Apr 26, 2017
A Review of Timothy Sandefur’s The Permission Society
At the close of his excellent book, The Conscience of the Constitution, Timothy Sandefur left us with the astute observation that “[a] society in which some people claim the right to control the lives of others experiences not harmony, cooperation, and freedom, but bitterness, hostility and strife.”1 In his most recent work, The Permission Society, Sandefur proves his point. Picking up right where Conscience left off, Sandefur examines just how far the United States has moved towards such a society; what that means for the lives of real, everyday people; and what we can do about it. This article explores the book in four parts: first, I set forth the principles that undergird what Sandefur calls the Free Society; second, I indicate the ideas and intellectual factions responsible for some of the major assaults on those principles since the Founding-era; third, I survey the reality and implications of what Sandefur calls the Permission Society; and finally, I close with Sandefur’s recommendations and one of my own for how we can move from Permission to Freedom.
I. Principles of the Free Society
Sandefur dedicated Conscience to unpacking the ideal set forth in our Declaration of Independence.2 Much of Permission is concerned with describing how close we are to realizing the antithesis of that ideal. As a segue from the former to the latter, Sandefur begins his most recent effort by reintegrating some of that past material in impressively accessible form. Because some of it is crucial to grasping the import of Sandefur’s broader project, it will be useful to sketch the essence of what he refers to later in this book as the Free Society.
At its core, the Free Society regards the individual as sovereign, as the rightful captain of his own ship. It holds that he is neither the natural master nor cosmic servant of his fellows—that his life, his body, and his property are his own—that he need not ask permission in order to sail.3 The Free Society was the ideal for which, over two centuries ago, our Founding Founders chartered a bold new nation.
Their achievement was the culmination of the Enlightenment. As intellectuals, they held an exalted view of man: a reverence for the efficacy and primacy of the individual and his pursuit of happiness in a lawful, knowable world.4 As statesmen, they designed the only form of government consistent with that view: a government that would recognize and secure individual freedom based on absolute principles of morality and human nature.5 They fought for freedom because they knew it was right and worth it.
This may not sound so revolutionary today—but that makes us the lucky ones. Viewed in the broad context of human history, the Founding philosophy was an undeniably radical one. For human beings have always believed in rulers: we have always felt that as mere individuals, it was our place to bow before some superior figure—and so we have elevated the philosopher-king6, venerated our princeps civitatis7, kneeled before Leviathan.8 We have treated these figures as sovereign—as the ultimate repositories of authority over our lives.
The Founders bowed before no one. And with the Declaration of Independence, they turned history on its head. The momentous achievement of the American Revolution was that it broke with tradition to effectively reverse the polarity of sovereignty, overthrowing not just one lonely despot, but despotism itself.
This brings us to one of Sandefur’s crucial observations: that while in the Old World, all-powerful kings granted provisional “charters of liberty” to inferior subjects, individuals in the New World would be presumed free, and would grant only limited “charters of power” to the state.9 In the Old World, the individual was free to act only as a matter of royal grace10; government was a weapon that allowed superior rulers to treat inferior subjects as mere means to their ends11; laws were issued as commands and rights were held as mere permission slips.12 But in the New World, the individual would be fundamentally free to pursue his own ends and follow his own convictions13; government would be a tool for securing the conditions that all sovereign individuals required in order to flourish14; rights would be absolute and laws would protect them.15 In short, the American polity would strive in an entirely new “normative direction”: it would be government by the individual and for his pursuit of happiness.16
But the presumption of liberty would not secure itself. It demanded a constitutional innovation—a political corollary—that would distinguish the American system from its European predecessors. Sandefur explains that “[w]hen the Founders spoke of all people being created free and equal … [t]hey were making important statements about logic and human nature.”17 That is, they were recognizing that “each person possesses himself or herself,” that “no person is singled out to rule another person by automatic right,” and accordingly, that “[a]nyone who purports to govern another must justify his right to do so.”18 The solution was clear: if citizens were to be presumed free, the government must bear the burden of proof when it seeks deprive them of that freedom.
The Constitution imposes just such a burden. As my former colleague Clark Neily observes in his own book, Terms of Engagement, “[t]he Framers believed that the most effective way to protect liberty was not to create a list of specific rights that the government could not infringe, but instead to create a finite list of powers that the government could exercise.”19 That is why the Constitution explicitly enumerates, (and thereby delimits) the functions and authorities of each branch of the federal government20; the Ninth Amendment emphasizes that the Bill of Rights does not exhaust all the rights enjoyed by individuals21; and the Tenth Amendment reiterates that the federal government enjoys only those powers specifically delegated to it.22It was a system designed to leave individuals free in all spheres not specifically ruled by the government—which is to say, the vast majority of them.
This was the Free Society that our Founders fought for. These were the principles affirmed in our Declaration of Independence and which animate our Constitution. And they are the values that have come under increasing fire in the generations since the Revolution.
II. Assaults on Freedom
Sandefur’s chief theme is that to the extent we allow the ideas behind the Permission Society to infect our legal corpus, we get a government that systematically subordinates and infantilizes individuals, arbitrarily elevates and empowers rulers, and deprives us of all the values our government was chartered to secure. His book is a checkup that reveals a shocking metastasis: on everything from the most mundane to the most intimate and essential aspects of our lives—from speech, to business, to medicine, to land, and much more—we find ourselves in “a society in which our choices are increasingly subject to government pre-approval.”23 Permission has become the rule, and Freedom the exception.
If Sandefur is correct in his diagnosis, we are approaching the antithesis of what the Founders set out to achieve. How could we have fallen so far?
In a word: ideas. According to Sandefur, “[t]he basic principle of the Permission Society is that freedom is a privilege the government may give or take away as it sees fit.”24 This is a simple, pernicious idea—and it is commonly accepted. While the United States has been a constitutional republic since day one, Americans today are raised on the received wisdom that ours is a “democracy” governed by “majority rule”; we are inundated with the imperative to “get out and vote” in keeping with our “civic duty”; politicians cash in on the narrative by appealing to us with pleasant-sounding slogans like “Country First” and “Stronger Together”—tropes that always assume or imply the Permission Principle in the end, but hide it from the spotlight. Such slogans resonate with casual voters because of the context that so many Americans bring to their political lives.
The agents who made the erosion of the Free Society possible were the ones who set that context, working openly and intentionally to disseminate the Permission Principle. They were the intellectuals who sought to re-establish the Old World hierarchy of superior rulers and inferior subjects, who saw themselves as among the former, and who recognized that, if they were to succeed, they would have to tarnish the legacy of our Declaration and erode the efficacy of our Constitution. In the legal realm, they have been both numerous and persistent since the Founding. Let us consider just a few of these groups.
Perhaps the most obvious examples were the antebellum defenders of slavery. As Sandefur points out, southerners hell-bent on holding blacks in bondage worked tirelessly to discredit the principles of equality and freedom enshrined in the Declaration as the products of an “erroneous,” “presumptuous,” “infidel philosophy.”25 Figures as prominent as South Carolina senator and later-vice president John C. Calhoun argued that freedom was a privilege reserved for those of higher intelligence and virtue, and that blacks, who were more like helpless children, needed the structure and order of the white man’s command.26 Their campaign was captured neatly by Supreme Court Justice Roger Taney’s infamous line from his justly-reviled majority opinion in Dred Scott v. Sandford, that blacks were “so far inferior, that they had no rights which the white man was bound to respect.”27 And although they lost in the end, there can be no doubt that their attempts to inject the slaveholder’s credo into the national conscience normalized the Permission Principle.
Another movement to embrace that Principle en route to undercutting the Free Society was led by the post-Revival legal moralists.28 Often overlooked in discussions of this sort, the Second Great Awakening in the early-19th century infused an increasingly-religious population with a renewed passion for worship and sectarian values. As Professor John W. Compton observes in his excellent study, The Evangelical Origins of the Living Constitution, their zeal poured over into the political realm, such that “post-Revival Americans increasingly believed that the proper function of law was not to control vice, but rather to eradicate it altogether.”29 Legal sanctions for sins like liquor and lotteries were viewed by many as “affronts to the Almighty.”30 The result, Compton demonstrates, was an almost century-long wave of morals legislation and courtroom clashes aimed at subordinating Freedom to Christian norms.31
By the early-20th century, judicial accommodations of post-Revival evangelical reform efforts had so eroded traditional constitutional protections for private property and contract rights that another group, the New Deal progressives, was well-poised to employ the Permission Principle in the service of even broader social and economic reforms. As Sandefur explains, the progressives were inspired by a cadre of post-Enlightenment philosophers trafficking in Old World ideas, who believed that the individual was subordinate to the primary social unit: the collective.32 This familiar perspective—which simply replaced the king with the mob—was championed from the bench of the United States Supreme Court by Justice Oliver Wendell Holmes, Jr., who bragged of “sneer[ing] at the rights of man.”33 To Holmes and his fellow legal positivists, what we call “laws” and “rights” were only the arbitrary products of a struggle between opposing factions to impose their subjective preferences on society.34 It took just a few decades for this modern spin on the Permission Principle to usher in the New Deal-era’s massive expansion of government power and abatement of individual economic liberty.
The influence of these movements and many others is reflected in the modern legal academy’s broad acceptance of the Permission Principle. Throughout the book, Sandefur explores how jurists and scholars from Felix Frankfurter, to Ronald Dworkin, to Robert Bork, to Stephen Breyer, to Cass Sunstein all seem to draw from this same authoritarian well. Obviously none are advocates of slavery, and they often differ passionately on the appropriate degree of the individual’s social and economic subordination. But their shared premise that he is nevertheless subordinate to some higher authority—typically “society”—binds them fundamentally together.
III. Permission’s Polity
The Permission Society places government in a position of superiority—over the slave, over the sinner, over the worker and the innovator. As Sandefur explains, it does this by means of a favorite tool: the permit system.35 The permit system “holds that a person may not do anything with his property that has not been approved by the authorities,” and imposes “prior restraint[s]” that “bar the person from acting until he meets whatever criteria are set down as the requirements for obtaining permission to use his property as he wishes.”36 It requires that citizens seek leave of government officials, boards, and bureaucrats—typically clothed with broad discretionary authority to grant or deny permission—in order to pursue happiness.37 And because we fundamentally own our lives, Sandefur contends, the permit system he describes threatens our sovereignty over not only our personal and real property, but over our own bodies and minds.38
While Sandefur does not deny that permit requirements can be appropriate in certain limited contexts (e.g., certain inherently dangerous activities that threaten the rights of others), he contends that they pose myriad economic and moral difficulties when employed as the default means of regulating human activity.39 Much of the book is spent on this front, concretizing the various types of permit requirements and their downsides with an array of often shocking examples. Lay readers—especially those interested in learning more about the concerns of libertarian legal thinkers—would benefit enormously from the survey Sandefur provides. But given that readers here will be familiar with a number of these, I shall relate just a few that are representative of the book’s respective focus areas.
Consider free speech, a deeply-cherished right the exercise of which was essential to the founding of our polity.40 As Sandefur notes, the First Amendment makes an “unequivocal promise” in proclaiming that “Congress shall make no law … abridging the freedom of speech, or of the press.”41 And the Fourteenth Amendment secures that promise as against the states.42 Yet many states restrict political speech with campaign finance regimes “so complicated that the nation’s best lawyers have difficulty understanding them, with the result that people who wish to advocate for or against candidates or ballot initiatives are often forced to ask the government’s permission before they may speak.”43
That is precisely what happened to Colorado graduate student Diana Hsieh in 2008 when she founded the Coalition for Secular Government to oppose efforts to restrict abortions in her state.44 Hsieh’s group—originally comprised of just herself and a friend, and funded by a mere $200 from her own pocket—published a paper expressing their views on the legality and morality of abortion.45 In it, Hsieh recommended that those in agreement vote against an upcoming ballot initiative that would have banned abortion in the state. The paper made small waves and garnered the Coalition about $3,000 in donations over the following year.46
Little did Hsieh know, she was speaking without permission. Under Colorado’s campaign finance regime, the Coalition’s voting recommendation and modest donation receipts meant that Hsieh and her friend were required to register as an “Issue Committee” with the Secretary of State.47 Their failure to do so opened them up to “investigation by the state’s attorney general or by competing political groups,” who were empowered to call “an administrative hearing to review suspected violations” and to “demand detailed financial information and question a group’s members”—all of which, notes Sandefur, can impose a huge emotional and financial burden on a person’s life.48
Fearing prosecution by opposing political camps—as others before her had experienced49—Hsieh filed a lawsuit challenging the constitutionality of Colorado’s restrictions. While her story has a happy ending (she won in the Tenth Circuit years later) the issue is far from settled. Many states maintain such regimes, and the Third Circuit has upheld similar restrictions in Delaware.50 Sandefur argues that what keeps these laws alive across the country is “the Progressive premise that free speech is a privilege designed to serve collective goals rather than a right that each individual possesses.”51
So too when it comes to the right to earn a living in the occupation of one’s choice, a right protected by the Constitution’s guarantees of due process of law and central to the American experience.52 As Sandefur notes, “many professionals are prohibited from using certain words to describe their services or are subjected to rules that restrict what they can say to their clients,” despite the fact that “[s]ome occupations consist of nothing but speech itself.”53 As just one example, he references a case that my firm, the Institute for Justice, litigated just a few years ago.54
The facts were simple: North Carolina-licensed family counselor John Rosemond wrote America’s longest-running newspaper advice column. He had been providing advice to readers across the country, including Kentuckians, for almost four decades. But in 2013, Rosemond received a cease-and-desist order from the Kentucky Board of Examiners in Psychology. The order warned that his syndicated parenting-advice column constituted the “unlicensed practice of psychology” and threatened him with fines and even criminal prosecution unless he obtained a license to practice in the state.55
Fortunately, Rosemond prevailed in federal court in 2015. The judge noted that “all [Rosemond] did was write a column providing parenting advice to an audience of newspaper subscribers,” and that he “is entitled to express his views” with or without the Board’s permission.56 But as Sandefur observes, professionals who speak for a living—teachers, interior designers, tour guides—continue to struggle against prior restraints nationwide.57
And those whose work consists entirely of speech are among the lucky ones. Indeed, despite the Permission Society’s myriad attempts to control what we can and cannot say, First Amendment protections in this country remain relatively robust. The same cannot be said for those whose work enters the realm of “conduct” that the government has seen fit to regulate through administrative means. Sandefur explains that in this realm, “judges have adopted a theory of deference, which allows bureaucrats to stretch their authority as broadly as they want so long as their acts are ‘reasonable,’” which he describes as “an expansive grant of power that deprives citizens of the judicial protection promised by the Constitution, emboldens agencies to stretch their prerogative to the limit, and encourages lawmakers to write ever more vague laws to evade their responsibilities to voters.”58
Nowhere is this problem clearer than in the context of occupational licensure. Licensing laws, which Sandefur frames as another form of prior restraint, “block people who want to go into business from doing so without the government’s permission.”59 As my colleagues at IJ have shown, while one in 20 American workers needed government permission to ply their trades a half-century ago, that number has ballooned to nearly one in three in recent years, and includes such innocuous professions as “interior designer,” “shampooer,” “home entertainment installer,” “funeral attendant,” and “florist.”60
Sandefur tells the tragic story of a case IJ litigated involving that last profession. Sandy Meadows was a Louisiana widow and high school dropout with no training beyond nine years of experience arranging flowers.61 Still grappling with the recent death of her husband, Sandy managed to find steady employment as the manager of her local supermarket’s floral department. She worked happily and supported herself doing the only thing she knew how to do—that is, until the state Horticulture Commission got wind of her work.62
Louisiana happens to be the only state that requires florists to obtain a license to earn a living. While Sandy had the passion, the talent, and the creativity to impress her employer and customers, she lacked an essential ingredient: a permission slip from the Louisiana flower police. To obtain one, Sandy needed to pass “a one-hour written examination and a four-hour practice test,” which cost $150 per try, and which “was administered only once every three months” where she lived.63 Applicants were graded by practicing florists—who lobbied to get the profession licensed—“on such subjective factors as the ‘scale,’ ‘harmony,’ ‘accent,’ and ‘unity’ of their floral designs.”64 Few passed.
Sandy had taken and failed the exam three times when the Horticulture Commission fined her $250 for arranging flowers without permission. She soon lost her job, and sought the assistance of then-IJ attorney Clark Neily in filing a civil rights lawsuit against Louisiana’s outrageous permit scheme. As Sandefur correctly notes, there was absolutely no credible evidence that unlicensed florists posed a public health or safety risk.65 But the federal trial judge deciding her case felt differently, upholding the law on the grounds that “administering a floral licensing examination is rationally related to the state’s desire that floral arrangements will be assembled properly in a manner least likely to cause injury to a consumer and will be assembled in a proper, cost efficient manner.”66
Although Sandy appealed, life moves faster than litigation. Sandy was left unemployed and unable to pay her utility bills; she began to have health problems and had to get surgery; Hurricane Katrina struck.67 Concerned, Neily went to go visit her. He found Sandy lying outside on a couch in 100-degree weather, still stapled up from surgery, struggling to breathe.68 Neily tried to help, immediately checking her into a motel and paying to get her air conditioning turned back on—but he was too late. The memory weighs on him: “In October 2004,” he recalls, “Sandy Meadows died alone and in poverty because the State of Louisiana wouldn’t allow her to work in a perfectly harmless occupation—and I couldn’t persuade a federal judge to protect her right to do so.”69
Sandy Meadows’ story provides a sobering reminder of the power that laws and courts have to devastate the lives of ordinary people. Lest readers find her case extreme, Sandefur gives evidence that the Permission Society commonly trafficks in life-or-death matters. One such example lies in the field of medicine.
“Medical prescriptions today,” explains Sandefur, “are a type of government license that allow people to possess ‘controlled substances.’”70 While for most of our history drugs were not controlled in this manner, permit requirements in this realm—starting with the Harrison Act of 1914 and culminating in the Controlled Substances Act of 1970—have risen exponentially throughout the 20th century, touching on everything from vitamins to contraception.71
Today, the Food and Drug Administration’s “monopoly over medicine” has a tremendous influence on how real Americans experience health care, and can impose particularly heavy burdens on those with uncommon medical problems.72 While the FDA claims authority to determine whether medicine is both safe and effective, Sandefur points out that “[s]afety and efficacy are quite different: no patient wants to take an unsafe drug, but many—especially the terminally ill—are willing to give investigational medications a try.”73 (In this context, “investigational medications” are drugs that the FDA has approved for human testing but not mass-production.) Unfortunately, he laments, “their ability to do so is curtailed by federal laws that impose a prior restraint on the availability of potentially life-saving drugs.”74
Such was the plight of Diego Morris, who was diagnosed with osteosarcoma at age 11.75 Diego’s prospects seemed dim until his family learned of an innovative new bone cancer treatment called “mifamurtide.”76 But there was a problem: while the treatment was slogging through the FDA’s draconian review and approval process—even making it to the latter stages of testing—the manufacturer went out of business and the process was cut short. As Sandefur explains, this “meant that although mifamurtide had been approved for safety during the first phase of testing, it had not received federal approval.”77 Diego’s doctor begged the FDA to let him treat Diego with mifamurtide—to let him save Diego’s life—but the agency refused. The Morris family was forced to move to London, where the treatment was allowed, in order to get Diego the care he needed. Many—like the late Abigail Burroughs78—are not so fortunate.
Thus far, I have only managed to provide a snapshot of Sandefur’s broader picture. But the Permission Society’s vast scope cannot be overstated: the freedom to remain silent,79 to publish a film,80 to refrain from subsidizing opposing ideas,81 to enter a new market and compete with established businesses,82 to construct and use a building for one’s own purposes,83 to make additions to one’s own home on one’s own land,84 to design a building according to one’s own aesthetic values,85 to defend oneself,86 to seek and receive treatment recommendations from medical professionals87—all of these and more fall under Permission’s ever-expanding dominion.
The upshot is that in countless areas of life, government has hijacked our freedoms and held them at ransom, demanding that we grovel at bended knee for permission to do the things that, as Sandefur puts it, “[n]ormal, mature adults, who communicate with one another and use reason” have every right to be able to do.88 This dynamic carries profound implications for the moral status of our citizenry, which we can consider through the lens of a simple question: What sorts of people are typically required to ask permission?89
Well, slaves until the Civil War, women for decades after that, and children today—people regarded as helpless.90 As we have seen, the slave was said to need his master to order his life, give purpose to his days, control his impulsive appetites; women were thought to need their husbands to provide for them, make political choices on their behalf, safeguard against emotional financial decisions; and children actually do need their parents to feed them, teach them to behave, raise and shepherd them through early life. For each of these subordinates, acting independently is treated as risky, even dangerous. Approval from “higher up” would be much safer.
The Permission Society declares that we are all helpless in this way. It presumes that we all need some sort of parental force to ensure that we avoid making bad decisions. Sandefur links much of Permission’s growth over the past century to two principles: the “precautionary principle” and the “Devil’s proof.” The former holds that when an action might cause harm, the actor must affirmatively justify his course before proceeding.91 The later requires that on top of that justification, the agent must also disprove every conceivable potential harm he might cause before acting.92 By setting the threshold for acceptable risk at zero93 and establishing a logically impossible standard for proving that we should be free to act, the Permission Society effectively deems its members guilty until proven innocent.94
In such a society, individuals are free to act only by the grace of their betters—which, as we have seen above, means: only with government permission. But freedoms held under these circumstances are not freedoms at all. As Sandefur explains, if “government is somehow fundamentally superior,” if “[t]he king may parcel out to the people whatever privileges he sees fit and may take from them whatever he considers necessary to take,” if “the government essentially owns us and chooses when to allow any of us to get a job, to marry, to own a house, to publish a book—or even when to not be robbed, raped, or murdered—and it may choose to ‘abolish’ these rights whenever it likes,”95 then what we have are not “right[s] that the law must respect,” but “privilege[s] manufactured by a command.”96 This was the frightening reality that Diana Hsieh, John Rosemond, Sandy Meadows, and Diego Morris experienced first-hand.
When laws are “commands” and rights are mere “privileges,” citizens are reduced from autonomous moral agents with precious lives of their own to inferior, communal objects. This is true whether the commander is a single despot97 or a democratic majority.98 Government acts become, in Sandefur’s words, “arbitrary pronouncements by the powerful—essentially a form of magic that citizens must believe in, on pain of punishment … .”99 Leaders begin, as Bastiat wrote, to “look upon people as raw material to be formed into social combinations”—to think of their relationship to the people as “the same as the relationship between the clay and the potter.”100 And citizens, explains Sandefur, respond accordingly, “treat[ing] their superiors with subservient meekness, begging and praising their rulers in hopes of being given favors,”101 and approaching fellow citizens with an “us-versus-them mentality” that “encourages people to devote their energies to political scheming instead of productive effort.”102
This horror-show society inches ever-closer as we allow the Permission Principle and its permit system to spread. But as we have seen, the men who proudly declared their independence from the British crown to forge a Free Society had a completely different vision of government and citizenship—based on a completely different view of man. How, if at all, can we return to that vision?
IV. From Permission to Freedom
There is no question that Sandefur’s portrait of the Permission Society is grim. His basic theme—that acquiescence to the Permission Society has given us a government that systematically subordinates and infantilizes individuals, arbitrarily elevates and empowers rulers, and deprives us of all the values our government was chartered to secure—is clearly demonstrated. But while the task of moving from Permission to Freedom seems enormous, hope springs eternal.
On this front, Sandefur’s crucial contribution is actually mostly implicit, but addresses a real psychological need. This book demonstrates that freedom is good and the fight is worth it. It is of course true that a limited government dedicated to protecting rights with objective, fair laws will help to avoid some of the tragic stories sampled above. But at a deeper level, the Free Society is a flourishing society. It rewards trade over political scheming, self-reliance over appeals to authority, and innovativeness over rent-seeking. It promotes what Sandefur calls “the private values of responsible citizenship”: mutual respect, civic involvement, personal industry—and many others.103 It demands that individuals approach one another not as enemies to fell, but as partners in trade and fellows in achievement. If nothing else, Freedom matters because that is a society worth living in.
There is no doubt that we must regain this conception of ourselves, our fellow citizens, and our government if we are to curb the growth of Permission and make our way towards Freedom. But inspiration is not sufficient. We also need to take concrete steps towards our goal. And on that front, two additional recommendations come to mind.
The first is Sandefur’s own. Towards the book’s end, he suggests that when it comes to regulating potentially dangerous activity, we begin by rolling back the rampant permit system in favor of a less burdensome alternative: the nuisance system.104 That system treats us as fundamentally free to use our property so long as we do not violate the rights of others—in which case, victims may sue us for damages or seek an injunction to prevent further abuse.105 In other words, it acts not as a prior restraint, but retroactively to afford victims of actual rights-violations redress and thereby to discourage risky or dangerous activity. While Sandefur admits that the nuisance system is not a blanket solution to such activity, it is nevertheless a sensible, time-tested approach backed by centuries of common law doctrine, and presents a viable alternative to most permit requirements out there today.106 A shift of this sort would deal a serious blow to the machinations of our modern Permission Society.
The second recommendation is my own, inspired by the work of my colleagues at IJ’s Center for Judicial Engagement.107 Early on in the book, Sandefur correctly notes that judges reviewing bureaucratic decision-making have adopted an extremely deferential approach, one that “deprives citizens of the judicial protection promised by the Constitution, and emboldens agencies to write ever more vague laws to evade their responsibilities to the voters.”108 While that is true, the problem of judicial deference (or abdication) extends far beyond the bureaucratic realm. In many spheres—especially when it comes to economic liberty109 and property rights110—courts have developed an almost-instinctive reticence to weigh the constitutionality of legislative acts. That reticence derives from a series of flawed Reconstruction-111 and New Deal-era cases112 that, to this day, continue to convince jurists that they have no authority to question the will of the legislature—and worse, that they are even required to tip the scales of “justice” in the government’s favor.113
As Clark Neily and Evan Bernick have explained at great length, that is a serious and destructive misconception.114 Our Declaration chartered a polity to secure individual rights against all forms of abuse—especially those committed by government itself. Our Constitution charges judges with doing just that—with upholding and defending “[t]his Constitution” as “the supreme law of the land”—by discharging the only duty that could possibly give effect to that oath: that of exercising independent judgment. 115 Fundamentally, judges in this country are charged with holding the line for Freedom.116
In order to do this, judges must discard reflexive deference in favor of judicial engagement.117 Recall what Sandefur called “a basic rule of logic: that anyone who makes a claim must prove it.”118 And recall that he argued for a “presumption of freedom” in our politics and law, which “requires those who would take away our liberty to justify doing so.”119 Judicial engagement rests on the same presumption of freedom, recognizing that in this country, “the government must justify its actions to the people, not the other way around.”120
As Neily writes, engagement “embraces the idea that the powers of the government are limited, that they may be used to restrict people’s freedom only for a valid reason, and that these powers should be exercised with at least a modicum of care.”121 It demands nothing more radical than that when the government seeks to restrict our freedom, judges: (1) adopt a neutral stance in the adjudication; (2) seek consistently to determine the government’s true ends and whether they square with the Constitution; (3) consider only credible evidence and reject speculation in all cases; and (4) where constitutional rights are concerned, require that the government meet its burden of proof.122 The Constitution—and our hopes of quelling Permission to restore the Freedom our Founders envisioned—demand nothing less.
- Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty 159 (2013). ↩
- See generally Sandefur, Conscience, supra note 1; see also Clark M. Neily III, “Against Arbitrary Government and the Amoral Constitution,” 19 Tx. Rev. L. & Pol. 81 (2014). ↩
- Sandefur, The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It ix (2016). ↩
- See Isaac Kramnic, The Portable Enlightenment Reader 3 (1995). ↩
- Sandefur, Permission, supra note 1, at 15. There is obviously much more to say here, but the immediate point is that the Founders were inspired by the Enlightenment-era natural rights theorists who believed that freedom was rooted, not in royal command or mob rule, but in the facts of reality itself. Sandefur demonstrates this at multiple junctures, including at the very start of the book when he opens by quoting from John Locke’s Second Treatise on Civil Government. Id. ↩
- See generally Plato, The Republic, Book VI, available at https://www.gutenberg.org/files/1497/1497-h/1497-h.htm. ↩
- See generally “princeps,” The Oxford Classical Dictionary (4th ed. 2012). ↩
- See generally Thomas Hobbes, Leviathan, Chapter X, available at https://www.gutenberg.org/files/3207/3207-h/3207-h.htm#link2H_4_0248. ↩
- Sandefur, Permission, supra note 3, at 1 (quoting from James Madison, “Charters,” (1792), available at http://oll.libertyfund.org/titles/banning-liberty-and-order-the-first-american-party-struggle#lf0464_head_125); see also Sandefur, Conscience, supra note 1, at 11-13. ↩
- Id. at 2. ↩
- Id. at 3. ↩
- Id. at 15. ↩
- Id. at 27. ↩
- Id. at 15. ↩
- Id. at 5. ↩
- Sandefur, Conscience, supra note 1, at 116 and 120. ↩
- Sandefur, Permission, supra note 3, at 11. ↩
- Id. at 11; see also Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government 158 (2013) (“Any time you seek to bend another person to your will, you owe that person a reasoned explanation.”). ↩
- Neily, supra note 18, at 19. ↩
- U.S. Const. art. I-III. ↩
- U.S. Const. amend. IX. ↩
- U.S. Const. amend. X. ↩
- Sandefur, Permission, supra note 3, at x. ↩
- Id. at 195. ↩
- Id. at 45-46 (quoting George Fitzhugh, Sociology for the South, or, The Failure of a Free Society 182 (Richmond: A. Morris, 1854)). ↩
- Id. at 46. ↩
- Id. at 45 (quoting Dred Scott v. Sandford, 60. U.S. 393, 407 (1856)). ↩
- See generally “The Limits of Law: 3. Legal Moralism,” available at https://plato.stanford.edu/entries/law-limits/#lega (providing a quick introduction to legal moralism). ↩
- John W. Compton, The Evangelical Origins of the Living Constitution 3 (2014). ↩
- Compton, Evangelical Origins, supra note 28, at 3. ↩
- It would be negligent not to acknowledge, however, the pivotal role that the post-Revivalists played in the radical abolitionist movement. See generally C. Bradley Thompson, Anti-Slavery Political Writings, 1833-1860: A Reader (2003). The problem, though, is that the post-Revivalists went far beyond calling for the abolition of slavery to seeking the prohibition of even peaceful sins. See William Goodell, “Address of the Macedon Convention,” in Thompson, Political Writings at 117 (explaining the Liberty Party’s commitment to the temperance movement). ↩
- Sandefur, Permission, supra note 3, at 12. ↩
- Id. at 13 (quoting Richard A. Posner, ed., The Essential Holmes xxv (Chicago: University of Chicago Press, 1992)). ↩
- The New Deal progressives followed in the tradition of early modern philosophers like Jeremy Bentham, who regarded the idea of inalienable natural rights as “nonsense upon stilts.” Jeremy Bentham, Anarchical Fallacies, 53. Others, like Hegel, were more explicit: “A single person, I need hardly say, is something subordinate, and as such he must dedicate himself to the ethical whole. Hence if the state claims life, the individual must surrender it.” Hegel, Philosophy of Right, § 70. ↩
- Sandefur, Permission, supra note 3, at 28-29. ↩
- Id. at 28. ↩
- Id. at 33. ↩
- Id. at ix. ↩
- Id. at 29. ↩
- I am referring, of course, to American colonists’ airing of grievances to King George III in the Declaration of Independence. ↩
- Sandefur, Permission, supra note 3, at 77 (quoting U.S. Const. amend. I). ↩
- Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925) (“[W]e may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”). ↩
- Sandefur, Permission, supra note 3, at 77. ↩
- Id. at 79. ↩
- Id. at 78. ↩
- Id. ↩
- Id. at 79. ↩
- Id. ↩
- Institute for Justice, “Stifling Political Speech: Challenging Colorado’s Campaign Finance Regulations,” available at http://ij.org/case/independence-institute-v-buescher/. ↩
- Delaware Strong Families v. Attorney Gen. of Delaware, 793 F.3d 304 (3d Cir. 2015). ↩
- Sandefur, Permission, supra note 3, at 80. ↩
- See generally Sandefur, The Right to Earn a Living (2010); see also, e.g., Bd. of Eng’rs v. Otero, 426 U.S. 572, 604 (1976) (quoting Truax v. Raich, 239 U.S. 33, 41 (1915)) (reaffirming the right to work for a living in a common occupation under the Fourteenth Amendment); Greene v. McElroy, 360 U.S. 474, 492 (1959) (“[T]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the ‘liberty’ and ‘property’ concepts of the Fifth Amendment.”); Schware v. Bd. Of Bar Exam’rs, 353 U.S. 232, 246-47 (1957) (holding that the Fourteenth Amendment’s Due Process Clause prohibits states from excluding individuals from the practice of law when there is “no evidence in the record” that “rationally justifies a finding” that they are unfit to pursue that occupation); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923) (stating that the “liberty” protected by the Fourteenth Amendment includes right “to engage in any of the common occupations of life”); Truax, 239 U.S. at 41 (“[T]he right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.”). ↩
- Sandefur, Permission, supra note 3, at 91-92. ↩
- Id. at 96; see also Institute for Justice, “Psychology Board Censors Advice Column: America’s Longest-Running Advice Columnist Files Free Speech Lawsuit After Being Threatened with Jail and Told to Stop Publishing His Column in Kentucky,” available at http://ij.org/case/kypsychspeech/. ↩
- Sandefur, Permission, supra note 3, at 96. ↩
- Rosemond v. Markham, No. CV 13-42-GFVT, 2015 WL 5769091 (E.D. Ky. Sept. 30, 2015). ↩
- Sandefur, Permission, supra note 3, at 93. ↩
- Id. at 33. ↩
- Id. at 104. ↩
- Institute for Justice, Dick M. Carpenter II, Lisa Knepper, Angela Erickson, and John Ross, License to Work: A National Study of Burdens from Occupational Licensing 4-5 (2012). ↩
- Sandefur, Permission, supra note 3, at 128; see also Institute for Justice, “Let a Thousand Flowers Bloom: Uprooting Outrageous Licensing Laws in Florida,” available at http://ij.org/case/meadows-v-odom/. ↩
- Id. at 129. ↩
- Id. ↩
- Id. ↩
- Id. at 130. ↩
- Meadows v. Odom, 360 F. Supp. 2d 811 (M.D. La. 2005), vacated as moot, 198 Fed. App’x 348 (5th Cir. 2006). ↩
- Sandefur, Permission, supra note 3, at 130. ↩
- Id. at 130. ↩
- Neily, Engagement, supra note 18, at 1. ↩
- Sandefur, Permission, supra note 3, at 176. ↩
- Id. at 176-77. ↩
- Id. at 178. ↩
- Id. ↩
- Id. ↩
- Id. at 181. ↩
- Id. ↩
- Id. ↩
- “Abigail Alliance: Our Story,” available at http://www.abigail-alliance.org/story.php. ↩
- Sandefur, Permission, supra note 3, at 63. ↩
- Id. at 85. ↩
- Id. at 89. ↩
- Id. at 104. ↩
- Id. at 135. ↩
- Id. at 143. ↩
- Id. at 160. ↩
- Id. at 165. ↩
- Id. at 182. ↩
- Id. at 11. ↩
- Id. at 45. ↩
- Id. at 45-46. ↩
- Id. at 199. ↩
- Id. at 8. ↩
- Id. at 200. ↩
- Id. at 10. ↩
- Id. at 17. ↩
- Id. at 15. ↩
- “Profile: Kim Jong-Un, North Korea’s Supreme Commander,” available at http://www.bbc.com/news/world-asia-pacific-11388628. ↩
- See generally, Plato, Phaedo (describing the trial and forced suicide of Socrates under Athenian democracy). ↩
- Sandefur, Permission, supra note 3, at 19. ↩
- Frédéric Bastiat, The Law, available at http://bastiat.org/en/the_law.html. ↩
- Sandefur, Permission, supra note 3, at 18; see also 1992 Ponytail Guy Presidential Debate, available at https://www.youtube.com/watch?v=c8rp-tlgqa4. ↩
- Id. at 126. ↩
- Id. at 127. ↩
- Id. at 209. ↩
- Id. at 28. ↩
- Id. at 210. ↩
- Institute for Justice, “Center for Judicial Engagement,” available at http://ij.org/center-for-judicial-engagement/. ↩
- Sandefur, Permission, supra note 3, at 33. ↩
- Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004). ↩
- Kelo v. City of New London, 545 U.S. 469 (2005). ↩
- Slaughter-House Cases, 83 U.S. 36 (1873). ↩
- Nebbia v. New York, 291 U.S. 502 (1934); West Coast Hotel v. Parrish, 300 U.S. 379 (1937); United States v. Carolene Products Co., 304 U.S. 144 (1938). ↩
- See generally Neily, “No Such Thing: Litigating Under the Rational Basis Test,” 1 N.Y.U. J.L. & Liberty 898, 911 (2005). ↩
- See generally Neily, Engagement, supra note 18; see also Evan Bernick, “The Supreme Court Needs a New Judicial Approach: The Case for Judicial Engagement,” available at https://www.cato-unbound.org/2016/09/12/evan-bernick/supreme-court-needs-new-judicial-approach-case-judicial-engagement. ↩
- U.S. Const. art. VI. ↩
- Bernick, “Was Marbury v. Madison a Judicial Power Grab?,” available at http://www.learnliberty.org/blog/was-marbury-v-madison-a-judicial-power-grab/. ↩
- Institute for Justice, “What is Judicial Engagement,” available at http://ij.org/center-for-judicial-engagement/programs/what-is-judicial-engagement/. ↩
- Sandefur, Permission, supra note 3, at 8. ↩
- Id. at 11. ↩
- Neily, Engagement, supra note 18, at 129. ↩
- Id. at 129. ↩
- Id. at 129-30. ↩