I think you can spend your money more wisely than the federal government
George W. Bush
Those exertions of the natural liberty of a few individuals, which might
endanger the security of the whole society, are, and ought to be, restrained
by the laws of all governments.
The Wealth of Nations
Kill the Umpire!
Regressives do not like government – unless, of course, it serves their
interests. When it does, progressive critics call this “corporate welfare,”
or “socialism for the rich, free enterprise for the poor.”
At times, the regressive’s aversion for government can only be described as
bizarre. Consider the following:
The members who spoke in this capital [Williamsburg, Virginia] said 'no' to
taxes because they loved freedom. They argued, "why should the fruits of our
labors go to the crown across the sea." Well, in the same sense we ask
today, "why should the fruits of our labors go to that capital across the
[Potomac] river?" . . . . We, like the patriots of yesterday, are struggling
to increase the measure of liberty enjoyed by our fellow citizens. We're
struggling, like them, for self-government -- self-government for the
family, self-government for the individual and the small business, and the
corporation... What people earn is their money. Seventy-two years after its
inception, what is our Federal tax system? It is a system that yields great
amounts of revenue, even greater amounts of disorder, discontent and
disobedience. [Tax cheating] is not considered bad behavior. After all, goes
this thinking, what's wrong with cheating a system that is itself a cheat?
That isn't a sin, it's a duty!1
While this sounds like the ravings of some anarchist militia nut, it was in
fact spoken by Ronald Reagan, fomenting rebellion against the very
government over which he presided. This should not come as a surprise, after
all this was the President who told us, in his first inaugural address, that
"government is not the solution to our problems, government is the problem." Why should we
then be surprised to find him quoting our founding fathers: "taxation
without representation is tyranny!" -- conveniently dropping the second and
third words of that war cry?
When the late Barry Goldwater said such things
more than forty years ago, they were
considered beyond the pale of conventional political debate. Today’s
conventional journalistic wisdom is telling us that Goldwater's triumphant
followers have long-since accomplished and moved beyond his platform.
Throughout the right-wing media we are told, "anything government can do,
the free market can do better." The triumph of the anti-government message
is so complete that it has retreated from public debate and has become a
virtual presupposition of our public discourse, an article of faith so
"obvious" that very few even bother to question it. Politicians who dare
utter a word in behalf of government are in grave danger of losing their
For example: We often hear on the air or in casual conversation, the remark
"who can trust the government when it can't even deliver the mail on time!"
Surely that remark, which has become a cliché, deserves some exposure as a
Grade-A bad rap! We hear it so often, that we don't pause even to think
about it. In point of fact, the US Postal Service is renowned the world over
as one of the most reliable and well-functioning institutions under the sun.
Now be honest: when is the last time that one of your letters was really
"lost in the mail?" (Remember, this isn't one of your creditors asking
this). Frankly, I can not remember when this last happened to me. And when
you mailed that package last December 21, convinced that it could not
possibly be delivered by Christmas, weren't you amazed to find out that it
was? Don't we all, in fact, simply take the reliability of the Postal
Service for granted - and for good reason? And yet, when that "can't deliver
the mail on time" slander is made, rarely is it challenged.
Similarly, entitlement programs such as Social Security and Medicare are
roundly criticized as wasteful and inefficient, compared with private
insurance policies. Never mind that the operating costs of these government
programs are approximately three per cent, compared with roughly thirty
percent for private coverage. But the government entitlement programs do not
need to pay exorbitant salaries to their managers, or pay out dividends to
stockholders. These comparative costs of the public vs. private agencies are
simple, verifiable facts. But once again, simple facts are not allowed to
get in the way of political rhetoric.
And so, despite abundant and familiar refuting evidence, we now have the new
conventional wisdom: "private initiative and market mechanisms will always
come up with better solutions than the government!" Oh, really? "Often
better," to be sure. Perhaps even "usually better." But "always better?" Who
would you prefer to assure you that your food is uncontaminated and that
your drugs are safe and effective? Private industry or the Food and Drug
Administration? Who would you trust to keep the public airshed and water
supply clean? Private industry or the EPA? Who would you rather have as the
owners of Yosemite, Yellowstone, and the other national parks? Yourselves
along with all your fellow citizens, or MCA and Disney Inc.? "Always
better?" Even the most orthodox libertarians concede that there is a "public
interest" in protecting the lives, liberties and property of individual
citizens, and thus that, at the very least, the police, the military and the
courts can not legitimately be privatized.
But by granting even this little, the libertarians give themselves away. If
it is the legitimate function of government to protect the lives, liberties
and property of its citizens, then it is clearly the function of government
to regulate the activities of private individuals and corporations.
To be sure, to the corporations and the
oligarchs, "big government" is
unquestionably a nuisance and a financial burden to wealthy and privileged
individuals, as it goes about its appropriate business of acting in behalf
of the rest of us.
But since "the rest of us" have been denied access to the airwaves (due to
the demise of "The Fairness Doctrine"), and since, in A. J. Liebling's
words, "freedom of the press belongs to those who can afford to own a
printing press," and finally, since our Congress has been sold to the
highest bidders ("cash is speech," saith the Supremes in Buckley v. Valeo
and the recent Citizens United v. FEC), the anti-government crowd has had
the public podium pretty much to themselves, and thus even the plain
beneficiaries of government protection have been persuaded to join cry to
"Kill the Umpire!"
Never mind that the moment the umpires leave the field, the game is over,
and nobody wins! This is true with every organized team sport, and as
history demonstrates conclusively, it is true of all human societies that
have attained a civilized condition. All complex human activities
proceed according to rules, and rules can only operate effectively
if there are sanctions against those who violate them. In
civilized society the rules that apply to citizens and collective
entities such as corporations are called "laws," and virtually all
political ideologies endorse the concept of "the rule of law."
But "the rule of law" is an empty letter without sanctions and
enforcement. Hence governments.
The greatest strength of the anti-government message lies in the fact that
much of it is true. "Aren't governments shot-through with waste, fraud, and
abuse?" Of course they are! And so too is every human institution under the
sun, including corporations. But the inference from imperfection to
uselessness and even malignancy is, to say the least of it, a "stretch." No
Police Department can completely eliminate crime, and no Fire Department can
completely eliminate fires. They are imperfect institutions. Do we then
propose their abolition? Certainly not! Instead, we strive constantly to
So it is with governments. The founders of the American republic were well
aware of the abuses of government, having successfully struggled to
overthrow a foreign tyranny. And so they tried, with the Articles of
Confederation, a minimalist government - which failed.
And so, having learned from this failure, the Founding Fathers adopted a
Constitution for a government of laws, with checks and balances, and with a
Bill of Rights explicitly stating the limits of that government ("Congress
shall make no law..."). However, even before the Bill of Rights and the body
of the Constitution itself, we find the Preamble, which clearly recognizes
that government has a function: namely, "... to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defense, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity..." Nowhere in that document, did the founders
say or suggest that all this could be accomplished entirely through the
unregulated activity of self-serving "economic persons" in the market place.
Least of all did they indicate any endorsement of Margaret Thatcher's
infamous observation that "there is no such thing as society, there are
individual men and women, and there are families."
True to the spirit of Thatcher's Social Atomism, we are now casually
dismantling a civic and political order that is the envy of world, the sort
of civil society that the Russians and the former Soviet republics are
desperately attempting to achieve.
If the regressives succeed in drowning government in Grover Norquist's
“bathtub,” will they be content? Assuredly not, as the following parable
Mr. Boehner Goes to Washington
This was an important day in the life of Congressman John Boehner
the House Minority Leader. He had to catch an early flight to Washington, in
time to lead the fight in Congress to protect us all against the further
encroachments of "Big Government" in our personal lives.
And so, upon awaking to his clock-radio, he learned from the US Weather
Service that the flying weather was ideal, but that later in the week a
storm was likely to hit the Midwest. So he made a note to have the storm
windows put up. He then enjoyed a hearty breakfast of ham and eggs,
certified Grade A by the US Department of Agriculture, and dutifully took
his daily prescriptions, pronounced safe and effective by the Food and Drug
Administration. While at the table, he checked the stock quotes in the
morning paper, assured by the Securities and Exchange Commission that he had
not been swindled. On the way to the airport, he stopped at the bank to take
out some pocket money, and was not at all surprised to find that his account
was intact, as guaranteed by The Federal Deposit Insurance Corporation .
His flight took off on time and without incident, after the aircraft had
been certified as safe, and his flight cleared for take-off, by personnel of
the Federal Aviation Agency.
Three hours later, John Boehner arrived at Reagan National Airport in
Washington, DC, safe, healthy and financially secure, thanks to all the
above "big government bureaucracies" and still others too numerous to
Firm in his conviction that his fellow taxpayers were better
qualified than the government to spend their own money, Boehner then
led the continuing GOP fight to maintain the Bush tax cuts, thus
continuing the redirection of over a trillion
dollars of federal revenue to “the people” – or more specifically, to the
two percent of “the people” earning more than a quarter million dollars a
"I think you can spend your money more wisely than the federal government
can.” This remark by George Bush, during the second presidential debate of
2000 came to mind recently, as I was watching the movie, "The Perfect
Storm." Because the Captain chose to ignore the warnings of the National
Weather Service, the "Andrea Gail" went down with the loss of all hands.
Other crews, less dismissive of "big government bureaucracy" paid heed and
survived. And when a sailboat, caught in the storm, was about to sink, the
Coast Guard, answering their distress call, rescued the helpless crew. It is
doubtful that, at that moment, any of those rescued sailors felt that this
big government agency was less qualified than they to deal with the
And so we are led to ask: are we as individuals, or the government, better
— deliver the mail.
— predict the weather
— ensure that our food is safe to eat
— protect the lives and property of the citizens
— determine the safety and efficacy of our medicines
— monitor and respond to epidemics
— identify and mitigate environmental pollution
— support "economically useless" basic scientific research
Speaking for myself, I am not prepared to devote the time and expense, or to
gain the expertise, to set up a laboratory in my basement to determine if my
food and drugs are safe and effective. Nor can I run off to Wall Street and
carry out a private investigation to find out if my investments are safe
from violations of the securities laws, nor am I qualified to check the
innards of a passenger jet to see if it is flight-worthy, and I have no idea
how to direct air traffic.
In all these cases, and countless more, I will readily concede that I am
less qualified than the appropriate government agencies to "spend my tax
Neither are these proper functions for "the private sector," for in each
case, these are regulatory activities – the enforcement of laws and
regulations upon self-interested parties in behalf of the general public. It
makes no more sense to "privatize" government regulation and services, than
it would be to have the referees of a pro-football game in the employ of one
of the teams, or to have the police force under the control of organized
crime. (Alas, not unheard of).
A case in point: in 1962, the pharmaceutical industry put pressure on the
Food and Drug Administration to release the sedative drug, thalidomide, for
general distribution. That pressure was steadfastly resisted by an FDA
"bureaucrat," Dr. Francis Kelsey, who thus spared thousand of infants from
birth defects. Unfortunately, similar "government interference" was not in
place to restrain Pfizer from marketing Vioxx and Celebrex.
Another case: in 1934, the federal government established the Federal
Communications Commission, in order to regulate "traffic" in the broadcast
spectrum. Significantly, the FCC was enacted at the insistence of the
broadcast industry, which finally came to realize that without a neutral
agency to assign and enforce frequencies, electronic chaos and cacophony
With all these manifest services afforded to all United States citizens by
the federal government, why do regressives and libertarians regard that same
government as an oppressor?
Consider the case of ex-congressman Tom DeLay, John Boehner’s predecessor as
GOP leader in the House of Representatives. Before he ran for public office,
Tom DeLay was in the pesticide business. In that business, he came
face-to-face with "big government interference," when the Environmental
Protection Agency told him that he could no longer sell or use such
pesticides as DDT. This regulation, the result of many years and millions of
dollars of government sponsored scientific research, benefitted song birds,
birds of prey, and oh yes, young children and other vulnerable critters. At
the same time, this "big government decree" was a damned nuisance to the
chemical industry and to pest controllers such as DeLay, who came to refer
to the EPA as a "Gestapo.".
What business is it of "big government" to tell Tom DeLay that he can't
poison his neighbors and the ecosystem, as he goes about his business of
The answer is as close as the founding documents of our Republic. "To secure
these rights" of life, liberty, and the pursuit of happiness, states the
Declaration of Independence, "governments are instituted among men." And in
the Preamble to the Constitution, we find that the government is
established, among other things, to "promote the general welfare."
If, as the libertarians insist, it is the legitimate function of government
to protect the lives, liberties and property of its citizens, then it is
clearly the function of government to regulate the activities of private
individuals and corporations that threaten these lives, liberties and
property. As history testifies, entrepreneurs like Tom DeLay do not like to
be told that the internal organs of unconsenting citizens are inappropriate
catchments of their toxic chemical residues. Meat packers don't like to have
government inspectors around while they are making sausages. Drug companies
do not like to be told that they can't put opium in their cough medicine,
and that they cannot put a drug on the market before it has been proven both
safe and effective. Mine owners have fewer qualms than government inspectors
about putting their workers' lives in peril. Broadcasters don't like to be
told that the public airwaves that they are freely given must contain some
"public service" content, or that opinions other than their own deserve a
And most conspicuously, Wall Street bankers do not want “gummint
bureaucrats” looking over their shoulders as they gather up junk bonds and
sell them as over-priced “derivatives.”
When the Enron Corporation found federal regulation to be intolerable, it
arranged to disarm the Federal Energy Regulatory Commission and the
Securities and Exchange Commission by persuading a friendly administration
to appoint lackeys to these agencies, while investing millions in "gifts" to
pundits and in "contributions" to members of Congress. Then, when the scheme
collapsed, the senior corporate officers "took the money and ran," leaving
thousands of their employees and investors without their life savings.
Make no mistake: if we abolish federal regulation and oversight (called by
libertarians "government control of our lives"), this does not mean that
"control" will necessarily devolve to each of us ordinary citizens. As
isolated private individuals, we are all too often ill-equipped to protect
our interests against the assaults of impersonal corporate power. The
history of the late nineteenth century bears out this observation, an
observation that is confirmed anew today. Absent
the protections of "big government," our food will once again be tainted,
and our drugs again unsafe and ineffective. Pest controllers like Tom DeLay
will once again spread poison on to the land, heedless of the "side-effects"
once the primary objective of "zapping the bugs" has been achieved. The free
and diverse press which Jefferson regarded as essential to democracy and as
(take note!) an indispensable constraint upon the abuses of governmental
power, will be replaced by the monotone voice of media conglomerates in the
service of wealth and power.
Two Cheers for Government
When, during a baseball game, a referee makes a call against the home team,
the fans are often heard to shout: "Kill the Umpire!" – forgetting, for that
moment, that without umpires the game could not continue.
Similarly, "abolish government" is another cry that issues from frustration.
Without a doubt, governments can be damned nuisances. They require us to pay
taxes, often for services that do not benefit us or for benefits which we
take for granted. Governments tell us that we can't build homes and
factories on public lands, that we can't throw junk into the air and rivers,
that we can't disregard traffic lights and drive at any speed we wish, and
that we can't sell medicines without first testing their safety and
efficacy. All this curtails the freedom and the wealth of some. But at the
same time, such "government interference" promotes the welfare of the
others: of consumers, travelers, ordinary citizens and, yes, even property
owners. Interestingly, among the liberal democracies, the constraints of
"big government" tend to burden the wealthy and powerful, while those same
constraints protect the poor and the weak, all of whom, in a just political
order, are equal citizens before the law.
There is much to complain about the tax system in the United
States today. They are used to pay for unjust wars and for the maintenance
of a bloated military-industrial complex. And they are regressive; so much
so that the mega-rich pay a smaller percentage of their enormous incomes
than the middle class and the poor. Even so, taxes also support essential
social and government services such as public education, infrastructure,
public safety (police and fire protection), the courts, and the regulation
of commerce, upon all of which, the wealth of the super-rich depends.. The
tax structure is in urgent need of reform. But calls for the total abolition
of taxes amount to advocacy of the total elimination of government. And no
civilized society on earth has ever existed without a government.
To be fair, libertarians do not advocate the total elimination of all
government. Instead, they propose a “minimalist government,” devoted
exclusively to the protection of the fundamental natural rights of life,
liberty and property. Hence the legitimacy of police, the military and the
All other social institutions, the libertarian assures us, will arise
“spontaneously,” without government initiative or regulation, out of
voluntary human interaction. As the libertarian, David Boaz writes:
... order in society arises spontaneously, out of the actions of thousands
or millions of individuals who coordinate their actions with those of others
in order to achieve their purposes... The most important institutions in
human society – language, law, money and markets – all developed
spontaneously, without central direction.2
While “spontaneous order” may be true of natural languages, Boaz's claim
that law, money and markets arise "spontaneously" and thrive without
deliberate governance, is resoundingly refuted by both history and practical
experience. In fact, few if any complex human activities can take place
without rules and the active enforcement thereof. For example, all team
sports require referees. Even markets operate under sets of rules, and
sanctions against those who violate these rules. And we are now, to our
profound regret, discovering what happens when markets are allowed to
function "spontaneously" without regulation.
The need for law may, as Thomas Hobbes argued, arise “spontaneously.” But
most assuredly, the content of the law does not. The body of law is
formulated and enacted in legislatures, and is then enforced by courts and
the police – government agencies, all.
Money has no value unless it is underwritten by the “full faith and credit”
of a central institution, namely government. There is a simple word for the
production and distribution of money solely by the enterprising individual:
it is called “counterfeiting.”
It is true that natural languages arise spontaneously, and how this happens
is one of the most profound mysteries of human existence. Even so, in specialized activities such as medicine, the
law, the science, and academic disciplines, the technical vocabulary is
deliberately and scrupulously explicated, as it must be if these activities
and disciplines are to function well.
Clarity of language is essential to the formulation and enforcement of the
body of law, and this clarity is accomplished, not “spontaneously,” but
through careful deliberation. And the non-spontaneous institution of the
court system, let us recall, is the libertarians’ alternative to government
And why won’t the courts, and their threat of sanctions, suffice to restrain
the abuses of free markets? That question requires a careful answer, to
which we now turn.
The Torts and Courts Solution.
Martin Anderson, a former Reagan administration official writes that "just
as one does not have the right to drop a bag of garbage on his neighbor's
lawn, so does one not have the right to place any garbage in the air or the
water or the earth, if it in any way violates the property rights of
others."3 Accordingly, the libertarians contend, "all" problems of
environmental pollution can be interpreted as assaults upon another private
individual’s person or property, and thus can be controlled through the
injured citizens' recourse to the courts. Unfortunately, there is
overwhelming evidence that this remedy, however appealing in theory, will
not succeed in practice. Experience has shown, time and again, that the
unfortunate victims of the negligence of other persons or of corporations
are simply unable to make their case, however just, for the following
Contributory Assault: My home and primary work place is in the San
Bernardino mountains, east of Los Angeles. While the air quality here is
much better than most other places in Southern California, the westerly
winds regularly bring Los Angeles air through my property and into my lungs.
(Until the state and federal governments enforced regulations, the air
quality in Los Angeles was the worst in the United States). Another
autobiographical fact is relevant to this discussion: thirty-five years ago
I threw out my pipes and tobacco, and never smoked again.
Suppose, in another five years, I am diagnosed with lung cancer. The doctors
then tell me that after thirty-five years without a draw on my pipe or a
drag on a cigarette, my former smoking habit is an unlikely cause. More
likely, I have been victimized by southern California air - in particular,
the exhaust fumes from some twenty-million automobiles.
According to the libertarians, my property and person have been illegally
assaulted, and I am entitled to compensation for my injury. Moreover, they
assure us, comparable rights of compensation of all citizens, combined with
a system of civil courts, will suffice to put an end to all environmental
If the courts are to be my remedy, then which one of the twenty million
automobile owners am I to sue for the damage to my health from air
pollution? Which molecule from which car was "the last straw" that mutated
the fatal cell? Finally, how can we be sure "beyond a reasonable doubt" that
my pipe smoking (a “pre-existing condition”) was not the cause? Because
these questions are unanswerable, it appears that there is no hope that I
will be compensated.
Perhaps I should sue all the drivers – after all, my compensation award
divided by twenty million will not amount to a hardship to any of these
drivers. But I am not the only victim, so that assessment will have to be
multiplied by the number of authenticated "plaintiffs."
So here's a suggestion: require each driver to pay an "insurance premium"
with his driver's license, the proceeds of which will be used to treat and
compensate victims of air pollution, just as mandatory auto insurance is
used to compensate vehicle accident victims. Unfortunately, unlike accident
victims, those who are injured by air pollution can not assign cause to any
particular defendants. Accordingly, the "premiums" will have to be collected
and the payments disbursed by an independent and impartial agency - the
government, of course. Finally, a small semantic correction: call those
"premiums" by their right name - "taxes." Voila! The liberal/progressive
solution, disparaged by libertarians and “conservatives” as "socialized
It gets worse. In 2003 I lost eight of the ponderosa pine trees on my
property, due to an infestation of bark beetles that killed up to a
million ponderosas in the San Bernardino mountains. The probable
cause, according to most (government supported) scientific research,
was a prolonged drought in the region. The cause of the drought is less certain, though
many climatologists attribute it to anthropogenic climate change ("global
warming"). Who am I to sue for compensation for the loss of those trees? The
fossil fuel companies that extracted the coal, oil and natural gas that was
consumed to produce the greenhouse gas, carbon dioxide? The municipalities
that purchased the fuel to feed the power plants? The individual automobile
and truck owners? While there is a scientific consensus that the climate is
changing, due to a significant degree to increased atmospheric carbon
dioxide, the cause of this particular drought in this particular region, and
its responsibility for the loss of the ponderosa pines in the San Bernardino
mountains, does not meet the legal probability threshold sufficient to
justify compensation. So once again, the libertarian solution of "courts and
The Statistical Casualty: In the 1950s and early 1960s, the US Atomic Energy
Commission conducted atmospheric atomic tests in the western state of
Nevada, resulting in significant radioactive fallout in the southern part of
the adjacent state of Utah. Two decades later, there was an alarming
increase in lung and thyroid cancers among the residents of southern Utah -
primarily ranchers and farmers, whose Mormon religion forbids the use of
Repeated suits against the United States government failed, due to the
following problem of "the statistical casualty." While epidemiological
studies determined beyond reasonable doubt that there was a known percentage
rise in the incidence of cancer, and thus a known number of excess cases, no
particular cancer patient could be known to be a victim of the fallout. Even
non-smokers contract lung cancer, albeit rarely, from natural background
radiation and other sources. Thus, while it was virtually certain that there
were hundreds of victims of the fallout, no particular individual victim
could be identified. And that degree of doubt sufficed to free the
government of liability. As we shall see, the same legal strategy has
prevented all citizen-plaintiffs from winning a single compensation suit
against the tobacco industry, though the US government has estimated that up
to a half million individuals die each year from smoking related diseases.
The Burden of Proof: Because of these considerations and others (e.g.,
synergisms, threshold effects, time-lag effects, etc.), painfully real
injuries, diseases, and premature deaths are routinely generated by causes,
the evidence for which falls far short of the legal burden of proof. Nor can
this problem be remedied simply by lowering the threshold of the burden of
proof, for this would open the floodgates of frivolous and meritless suits,
undermining, among other rights, the libertarians' cherished right of
The history of the tobacco industry in the United States offers an
instructive lesson as to the efficacy of libertarians' private lawsuit
("torts") response to a public health menace.
In 1962, the US Surgeon General, Dr. Luther Terry, released the first report
from his office on smoking and health. In the intervening decades, as an
enormous body of evidence has accumulated, there has been little doubt among
the scientific community about the validity of warnings of Dr. Terry and of
all his successors. Millions of American citizens have had their lives cut
short by tobacco-induced diseases, while the industry, exercising its free
market privileges, has invested millions more in advertising and promotion
to successfully lure still more victims.
During these decades, hundreds of victims of the tobacco industry have sued
for compensation. And as we have noted, not a single individual plaintiff
has won a case against the industry. Finally, after more than three decades
of complete failure, the libertarian individual tort remedy was discarded
and the problem of the statistical casualty sidestepped, as a consortium of
state Attorneys General, led by Mississippi’s Michael Moore, achieved a
multi-billion dollar settlement from the tobacco companies. The plaintiffs
in these cases were not individual smokers, but rather the states which had
to pay increased medical costs to the “class” of smokers.
Similarly, the air that I breathe at my southern California mountain home is
significantly cleaner now than it was a generation ago, and not because of
successful law suits by citizens and property owners against the polluters.
Instead, the liberal’s remedy has been applied as air quality has been
improved through the laws and regulations issuing from the state of
California's Air Quality Management District, and the federal Environmental
Protection Agency: in short, through Garrett Hardin's "mutual coercion,
mutually agreed upon." Aside from a few uncompromising libertarians of my
acquaintance, I know of no fellow Californians who would have it any other
An unequal and hence unfair apportionment of risks. A risk that might be
acceptable to an entrepreneur can put an innocent and unconsenting public at
unacceptable and unjust risk.
Suppose, for example, that a developer correctly calculated that by building
a dam, he had a 95% chance of becoming enormously wealthy - so long as the
dam did not fail. However, there was a 5% chance that the dam would fail,
which would provoke law suits that would surely bankrupt him, and possibly
earn him a prison sentence. Many venturesome capitalists would find this to
be a quite acceptable risk. However, that same venture would put the lives
and property of thousands of downstream citizens in peril, with no
appreciable advantage accruing to them if the dam were built. Clearly, it
would be unjust for the developer to proceed with his project. But what is
to prevent him from doing so? The threat of suit? As we have seen, he has
already considered this and found it to be an insufficient deterrent. In the
libertarian state, with government regulation abolished, there remains no
further deterrent to this threat against the innocent and unconsenting
The case is more than hypothetical, for it precisely describes innumerable
historic cases. Lifeboats for the full ship's complement of the Titanic were
regarded by the White Star line as an unwarranted expense, given the
unlikelihood that ship would sink. The result of this disproportion of risk
to investors and to passengers is known to all. Prior to the crash of 1929,
the risk of bank failure to the stockholders was not proportional to the
risk of the depositors. So too the risks to sellers and to buyers, of
selling tainted food and untested drugs. Once again, the progressive brings
forth a proven remedy for these disproportionate risks – a remedy detested
by the regressives: inspection and regulation by a disinterested third
party, namely the government, backed up by the force of law and the prospect
of fine and imprisonment.
A Reactive rather than a Proactive strategy. The disproportionate burdens of
risk, just discussed, have led to the establishment of pure food and drug
laws, of traffic safety regulations, of inspection and regulation by bank
and insurance commissions, of building and constructions codes. All these
and innumerable additional examples of "big government interference"
exemplify yet another essential advantage of the progressive program of
government regulation over the libertarian alternative of private suits for
damages: the private libertarian solution is reactive, while the progressive
public approach is proactive. Private interests lack both the resources and
the inclination to anticipate disasters and hazards before they occur.
Again, the case of the tobacco industry is instructive. Federal
investigations of company documents leaked by “whistleblowers” have
confirmed what critics have long suspected: tobacco industry "research" has
acted more to hide and obscure than to reveal the health consequences of
As children, we have all been taught that "an ounce of prevention is worth a
pound of cure." Even so, it is difficult to assess the value of proactive
policies, since it is difficult to acquire statistics on accidents that do
not happen, and persons not killed or injured, due to effective preventive
policies. Difficult, but not impossible. The contrast in public health and
safety, and in environmental quality, before and after the introduction of
government regulation further validates the progressive agenda, while it
offers strong refutation to the libertarian's assurance that "the free
market" and enforcement of property rights are the best means of protecting
the public and the natural environment.
The enforcement of the "torts approach" would require the "big government"
endorsed by the progressives and detested by the Libertarians. In place of
"government" (which libertarian philosopher John Hospers describes as "the
most dangerous institution known to man"4), the libertarians would delegate
the task of protecting property rights to the courts. But is this a
distinction with a difference? Aren't "the courts" an arm of the government?
And what assurance do we have that courts of law won't be a tyrannical as
"the government" that is so distrusted by libertarians?
Whether more or less tyrannical, these courts are not likely to be
significantly less extensive, intrusive and bureaucratic than the government
agencies that they will presumably replace. To illustrate this point,
consider again my home in the California mountains.
Suppose a noxious cloud passes through my property, killing the trees in my
back yard? How am I to find the culprit responsible, so that I may be
compensated for these damages? Presumably, I must hire a forest botanist and
a chemist and numerous additional experts to validate my claim. And if some
upwind industry becomes the prime suspect, it will, no doubt, collect a
committee of its own "experts." (My financial resources and those of the
firm will be hopelessly mismatched - but let that pass). How is this clash
of experts to be adjudicated, unless some agency has previously set up
independent standards that can be applied to this court case, and others
Similarly, suppose that I have decided to heat my house with a wood stove.
How am I to know beforehand that I will be safe from a pollution suit by my
neighbors, since, by hypothesis, our libertarian government has abolished
all those "dictatorial" clean air standards? Clearly "the courts" will have
to define, in detail, acceptable and non-acceptable effluent standards,
based on extensive scientific research. And all this will all have to be
done in advance of any suit against me. Otherwise, the suit would be ex post
facto, and thus legally invalid. Similar questions arise with claims of
damages due to food poisoning, unsafe drugs, vehicle malfunction, etc.
The implication is clear: the libertarian reformers, having disbanded the
Environmental Protection Agency, the National Institutes of Health, the Food
and Drug Administration, and other "big government" regulatory and research
agencies, will have to re-establish them if the courts are to function under
the enormously expanded burden of responsibility handed to them by the
libertarians. In point of fact, the libertarian scheme of "pollution control
through the tort laws" does not eliminate government, since it requires a
reliable government to codify and defend personal and property rights.
Absolute rights against property invasion would shut down industrial
civilization. The libertarian remedy for environmental pollution, however
attractive in the abstract, would accomplish too much if put into practice.
Consider, for example, Tibor Machan's statement of this remedy: "if
operations of [private] firms would be impossible without pollution [beyond
their boundaries] - that is, without causing emissions that are harmful to
others who have not consented to suffer such harm - the operations would
have to be shut down."5 Can anyone doubt that the clear implication of this
rule must be the abolition of the internal combustion engine? Thus these
champions of individual liberty, in order to spare our property and our
selves from the assault of pollution, would deprive us all of the freedom of
movement afforded by our automobiles. And there is worse ahead: "non-point"
water pollution comes from agricultural run-off. Must we abolish the use of
chemical fertilizers and fossil fuels in agriculture? Radical
environmentalists have urged as much. But now that horse pastures have
long-since been converted into shopping malls and subdivisions, the clear
consequence of the de-mechanization of agriculture must be mass starvation. And finally, air pollution also comes from electric power
plants. Do we shut off the electricity? What then of the loss of freedom to
communicate? In fact, the air that I exhale contains carbon dioxide, an air
pollutant. And try as I might, I can't seem to keep it all contained on my
property. The implication, as Jeffrey Friedman spells it out, is as clear as
it is absurd:
Libertarianism seeks to make every human being the ruler of his or her own
domain, as delimited by his or her property rights... Since the atmosphere
cannot be divided into parcels of private property as land can, strict
libertarianism would require that each person possess his or her own
atmosphere, unpolluted by the activities of anyone else. The libertarian
ideal is in short, so sensitive to environmental externalities that it is
incompatible with human coexistence. Short of the ultimate in atomistic
individualism - a planet for every person - any pollution, and hence any
human activity, is, in the libertarian view, a crime.6
No known civilized society has ever existed without some form of government,
some oppressive and others democratic and just. Few municipalities are
prepared to abolish fire and police departments, merely because these civic
institutions are less than perfect. If, as Ronald Reagan complained,
“government is not the solution to our problems, government is the problem,” then the
rational remedy is not necessarily less government (albeit such remedies are
occasionally in order). That remedy might be found in improved government.
No one can doubt that many governments have proven to be "dangerous" and
tyrannical. But libertarians would have us believe that all governments, per
se, are not to be trusted: that government is “the most dangerous
institution known to man” (John Hospers), and “that government is best which
governs least” (Thoreau) These claims require an argument. American history
teaches us that because the founders of our government were very suspicious
of the powers and abuses of the state, they first attempted, under the
Articles of Confederation, the sort of minimalist government that the
libertarians might endorse – a government that failed. Following that they
tried again, this time with a system of "checks and balances" that separated
the powers of government, and then they completed their task with a "Bill of
Rights" that explicitly stated limits on the powers of the government over
its citizens. Ultimately, the sovereignty over that government resides in
the voting public (or at least did so until the Supreme Court ruled in Bush v. Gore on December 12,
2000). If we don't like the way we are being governed, we can replace our
leaders at the ballot box. Unfortunately, if we don't like the way the
telephone company or the public utilities treat us, we can not vote their
management out of office - unless, of course, we are wealthy enough to own
significant amounts of stock in these companies. Yet these private interests
control our lives, without restraint - unless, of course, in accord with
progressive policy and contrary to the advice of the libertarians, we have
been wise and fortunate enough to enable our collective surrogate, the
government, to regulate these private interests in our behalf.
Clearly, all governments, being institutions designed by imperfect human
beings, are imperfect to some degree. But no one has effectively
demonstrated that anarchy is to be preferred. All organized activity, for
example, team games, require rules and referees to enforce them. This
includes so-called “free markets.” Every civilized human being lives under
some system of government, for better or worse. Perhaps there is some
compelling reason for this.
So we come at last to an unspectacular conclusion: markets, private property
and corporations are good things, but it is possible to have too much of a
good thing. For these worthy and indispensable servants of the body politic
can become cruel and insufferable masters, to prevent which, we establish
laws and regulations – i.e., government.
With the rise of libertarianism and the enactment of its doctrines into law,
we now have way too much of these “good things,” as they now threaten to
undermine and destroy the institutions, the economic foundations, and the
political structures that sustain us all, including the corporations.
The solution is also compellingly obvious: let’s return to the system of
regulated capitalism, of checks and balances, of the rule of law, and of a
government of, by, and for the people, that has served us so well for over
In the previous administrations, under such regimes, the American economy
enjoyed unparalleled prosperity, the country was at peace, and the United
States of America and its political traditions were respected throughout the
Let’s bring back that which was proven to work in the past.
If it ain’t broke, don’t fix it.
Having tackled the fundamental issues of the
libertarian/liberal debate -- Social Atomism, market
fundamentalism, privatization, corporations and government -- we
still have a few loose ends to tie up. That will be the
task of the final essay.
7. Concluding Questions.
NOTES AND REFERENCES
1. This quotation is totally accurate. It was transcribed from Reagan's
voice, broadcast over National Public Radio, May 30, 1985.
Boaz, Libertarianism: A Primer, New York: Free Press, 1997, p. 16.
3. Anderson, Martin, from an untitled Christian Science Monitor
January 4, 1989. Quoted by Walter E. Block, ed., Economics and the
Environment: A Reconciliation, (Vancouver, Fraser Institute, 1990).
4. Hospers, John. (1974). “What Libertarianism Is,” The Libertarian
Alternative, (ed.) Tibor R. Machan, New York: Nelson Hall.
5. Machan, Tibor, "Pollution an
Political Theory," Regan (ed.), Earthbound: New Introductory
Essays in Environmental Ethics, (New York: Random House), p.
6. Friedman, Jeffrey, "Politics or Scholarship?",
Critical Review, Vol. 6,
No. 2-3, 1993. Pp 429-45. (The Martin Anderson citation is from this paper).