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ARTICLE

The Proper Attitude Toward the Proper Role of the State

We Must Be Eternally Vigilant of the State

OCTOBER 01, 1997 by JOSEPH S. FULDA

Joseph S. Fulda, a contributing editor of The Freeman, has been published frequently in scientific journals, philosophical journals, mathematics journals, law reviews, and journals of opinion.

That the proper attitude toward the overreaching state is, depending on the size and scope of the Behemoth, anxiety, fear, fright, or terror is a given among classical liberals. What is not always understood is the danger that the State poses even in its necessary and proper functions: protection against private coercion from within, protection against state coercion from without, and the orderly adjudication of disputes. It is the first of these functions of government whose danger is least understood, it being generally acknowledged by true liberals that the remaining functions have often been used as justifications for the expansion of the welfare-warfare state and a redistributionist judiciary, respectively, both of which pose obvious and considerable threats to individual liberty.[1]

We must start by acknowledging, with Thomas Paine, that “Society is produced by our wants and government by our wickedness. . . . The first is a patron, the last a punisher. Society in every state,” writes Paine, “is a blessing, but government, even in its best state, is but a necessary evil. . . . Government, like dress,” he continues, “is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise.”[2] Chasing down criminals and incapacitating them is an unfortunate necessity, but there can be no denying that it is a necessary evil, since it consumes vast resources unproductively: Nobody gains anything of value from the anti-crime enterprise; even if it is done perfectly, all we can say is that nobody will lose anything of value, either. This is what Thoreau meant when he wrote, “I believe ‘That government is best which governs not at all’; and when men are prepared for it, that will be the kind of government which they will have. . . . For government is an expedient by which men would fain succeed in letting one another alone.”[3]

But, then, this is not quite true. Some do gain something of value from the anti-crime enterprise: the legions of officers of the State who are charged with the task. As former California Republican Assemblyman Patrick J. Nolan reminds us: “[O]ur judicial and penal systems are just like every other bureaucracy . . .,” with “the judicial-penal complex spend[ing] lavishly trying to convince us they are doing all they can to protect us and if they had a little more money they could get the job done.”[4] Like the “military-industrial complex” of which conservative President Eisenhower warned, Nolan warns of the dangers of a judicial-penal complex that has every bit as much potential to go awry. And, not only do some gain from the anti-crime enterprise, even when this dismal task is done perfectly some also lose: the taxpayers who must support the legions of crime-fighters. And when government goes awry, quite unlike the case of the outlaw, “our calamity is heightened by reflecting that we furnish the means by which we suffer.”[5] And the judicial-penal complex has gone awry, vastly expanding its powers and revenues in recent years as the private property of innocent citizens is routinely seized under so-called civil asset forfeiture laws. These laws—which in some jurisdictions have created a virtual reign of terror by law-enforcement officials—effectively allow government agents to take whatever they want, from whomever they want, for any reason whatsoever and with little chance of its possession ever being regained by its rightful owners. (All that is needed is for the agent to invent an anonymous tip that the property was in some way used in an illicit activity and the property may be seized with a veneer of legality.) Instead, the property forfeited normally winds up lining the pockets of law enforcement.[6]

But the real problem is that the anti-crime enterprise is not, indeed cannot, be done perfectly: No human institution, social or governmental, proper or improper, is perfect. Inevitably, the granting of monopoly power to the State to retaliate for acts of coercion will lead to abuses of that power. Power, after all, is rarely held without abuse; monopoly power is never held without abuse. But though this monopoly power is necessary to rein in crime, it is far more frightening—if quieter—than the power of the ordinary criminal over the law-abiding citizen. As Albert Jay Nock observed, the State is “the organization of the political means,[7] and is therefore at least as much more to be feared over the ordinary criminal as is organized crime. What is to be feared, moreover, is not mere potential, but the actuality that over 40 percent of our productive efforts are seized by the State without just cause. I know of no study claiming that even the more dismal neighborhoods in America suffer comparable losses to crime (with some notable exceptions involving organized crime, of which overreaching government is but a species).[8] Nor is it mere property that government actually deprives us of; many tens of thousands of peaceful citizens languish in penitentiaries, prisons, and jails for what Nolan describes as “bureaucratic ‘crimes’ arising from disputes with government employees over billing procedure, loan documentation, late filing of documents or other violations of statutes that are technical in nature.”[9] And, of course, tens of millions of citizens simply adapt their whole manner of living to the demands of the State—daytime as well as nighttime—rather than face the terrifying prospect of incarceration.[10]

Nor is it sufficient that the government maintains “swarms of officers to harass our people, and eat out their substance,”[11] it also has recently begun coopting the entire corpus of the citizenry into joining the anti-crime enterprise. For example, in one of the worst decisions handed down in the last century, the U. S. Supreme Court recently ruled, by a 5-4 margin, that the civil-asset forfeiture laws are constitutional even when the owner is completely innocent of any crime.[12] The reasoning used was that citizens have a duty to the State not to negligently allow their property to be used for unlawful purposes. Under this theory, businesses, homes, cars, and boats have been seized when owners have not been sufficiently vigilant in preventing some occupant from doing something—usually something petty, like a minor violation of a drug statute—illegal. Indeed, this decision reverses almost 800 years of jurisprudence: It was Magna Carta which first declared that no person’s property shall be seized but upon the judgment of his peers for violating the law of the land.

A second example whereby the State would make of everyman a policeman is in the dubious area of sexual-harassment law. It is not sufficient that sexual harassment—whatever that may actually mean—is a civil rights violation, but companies, universities, and contractors are held responsible for the acts of their agents—even when, as is so often the case, the alleged offense is outside the scope of the agency of the individual and the institution is not only not a party to the offense but not even cognizant of it. Again, the theory is that private enterprises must not through their negligence and lack of vigilance allow their agents to commit these wrongs or they will be held responsible for behavior they are neither aware of nor condone. They are thus forced to become the junior partners of law enforcement—enforcing the law in their private domains under threat of substantial civil liability.

Yet another example by which the government would coopt the citizenry is the New Jersey initiative[13] encouraging drivers to use their car phones to report speeding cars and other miscreant drivers—this notwithstanding that the use of car phones is far more dangerous[14] than is speeding.[15]

And, from Virginia comes a legislative proposal requiring citizens to police other citizens: Owners, managers, and operators of parking lots, rental housing, shopping centers, airports, docks, and shipyards must report a large number of details about the vehicles stored in their facilities so as to facilitate state personal property tax collection. If they do not act as government informants, it is proposed that they be criminally liable.[16] All these examples—and there are countless others—of government devolution of its responsibilities (whether overreaching or proper) on the citizenry bespeak a mindset present in the now-fallen totalitarian regimes of the East: They are hardly fitting for the land of the free.

Yes, we must have government: Our civilization is indeed “built upon the ruins of the bowers of paradise.” But even when it is putatively exercising its proper functions, the proper attitude toward the State remains eternal vigilance tinged with fear.


Notes

  1. For an early, very powerful statement of this, see Jonathan Swift’s Gulliver’s Travels, Part IV: “A Voyage to the Houyhnhnms,” Chapter 5 in its entirety.
  2. Thomas Paine, Common Sense in The Life and Major Writings of Thomas Paine (Philip S. Foner, editor; Carol Publishing Group, 1993), pp. 4-5.
  3. Henry David Thoreau, The Variorum Civil Disobedience (Walter Harding, editor; Twayne Publishers, 1967), pp. 31-32.
  4. Quoted in K. L. Billingsley, “Economics 101—From Prison,” The Freeman 45(April 1995): 202-203.
  5. Thomas Paine, op. cit., p. 4.
  6. See James Bovard, “Seizure Fever: The War on Property Rights,” The Freeman 46(January 1996): 6-13. Under the seizure laws, the actions are nominally against property, not against owners. Unfortunately, due-process protections have been swept aside by a judiciary intent on the most narrow construction of the fifth and fourteenth amendments’ guarantee that “no person shall be deprived of . . . property without due process of law.”
  7. Albert Jay Nock, Our Enemy, The State (Fox & Wilkes, 1994), p. 24. The astute reader will recall that Nock starts his second chapter by taking issue with Paine and distinguishing between “government,” the term he uses for the proper functions of the polity, and “the State,” the term he defines as above. But although Nock was fully aware of the propensity for “government” to turn into “the State,” he could not know, writing in 1935, as we do having borne witness to the full horrors of the Third Reich and the Soviet Union, just how untenable that distinction is, given that an effective “government” must have a monopoly on the very powers that allow it to turn into “the State.” Following standard practice, we use the two words interchangeably.
  8. But a fascinating study has come out showing that when the Russian economy was privatized by selling off state enterprises, all those who could afford to buy were connected to the Communist Party and organized crime and today, the report claims, over 40 percent of the Russian economy is controlled by organized crime. (Jonathan Lynn, “Organized crime controls nearly half of Russia’s economy, U.S. study says,” Seattle Post-Intelligencer, March 20, 1997, p. A4. The study was conducted by Louise Shelley of American University and appeared in Transition, the newsletter of the World Bank.) Clearly, some form of stake-claiming, perhaps allowing joint ownership, perhaps involving a lottery, would have been a better way to unload government enterprises.
  9. K. L. Billingsley, op. cit., p. 203.
  10. A small but telling example of this accommodation occurs to me as I write this. The tax (FCC line charge, municipal surcharge, county emergency services surcharge, New York State/Metropolitan Transportation Authority surcharge, New York gross receipts tax surcharge, New York Entertainment & Information Sales Tax, New York State sales tax, New York City sales tax, Federal excise tax) on my local telephone bill is some 30% of the total. For a while, it was possible to avoid most of the above by using a long-distance carrier. So, when I dialed any number outside of New York City-proper, such as nearby suburbs, I habitually punched in 10288 first, so that my call was carried by AT&T. We are so used to accommodating the demands of government—relative to the accommodations made because of the more recent crime epidemic—that we hardly notice all the routines we go through just to carry out ordinary activities—even in the quiet of our homes! A more common example is the selection of an out-of-state mail-order vendor solely to avoid sales tax and regardless of whether the vendor offers the best quality for the (nominal) price.
  11. Declaration of Independence.
  12. Bennis v. Michigan, 116 S.Ct. 994 (1996).
  13. See Michael Drewniak, “Road safety: Drivers, make it your calling,” Star-Ledger, February 11, 1997, pp. 13, 18. The article reports on both the initiative and the civil-liberties concerns it sparked.
  14. See Ted Sherman, “Study: Car phones heighten crash risk,” Star-Ledger, February 13, 1997, pp. 1, 22. The article cites a study by Donald Redelmeier and Robert Tibshirani of the University of Toronto which appeared in the New England Journal of Medicine, but also contains much information specific to New Jersey.
  15. This point is made eloquently by Steven G. Maurer, “Car phone follies,” Star-Ledger, March 2, 1997, Section 10, p. 2.
  16. For a discussion of this proposal, see Privacy Forum Digest 6:3 available by listserv, gopher, and ftp, as well as on the Web, from vortex.com.

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October 1997

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