young men and women who have the courage to do something with that knowledge. And I swear that we shall not stop pursuing that task.
Reprinted by permission from Imprimis, a publication of Hillsdale College.
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The Assault on the Boy Scouts of America
by Midge Decter
Midge Decter is an author and editor whose essays and reviews, mostly in the field of social criticism, have appeared over the past four decades in a number of periodicals, including Harper's, The Atlantic, The American Spectator, First Things, National Review, The New Republic, and The Weekly Standard. She is a regular and frequent contributor to Commentary. She has published four books: The Liberated Woman and Other Americans; The New Chastity and Other Arguments Against Women's Liberation; Liberal Parents, Radical Children; and An Old Wife's Tale: My Seven Decades in Love and War. She has been the executive editor of Harper's, literary editor of Saturday Review, and a senior editor at Basic Books. From 1980 to 1990, she served as Executive Director of the Committee for the Free World, and from 1990 to 1995 she was a Distinguished Fellow of the Institute on Religion and Public Life. She is currently a member of the Board of Trustees of the Heritage Foundation, as well as of the Center for Security Policy, the National Forum Foundation/Freedom House, the Institute on Religion and Public Life, and the Clare Boothe Luce Fund.
Let us take a few minutes to think about a 12-year-old American boy living in the early twenty-first century. Now, there are a number of things to say about this boy Chances are, for instance, that absent the requisite amount of parental pressure, he is likely to be a bit of a slob: his room piled with trash, his hands dirty, his socks sliding down into untied shoes. Chances are, too, that as yet he has no definite idea as to whether he is on his way to being manly with his father or whether he wishes—at least some of the time—to remain in the now-humiliating but still comforting arms of his mother. And it is more than likely that he continues by and large to prefer the company of boys to that of girls.
So much, of course, he would surely have in common with a boy of his age of, say, 75 years ago. But in beginning to think about him, it seems important to remind ourselves that he is almost certain to be in better health than his earlier counterpart. It is likely for example, that on the whole he has passed into pre-adolescence without being weakened by any of the diseases that were once the taken-for-granted hazards of childhood, such as measles, mumps, diphtheria, scarlet fever, or that once-upon-a-time blue terror of parents everywhere, polio. In short, except in the case of some accidental misfortune, he is not likely to have experienced much in the way of real physical suffering.
It also seems likely that much closer attention has been paid by those around him to the state of his emotions. Indeed, it is almost certain that he has, from a very early age, been the object of ongoing scrutiny by someone in his life—if not parents, then relatives, neighbors, or school authorities—for any signs of impending social or psychic disturbance. (As such disturbance is, of course, nowadays defined: how many well-tended young American boys, for instance, are currently being medicated with amphetamines at the behest of someone in a position of responsibility for his education?)
So we must ask ourselves what a free and robust society would properly wish to have added to the upbringing of such a boy—beyond, that is, either the good luck or the private sorrows of his family life. The answer is, first of all, that such a society would surely wish to stress a boy's mindfulness of others. Next, it would wish for him to have in his life someone or some influence that would encourage him to aspire by setting a variety of goals for him to reach, by teaching him how he might reach them, and then by valuing him highly for doing so. And lastly, it would wish for him to come into at least the beginning of a consciousness of his debt: his debt to his family, to his community, and to his country.
Not a bad list, I would say And as it happens, such a list of wishes for our 12-year-old pretty much defines the original and continuing purpose of the organization known as the Boy Scouts of America, an organization brought to the United States from Britain in 1910. Permit me to remind you of the Scout Oath—something which, even if one is familiar with it, bears repeating: "On my honor I will do my best to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake, and morally straight." As I said before, not bad. This oath contains a promise that our country's government officials, among others, might recite with a good deal of profit every morning before sitting down at their desks.
But, you might ask, has not this oath, more than once down through the years, been honored mainly in the breach—and by many apparently loyal Scouts? The answer is, no doubt it has. After all, the 110,000,000 boys who have, at one time or another during the past 90 years, become alumni of the organization, surely did not all remain consistently trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent, as the Scout Law would have them be. After all, we are talking here about boys. Some of them have very likely joined the Scouts merely to be with their buddies. Some perhaps became Scouts because of the appeal of going camping. Some were simply mad to wear a uniform. The point is—especially in recent years, when the whole world has appeared to be mainly concerned with a boy's emotional stability or his academic achievement—in the Scouts he is required at least to speak, and in fact to speak often, of his wish to be trustworthy, thrifty, brave, helpful, loyal, and so on. And that, my friends, is very, very far from nothing. What better recipe for the making of citizens of a true republican democracy?
Women's Liberation
We, of course, no longer live under what was originally intended by that term. Many factors, both historical and political, can be called to account for this unhappy fact. But perhaps the most damaging development of the last third of the past century has been a general willingness, in both the public and private spheres, to accede to the demands of certain groups out to achieve special legal and/or economic status as compensation for past suffering and discrimination. I should say alleged past suffering and discrimination, because while this demand was first brought by groups speaking in the name of America's blacks, who at least had a rightful case in view of their dreadful history in this country, certain illegitimate imitators of the blacks' success in pressing their claims inevitably followed.
Two groups in particular imitated the blacks' claim of having been oppressed and discriminated against, through a combination of distorting history, telling outright lies, and wielding considerable political and economic power, and in the process have done unbelievable damage to the fabric of American life. I am speaking, of course, of Women's Liberation and the homosexual rights movement. And getting back to our 12-year-old boy—I do not intend to forget him for a minute—these two movements, each in its own way, now threaten him in a way that is related to, but goes far beyond, what any of us muddled parents or any pill-pushing experts can do.
The women's movement is seen by many who have not wished to be disturbed by it as no more than a way for women to begin asserting their rightful claim to equality in education and employment. Even at its mildest, however, the women's movement demands that women be given the right to seek freedom by redefining sex, marriage, motherhood, and career in whatever way they find least psychologically and physically burdensome to themselves. Furthermore, they make this demand in the name of their long oppression at the hands of men—all men: fathers, brothers, teachers, lovers, husbands, employers, the government, and, last but not least, the medical profession. All future relations with these various exploiters are henceforth to be arranged for a woman's convenience and in accordance with her desires and ambitions.
This list essentially covers the whole of society, and ideally the movement would impose regulations without end on all the relations between men and women, and boys and girls, in everyday life. As it is, it has managed, even though with less success than it had once dreamed of, to impose regulations aplenty, with dire consequences to follow from anyone's failure to live up to them. Consider, for instance, "sexual harassment." Under this rubric, women who have been competing madly for more than a healthy share of the world's sum of power somehow at a moment's notice claim to have become shy and defenseless, unable to resist any kind of superior strength. I am reminded of 1991 when Justice Clarence Thomas was being put through hell as a result of the claim that he had sexually harassed a subordinate. A radio station at the time interviewed a group of female factory workers and asked them if they had ever been sexually harassed by their bosses. "No," one after another answered, "but if he had ever tried, by the time I got through with him, he would never try again, I promise you." Needless to say, such women neither belong to, nor would be welcome in, the women's movement.
Beyond this kind of legal onslaught against men, and perhaps above all, the women's movement has been pressing the demand for quick and easy and no-questions-asked abortion. This is the demand with the greatest popularity, since it is also supported by many women who may not necessarily share the movement's other attitudes. The legalization of abortion as the movement women have defined and fought for it—and won—requires that every female of reproductive age be granted an abortion by right, without intervention by parent or husband, for any reason and under any circumstance and at any time during her pregnancy; abortion, that is, as nothing more than an alternative form of birth control, even should such birth control ultimately turn out in reality to be infanticide. Winning the right to an abortion on demand has higher standing than most of the other demands pressed by the movement—say, that women should by right be equally represented in the boardroom and on the political ticket.
The Homosexual Rights Movement
So much for the movement women. Perhaps the Scouts will succeed in making our boy into a sturdy citizen despite them, and perhaps he will find lifetime companionship among his fellow Scouts, and all together they will find the means for getting along with the distaff side. But what shall we say of the most recent rights movement, which, if not so widespread as the women's, is, in its way easily as threatening—the homosexual rights movement. The homosexuals, too, decided to stand on their age-old oppression, though I like to believe that at least some of them at first felt rather sheepish about doing so. After all, the very behavior involved in being a homosexual, once someone has discovered that he is one, has usually involved a certain sense of danger and adventure, of being in one's own world and set apart from those who are leading what the homosexuals call "straight" lives. True, before the movement came along, homosexuals were always potential outlaws, in danger of being harassed and sometimes worse by the police. Such experiences, on the other hand, were avoidable—if one wanted to avoid them—simply by acting on one's predilection in private and keeping it private. In any case, as the putative result of a police raid on a particularly low hangout in Greenwich Village, the homosexuals began to march and to demonstrate. With each year their demonstrations became more extravagant and outrageous, and at the same time the so-called "enlightened" communities supporting them became less and less tolerant of any kind of expression of distaste for their newly aggressive public behavior. In San Francisco, the homosexual community became the center of great political and economic power. Did this, do you think, lead San Francisco's homosexuals to behave more respectably? On the contrary. They represented the greatest success of this rights movement, and as such grew more flamboyant, as it seemed, with every passing year.
Then came two further developments. First was the discovery that AIDS was running like murderous wildfire through the homosexual community. The medical professionals had long been aware that homosexuals were particularly prone to venereal diseases and other kinds of health problems that were uniquely rife among them. But AIDS was a new plague—a plague encouraged by the intensified and ever-varying forms of sexual promiscuity that were spreading through all the institutions of homosexual pleasure-seeking. Since AIDS had also become an affliction of those drug users so addicted and besotted as to share their needles, and dirty needles at that, with others, fine liberal-minded folk began to declare that everyone, men and women, heterosexual and homosexual alike, were equally at risk of contracting AIDS. As it happened, everyone except the particularly credulous really knew that this was not so—but many people affected to believe it anyway as a means of expressing sympathy and brotherhood for the dying victims. And so came the campaign to demand that science produce a cure. Vast amounts of money were raised and spent as a result of this campaign, and while a cure has not been found, at least the scientists have been able to produce substances for inhibiting the disease from developing beyond a relatively early stage—at a staggering cost both to society and to the individual users. It is an almost unbelievable irony that a murderous disease had become the occasion for those afflicted with it to gamer ever greater cultural and political power.
Target: Boy Scouts
I have gone through this lengthy discussion of the cultures of women's and homosexual rights and of the great public outpouring of sympathy for those with AIDS because, after more than 80 years of humming along in their accustomed way, our Boy Scouts—they of the innocent aspirations for innocent boys—ran smack up against the new terms of the liberal culture. It was, I suppose, bound to happen, and here is how it began to happen in particular: A young man named James Dale from New Jersey, who had been a most meritorious Scout—indeed, had earned his way to the highest rank of scouting and had then become an assistant scoutmaster—went public with the fact that he was a homosexual. The Scouts responded by asking for his resignation, following which all hell broke loose. Naturally, the American Civil Liberties Union was on the spot. Other cases like Mr. Dale's would subsequently come to light. And all over the country the various community funds, such as the United Way—funds that had been supporting the Scouts for years and years—declared that they were withdrawing their support. Other long-time supporters followed suit. Meanwhile, schools and park facilities where Scout troops had been meeting were suddenly closed to them and public denunciations rang through the air. In short, it was now our 12-year-old who, in the act of seeking to honor the Scout Law and Scout Oath, would find himself an outlaw.
No doubt, most of us already know all this. But so habituated have we become to public denunciations of our lack of what nowadays passes for liberality, that it sometimes seems to me we have lost our sense of outrage from the sheer habit of it.
Mark you: The Scouts did not ask Mr. Dale if he was a homosexual. Had the information not been pressed upon them, they would undoubtedly never have acted as they had. But now the fat was in the fire, and our 12-year-old was to become the object of an open tug-of-war between those who wished to recruit him for scouting and those who—make no mistake about it—wished to recruit him for homosexuality. This last assertion is, of course, denied by the spokesmen for the homosexual rights movement. They, along with all those public institutions that are being influenced by them, are, they say, merely fighting the good fight against discrimination. This fight, they say, is against discrimination in general, and in particular against such an identity-based injustice as exclusion from public accommodations, which is what the homosexual activists claim the Boy Scouts organization is.
To be sure, the Boy Scouts of America was not, and is not, the only institution subject to the movement's aspirations for homosexual recruitment. In school, for instance, our 12-year-old could very well have been presented with some version of a sex-education course—or what many prefer to call a "family health" course (to allow the schools to begin without protest in the very early grades)—whose curricula were being written with detailed counseling from leaders of an organization called the Gay Men's Health Crisis. This effort to teach so-called tolerance for those whose "lifestyle" might be different from the one known to the child within his own family has resulted in a number of pedagogic crimes against the young. I offer one example: the passing along of detailed instruction—I am talking here about fourth-to sixth-grade classes!—about (and I kid you not) the best and safest way to practice oral sex.
Such recruitment, as we know, also goes on in the culture generally where the constant preachments of toleration have become so natural it is almost unnoticeable just what we are being asked to be tolerant of. So, young mister Dale or no young mister Dale, the Boy Scouts were a sitting target. Sooner or later they would either be forced to take an unaccustomed political stand or simply surrender the purpose of their existence.
Boy Scouts in Court
They took the stand, of course, and were at first rewarded for their loyalty to principle by losing unanimously in the New Jersey Supreme Court. This vote was based on the argument that New Jersey law prohibits discrimination on the ground of sexual orientation in places of public accommodation. And, as I said, trouble burst out all around the country. Subsequently the Scouts carried their case all the way to the United States Supreme Court, which by a 5-4 vote found in their favor—Rehnquist, O'Connor, Scalia, Kennedy and Thomas in the majority, and Stevens, Souter, Ginsburg, and Breyer predictably voting against the Scouts.
Interestingly, in other ostensibly similar cases—that is, in public accommodations cases—the Court's decisions had required thejaycees to open their membership to women because of the Minnesota Human Rights Act of 1984, and required the Rotary Clubs to do likewise because of a California law forbidding businesses from gender discrimination. In each of these cases the Court decided that the right of association of the organization in question had to give way to a more compelling state interest.
So much for the once sacred principle of freedom of association that is enshrined in the currently so little understood and so much abused United States Constitution. This is the same Constitution, you will recognize, now being so badly trounced by those whose blood seems to run ice cold at the very mention of the word "God" that it's hard to imagine how we will ever find our way back.
In the Boy Scout case, the majority's argument alluded not to freedom of association but rather to freedom of speech. Rehnquist wrote for the majority that "a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' right to freedom of expressive association."
The matter did not end there, of course, and the anti-Scouts campaign continues apace—at the hands of the Los Angeles City Council, the New York City school board, and (big surprise) in San Francisco. Furthermore, Minneapolis, Minnesota, Dade County, Florida, Santa Barbara, California, and Framingham, Massachusetts, have halted all Scout recruitment and even prohibited the distribution of Boy Scouts material in the schools. Nor has it ended there—I could go on and on about problems all over the country, the Scouts' crime being such, I suppose, as to cost them even privileges of citizenship itself.
America's Boys at Risk
In September of 2001, the Scouts' national organization issued a public statement explaining their position. This statement is worth dwelling on for a minute. Among other things it says:
Today, young people and adults from every ethnic, religious, and economic background, in suburbs, on farms, and in cities, know and respect each other as they participate in our program. Boy Scouting makes no effort to discover the sexual orientation of any person. Scouting's message is, however, compromised when prospective leaders of youth present themselves as role models inconsistent with BSA standards. We believe an avowed homosexual is not a role model for the traditional moral values espoused in the Scout Oath and Law, and homosexual conduct is inconsistent with the values we wish to instill.
Such a statement leads one to wonder how many young members the organization will lose as a result of its holding firm to this position. Will our 12-year-old's parents be too "liberal"—for which read "too impotent in the face of the homosexual rights movement's ambitions for their son"—to allow him to join the Scouts? After all, we have everywhere seen the most ardent expressions of love and fellow-feeling for those who—nearly two decades after learning of the disease and by what behavior it is contracted—have become the so-called "victims" of AIDS. We have seen large audiences hotly applauding explicitly homosexual works of art intended for no other artistic purpose than to outrage the sensibilities of the very people who are applauding. And most impressive of all, at least to me, was witnessing how a certain New York City high-school teacher who admits to being the National Secretary of an organization called the North American Man-Boy Love Association—the proud sponsor of the sexual exploitation of little boys by men—was protected from being fired by both that city's educational bureaucracy and its teachers' union.
We have immunized our 12-year-old boy against measles and other debilitating things. The question is—and it is urgent—are we as a society, or are we not, prepared to immunize this child against a culture that holds all kinds of peril for his future inner well-being?
The authors of our Constitution could not in their wildest dreams have imagined such a problem for the country's young male citizens. Even they who in their collective genius understood well what kind of citizenry would be required to sustain the republic they were in the process of creating, could not have dreamed of how dangerously far our sloth in the face of a sickly culture would take us. The Court has only remedied one, and by no means the most critical, aspect of this peril—and even then the victory was only by the slenderest of margins.
So there he is—our beautiful, sturdy high-hearted, and yet still needy 12-year-old—of whom his country nowadays demands nothing that might ennoble him, not even that he salute its flag; of whom his community requires nothing that might enlarge his spirit, not even that he do it some small service; of whom his school asks little of his mind but that he in the end learn to master the art of the multiple-choice question; and to whom it is a primary responsibility of his family to teach, among other things, at least some measure of prudence. I would not be so foolish as to maintain that the Boy Scouts of America, should they even be allowed to do so, could provide all he needs in the way of a defense against the culture's attacks on his well-being. But what must Americans of the future think of us—what must we think of ourselves—if we should in the end throw a generation of beautiful, sturdy needy uncertain, and longingly aspiring man-children to the wolves of sloth and cowardice?
The above speech was delivered at a Hillsdale College seminar in Naples, Florida, on March 20, 2002. Reprinted by permission from IMPRIMIS, the national speech digest of Hillsdale College. |
Threat from Lawyers is No JokeWalter Olson, a senior fellow at the Manhattan Institute, is a graduate of Yale University. He has served as an adviser to political campaigns, testified several times before Congress, and appears frequently on TV shows such as Crossfire and The NewsHour with Jim Lehrer. He writes regularly for such publications as the Wall Street Journal, the New York Times and Reason, and his books include The Excuse Factory: How Employment Law is Paralyzing the American Workplace; The Litigation Explosion: What Happened When America Unleashed the Lawsuit; and most recently, The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law. The following is adapted from a lecture delivered at Hillsdale College on February 11, 2004, at a seminar co-sponsored by the Center for Constructive Alternatives and the Ludwig von Mises Lecture Series.
Many of us have wondered over the years what the difference is between satire and reality in the American legal system. I now have the answer: one year, 11 months, and ten days. Let me explain.
It was on August 3, 2000, that The Onion—America’s favorite satirical newspaper—published an article entitled, “Hershey’s Ordered to Pay Obese Americans $135 Billion.” This piece of comic fiction reported that the chocolate company had been sued by state attorneys general in a class action over the lack of warnings on its product, over its marketing of products to children, and over its having—most insidiously of all—artificially spiked its products with nuts and crisped rice to keep people addicted. The jury, by this satirical account, had responded by granting an enormous award. “This is a vindication for myself and all chocolate victims,” said one of the plaintiffs. In addition, the company was ordered to place a warning on all of its products reading: “The Surgeon General has determined that eating chocolate may lead to being really fat.”
Well, on July 24, 2002—less than two years later—the wire services reported that Mr. Caesar Barber of the Bronx, New York, was filing a lawsuit against McDonald’s. (He was soon joined by various other plaintiffs suing Wendy’s, Burger King, and other fast food chains.) Mr. Barber had for years been wandering into McDonald’s restaurants, apparently under the impression that they served health food, and had been receiving hamburgers and French fries instead of celery stalks. He had no idea that you could get fat from such products, and sure enough he developed heart problems and other medical conditions associated with obesity.
Although many of us greeted this lawsuit with incredulity, it was taken quite seriously by some veterans of the tobacco litigation that had succeeded so gloriously a few years earlier. Here is a law professor from George Washington University, quoted in Time: “A fast food company like McDonald’s may not be responsible for the entire obesity epidemic. But let’s say they’re five percent responsible. Five percent of 117 billion dollars is still an enormous amount of money.” Northeastern University organized a conference on how to sue food makers that was attended by scores of lawyers, one of whom—a recent Rutgers law graduate—told Time: “It’s a very important and pressing issue and its outcome will be with us for years to come. I’m hoping to be able to build a career out of this issue.” Lawsuits against fast food restaurants were also taken seriously by the New York Times, which defended them as socially beneficial. Its general argument seemed to be, “We’re not saying these lawsuits should win, but what can they hurt?”
We used to know the answer to that question. We knew that they could hurt a lot.
The Older View
In Texas, a woman dentist who found out that her dentist husband was cheating on her ran him over in a Hilton parking lot. We used to see clearly that it would be wrong in such a case to sue Hilton hotels for negligent training of employees—thus for making it too easy for wives to run over their cheating husbands. But that’s what happened.
Speaking of parking lots, the proprietor of one in Framingham, Massachusetts, was sued after a thief broke into the lot, stole a car, drove off at high speed and crashed. Indeed, the family of the thief sued the lot owner for negligently making it too easy to steal a car from the lot. We used to know what was wrong with that, too.
A California man who passed out drunk on the railroad tracks sued the Union Pacific railroad because its engineer and conductor did not sound the train’s horn after seeing him—they were too busy trying to engage its emergency brakes. On the other coast, a woman who lay down on the subway tracks and was hit by a train—police concluded that she had been trying to kill herself—was awarded $14.1 million by a New York City jury. Not only did we once know that such lawsuits are wrong—once they would not have been imaginable.
Throughout most of American history, we understood quite clearly that litigation is for most people one of the most expensive, unpleasant things that ever happens to them in their lives. It is incredibly expensive, not only monetarily, but in the time and energy it absorbs. It is an assault on the reputation of at least one party, and often both parties, as charges are leveled back and forth. It is an assault on privacy, forcing those involved to answer questions under oath, involuntarily, about what they have done. It is a breach of the social peace. It is something that tends to corrupt the participants into doing things that they would not do otherwise. So while of course it was recognized that litigation is necessary sometimes as a last resort, it was seen as just that—a last resort. And if you accept the idea that litigation ought to be a last resort—and ought to be embarked on only in strong cases—you will want to arrange the rules of your legal system in a way to discourage weaker cases from going forward. We do not do this today. In fact, we have intentionally dismantled such rules.
In almost every country but the U.S., legal systems incorporate a “loser pays” principle. If you sue someone and lose, you can’t just walk away. You have to contribute something to making the victim of the lawsuit whole for what he has paid. We had that same principle in our legal system throughout much of American history, but it gradually died out. We also had procedural rules discouraging ill-conceived litigation. And we had rules of legal ethics prohibiting lawyers from stirring up litigation for their own benefit. But something changed around the 1960s and 1970s. It started in the world of ideas—in the universities and the law schools. Litigation came to be seen not as a necessary evil, but as a positive good. This view can be identified with the career of Ralph Nader, and with many of the professors who began to dominate elite law schools during that period.
The Newer View
According to this new view, litigation deters wrongful conduct: The more lawsuits that are filed, the more people will behave carefully. Litigation also came to be seen as a way to redistribute wealth from those who have it to those who need it. From this perspective, the more litigation there is, the more redistributive justice the courts can impose on society. And who can be against justice?
From being a last resort, then, litigation came to be seen as socially beneficial. And lawyers who advertise with billboards saying, “Sue someone and let’s see how much money I can get for you,” are seen not as sleazy but as public-spirited.
Given this new view of litigation, rules discouraging lawsuits ceased to make sense. This is why, starting in the 1960s and 1970s, we began changing the rules to make it easier to sue. We liberalized the rules of discovery—the rules governing how a person can demand information from his opponent. We opened the door to the “fishing expedition”: “I don’t know for sure whether you have done me any legal wrong, but please hand over the contents of your filing cabinets so that I can find out.” We made it much easier to organize class actions, by which most Americans are periodically dragged into lawsuits as plaintiffs without even knowing it. We dropped many of the rules against lawyers stirring up litigation. And we weakened traditional legal principles like “assumption of risk.” Here’s what that means: If you go to a baseball game and get conked on the head by a foul ball, the old courts would have said that you have no grounds to sue because everyone knows that foul balls happen at baseball games. This no longer makes sense, however, if the point of lawsuits is to encourage ball clubs to be careful about where they let their players send their foul balls—and to redistribute wealth. So out it went, at least in many courts.
All these developments were bound to give us more litigation, and sure enough they did. The share of America’s GNP that is devoted to litigation has tripled over 50 years. We spend two to three times more on it, in terms of percentage of GNP, as the other industrial democracies. The figure for how much is spent annually on liability insurance in the U.S.—a relatively easy thing to measure—is now $721 per citizen, which comes to over $2,800 per year for a family of four. So are we getting our money’s worth?
Everyone has heard about the medical malpractice crisis that is driving doctors out of high-risk fields like obstetrics and neurosurgery. The Harvard University study of New York hospitals that is cited by both sides in this controversy is very revealing. On the one hand—and this is the part that has been best advertised—it found that in the majority of cases where people are injured by negligent care in a hospital, they never sue. True enough. But the same study also found that in the majority of cases where people do sue, experienced reviewers could not identify any negligence. So you have a lot of negligence with no lawsuits and a lot of lawsuits with no negligence. Is the latter somehow supposed to balance out the former?
The Harvard study also found that a great many of the lawsuits filed where no negligence was identified were nonetheless successful in obtaining money. Even though we could go on at great length about the monetary costs of lawsuits, those costs are not, in the final analysis, of prime importance. Indeed, we are a very rich country and can afford to spend a small percent of our GNP on litigation, if only for the entertainment value. The non-monetary costs, however, should give us real pause. For instance, at the real heart of the medical malpractice crisis is the demoralization that spreads in a profession like medicine at the knowledge that being the best possible doctor will not save you from being sued. Most doctors, I think, would be willing to pay high insurance premiums if they could have confidence that the legal system works rationally in identifying the doctors who ought not to be practicing. Few of them, I believe, have that confidence today.
Think of the knots that people tie themselves into, attempting to keep from being sued. We’ve all seen crazy warning labels, and each of us has his favorite. There’s the one on an artificial fireplace log saying, “Caution: Risk of Fire”; the one on a bag of peanuts saying, “Warning: Contains Nuts”; and the one on a baby stroller saying, “Warning: Remove Child Before Folding.” My favorite is the warning on the cardboard windshield sunscreen that keeps the car from getting too hot in the summer: “Do not drive with sunshield in place.” This unhealthy level of caution infects many areas of our national life. Consider the unwillingness of most businesses today to give honest job references. That was one factor behind the recent case of the alleged killer nurse in Pennsylvania and New Jersey, who bounced from hospital to hospital, usually leaving under suspicion. The hospitals hadn’t even bothered calling each other, because they knew they wouldn’t get honest answers due to fears about lawsuits.
Effects on American Politics
This revolution in the legal system has begun to transform American politics. The part of this that gets the most press today is the litigation lobby—“big law,” if you will—which has become one of the most financially robust and effective lobbies in American politics. It is among the three or four most important financial bases of the Democratic Party, and also contributes to some Republicans. But this financial involvement in politics was just a prologue to a more disturbing trend: In recent years, litigation has evolved into a kind of substitute for politics.
Until quite recently, a group of Americans who saw the need for some sweeping new law would march in the streets, organize a letter-writing campaign to Congress or the state legislature, or try to replace congressmen or state legislators with candidates sympathetic to their cause. That was how politics was done. But today, politics is not necessary. If you want gun control or tighter control over tobacco or more environmental regulations, you can simply call 1-800-LAWSUIT. Operators will be standing by around the clock, and once you agree to give the lawyers a share of the monetary reward, you can lean back and watch them go to work.
Take tobacco. Despite years of agitation, Congress had not acted rapidly enough for anti-tobacco activists who wanted an increase in taxes on cigarettes and more regulation of advertising. The states were doing some of this, but not fast enough for activists. So what happened? We saw private lawyers flying around the country in their Lear jets, signing up state attorneys general and brokering a settlement that obtained $246 billion for state governments and $10 or 20 billion in fees for the lawyers. The settlement also resulted in the adoption of regulations that the elected branches of government had been unwilling to enact. We also got what amounted to a new tax on cigarettes—a tax increase unlike any other tax hike in that it did not originate in a legislature.
Soon we saw this same process of bypassing the political system being tried in other areas as well. American Lawyer magazine published an article on the origins of gun litigation, in which it interviewed the private lawyer (a multi-millionaire, needless to say) who had dreamed it up and flown around the country selling it to mayors. The article explained that it fit his thinking—that the plaintiff’s bar should act as a “de facto fourth branch of government—one that achieved regulation through litigation when legislation failed.” Richard “Dickie” Scruggs, the private lawyer who organized the tobacco litigation (and whose firm got an estimated one billion dollars for it), was profiled in Time, which reported as follows: “Ask Scruggs if trial lawyers are trying to run America, and he doesn’t bother to deny it: ‘Somebody’s got to do it.’”
What are the differences between this newly contrived fourth branch of government and the three branches that the founders established in the Constitution? The differences begin with the manner of selection. Those in the fourth branch don’t have to worry about those pesky things called elections—or even about getting confirmed by the Senate, as federal judges do. Nor do they have to worry about the safeguards of transparency that are built into our political system. Much of their activity takes place behind the scenes. Indeed, these cases nearly always are meant to be settled instead of tried, and the public is not admitted into the negotiation room. And if the public doesn’t like the results, there is, frankly, not much the public can do about it. This is highly ironic: The proclaimed goal of trial lawyers is to hold every profession and industry accountable for their actions, yet they have created a litigation-based policy-making process in which they themselves are almost entirely unaccountable.
Today there are increasing reports about how environmentalists are beginning to place their trust in global warming lawsuits against the auto industry, electric utilities and the like. Racial reparations litigation is beginning to absorb much of the energy that used to go into political agitation for civil rights. You see this occurring now in so many areas that William Greider, a leading left-wing journalist, has proposed in Rolling Stone—in the context of discussing Senator John Edwards of North Carolina—that trial lawyers have emerged as the natural leadership of the left in America today. He may be right.
After years of refusing to govern our trial lawyers, it seems they have decided to take it upon themselves to govern us. It is not too late to do something about it. But neither is this a problem that can be solved overnight by a quick fix such as tort reform legislation. As I said before, the ideas that underlie the new legal system and way of governing were born in the academy. This is where our judges and lawyers learned them. And now these ideas are being spread among the general public by the system itself. For instance, these lawsuits teach us again and again the principle that some distant institution with a lot of money is responsible for each individual’s problems. It is this distorted view of responsibility that makes thinkable today claims that were unthinkable a few short years ago. So the first step in turning things around, I would say, is to come to a real understanding of exactly what we did wrong in changing the rules of our legal system and handing the trial lawyers so much power.
Until we reverse this process, it will remain the rule that if you want to hurt someone in America, you may not be able to do it with impunity using a scalpel or a car. But you can do it with a lawsuit and no one will lay a glove on you. Reprinted by permission from Imprimis, a publication of Hillsdale College.” SUBSCRIPTION FREE UPON REQUEST. ISSN 0277-8432. Imprimis trademark registered in U.S. Patent and Trade Office #1563325. |
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