Legal Commentary

?Up from Slavery?

By Eugene Volokh

An excellent article in Reason by David Boaz, Executive Vice President of the Cato Institute, and one of the leading libertarian figures in the country today. An excerpt:

For many libertarians, ?the road to serfdom? is not just the title of a great book but also the window through which they see the world. We?re losing our freedom, year after year, they think....

[But] American public policy has changed in many ways since the American Revolution, sometimes in a libertarian direction, sometimes not....

Has there ever been a golden age of liberty? No, and there never will be. There will always be people who want to live their lives in peace, and there will always be people who want to exploit them or impose their own ideas on others. If we look at the long term?from a past that includes despotism, feudalism, absolutism, fascism, and communism?we?re clearly better off. When we look at our own country?s history?contrasting 2010 with 1776 or 1910 or 1950 or whatever?the story is less clear. We suffer under a lot of regulations and restrictions that our ancestors didn?t face.

But in 1776 black Americans were held in chattel slavery, and married women had no legal existence except as agents of their husbands. In 1910 and even 1950, blacks still suffered under the legal bonds of Jim Crow?and we all faced confiscatory tax rates throughout the postwar period....

I said that white Americans probably considered themselves free. But in retrospect, were they? They did not actually live in a free society. They were restricted in the relations they could have with millions of their?I started to say ?their fellow citizens,? but of course slaves weren?t citizens?their neighbors. They lived under a despotic power. Liberalism seeks not just to liberate this or that person, but to create a rule of law exemplifying equal freedom. By that standard, even the plantation owners did not live in a free society, nor even did people in the ?free? states....

Excellent points, and there are more in the entire article, which is much worth reading. For more criticisms of the ?it?s all a long slide downhill from liberty to tyranny? trope, see this post of mine from 2002. [UPDATE: See also Orin?s excellent post on ?The Good Old Days of the Fourth Amendment.?]