What You Need to Know about Our Permission Society
The Founding Fathers went to great lengths to establish and safeguard the individual rights of the American people. However, our society’s emphasis on personal liberty has diminished over the years to the extent that few people today even notice that they need some form of government permission to do nearly everything.
Timothy Sandefur, the vice president for litigation at the Goldwater Institute, discusses this phenomenon in The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do about It. In this 2016 book, the author highlights the gradual changes in our society that have facilitated this enormous transfer of power from the individual to the state.
In order to truly understand the importance of this change, we must first understand what the founders envisioned when they wrote the Declaration of Independence, the Constitution, and the Bill of Rights. What did they mean when they talked about a free people?
What Is a Free Society?
The Founding Fathers believed that people should be able to live their lives however they wanted — but they must do so within a framework of laws that curtailed their ability to trample upon the rights of others. The inspiration behind this idea was English philosopher John Locke, who stated in his Second Treatise of Civil Government:
“Freedom is not, as we are told, ‘a liberty for every man to do as he lists’ (for who could be free when every other man’s humor might domineer over him?) but a liberty to dispose and order as he lists his person, actions, possessions and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”
In the society the founders envisioned, the individual was presumed to be free, and the government had to ask permission of its citizens, not the other way around. This was the complete opposite of the way governments had worked for thousands of years. The Magna Carta, for example, begins “I, King John, give you these freedoms,” which implies that people didn’t inherently possess any rights.
The Founding Fathers believed that to create a free society, they had to sets limits upon the government and emphasize the rights of the individual. In the 9th Amendment, they went as far as saying that just because the Constitution didn’t list a right didn’t mean that the people didn’t have it. In the 10th Amendment, the founders repeat that the federal government possessed only those powers that were specifically delegated to it.
What Is a Permission Society?
In a permission-based society, the individual’s freedom is seen as a privilege or a permission granted by the government. Americans today live in such a society. They can’t own land, build a house, own a gun, start a business, or do numerous other things without first seeking permission from the government.
For instance, architects in many communities must submit their designs to a design review before they can construct a building. The officials on these committees can demand changes based on factors as slight as the building’s appearance (outside of safety concerns). Before they can make any changes to their property, owners must obtain a range of permits from different entities, from local zoning boards to the EPA and Army corps of engineers, which often results in additional expenses and delays.
Transactions between individuals are also subject to regulation. If you want to sell your neighbors some milk from your cow or excess fruit from your backyard orchard, you must first get a government permit. Incredibly, some communities have even made it illegal for children to sell lemonade from a homemade stand without first obtaining a food-seller’s license.
Certificates of need/certificates of public convenience and necessity were invented in late 19th century to regulate railroads. Today, in about half of the states, they regulate everything from moving companies, to taxis, to hospitals. The idea is that there are some industries where too much competition is a bad thing. You have to file an application, and then existing companies get to vote on whether to allow you to open your company. Then, you have to prove to the government that there is a public need for your new company.
Sandefur describes a Kentucky law, which he recently helped overturn, that stated a new moving company couldn’t get a license unless it could persuade the government that it would be convenient for the public in the future to have an additional moving company. There were no objective criteria to measure this.
In Georgia, it is illegal to compete against a hospital unless you first get permission from existing hospitals. Liquor stores and car dealerships also have similar rules. For example, you can’t open a new dealership within a certain radius of an existing dealership. These are essentially ways of dividing up the market to serve the politically powerful because existing companies don’t want to have to compete in an open market.
How Did We Get Here?
In the 19th century, a rise in religious fervor led to the enactment of a slew of morality laws, which sought to subordinate individual freedoms to achieve a more Christian society. The New Deal progressives built upon this acceptance of government power over the individual to further erode individual rights and expand the state’s control under the notion that the rights of citizens were not as important as the well-being of the larger society.
Throughout The Permission Society, Sandefur explains how numerous prominent legal minds, including Felix Frankfurter, Ronald Dworkin, Stephen Breyer, and Cass Sunstein, have promoted this rationale for curtailing individual rights. While these luminaries passionately disagree on the exact degree of the individual’s subordination, they all believe that the “good of society” trumps individual liberties.
Don’t We Need Permissions?
Sandefur doesn’t argue against all permits. He merely points out that we don’t need them as much as we think we do. A permit system is necessary only if what you’re doing is inherently dangerous and could potentially hurt someone. For example, requiring doctors to obtain a license to practice is a good idea, as doctors are often responsible for people’s lives.
While things like building permits seem like a good idea because they avoid dangerous situations, like fires and earthquake damage, it’s easy for bureaucrats to go the next step and say “we’re not going to grant this permit because we don’t like the way your building looks,” or because some government planner 300 miles away has an idea of what your neighborhood should look like 10 years from now. This kind of power leads to centralized planning, which not only doesn’t work, but also leads to corruption.
According to philosopher Friedrich von Hayek, bureaucrats don’t care what the people need. They are influenced by lobbyists and rent seekers — those who want to control the system for their own benefit. Further, it’s not possible to prevent the lobbying and jockeying for favors when the government is in the business of redistributing wealth.
These systems inevitably corrupt good people and encourage misrepresentation. For example, parents will lie and cheat to work the system and get their child into a certain school. The people who get permission also tend to be those who are politically connected or wealthy. Thus, there are detrimental social consequences as our society increasingly divides into those who “can get” and those who “cannot get” permissions.
How Do We Recover Our Freedoms?
In order to regain our individual rights, we need to treat people as adults who are fully capable of organizing their own lives, as long as their actions don’t violate others’ rights. We must also promote the notion of judicial engagement, which calls for judges’ neutrality when presiding over cases in which the government seeks to diminish a citizen’s rights. These judges must constantly search for the government’s true objectives and determine whether they are constitutional. Further, they should reject all instances of speculation and require the government to fulfill its burden of proof in cases that concern constitutional rights.
