The University Bookman

 
 

Summer 2017

How to Implement First Principles

book cover imageThe Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It
by Timothy Sandefur.
Encounter Books, 2016.
Hardcover, 267 pages, $26.

Karl C. Schaffenburg

Timothy Sandefur, Vice President for Litigation at the Goldwater Institute, Adjunct Scholar of the Cato Institute, and frequent commentator on the intersection of economic freedoms and politics, is concerned about what it means to live by someone else’s leave. In his new book, The Permission Society, he develops arguments made in his earlier works focused on property rights and on the purpose of the U.S. Constitution being to secure liberty, not to empower democracy. The author wishes to demonstrate that the Constitution changes the prior political model of any freedoms of subjects being granted by charters of liberty like the Magna Carta. Such charters were the gifts of the sovereign, with the liberties being granted, that is, not being held by the subject under any right vested independent of the sovereign’s grant. Quoting James Madison, Sandefur argues that the proper constitutional model is one of charters of power (that is, the powers enumerated as held by the government) being granted by liberty, by free citizens. This fundamental difference in political polarity is embodied in how one addresses the question, Are the rights enjoyed by free citizens secured by governmental power or granted by governmental power?

What Sandefur writes about relates to first principles of governance and of political life. However, in The Permission Society, his focus is not so much to explore these first principles as to survey the effects of how these principles are implemented. Having stated his premise that the Constitution establishes a free society, and not a society in which such activities as speech, association, economic activity, the use of private property, the ownership of firearms, access to medications, and decisions about sexual conduct require the license of the government, he explores the differences between this constitutional model and the development of legal doctrine. This exploration is detailed with references to case law, but the book is not intended for lawyers and includes clear explanations of the legal doctrines discussed.

The book does a good job of advancing the author’s arguments using case law, but what it does not do is address the question of the nature and origin of rights. As a result, the author’s citation of legal authority is notable for what is not cited, namely such cases as Burwell v. Hobby Lobby (2014, in which the U.S. Supreme Court addresses the issue of whether a closely held corporation has any right to religious conviction) and Obergefell v. Hodges (2016, in which the Court recognizes a fundamental right to marriage without reference to gender). The Burwell decision was, of course, not decided on constitutional grounds, and presents the additional problem that a corporation exists as a legal entity only by virtue of a charter granted by a sovereign. But Obergefell presents the question underlying Sandefur’s analysis and argument squarely: Is marriage a right which the government must recognize and protect, or one which the government simply must allow?

The problem presented by decisions like Obergefell gets to the root of the weaknesses in Sandefur’s latest book. It explores and argues about what the Constitution and the law must presume, and contrasts the presumptions of conservative and progressive political philosophies. However, what is not explored is why a conservative presumption should trump a progressive one. In the case of either, the recognition of any right raises the hoary and contentious issue of substantive due process, an issue nowhere discussed in The Permission Society. The author does not neglect this issue for lack of having given it serious thought. Indeed, in 2012, in a sixty-eight-page scholarly article (“In Defense of Substantive Due Process, or The Promise of Lawful Rule,” Harvard Journal of Law and Public Policy, Vol. 35, No. 1), Sandefur makes a detailed defense of a legal doctrine he, himself, describes as subject to calumny and ridicule. The problem of due process is that one who is in charge of the procedural mechanisms of asserting or defending a right can then influence the nature of the right itself. Indeed, those engaged in “hue and cry” over the Obergefell decision (or over Roe v. Wade) complain that the Supreme Court recognized as rights matters not enumerated in the Constitution, and that the Court engaged in legislation, not adjudication. This is the same argument made by those of progressive bent in complaining of court decisions made during the so-called Lochner Era, when the Supreme Court struck down legislation enacting progressive social policies by recognizing rights (principally in the freedom of contract) as existing apart from the Constitution.

The Lochner Era effectively ended during the New Deal, and most courts have since focused on due process as defined by procedure, not by what “substantive” right is recognized through that procedure (except, of course, when courts don’t!). Modern political discussions of due process focus on procedural safeguards in policy making and policy enforcement. Sandefur would reorient the reader away from procedure; indeed, he argues implicitly that the question of who gets to define and administer the process that is “due” can itself deprive citizens of their rights. In his 2012 article, the author makes the case explicit, including, for example, an argument headed “Procedural Lawfulness Makes Sense Only Within a Broader Normative Commitment to Substantive Lawfulness.” And there’s the rub. The Permission Society gives examples of what the author believes should be “normative.” He argues for a normative presumption against a requirement for government licenses, against prior restraint. He makes these arguments eloquently and completely, albeit in less-developed form (due, no doubt to a relative dearth of case law) on issues such as gun ownership. But he nowhere argues beyond presumption. He does not argue about the source of rights other than by way of vague appeals to the natural law tradition embodied in the Declaration of Independence and the writings of the founders of the republic.

The Permission Society is not a work of political philosophy and so these points remain underdeveloped. For example, the title refers to the “Ruling Class” but does not identify who may be included within this class. What is clear from Sandefur’s analysis is that whenever the presumptions about rights are shifted to the permission model, those who administer the granting of licenses assume real powers, and the economic system shifts around them to reward those who can game the system to acquire or keep the necessary licenses. The phenomena of “rent seeking” and “certificates of need” emerge in parallel with those who benefit. Sandefur’s ruling class are, to use another word, parasites.

Having effectively illustrated the economic vested interests which emerge, and how this parasitical behavior gives rise to real power, the author assumes the reader’s assent to the principle that the political order specified in the foundational documents of the United States is one that makes a serious distinction between liberty and permission—between liberty and what current thinking understands freedom to be. He assumes that the reader will, therefore, agree that the ways government works now are contrary to the principle of power being granted by liberty. This contrariness is illustrated in detail with respect to the citizen’s interests in property and self-expression. But this book will do little to persuade any disciple of the “nanny state” that nanny should not hold any power to dictate what is beneficial in the first place; which points to the problem with the book’s title.

“How the Ruling Class Turns Freedoms into Privileges” is provocative at a number of levels, and this provocation can only bear fruit insofar as the end of the title—“What We Can Do About It” is revealed. Setting forth the results of presumption may be eye-opening, and arguing that changing the presumption is necessary may be true, but is this really a prescription for political change? In fairness, perhaps yes. After all, Ronald Reagan’s description of government as the problem was fundamental to the Reagan Revolution, and Sandefur’s review of the results of equating freedoms with privileges should add fuel to the fire of those whose fundamental relationship with the State is to say “Not by your leave.”  

The Rev. Dr. Karl C. Schaffenburg is an Episcopal priest serving in Wisconsin, having previously worked in the pharmaceutical industry in the United States and Europe.

Posted: June 25, 2017

Did you see this one?

The Third Road
Felix Morley
Volume 4, Number 1 (Winter 1964)

By 'the Permanent Things' [T. S. Eliot] meant those elements in the human condition that give us our nature, without which we are as the beasts that perish. They work upon us all in the sense that both they and we are bound up in that continuity of belief and institution called the great mysterious incorporation of the human race.

Russell Kirk

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