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ROBERT SCHUCHMAN, Civil Liberties in the Welfare State - Ralph Raico, New Individualist Review 
New Individualist Review, editor-in-chief Ralph Raico, introduction by Milton Friedman (Indianapolis: Liberty Fund, 1981).
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Civil Liberties in the Welfare State
IT IS GENERALLY conceded that the concept of limited government is a keystone of the political structure preferred by consistent adherents of the libertarian or conservative philosophy. The notion of limited government rests upon the conviction that the primary fount of sovereignty, the well-spring of civilized existence, resides in the individual. The rights and liberties of the individual in a democracy thus assume a rank of such importance that they may not be nullified by the wishes of any class, any race, any combination of powers, or even by the majority of the electorate itself.
The philosophy of limited government was epitomized by the great Enlightenment penologist, Marquis Beccaria-Bonesana, when he argued that “every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical.”1 To protect ourselves from such a tyranny, we agree consensually to what are essentially self-denying ordinances: to constrain some individuals from using the power of government to interfere with the free exercise of the rights of speech, press, property, and movement, by other individuals, we enjoin the government from exercising any prior restraint in these areas of human activity. In their ideal existence, these self-denying ordinances restrict the enactment of positive law by majorities as well as by minorities: collectively, they form the constitutional framework of what we generally call civil liberties. It may be observed that the extension of civil liberty has always gone hand in hand with the limitation of government by the governed.
With these basic ideas in mind, we may proceed to the central thesis of this paper: that the adoption and extension of what is called “the welfare state,” together with current Liberal responses to national economic and diplomatic inadequacies, constitute a serious threat to the maintenance of civil liberties in America today. I do not speak of the economic manifestations of welfarism, a subject which has been commented upon at length by conservative and libertarian scholars. Furthermore, I shall make little or no attempt here to offer alternatives to the shortcomings I enumerate. My sole purpose is to suggest that lawful policies born of political necessity have been so extended as to infringe upon the civil freedoms guaranteed by our Constitution. For the purposes of this argument, I shall throughout even assume the validity of the underlying governmental functions cited and single out for objection only their anti-libertarian effects.
The programmes of Liberalism are apparently motivated by a desire to correct certain inequalities in the human condition. Rather than advocate a general redistribution of wealth, the modern Liberal redistributes on an ad hoc basis, attempting to correct what he considers social inequities as he finds them. Unfortunately, the most obvious force for such ad hoc exercises of government power is the ballot box. As a number of voters become assured that they constitute a group in their collective capacity, they increasingly tend to utilize the coercive powers of the state to reap benefits from the public till. With the encouragement of political candidates seeking their votes, other groups respond in like measure, until, as H. L. Mencken put it, “there are now only two classes of men in the United States: those who work for their livings, and those who vote for them.”2
The welfare state, insofar as it exists in this country, is a patch-work of interferences in the private life of the citizen: yet all of these interferences are justified in the name of equality and humanitarianism. It is this fact which makes welfarism so grave a threat to our liberties. No less an observer of the status of American freedom than Mr. Justice Brandeis emphasized that “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”3
I submit that this “insidious encroachment” on our civil freedoms is already a reality. As temporary majorities form in our state and national legislatures to enact a statute benefiting still another special interest group, the “oppression of one part of society by the injustice of the other part” becomes further entrenched in our law.4 Because of the generality of these assertions, it would be well to cite several instances of the anti-libertarian effects of welfarism and the extensions of government activity enacted by a Liberal-minded government.
The sphere of human endeavor which is most peculiarly sensitive to government interference is the quest of the individual for knowledge upon which to base his political and social judgments. Intelligent action may be impossible without access to information leading to an understanding of the alternatives open to the actor. In a free society, such action should be the resultant of autonomously derived preferences. As Professor F. A. Hayek has said, “The conception that government should be guided by majority opinion makes sense only if that opinion is independent of government. The ideal of democracy rests on the belief that the view which will direct government emerges from an independent and spontaneous process. It requires, therefore, the existence of a large sphere independent of majority control in which the opinions of the individuals are formed.”5
A similar conclusion may be reached concerning private decision-making: we are less free to the extent that we must depend upon government as a source of knowledge, or are limited in our access to knowledge by the regulatory actions of government. The entry of the Federal Government into the field of scientific, medical, and sociological research, almost to the exclusion of private philanthropy, poses a unique danger insofar as the relevant bureaus of government may now determine which subjects are to be investigated and which allowed to atrophy. Political control of research is rapidly becoming the technological counterpart of the President’s power over political information. It has been said of the President’s use of his periodic press conference that, “He uses it as a tool. He makes the news, chooses the emphasis and decides where to put it.”6 In much the same way, the financial monopoly over technical research increasingly being enjoyed by the government allows this power to choose the emphasis and decide where to put it in a host of non-political areas.
At the same time as the Federal Government is increasing its sphere of activity, we see a trend in Washington encouraging official censorship of bureaucratic proceedings, again enlarging the area where access to knowledge is limited by the political power. Much of this silencing is excused in terms of cold war requirements. The celebrated “muzzling of the military” controversy is novel not because of the fact of censorship but because of the apparent extent of it. It would be tragic if the trend towards official censorship was a reflection of the extraordinary conclusion by Senator J. William Fulbright, in his now famous “Memorandum,” that, “Fundamentally, it is believed that the American people have little, if any, need to be alerted to the menace of the cold war.” Yet, if this conviction that the electorate must be kept in ignorance of complex international problems does not influence the Administration, why has the President granted the power of censorship to at least six Federal agencies since he assumed office?7
Closely related to the need for independent sources of information is the requirement that methods of communicating knowledge be allowed freedom from government compulsion or persuasion. If the state exercises restraint upon the mechanical communicators of ideas and opinions, liberty of expression may become a luxury of personal correspondence. Those who advocate an expansion of the powers of the Federal Communications Commission to include compulsory national programming for radio and television justify their beliefs by reference to the public welfare: even if the masses prefer the twist, we must elevate them with Beethoven. Although I personally prefer Bach and Handel to Rock and Roll, I can see no excuse for foisting my views on others, with the assistance of government power. The possibilities of coercing the common citizen through central control of the popular news media are appalling. It is, perhaps, not too far-fetched to suggest that the well-intentioned Newton Minow of today may find himself establishing administrative machinery usable by a Joseph Goebbels in the future.
We have already seen the government postal monopoly used to deny the use of the mails for literature deemed “subversive” or “obscene” by the authorities. If bureaucratic yahoos are ever allowed to ban the novels of D. H. Lawrence again, I suspect that there will be no limit to postal censorship. Another extension of the postal power to limit dissent is illustrated by the recent successful attempt to deny postal meter privileges to a company which printed Mr. Robert Welch’s slogan “This is a Republic, not a Democracy” on its metered envelopes. Regardless of what we may think of this epigram of the Birch Society, it would be salutary if the postmen would stick to delivering the mail and cease reading it.
The power of the Federal Government over passports and visas has also been used to limit speech and access to information for political reasons. When the Young Americans for Freedom invited President Moise Tshombe of Katanga Province to address their rally in New York City last March, the State Department refused to grant a visa to the Congolese leader because to do so would not be in the “best interests” of American policy in central Africa. Under our laws, the denial of a visa may not be appealed to the courts. Presumably, Mr. Tshombe has a point of view on the late United Nations invasion of his province. It is unlikely that one can make a seriously intelligent decision on so complex a problem as the Congo crisis unless he is allowed to hear all relevant points of view. The denial of the visa to Tshombe implies that assent to official policy is the only acceptable position—truly a negation of the civil liberties view of the desirability of independently derived opinion.
The use of government power, in the name of welfare, to limit effective opinion and dissent is further illustrated by our labor laws. Under this legislation, a worker may be compelled to join a union in order to keep his job, once a union contract has been signed. Not only must the dissenting employee join this supposedly voluntary organization, thereby denying him the basic liberty of association, but he must contribute monies to the union which are spent in support of candidates for public office which he may not approve. Thus the dissenter is put in the anomalous position of enhancing the very opinions with which he does not agree: as in old England, even the atheist must pay for the Church.
IN ADDITION TO direct government interferences with dissent and access to information, there has been a tendency to use the taxing and spending powers to influence thought and speech. The vast increase in government contracts, for example, has created a demand that such contracts be conditioned upon the institution of “acceptable” hiring policies by the private contractor. The problems of racial discrimination are more fully discussed below; however, I suspect that public statements by the contractor might also become an important factor governing eligibility for Federal funds.
The government’s power to give leads to its power to take away. Tax exemptions, which are pretty much left to the discretion of Congress, may become extremely valuable tools for subverting civil liberties. Already, one company has felt the censorial powers of the Internal Revenue Service, which has denied a tax deduction to the Timken Roller Bearing Company for certain advertisements it ran in the years 1951 to 1954. These were “institutional” ads which published various messages that Timken thought were in the public interest and likely to engage the good will of the public. Needless to say, they espoused the conservative position. If the taxing authorities can pick and choose the policy-oriented advertisements for which they will allow a deduction, a most valuable method of free communication may be selectively denied. The same argument applies to tax-exempt foundations: to the extent that we give the Commissioner the discretion to grant or deny such exemptions, we allow the government to enhance “acceptable” ideology at public expense.
A highly important area where the Liberals would like to extend Federal power is in the field of education. The question of Federal aid to education has been debated at great length over the past few years and little can be added to this controversy. The conservatives warned that Federal control would follow Federal aid: the Liberals disputed this contention. Then the National Defense Education Act was passed, along with over a dozen Federal controls, including the famous loyalty oath and disclaimer affidavit provisions. It should not be surprising that political strings were attached to the financial grants under the Act; if the advocates of “progressive” education or Admiral Rickover have their way, we will soon see a national curriculum established as well. What could be a more perfect weapon for thought control than a centrally determined curriculum for our schools?
Government assistance to the arts is a final instance I will cite of the danger that welfare enactments can infringe upon our access to knowledge and dissenting opinion. An excellent presentation of “The Case Against Government Aid to the Arts” appeared in the March 25, 1962 edition of the New York Times Magazine, by Russell Lynes, managing editor of Harper’s. Mr. Lynes emphasizes the danger that mediocrity may prevail and the controversial or experimental arts may suffer if we permit a “marriage between the fine arts and the Government.” After citing the objections of several Congressmen to the art exhibits sponsored by our State Department, Mr. Lynes notes that
There is no way for the arts to get Federal subsidies without accountability to the people for how the money is spent. This means, of course, that those who administer the subsidies first must decide what is art and what is not art, and they will have to draw the line between the “popular” arts and the “serious” arts, a distinction that is increasingly difficult to define. . . . Having decided what is serious, it will follow that those who dispense the funds will also decide what is safe . . . [and] able to be defended with reasonable equanimity before a Congressional committee.
Enough has been recited of Mr. Lynes’ article to convince us that Robert Benchley was almost clairvoyant when he predicted that political assistance to the arts might lead to such campaign slogans as “Vote for John A. Ossip! He kept us out of post-impressionism!” and “Down with the nude in art! Vote for Horace W. Pickerell and the sanctity of the home!”8
Beyond the limitations and coercions by which welfarism and the extension of government activity adversely affects our liberties of access to information and communication of dissenting ideas, there exists in the welfare state “a network of small and complicated rules, minute and uniform,”9 which tend to stifle freedom of association and limit the privacy of the individual. What once had been deemed matters for private decision have become public questions: the once-voluntary relations of men are now subjected to state regulation. Just as the President may now compel an eighty day postponement of a strike by a labor union, there have been suggestions, following the proposed rise in steel prices, that the Chief Executive be granted the power to set the price for important goods when it is deemed in the public interest to do so.
We learned a lot about government power during President Kennedy’s crusade against the steel industry. The Chief Executive summoned an enormous host of coercive weapons against Messrs. Blough and company: he harangued the steel executives on all the mass communications media in the country; he threatened to withhold defense contracts from the recalcitrant companies; his brother had the F.B.I. wake up newspapermen at three o’clock in the morning; and, to top it off, the President publicly accused Mr. Blough of treason. The crime of the steel companies was, of course, their desire to set their own prices on their own products.
Private decision making would be further limited under a recommendation by former Secretary of Labor Goldberg, that the Federal Government should participate in collective bargaining disputes and “provide guidelines to the parties” that would “insure ‘right settlements’ that take into account the public interest [as “asserted and defined” by the government] as well as the interests of the parties.”10
IN A SIMILAR VEIN as these interferences are the host of recent statutes which attempt to enforce a public policy on private race relations. Originally, Southern states enacted legislation which prohibited inter-racial private housing, private schools, and private accommodations. There is little doubt that such interferences restrict the liberty of the citizen to buy, sell, and associate with whom he pleases. Now, under Liberal sponsorship, many Northern states have passed laws prohibiting racially restrictive private housing, private employment, and private accommodations and restaurants. It is difficult to see any essential difference between these statutes and the Southern ones: both speak in the name of a “public policy”; both are justified in terms of the welfare of the community; and both equally restrict the liberties of the citizen.
In an attempt to eradicate the blight of racial prejudice, created in part by laws which required such prejudice in private relations, the Liberals have merely substituted a new form of invasion of private rights. In the past, the Federal Housing Administration required racially restrictive covenants in all FHA-insured mortgages; today, an individual may not enforce such a covenant even if he has voluntarily agreed to it. The problem of racial discrimination in our private relations is indeed a serious one in this country, and there are many private and voluntary movements currently attempting to correct the situation. But, serious as the race problem may be, I submit that the personal liberty of the individual to associate or not to associate with whomever he chooses, for whatever reasons, rational or irrational, is too great a freedom to be sacrificed even in the name of “civil rights.” “The chief danger today is that, once an aim of government is accepted as legitimate, it is then assumed that even means contrary to the principles of freedom may be legitimately employed.”11
The classic instance of Tocqueville’s “network of small complicated rules” in the United States today is in the field of agriculture. No American may grow cotton, sugar beets, tobacco or wheat without an acreage allotment from the Government. This is true even if the farmer wishes to consume the crops himself.12 Fines are levied on farmers who grow more than their Federal quota. Moreover, the program enunciated by Secretary of Agriculture Freeman would add jail sentences to these fines, and would also provide for prison sentences for dairy farmers who keep inadequate records. It is restrictions like these which persuaded Michigan farmer Stanley Yankus to remove his family to Australia, after the Government had told him how much wheat he could grow on his own land to feed to his own chickens.13
The tragedy of extending government power, in the name of social welfare, is not only what it does to the liberty of the citizen, but also the way in which it makes the bureaucrat indifferent or even callous to the deprivations and hardships inflicted on individuals. Two examples of this will suffice. The first concerns the administration of Social Security, surely the sacred cow of the welfare state. Under the law, F. I. C. A. payments are compulsory taxes, not voluntary insurance premiums. This fact was not evident to an Amish farmer in Pennsylvania named Byler, whose religion prohibits him from accepting government old-age assistance. Byler was not aware of the paternal nature of welfare legislation: since he did not intend to accept the benefits therefrom, he never paid any social security premiums. The beneficent Internal Revenue Service finally caught up with him last year, demanded all back payments with interest, and finally levied on his workhorse (he has no tractor) and sold it to make up the deficiency. As a result of a program aimed at easing the financial woes of retirement, farmer Byler has been deprived of his only means of sustenance. Since he will not accept government hand-outs, he has been made a charge on his family and denied his source of livelihood.
Even more blase in his callousness than the Tax Commissioner is our ubiquitous Interior Secretary, Stewart Udall. Secretary Udall was searching for land to condemn in Kansas last November, when he spied the ranch of one Carl Bellinger from his helicopter. The Secretary simply alighted on Bellinger’s land and began to explore it, at which point Bellinger informed him that he was trespassing and would he please get off the land. Secretary Udall later commented: “It’s too bad that when a member of the President’s Cabinet tries to take a walk on a hill he is told to get off, but the National Park will remedy that!”14
It is always possible to “remedy” the exercise of individual liberty through the use of government and its coercive powers. The dangers to freedom which I have tried to illustrate were all established by what Mr. Justice Brandeis called “men of zeal, well meaning but without understanding.” An understanding of the threat to liberty resulting from the abandonment of the idea of limited government is absolutely necessary if we are to maintain the existence of the autonomous individual as more than a mere legal fiction. I can think of no more eloquent description of the depressing effects of welfarism on liberty than the comments of Alexis de Tocqueville in a chapter appropriately titled, “What Sort of Despotism Democratic Nations Have to Fear,” from his Democracy in America:
Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood . . . it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?
Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things; it has predisposed men to endure them and often to look on them as benefits.
After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.15
Although written in the 1830’s, de Tocqueville’s prognostication of the American dilemma becomes more and more accurate with the years. The extension of government and the idea of welfarism often compel a choice between liberty and equality. We must recognize that these goals are not synonymous, that we may lose our liberties in the search for a chimera of equality.
[* ] Robert M. Schuchman, who received a B.A. from Queens College and an L.L.B. from Yale Law School, is former National Chairman of Young Americans for Freedom.
[1 ] Caesar Bonesana, Marquis Beccaria, An Essay on Crimes and Punishments, (London: Nicklin, 1819), p. 16.
[2 ] H. L. Mencken, A Mencken Chrestomathy, (New York: Knopf, 1949), p. 622.
[3 ] Dissenting opinion, Olmstead v. United States, 277 U. S. 479 (1927).
[4 ] James Madison, The Federalist, No. 51, (New York: Modern Library, 1936), p. 339. See also Bruno Leoni, Freedom and the Law, (Princeton: Van Nostrand, 1961).
[5 ] F. A. Hayek, The Constitution of Liberty, (Chicago: University of Chicago Press, 1960), p. 109.
[6 ] Statement by Benjamin McKelway, editor, The Washington Star.
[7 ] These agencies are the Peace Corps, Office of Emergency Planning, Agency for International Development, President’s Foreign Intelligence Advisory Board. United States Arms Control and Disarmament Agency, and the Federal Maritime Commission.
[8 ] Quoted from “Art in Politics,” by Robert Benchley, Vanity Fair, March, 1919.
[9 ] Alexis de Tocqueville, Democracy in America, (New York: Vintage, 1956), vol. II, p. 337.
[10 ]The New York Times, February 28, 1962, pp. 1, 10.
[11 ] F. A. Hayek, op. cit., p. 260.
[12 ] See Wickard v. Filburn, 317 U. S. 111 (1942).
[13 ]The Freeman, April, 1962, p. 34.
[14 ] Quoted in National Review, December 16, 1961, p. 401.
[15 ] Alexis de Tocqueville, op. cit., vol. II, pp. 336, 337.