CALawMama's Blog


Experiences at the interface of life, law, and motherhood in Cali

Legislation as the Sine Qua Non in American Law

freedom quoteBruno Leoni began his book, Freedom and the Law, with the premise that it is the destiny of individual freedom in modernity, to be defended almost exclusively by economists.

The original version of the manuscript, as published in 1961, devolves into an extensive discussion of the prevailing view that legislation is the end all be all of solutions. In fact, Leoni states, the profound increase of legislative response throughout the world, “is probably the most striking feature of our era, besides technological and scientific progress.”

And yet, anticipating the argument that such scientific and technological advancements dictate an ever broader legislative response, Leoni recognizes one of the most compelling issues infecting scientific discourse today:

“Scientific and technical research needed and still needs individuals initiative and individual freedom to allow the conclusions and results reached by individuals, possibly against contrary authority, to prevail.” Increasingly restrictive laws and regulations do not allow for creativity an invention to flourish. Rather, the greater the legal barrier, the likelier the status quo becomes maintained or derided. Presumably allusions to communism stifling the development of the sciences is not necessary at this juncture.

As a general matter, “legislation, especially today, always reflects the will of a contingent authority within a committee of legislators who are not necessarily more learned or enlightened than the dissenters.” The majority is always only a contingent majority, because they could lose their collective voting power at any minute, shifting power into the hands of another contingent majority. The process of oppressive lawmaking potentially, and most likely, disadvantaging whomever has the smaller collective political voice.

The contemporary vision of the the legislative body, and any other authoritative body, for that matter, is to continually churn out new material. New “solutions,” new “answers.” And yet, the fact that the legislatures are able to continually create new laws seems to prove by it infinite march into the future that there is no end in sight. Imagine, that instead of the obsession with crafting new laws, ever increasing in length, legalese, and utter verbosity, moving farther and farther from the grasp of the common man whom they are supposed to be protecting and representing, the governing authorities instead allocated that time on actually debating the merits of the laws that they were considering.

Instead of “fast tracking,” imagine extensively reasoned and impassioned debates, relying upon the underlying authorities and countervailing concerns. Imagine, if instead of failing to address that a law may have constitutional issues, and deferring the matter to the judiciary to be solved if and only if a disparate third party has the financial ability and willingness to bring a legal challenge, the legislators themselves actually engaged in discussion of the opposing constitutional arguments themselves, just as their oaths of office are supposed to ensure.

Contemporary legislators seem to believe that legislation is “always a good in itself and that the burden of the proof is upon the people who do not agree.” And yet, it’s alarming for how many thousands of years human beings were able to coexist and thrive without the thumb of the legislature crushing them under increasing pressure, squeezing out to anything resembling freedom. Freedom of expression is but one illustrative example that anyone on Twitter, for example, will readily recognize. True, this is not a governmental agent, but the squashing of impassioned discourse is clearly representative of a broader systematic oppression.

If you think this is an overstatement, I invite you to review the recommendations from the U.S. Departments of Health and Human Services (HHS) and Education (ED) on systematically engaging families in their children’s development, learning, and wellness, across early childhood and elementary education settings.

The term “family” is used to include all the people who play a role in a child’s life and interact with a child’s early childhood program or school. This may include fathers, mothers, grandparents, foster parents, formal and informal guardians, and siblings, among others.

The report “recognize(s) families as equal partners in improving children’s development.” Translation: the government believes it holds equal standing to families in relation to the direction and upbringing of a child. If this sounds familiar, you may recall Germany’s high courts have made similar declarations, “The state has an equal interest in the education of children.” German Federal Constitutional Court, Konrad, 2003. In Germany, for example, parents were sent to prison for their desire to homeschool their children, rather than send them to the government’s schools.

This position exists in glaring contravention to extensive Supreme Court precedent. See, e.g. Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Specific recommendations include data gathering, tracking, extensive and intrusive inquiries into childrens’ home lives, and regular periodic home visits as a general matter. There is no evidence that child protective services or other federally mandated social services or delinquency agencies are insufficient to address any potential abuse. In fact, the issue may be that those agencies are in need of additional funding, in order to be executed properly, rather than adding on an additional bureaucracy.

“Without doubt, [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36;Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746; Yick Wo v. Hopkins, 118 U. S. 356; Minnesota v. Barber, 136 U. S. 313;Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Twining v. New Jersey, 211 U. S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v. Raich, 239 U. S. 33; Adams v. Tanner, 244 U. S. 590; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Truax v. Corrigan, 257 U. S. 312; Adkins v. Children’s Hospital, 261 U. S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474. Meyer v. Nebraskaid. at 399.

See also, Parham v. J.R., 442 U.S. 584 (1979): “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.” Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925). See also Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 213 (1972); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 400 (1923).” id., at 602.

As far as legislative paternalism goes, as Leoni so brilliantly put it:

“Machiavelli himself would not have been able to contrive a more ingenious device to dignify the will of a tyrant who pretends to be a simple official acting within the framework of a perfectly legal system.”

I hasten to mention any particular piece of legislation here, as its not the particular legislation at issue, but rather the mindset that legislators will somehow solve all ills. If we are honest with ourselves, we know this is not true.

It is no longer a matter of defending a particular freedom or another, but rather, “a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation.”

Perhaps the larger issue is the retreat of Americans from communities in real life, to those on social media, which has led to an increased sense of isolation, and in turn a further degradation of human connection. In relying on legislators to get things done, we are delegating any responsibility to take accountability for ourselves, our interpersonal relations, and our communities. We are no longer an active and engaged democracy. Instead of focusing on what is going on in our state houses, we are preoccupied with the superficial gold calves of the day, in whatever form they may manifest themselves.

On every occasion a law is penned, every additional piece of regulatory tape added to the infinitely growing Leviathan, we move further down the spectrum away from freedom and towards rhetorical, if not literal, slavery. The government currently employs some 20% of the American work force, and Democratic candidates seem unapologetic about increasing this offering.

“[R]adical views are sometimes more fruitful than syncretistic theories that serve to conceal the problems more than they solve them.”



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