The Free American is an endangered species. I and the rest of the team here at Mountain States have been making that argument since we turned the Endangered Species Act on its head. Like any endangered species, the Free American’s population and habitat is under threat from a combination of predators, poachers, and other factors.
Today, I want to focus on the Free American’s No. 1 predator—Big Government.
What is Government For?
The proper role of government has been one of the most contentious and frustrating debates in the history of man. On one hand, you have pure anarchists like Murray Rothbard who say any form of monopolized power is illegitimate, and only a pure private marketplace can be justified. On the other extreme end, you have complete totalitarian regimes like the Soviet Union under Joseph Stalin, in which nothing exists outside of the state, and any attempts to disobey are met with fierce punishments.
Most people fit somewhere in between, and society decides whether government is something that oppresses people or something that doesn’t care what people do at all. For the Founding Fathers of our nation, they thought it was possible to have a symbiosis between effective government and the private matters of citizens.
Founders’ Preference
The theory is straightforward: people should be allowed to buy, sell, behave, say, believe, think, and interact in whatever manner they want. However, there are two major conditions to such liberty.
The first, people should not be allowed to buy, sell, behave, say, believe, think, and interact in ways that would unduly harm the liberty and property of others. While I am free to own a gun, I am not free to shoot wildly in the public street without a justification of self-defense, lest I harm someone who poses no threat to me. The second condition is that people should be required to honor agreements they voluntarily made. If I choose to sign a contract, I should be held accountable to the terms of the deal.
The Founding Fathers thought that government was at its best and most effective when it enforced those two conditions. A legislature can pass laws to prevent harm happening to others without infringing our rights. Courts and judges can help to not only interpret what counts as infringement on our rights, but they can also help arbitrate and settle contractual disagreements. If done reasonably, this form of limited government can become a supporter of a flourishing society.
Why Governments Grow
However, if government decides it should do more than just enforcing those two conditions, things start to get weird. When a politician says, “It isn’t enough to prevent harm from happening to our citizens—we must actively help and provide aid to them,” they are leaving the Founding Fathers’ limited vision. When judges say, “It isn’t enough for me to look at the facts and the law—I must actively consider which side should win according to my values,” they are no longer officiating as a neutral referee, but are now altering the law itself.
If left unchecked for too long, these excesses allow overly involved politicians, judges, and bureaucrats in our private lives. Laws become more numerous, lengthier, and more complex. Regulations bloat and spending gets out of control. Judicial decisions no longer make sense to the average citizen, but are confused and mired in political preferences. The total result is Big Government, the greatest threat to the Free American.
Planning Politicians
There are generally three ways in which government becomes too big for its britches and decides to take on responsibility it shouldn’t.
The first is through our elected politicians. Whether sent by voters to state capitols or the US Congress, most politicians have only one goal in mind—get reelected. Since at least the New Deal era, the way to get reelected is to “do something about the mess,” either in Washington, Denver, or a city hall. People expect their representatives to actively solve problems by coming up with some sort of plan.
That plan could be to cut spending, increase taxes on the rich, reduce regulations, cap prices on drugs, give military aid to our allies, impose tariffs, and so on. Politicians better have a plan that sounds good to the voters—even if the plan is bonkers, impossible, or outright destructive to liberty.
The overall result is that lawmakers get it stuck in their brains they “have to do something” to get reelected, so they’ll do just about anything, including passing more laws that infringe upon our right to liberty and property.
Bloating Bureaucracy
The second type of Big Government are the bureaucrats that politicians create to implement their plans. I don’t need to go into an excessive amount of detail here; Mountain States goes toe-to-toe with the federal bureaucracy all the time. What we have found is bureaucracy gets out of hand either because politicians attempt to control more of society or bureaucrats try to side-step politicians altogether.
When elected representatives get pressured to do something, they often pass some vague law that orders an executive agency (or creates a new one altogether) to create specific rules on how to implement their vague instructions. If Congress tells the Environmental Protection Agency to clean the rivers, but doesn’t specify what “clean” or “rivers” qualify as, it’s up to the EPA to do that, instead. And thus, bureaucracy grows in scope and authority.
On the other hand, Congress might specifically decide not to do something, but over-eager presidents and their agencies try to do something anyway. Clear cut example: Congress has quite clearly not passed any legislation that would define inert objects as “firearms.” Yet, under President Bident, the Bureau of Alcohol, Tobacco, Firearms and Explosives has attempted to do just that, flagrantly assuming the power to legislate which the Constitution forbids.
Corrosive Courts
The last type of Big Government we deal with at Mountain States is judges who prefer their policy preferences to the law. When the Framers of the Constitution formed the national judiciary, they likely did not suspect that there would be much controversy over the courts. After all, if a judge’s job is to read the law and interpret its meaning based on the definition of the words at the time they were written, the task of arbitrating between competing rights and interests is relatively limited. It may not be simple or easy all the time, but judges who limit themselves to the words of the law and ancient legal precepts could never be accused of overstepping their roles.
If, on the other hand, judges decide to use things other than the law—such as policy preferences, considerations for political climate and attitudes, “balancing” tests, and so on—then they open the courts to an unending array of non-legal and non-constitutional methods of arbitration. In a sense, judges can become super-legislators, where they effectively make law from the bench, while never being elected or heeding the threat of electoral defeat. When judges go outside of the law and legal precepts, they enlarge the role of courts and the overall size of the government.
How to Stop Big Government
Big Government is a nasty predator. One of its chief problems is that it almost never shrinks in size. If the Founding Fathers had envisioned a symbiotic relationship between a limited government and a thriving private citizenry, the corrupted version is an ever-expanding government with a dependent private citizenry. That means Big Government entrenches itself into the political opinion of a sizeable number of people.
Thankfully, there are a few ways to fight back. The chief method Mountain States relies upon is the Constitution. The Founders’ vision of government is still enshrined in the text of our national charter, and it still embraces the idea that the Free American should be protected from an ever-enlarging state.
Whether politicians want to pass absurd laws or bureaucrats attempt to go beyond their authority, the Constitution—when read clearly—can swat down encroachments upon our rights to liberty and property. In one of our older and more famous cases, Aderand v. Peña, we successfully stopped a government program that discriminated against white-owned businesses by pointing to the equal protection guarantees of the Constitution. The 1995 decision set the precedent that race-based government programs must meet the highest standard of scrutiny if they are to be considered lawful.
We Need Originalism
However, using the Constitution in our courts works only if our judges adhere to the Constitution as it is written. This is where Mountain States does its best work in the public square. We need everyday citizens and non-lawyers to understand the importance of having thoughtful judges appointed to the courts. Presidents and governors ought to select originalist judges who take the Constitution and words of the law seriously, and without preferences for policy. This doesn’t just apply to respective supreme courts, but to county courts, district courts, and appellate courts of all kinds. Wherever the law is to be interpreted, good judges should preside.
Taken altogether—the hard work of litigating important cases and the civic pressure to appoint originalist jurists—Big Government can be contained and kept off the back of the Free American. If these efforts are sustained, it won’t be long before the Free American becomes a prospering species, and Big Government goes extinct.