What's Happening to America’s Love of Liberty?
Our culture of liberty is losing ground to the mantra of “there ought to be a law!”

Americans used to be clear about their love of freedom. Our national anthem declares us the “land of the free.” It has always seemed natural that the Statue of Liberty stands at the entrance to our own greatest harbor. For more than a century our country invited in the huddled masses “yearning to be free,” and our worldwide reputation is still that America is a place where freedom abounds.

Yet, in the past 80 years American liberty has been in a serious decline. Despite some gains, particularly in the area of
racial justice, the overall trend has been down. Liberty has been in decline ever since the Supreme Court finally confirmed the broad reach of its so-called rational basis test, thus making clear that it would not enforce liberty as a fundamental right. This move by the Court gave government a green light to impose just about any new restrictions on liberty it chooses, any time it wants.

During this same 80 years, the federal government has amassed a quantity and proportion of power that would have astonished the Founding Fathers. The intrusion of government at all levels into Americans’ everyday lives and personal choices would shock and horrify the pioneers and visionaries who built this nation in the 19th century. Worst of all, most Americans seem to regard these changes as basically all normal: As government accumulates more and more power, the American love of liberty—our national habit of thinking like a freedom-loving people—seems to ebb away.

Our Culture of Liberty vs. the Culture of Control
“there ought to be a law!” is the old refrain. Originally it was meant as a humorous way to denounce, in exaggerated terms, things we do not like. The trouble is that, today, far too many Americans think there literally ought to be a law, and people demand new laws to deal with just about nearly every kind of annoyance or peeve. You can hardly read the news without seeing new calls for laws on all manner of topics. Every time a person thinks “I really don’t like that,” it seems to follow almost automatically that “there ought to be a law.”

Unfortunately, however, “there ought to be a law” is a pure and simple anti-liberty stance. It is directly and unambiguously hostile to liberty. It reflects a desire to control others, a culture of subjugation, not a culture of liberty.

The impact of this attitude—this growing anti-liberty stance—are exactly what you would expect. We have seen, especially in the last fifty years, a burgeoning proliferation of laws to cut back American liberty. New laws, toughened laws, overlapping laws, laws to close “loopholes,” laws to prevent evasion of still other laws, laws to “send a message” and on and on—these additions to the law pile on each other and mount up until, The Economist
reports, even the Congressional Research Service cannot count them all.

But these new restrictions on liberty do not come from nowhere. We have them because, in each case, there was some pressure group that wanted them. For every new law there is almost always some special “interest” out there that is crying that “there ought to be law!.” And, sadly, legislators are too eager to listen. Always wanting to please (i.e., get votes) legislators gleefully oblige this hostility to liberty far more than they should.

What makes the problem so elusive is that just about every new law is claimed to serve a valid purpose. Each seems well-intended and aimed at a situation that at least some people genuinely believe, in good faith, needs the law’s attention. Cumulatively, however, all these new laws add up to an incomparable burden on freedom.

There seems to be a large and growing imbalance between the anti-liberty forces (“there ought to be a law!”) and those who take liberty seriously. More and more, it seems, there is hardly anyone out there insisting that “there ought not to be a law”—at least not a law that burdens liberty as much as the one being proposed. There is no one, it seems, that is consistently on the side of liberty for the sake of liberty.

When new laws are proposed, there needs to be someone to insist that the interest being furthered is a compelling one and that the new law be narrowly tailored to have the least possible impact on liberty. Unless the voices in favor of liberty ring out more clearly than they have in the past 50 years, those who cry “there ought to be a law!” are the ones that will prevail, and American liberty will continue to decline.

The attitude toward liberty of the American people is crucial. It alone will determine how much actual freedom the American people will have. We cannot let Americans' love of liberty be gradually swallowed up by the beguiling belief that, in instance after countless new instance, “there ought to be a law!” If we do not recognize this destructive belief for what it is—the mortal enemy of liberty—what remains of American freedom will soon be gone.

Racial Justice: The advance of individual liberty achieved by rooting out racial and other invidious discrimination is huge. Even so, however, it does not offset (and certainly does not justify) the legal erosion of general liberty that has coincided with it. Return

Rational Basis Test: The "rational basis test" allows any law to curtail freedom as long as “any state of facts reasonably can be conceived that would sustain" it. Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934). Return

Economist citation: The Economist, July 24, 2010, p. 28. Return