David R. Henderson  

Is the Pool of Liberty Drying Up?

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This is the title of a blog post by Ted Levy. I'll save you the suspense: his answer is yes. In his post, he takes on the views of David Boaz and Brink Lindsey that liberty is increasing. Levy gives boatloads of evidence. One excerpt:

He [John Stossel] noted in the last year alone the Federal government has generated 160,000 pages of NEW laws and regulations, restrictions on freedom, excuses to imprison citizens. These are not further descriptions and elaborations of rape and murder, robbery and home invasion. Stossel tells of the man who was imprisoned for SIX YEARS because he sold seafood in the wrong containers, lobsters that, while not mislabeled to consumers, were nonetheless smaller than the legal salable size. Opening a lemonade stand in your front yard requires, in NYC, preliminary attendance at a 15 hour Food Protection class, and filling out many legal forms. No one knows the content of the all the laws, and several legal requirements contradict one another. These are basic violations of the principles the late Harvard law professor Lon Fuller detailed in his The Morality of Law, principles that flesh out the "rule of law."

Still, David Boaz is a smart man. Surely he must have an argument for his view. And he does. As part of his case, Boaz quotes Brink Lindsey:
Compare conditions now to how they were at the outset of the 1960s. Official governmental discrimination against blacks no longer exists. Censorship has beaten a wholesale retreat. The rights of the accused enjoy much better protection. Abortion, birth control, interracial marriage, and gay sex are legal. Divorce laws have been liberalized and rape laws strengthened. Pervasive price and entry controls in the transportation, energy, communications, and financial sectors are gone. Top income tax rates have been slashed. The pretensions of macroeconomic fine-tuning have been abandoned. Barriers to international trade are much lower. Unionization of the private sector work force has collapsed. ...cultural expression, personal lifestyle choices, entrepreneurship, and the play of market forces all now enjoy much wider freedom of maneuver.

So who's right? Here's where Levy's genius comes in: he does it with a beautiful analogy:
Liberty is like the water in a swimming pool. You can dive in, and be surrounded by freedom. In the past, the pool was large and deep. Those who could dive in were engulfed in liberty. It was everywhere. There was so much liberty you could drown in it if you were not careful, but people exposed to liberty were buoyant, and liberty lifted you.
And entry into the pool, for many, was their birthright. It could not be taken away. The lifeguard at the pool was like a night watchman, seldom needed, helpful in emergencies.

But what about Jews, black people, women? Levy proceeds:
Sadly, though, and wrongly, the pool was restricted. No blacks allowed, with only token exceptions. No Jews. No gays. No women. Property owners preferred. Yet despite all this, the pool and the opportunity to dive into it attracted millions from all over the world.

What happened next? Levy writes:
Over time, two things happened, one good, one bad. Rules were changed to allow more people to enter the pool. Over time first blacks, then Asians, Jews, women--now, though not yet fully, even gays--have been allowed to join the club and enter the pool. Sadly, at the same time, the pool has been shrinking. Once the pool was gigantic in size. As James Wilson might have said, "Measure the size of the pool? I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing."
Slowly the pool shrank, first to mere Olympic size, then to that of a school gymnasium's offering. Then to a backyard pool. Then to a kiddie pool. Now it is somewhat less than a wading pool. Perhaps in future it will merely be a small sliver of water in a desert, which only the EPA would call a pool.

Levy hastens to offset an objection that might occur to many thoughtful readers:
To be clear, my analogy does not depend on the application of Archimedean displacement. There is NOT less water in the pool because more people are in the pool. The pool is actually shrinking in size, but it didn't have to be that way. There is no Conservation of Liberty principle that requires the total amount of liberty be fixed...that requires freedom, when spread among more people, be diluted in its coverage.

But here's the problem:
Blacks can now enter the pool. Women can now get their toes wet. Gays are now free to wear the most outrageous swimsuits poolside. But no one--white or black; gay or straight; male or female; young or old--NO ONE can now do high dives into the deep end. It is too shallow. It would be dangerous. It is prohibited for our own safety. The waters of liberty now engulf no one, equally.

And then the ugly sandbox:
Meanwhile, there is a sandbox by the pool. It is a sandbox enclosed in iron bars, chain-link, and barbed wire. Once placed in the sandbox, it takes years to get out. Many die in the sandbox. And even once released, you are no longer really allowed fully to enter the pool again. And the sandbox is growing. Once small and defined, the sandbox is now massive--the largest sandbox in the world--and overcrowded. Ironically, while blacks are now more than ever allowed into the shrinking pool, they are also thrown disproportionately into the burgeoning sandbox. It is different from the old days, when they were not allowed in the pool to begin with. But it shares many similarities.

And then the plaintive nostalgia for one of the freedoms we lost that many of us remember and few young people remember:
But it adds up. Liberties some of our ancestors once had--in travel, in business, in property, in contract--are not missed because it is notoriously challenging to appreciate the loss of something you never had, like young people today cannot imagine what it was like to run unobstructed for your plane when you were late for your flight, like we can't imagine what it was like in the 1960s to store your rifle in the overhead bin.

That reminded me of how I shocked a young woman in the audience last September when I pointed out that when I was middle-aged, not even young, you didn't have show to show an ID to get on a flight.

And finally:

When we watch a race where some runners are shackled, we recognize it as unfair. We see the liberty of the shackled runners restricted if they are weighted down by the force of law. When we call out for greater equality, should we be satisfied if the laws are changed so as to shackle all runners equally, or should we remain unsatisfied until shackles are removed, and no one is weighted down?


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COMMENTS (21 to date)
djf writes:

With regard to Levy's assertion that Jews were not allowed in the "pool" of liberty - what country is he talking about? Not the United States. Jews did experience some discrimination in this country up until about the middle of the 20th century, but that discrimination (which was mostly by private actors, not the government) was trivial compared with what blacks and women experienced. Jews never had any civil disabilities in the United States, and have always been able to achieve financial and professional success, even if there was a time when they were excluded from some schools, country clubs, and jobs at some law firms and banks.

Jon Murphy writes:

I will never take my pool for granted again

PG writes:

I'm not sure the analogy works: a consistent metaphor would say the depth of the pool represents the collection of freedoms a given individual enjoys and the surface area represents the number of people enjoying those freedoms. Levy alludes to this principle when he deflects the "displacement" objection. But what this interpretation implies is that mathematically the sum of freedoms enjoyed (the volume of the pool) is ambiguous when surface area is increased (each new person is able to enjoy these freedoms) and depth reduced.

In any case, isn't the debate somewhat beside the point once you acknowledge more freedom is desirable and equally beside the point if you don't?

David R. Henderson writes:

PG asks:
In any case, isn't the debate somewhat beside the point once you acknowledge more freedom is desirable and equally beside the point if you don't?
Obviously not. Both Boaz and Levy acknowledge that more freedom is desirable. Notice that Levy is debating Boaz.

FredR writes:

"There is NOT less water in the pool because more people are in the pool. The pool is actually shrinking in size, but it didn't have to be that way. There is no Conservation of Liberty principle that requires the total amount of liberty be fixed...that requires freedom, when spread among more people, be diluted in its coverage."

I bet there is. To extend the analogy, if you let a bunch of people in the pool who can't swim, you better rope off the deep end or somebody could drown.

H man writes:

Didn't Caplan make this argument about the amount of freedom of a white man in 1870 being reduced while freedom for non white men was increasing?

liberty writes:

"Didn't Caplan make this argument about the amount of freedom of a white man in 1870 being reduced while freedom for non white men was increasing?"

IIRC Caplan argued that freedom as a whole increased, and also argued that even for women, freedom had increased, which I debated him on (and my posts were deleted). I think the case made here is much better.

Mark Bahner writes:
The pretensions of macroeconomic fine-tuning have been abandoned.

Ho, ho, ho! Good one! If I see Paul Krugman, I'll let him know. ;-)

Brad Warbiany writes:

I made the same argument way back in 2005, but my analogy was to Peak Oil rather than a pool. The piece, of course, was titled "Peak Liberty". (Link below is the crosspost to a more relevant political blog in 2010, rather than my personal blog where I wrote it in 2005.)

http://www.thelibertypapers.org/2010/04/07/peak-liberty/

The argument was the same. While we've expanded the number of people enjoying equal liberty, we've defined the level of that liberty down consistently over time.

Libertarians are commonly accused of wanting to go back to the days of old, when only white landowning males had any rights. It's not true. We want to have the rights we had back then, *AND* want those rights extended to all the other groups that didn't have them. Liberty isn't a zero-sum game; those groups didn't take our liberty away. The government took it away, even as it expanded equality to those groups who didn't have it before.

Ken B writes:

I don't know if liberty is expanding or not. I do think the *attacks* on liberty have been stepped up in recent years. An easy example to cite in Canada is the growth of 'Human Rights Councils', which are more properly seen as Star Chambers. Here the congress in the past few years has been exceptionally hostile to liberty. Dismissive of it too:

Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause]. Rep. Stark responded, “the federal government can do most anything in this country.” Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?” Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.” Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill. Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?” Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

I haven't even mentioned inflated assertions of executive power.

David R. Henderson writes:

@FredR,
To extend the analogy, if you let a bunch of people in the pool who can't swim, you better rope off the deep end or somebody could drown. So you’re saying that the people newly let in the pool are less capable of swimming?

David R. Henderson writes:

@Brad Warbiany,
Libertarians are commonly accused of wanting to go back to the days of old, when only white landowning males had any rights. It's not true. We want to have the rights we had back then, *AND* want those rights extended to all the other groups that didn't have them. Liberty isn't a zero-sum game; those groups didn't take our liberty away. The government took it away, even as it expanded equality to those groups who didn't have it before.
Well put.
@Ken B,
Great quotes. Thanks.

JKB writes:

This reminds me of an article I read in Schribner's Magazine from 1886 The Ethics of Democracy by F.J. Stimson. Scribner's Magazine (1887)

The writer of this article has for several years been occupied with a work which involved careful study and comparison of all the statute books of the United States.

It is inconceivable these days that anyone could use several years to quantify their careful study of all the statutes of the federal government much less the States.

The article is to point on liberty drying up. As more have entered the pool, the number of drownings increased even as perhaps their percentage of the whole decreased. But humans as they are, a minority clamored for protections with little push back from the majority overwhelming the few who would embrace swimming at their own risk.

We will therefore conclude wiht the perhaps unforeseen result, that democracy, when crowned with power, seeks rather what it consders the well-being of the community than the liberty of the individual.
Therefore, without prejudice against any one proposed reform, it is impossible not to end, if not with the deduction , at least with the suggestion - that (for some reason which we will not now attempt to fathom) the three institutions - of private property, of marriage, and of personal liberty from State control - are so inseparably bound together that neither one may fall without the other two.
FredR writes:

"@FredR,
'To extend the analogy, if you let a bunch of people in the pool who can't swim, you better rope off the deep end or somebody could drown.' So you’re saying that the people newly let in the pool are less capable of swimming?"

Yes.

Ken B writes:

FredR: "Yes."

Before this gets nasty. What pool are we talking about? The recently liberated people in eastern Europe for example in the world-wide pool? Rr gays and women in the pool that is America? Because "yes" is a very different word in each case.

tom writes:

To follow FredR, maybe it's not even that they don't know how to swim. It's that the new people want to use the pool for water polo while the original people want to do laps. They're all free but their uses aren't the same and may not even be compatible.

I remember a couple of commentators pointing out the conservative nature of Richard Florida's statistics showing high levels of distrust and low levels of community in cities with a large number of different groups. Florida is very left-liberal, but his data seemed to show that if you have a lot of different kinds of people in the pool, they feel less free.

Maybe if they had three or four different pools that were separate...but of course equal (kidding).

Matt writes:

This is an interesting metaphor, but I think it falls flat. To me, liberty is not a thing but is a lack of a thing (government intervention, violent coercion). I think it would be best if libertarians could come up with metaphors that communicate this. I mean, doesn't water restrict movement?

The runners shackles makes more sense to me.

Gian writes:

"Starting from perfect freedom, I conclude in perfect despotism"
Dostoevsky, the Demons

The understanding of liberty as non-interference is ultimately Sartre's Hell is Other People.
The other vision is Aristotle" City is prior to Family and Individual"

Locke understood society as man's need for safety
from (1) Other men
(2) From nature:
The State provides for both functions. Thus, the seed for despotism is built right into the individualism.
An ever-increasing power over nature requires an ever-increasing state. Other men that are also gaining in power and to secure against them, you need an ever-increasing state.

"Abortion [is] legal."

Ah yes, we have more liberty because now we can kill our children in utero.

"Divorce laws have been liberalized"

And we can also break contracts with impunity.

Costard writes:

Acton distinguished between social and individual liberty -- a distinction embodied by the France and England of his time. The tragedy of the last century is that while social liberty has taken a great step forward, repression of and between groups of people has lessened and representative governments have become legion, the individual has found himself submerged in class politics and the warfare of special interests. Democracy was a success; limited government was a failure.

Ted Levy writes:

David,

First, thanks very much for highlighting my essay.

As I mentioned to you earlier in another venue, but felt I should mention here to your readers, I wouldn't exactly call my essay a "debate" with David Boaz, whom I very much admire, or even a disagreement. More like viewing the same scene from another perspective.

I note many of your commenters found my analogy fell flat or didn't work in one way or another. It is true, analogies are like that, often disappointing in some way, yet hopefully nonetheless insightful, if only in part.

I would, however, take issue with the claim that, to paraphrase, "the Jews didn't have it that bad, and it was mostly private actors.": ignore FDR's sending Jews trying to escape Nazi Germany back to certain death because of our immigration restrictions. Ignore the Sabbatarian laws that though facially neutral obviously impacted more negatively on Jews. Lets just look at the effect of profession licensing laws, again facially neutral, and their effects on Jews. A combination of "neutral" regulations combined with social mores disfavorable to Jews led, in the decade after the Flexner Report, causing the closing of over half of all medical schools in the US, to a dramatic drop in the number of Jewish (and women) physicians. I believe they weren't at their 1910 numbers until 1960. This seems to me very similar to facially neutral vagrancy laws that nonetheless were used in the Jim Crow South very effectively against blacks when, for them as well, social mores saw no problem with such "neutral" laws and their applications. Now, social mores have changed, and the same laws have different effects on both blacks and Jews. That was the sort of point I was attempting to make in my essay.

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