The State of Our Liberty

The state of our liberty provides the best measure of the state of our union, at least in times of relative peace. It was liberty, after all, that our union was meant to secure. And the news here is not happy. Our economic liberty is on the decline as measured by the annual Heritage report. We have fallen out of the top ten of the nations with greatest freedom to create, trade and keep the fruits of our labor. While Congress had made some cuts in discretionary spending, the entitlement state is on track to take an ever greater share of GDP. And civil liberties have hardly been advanced by the systematic snooping of the NSA.

But beyond these objective indicia, there are deeper signs of trouble for our culture of freedom. The bailout of Wall Street suggested that the government protects the financiers and the one percent. This action in turn has energized the forces of envy that are always just below the surface in a democracy. The election of Bill DiBlasio as Mayor of New York on a theme of two cities shows that the movement is taking virulent political form.

Some might argue that Tea Party shows that the founding spirit of Don’t Tread on Me is alive and well.  And there is no doubt that the Tea Party is a better friend to liberty than is Occupy Wall Street. But its agenda has not centrally emphasized cutting middle class entitlements—the transfer spending that is at the root of the relentless rise of federal expenditures and the crowding out of public goods spending that can often be a platform for prosperity. Too often the Tea Party’s focus begins and ends with cutting benefits that the other guy—generally the poorer guy—is getting. A true culture of liberty starts with trimming one’s own dependency on the state.

The President in his State of the Union address last night hardly advanced the cause of liberty. Dictating the wages at which people can work is an intrusion on liberty and a distortion of the market signals that lead to self-improvement. But what was most troubling was the absence of any concrete initiative to contain entitlements or to reform personal taxes by lowering rates and allowing people to make decisions about investments and spending that are not biased by deductions and credits.

Nevertheless it is important not to fall into the delusion that President Obama presents the greatest danger to the culture of liberty. A historian looking back a hundred years from now is likely to group the Reagan, Bush I, and Clinton presidencies together as an era when the state receded or at least did not grow, as measured by regulatory and fiscal burdens on our lives. But Bush II relentlessly increased domestic spending and created more government involvement in health care with the Medicare D program for prescription drugs. It was President Bush who initiated many of the NSA programs.

In short, there are more similarities between Bush II and Obama than their supporters or detractors care to acknowledge. And almost all of the similarities suggest that the risks to our liberty today transcend the actions of any particular politician.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. R Richard Schweitzer says

    “But Bush II relentlessly increased domestic spending and created more government involvement in health care with the Medicare D program for prescription drugs. It was President Bush who initiated many of the NSA programs.”

    Lest this sound as a defense of the “Bush II” administration, in all fairness – no, objectivity – it is the legislative composition, not the executive office that creates the conditions referred to.

    Now to the quoted “complaint” of expansion. The known impacts of the enactment of Medicaid part D are seldom reported. Instead it is referred to as “an unpaid for benefit.” Following its implementation studies disclosed that every $1.00 expended by Medicare on pharmaceutical benefits resulted in a reduction of $1.38 in previously incurred expenditures on benefits that would otherwise have been required. So by spending $1 the system saved $.38. Of course this resulted in the development of additional pharmaceuticals of increasing sophistication and costs. There may have been subsequent studies of those further effects which have not come to my attention.

    If “privacy” has been impaired by the legislative provisions for, or executive actions taken through NSA, it is hard to rationalize that as an impairment of liberty in a population that participates broadly in activities such as Facebook, Twitter, LinkedIn, Pintrest, etc. Furthermore, we are not at peace, which was a qualification at the commencement of the post.

    There is more to be covered separately below.

    • gabe says


      My compliments, again. It humors me to no end when i hear all the complaints about ‘loss of privacy” coming from people who in their zeal to be part of the millennial age put / post every sinlge aspect of their lives on line.
      I used to tell folks that they had more to fear from Amazon and Google than from the NSA with respect to their privacy. The occasional NSA overreach notwithstanding, I was correct in this assertion.
      And you are also quite correct, there are hostile threats out there that may require some of the NSA activities – what is the motivation behind Google, etc? – somewhat more mundane, I would agrue.

      take care

  2. R Richard Schweitzer says

    For those seriously concerned about “a decline in liberty,” attention should be given to the recession of individuality and to the aggregation of interests with concomitant subordinations of individual interest. Consider, for example, the proliferation of “Homeowners Associations.” While voluntary (to some extent) they nonetheless represent a recession of individuality for some presumed benefits from the aggregation of interests through Association.

    Of course, that example is a microcosm compared to the cessions of individuality that are required by the expanding functions of the mechanisms of governments at all levels. The rise of individuality which scholars note as early as the 13th century (with subsequent recessions and expansions) probably began its decline in the United States with the opening of the Progressive Movement, increasing urbanization, and ultimately the acceleration’s following WW II, particularly since 1960. The aggregations of interests into particular interests (“special interests”) requiring group representation has changed the nature and results of the Democratic process. The conflicts of aggregated interests as compared to the conflicts of individual interests have dramatically different results in the social order and in their effects upon individuals. There is perhaps a major correlation of the differences in the means of resolutions of those different forms of conflicts with the observed decline in degrees of individual liberties.

    The other effects of the recession of individuality, such as the reduction in the dynamism of innovations (which stem from individual imagination – not groupthink) and in individual entrepreneurship (as thwarted by rules and regulations instituted for aggregated interests).

    So long as the trend for this recession of individuality continues, it is likely that the province of liberty will also contract.

  3. gabe says


    I understand your point concerning medicare Part D. Whether it is a net $$ gain as Richard asserts is of interest but not central when one considers Bush’s role vs. The Great OZ (Obama) in expanding the sphere of government action / intrusion.
    Can any serious thinker honestly assert or even countenance Bush II ramming through Obamacare? Really – there is simply no comparison.
    Also, let us not forget what the Great OZ is currently foisting on the public under the guise of equality – take a look at what the new rules will be for mortgages. If a community does not attain a certain level of ‘diversity” then certain loan types / sizes will be significantly harder to obtain or may not be eligible for rate subsidies or FHA guarantees.
    Again, would “W” even cosider such a policy.

    I think not!!!!!

    take care

  4. says

    Great piece, thanks.

    It’s interesting to note the quasi-defenses of GWB on display in the threads. As somebody who doesn’t vote, and who doesn’t care a lick for either American political party, I think the rush to explain and clarify GWB’s statist policies in this thread can be better explained by this article over at the Monkey Cage. Here is the money shot:

    The Pew Research Center for the People and the Press reported on June 10, 2013 that the percentage of Democratic identifiers who found NSA surveillance programs acceptable increased from 37 percent in January 2006 to 64 percent in June 2013. In contrast, the percentage of Republican identifiers saying these programs were acceptable decreased from 75 percent to 52 percent over this same time period. We doubt these changes emerged from a large influx of anti-surveillance advocates into the GOP or of pro-surveillance supporters into Democratic ranks between 2006 and 2013. Rather, the shift likely occurred because we had a Republican president in 2006 and a Democratic president in 2013, and many people simply adjusted their views on NSA activities to fit with their prior partisan attachments.

    Thanks again for all your hard work.

  5. libertarian jerry says

    Let us be objective and honest about the situation in America today. The Republic is dead,the Constitution,for all practical purposes is a dead letter and America is now divided into 3 classes. These 3 classes are the shrinking productive Economic Class that produces most of the wealth. The growing Political Class that lives off of the Economic Class. And the Master Class, that small group of elitists,globalists and plutocrats with their high ranking government employee enablers that,together,want to control and rule the rest of us. The vast majority of productive Americans are numbered tax serfs that are nothing but financial fodder for the “full faith and credit” of the United States government. America and most Americans are fiscally bankrupt and hopelessly in a situation of unsustainable debt. Our nation does not consist of a nation of objective laws and sovereign citizens but a nation of a few powerful men who seek power for powers sake. The dream of the Founding Fathers for a nation of citizens with individual inalienable rights backed by the rule of law died decades ago. What we are left with is a dieing remake of the Roman Empire. This is the unmistakable truth.

  6. says

    libertarian jerry, that’s laying it out quite emphatically! You might call me Constitutional John, or Mike Rappaport Originalist Mike. (To name a few.) But behind all of us — is the shadow of your remarks. We can only hope the our readers realize what is truly going on to our rights, our liberties, our national and State Republics – and the overpowering of “We the people…” by the usurpation of the Federals.
    Respectfully, John


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