The year we are in, 2021, is a culminating point for ideologues who have long envisioned the exploitation of “crises” to demand “solutions” that upend government and related institutional arrangements without being put to a seriously contested vote.
This situation has been building for decades. One of the building blocks is measures that, in the generic, are touted as “solutions” to public problems, but that are not only unconstitutional or extremely misguided in many cases, but are also not solutions to the problems they are proposed to address.
Issues like COVID-19 mandates and U.S. border security are at the forefront of Americans’ minds right now. But there is a larger set of purported “solutions” advanced over the last 50-100 years whose consequences are – for many people – only now being recognized for what they are.
The list of twelve “non-solutions” below is by no means comprehensive. I see it as a starting point for retraining our minds to think in these terms. We have come over the last century to accept the idea of government as an all-purpose source of desperately needed “solutions,” and it is high time we recognize the problems we’ve created for ourselves by doing that.
1. Administering death for any demographic sector of human beings, except on conviction of a capital crime.
This point covers things like state-sanctioned, regulated, and funded abortion; euthanasia; and any public policy that favors death over life based on “public expense” factors. That would include the so-called “death panel” embedded in Obamacare, which papers over the act of favoring death by the supposedly neutral act of favoring less-expensive or more widely-applicable treatment policies that for some will lead predictably to earlier death, and making them the standard for health-system compensation.
Letting the state define the parameters in which life will be sustained is the start of this line of non-solutions in search of a problem. A welfare state will inherently engage in these policies, seeing human life as a mere series of economic tradeoffs. “Welfare state” sounds benign and compassion-oriented, but in practice it always turns quickly to favoring death, and encouraging the people to live down to a low standard of life.
Ultimately, putting the state in this role is handing it a portfolio it is not supposed to have. Government is just other people with the inherently limited vision of the human species, making mistakes. As a matter of policy limitations and constitutional boundaries, the state must be constrained a priori to favor life and not perceive itself as generically empowered to administer death. Where the state is incompetent to ensure life, its proper course is not to mandate death for “management” purposes, but to respect the prerogatives of individuals and their families.
If the state can’t afford to pay for the latter, then policy must refrain from asking it to. The state’s ability to pay, whether real or constructive, must never be the mandatory tiebreaker between life and death. Too many “solutions,” like this one, now come from a dysfunctional, distorted view of what we should empower the state to do.
2. Putting state-administered restrictions or requirements on religion or religious believers, as such.
Most policies that arrive at this position are “justified” based on a collective, state-managed view of the people’s lives. A recent, enduring example is the “just sign the form” approach to making the Little Sisters of the Poor complicit in mandating collective “coverage” of abortion and contraception.
But there are many encroachments on religious liberty, such as the attempt in Loudoun County, Virginia to make a church (one that doesn’t even use wine for communion) register for a liquor license, in order to extract tax payments from it. Another is targeting religious believers and demanding that they affirm politically-favored propositions or slogans against their beliefs; e.g., decorating a cake with explicit language to celebrate same-sex marriage. The odd believer who isn’t willing to do that is no problem for anyone, certainly not the public at large. Cake customers can just take their business elsewhere, as they would do for any other reason a cakemaker might not be able to take their order.
As with everything else in this list, imposing burdens or restrictions on religious believers is not a “solution” to any real problem. The “problems” arise because the state is trying to control too much. Outside of that unnecessary effort at control, there would be no problem.
3. Silencing free speech.
In 2021 little argument may be needed, for sensible ears, to establish the validity of including this one on the list. It’s childish to counter that libel is illegal, “inciting” speech can be punished, and shouting “Fire!” in a fire-free theater is not allowed. Everyone knows there are narrowly-defined restrictions on speech, and no one proposes to dispense with them.
But creating categories such as “misinformation,” and calling them public “crises” in order to infringe on the freedom of competing viewpoints, is the inevitable outcome of letting the 99% of speech that’s legitimate be encroached on. Restricting free speech, as the U.S. Constitution means it in the First Amendment, is not a solution to anything.
People are offended by all kinds of speech. There is not, nor can there be, a single arbiter of what speech is “offensive,” or what speech causes a “crisis.” The remedy for speech is speech, not repression.
That doesn’t mean taxpayers or other invested parties (mainly parents) are required because of “free speech” to let an education establishment teach children whatever it wants in the schools the people pay for. It doesn’t mean publicly funded venues like museums and parks must pay for art or other displays the public rejects.
It does mean that criminalizing speech, to the extent that doing so affects private transactions or academic freedom at the baccalaureate level and above (where virtually all participants are adults), must be extremely limited. The line America has traditionally drawn – mainly at child pornography, snuff films, etc. – needs little revision. If there are people who do want to move the line, they should be free to make their case – as others are free to urge the opposite, and to prevail by due process of law as regards public policy if they can manage to.
4. Vitiating national borders.
Factions who want to see national borders disappear will labor with immense dedication to foster situations in which it seems that the most obvious “solution” is to override a nation’s laws and sovereign prerogatives, and accept massive acts of illegal border crossing as an intrusion on its polity.
Only rarely, or in small, relatively manageable numbers, do such migration problems arise naturally, without guidance or assistance. In the case of such natural trends, most nations find a modus vivendi with the problem and with the other nations from which it emanates. The alternatives are clear for a strong, wealthy nation like the United States: e.g., help the nations people want to emigrate from improve their own condition.
Perceiving a “problem” in those instances is in any case a function of how much migration or immigration policymakers envision as “proper.” Factions within the nation will prefer more of them, or less.
But what the natural, self-directed flow of illegal migration doesn’t lead to is the demand to eliminate national borders. That demand comes about not because there’s pressure from migration, but because activists and their backers have a prior motive to eliminate national borders.
National borders are what make every benefit of sovereignty sustainable and enforceable. That starts with our liberties and rights, including the societal values and rule of law that make them dependable. Seventy-odd years of the UN should clarify for us that without U.S. national sovereignty, the liberties and rights Americans rely on would have been done away with. UN bodies regularly rail against them, as does a consortium of transnational “civil society” organizations.
Believe what you like, for the moment, about why national sovereignty has these opponents. Their motives aren’t hard to discern if you just listen to them. But beyond this proximate dynamic, there is the extremely important point that the nation-state, with enforced borders, is the remedy against both empire and incessantly unstable tribalism. It is the only remedy. Only a defensible nation-state can stand against an empire, and only the supervening, unifying idea of a nation can pacify and domesticate tribalism.
Moreover, neither empires nor tribal societies enforce liberties and rights, or treat peaceful minorities with respect. Not all nation-states do those things either, but only the nation-state is structured with the means to effectively take on such a charter. (In consensually-governed nation-states, tribalism over time typically becomes a fairly benign form of “ethnic diversity,” even eventually fading to some extent in that guise. We may lament its fading as a benign social phenomenon, as with Italian and Irish immigrants to the U.S., but it’s foolish to lament its transformation away from being an ever-present factor for hostility and division, as with Hutus and Tutsis in Rwanda and Burundi, or Catholics, Orthodox Christians, and Muslims in the Balkans. Empire, meanwhile, doesn’t succeed at getting tribes to live together in peace; it only succeeds, almost always only in the short term, at repressing or even decimating them.)
Getting rid of national borders, or making them meaningless, would utterly shatter the basis of the life more and more of the world has enjoyed since the end of World War II. Vitiating national borders is not a solution to any problem that is real for the public at large, no matter how the problem is created, or where, or by whom.
5. Confiscating guns from the general population.
Disarming the public is convenient for those who want to use government to increase control over the public. That is its only benefit. It doesn’t reduce the incidence of crime, including murder, as numerous surveys have clarified. The U.S., where gun rights are the most prominently defended and used by the public, is not a standout globally in terms of crime; a list of about a dozen American urban areas is the factor that seems to indict the whole country. Outside of those areas, most of America has a globally low crime rate.
And in those major urban areas, gun restrictions already are uniformly more draconian and prohibitive than in the rest of America. There’s not a single high-crime urban area where that isn’t the case. The gun-prohibitive policies don’t reduce crime in any guise, whether committed with guns or in some other way.
Proposing to disarm Americans, as a “solution” to the problem of spectacular mass shootings, is like any proposal to prohibit for the people at large the rights a tiny minority of mentally ill or unstable people is unfit to exercise. It’s misguided and operationally incorrect. It won’t have the intended effect, and it’s an improper use of government power to begin with.
There is no public problem for which confiscating guns from the public is a valid solution.
6. Vitiating property rights.
The main reasons for gutting property rights in America over recent decades have been to move land into the hands of political cronies, and to put land under the control of ideological activists. The latter has grown exponentially as a key motive in the last 50 years.
“Business” transactions based on eminent domain – the way property has typically been seized on behalf of political cronies – at least have the merit of being a state power explicitly envisioned by the Constitution. Eminent domain is frequently abused (and always has been), but it’s based on black-letter law.
Transferring land from the owners’ enjoyment of traditional property rights to ideological “management” by outside parties is a different story. To date, no Congress has courted the backlash it would encounter if it forthrightly gutted property rights in favor of regulatory encroachment on them. Rather, the encroachment has increased over time as ideologues quietly reinterpreted the meaning of regulations, many of them written not by Congress but by federal and state agencies.
When challenged in court, such reinterpretations often lose. But the process is the punishment for the property owners; most of them lose everything in the legal effort to defeat the ideological encroachment.
The most prominent lines of effort for activists are “large landscape management” in rural areas, and “urban planning” in urban ones. Both are used to make property rights too costly to maintain for ordinary, shallow-pocket owners.
The point to keep in mind is that there is no public purpose for which the stealth vitiation of property rights is a solution. The concern today applies more to “landscape management” as envisioned by functionaries in agencies like the Bureau of Land Management, and “urban planning” as wielded by the Department of Housing and Urban Development (and local governments), than it does to the use of eminent domain. It’s in those lines of effort that denaturing property rights is tacitly presented, over and over, as a “solution” to “problems.”
The perception of what constitutes a problem is political to begin with, and may always be justly opposed. No one wants pollution, for example, but defining pollution for public policy is a political act, full stop. There is no such thing as a politics-neutral definition of a public problem.
But even where the public genuinely agrees on what the problem is (an exceptionally rare situation, as most of the public remains unaware, at all times, of what lurks in regulatory language), gutting property rights is not the solution.
For one thing, gutting property rights invariably results in land being more ill-tended than it is by rights-invested owners. But for another, the actual and best solution is not to bias law away from property rights but to let competition between property rights produce policy precedents (typically via courts), and ultimately, where necessary, to invest ownership with inherent obligations, explicitly stated by legislatures – not regulators.
One good rule of thumb is that if Congress doesn’t have time to write the regulations, they can’t be written and are in no case enforceable. Congress should never cede this function to an unelected agency. Congress should have to vote, in full view of its constituents, on every matter that will affect the constituents’ relations to property. The same goes for state legislatures.
Another essential perspective is that changes in public policies over time must adapt themselves to the regime of property rights, not vice versa. To alter this perspective should require even more than a constitutional amendment. It would inherently, and properly, require a comprehensive reconstitution of the United States of America.
America is the premier nation on which to base this argument about property rights, because no other has organized as comprehensively as ours has to enshrine, regularize, and protect property rights as rights to be enjoyed equally by all. Undermining those rights is not a solution to anything.
7. Keeping the people under intrusive surveillance.
For the purposes of this item, “intrusive surveillance” is understood to mean state surveillance that reveals a mass of personal information on unsuspecting citizens – and “keeping” them under it means executing ongoing surveillance regimes that don’t require an instrument like a probable-cause warrant.
Technology has been preemptive in this regard. It has led us to adopt rapidly expanding surveillance without first debating how that is altering the relations between the people and the state. Technology has effectively been a tool in search of a use, and the increased reliance on comprehensive surveillance is galloping off on its own, actively altering the man-state relationship.
The main thing it has done is shift the mindset of state agencies – indeed, of even legislators and politics itself – to a belief that assuming innocence until proven guilty is too dangerous a predicate for man-state relations. In a surveillance state, the unspoken premise is that everyone may be presumed guilty. The surveillance is there to verify, on a 24/7 basis, that people are not exhibiting signs of guilt.
That turns the proposition of innocence and guilt – the one on which our Constitution is based – on its head.
If the last quarter century of rapidly expanding surveillance has taught us anything, it should be that our safety does not, in fact, depend on such surveillance. Surveillance on this basis is not a “solution” to any problem. We have tons of surveillance to inform us about all the crime and public safety problems that are getting worse and worse. But the comprehensive surveillance is doing nothing we couldn’t have done without it to remedy those problems.
The surveillance regime does lay out a red carpet for tyrannical statism – and, significantly, for the mindset that demands and accepts it as a supposed guarantor of safety.
8. Expanding government’s charters and powers to generic social regulation.
There is little need to address this point further, after discussing, above, the public ministry of death, the intrusions on religion, and the suppression of free speech (which importantly includes attacking the consciences of the people even where their freedom of thought isn’t in an explicitly religious mode. Atheists have a right to freedom of conscience and speech as much as religious believers do, and religious believers may exercise freedom of speech in any number of areas where religion doesn’t dictate their ideas).
The point is included in the generic, however, because across a broad array of social phenomena, state regulation of people’s ideas, speech, and actions is wildly overused as a supposed “solution” to “problems.” Far from solving the “problems,” investing the agencies of the state in them invariably causes them to grow. Where the state defines “problems” and “solutions,” constituencies and interest in power and money inevitably follow. (See, for example, the homeless problem in California’s major coastal cities, which has spawned a whole industry of activism, “solution”-providing, and legal advocacy. That industry needs a live problem – to keep its revenues coming in.)
Increasing state regulation is manifestly not a solution to social issues. If it were, problems would go away, or at least be mitigated and meaningfully reduced. But they don’t and aren’t, and there are good arguments that chartered regulation makes them worse and more persistent.
To say this is not to say, for example, that some level of public relief for people in temporary distress may not be useful. That’s a very basic measure to address a social problem, and in itself, it’s non-regulatory. It’s intended to address problems as they are encountered, not to shape the social environment preemptively.
Articulating this matter is rather to point out the unarguable reality that no open-ended regulatory charter ever functions as a solution to a problem. Such charters keep problems going – and in doing so, they, like the surveillance state, alter the man-state relationship through usage, without prior political debate.
9. Collectivizing routine societal activities, including doing so on the pretext of managing “social costs.”
This, again, is a generic statement of the bad pattern attending many specific instances of it, such as collectivized health care (e.g., Obamacare) and collectivized, government-brokered concern about politically defined “social costs,” such as the link made by junk scientists between bovine methane emissions and “climate change.”
Demanding a collective, “social costs” perspective on the ordinary things people do is not a “solution.” It’s a pretext for power and control.
The one additional point to be made, however, is that this pattern should be recognized in a lot of places where people have yet to foresee it. One major example is collectivizing individual transportation; i.e., trying to herd all of us into “self-driving” cars (which presumably will also be electric powered, a form that keeps their available distance use severely limited).
There is no such thing as a self-driving car. There are only cars that will respond to cues and directions from a central control authority. This method of transportation is touted as increasing safety for everyone, but it simultaneously makes a quantum leap in increasing the vulnerability of all car users to decisions beyond their control.
If a bad actor wants to create a mass-casualty event on an epic scale, controlling millions of cars on the road is an excellent vantage point from which to do that.
But even more likely is the prospect of something like restricting the availability of remote-controlled cars, so that individual owners can’t just use them to move whenever and wherever they want. If the government doesn’t want you to tow a boat to the lake this weekend, and it can just deny you and everyone you know the use of a towing vehicle, it’s going to win that battle. The same is true of going to church or synagogue by car.
The government could also severely limit the ways people use personal transportation for small or independent businesses. The potential economic impact of such restrictions is incalculable.
10. Forcing personally intrusive mandates, including economic-participation mandates (e.g., Obamacare, “decorate the cake!” etc.), on the people.
This is another generic statement of a principle already discussed under other headings. A point to reiterate here is that it is not a “solution” to a real “problem.” It never is. Sometimes the problem is a real one, but the forced mandates are not a rational solution to the problem; they merely increase the power of the government. In many cases, the “problem” itself isn’t real. It just has a loud chorus of proponents insisting to the public that it’s a problem, and interpreting everything that comes along as “evidence” of it.
The takeaway is that, regardless of the problem, forced participation is a “solution” that doesn’t solve anything. In the process, however, it alters the man-state relationship in ways that serve to tear down all the obstacles of law and due process to tyranny.
11. Forcibly denying economic participation to the people.
It probably isn’t necessary in 2021 to point out that the “vaccine passports” being adopted in various parts of the world are a live, very real example of this generic proposition. The Biden administration has already undertaken to deny jobs to people who don’t (in effect) show a vaccine “passport,” and other nations like Italy and Australia have done so as well. The public is being excluded from commercial venues like shopping malls, restaurants, ball games, and concerts through the requirement for such “passports,” whether evidence is demanded in the form of an actual, passport-designated document or not.
There is no problem for which this is a solution. Actual science doesn’t even justify it as a public health solution. A people whose majority is vaccinated or has natural immunity to the COVID-19 virus, which statistically hardly kills anyone, does not need to have its movements limited in this socially destructive manner.
We are light-years from the colossal depredations of the plague in 14th-century Europe. We’re not even anywhere near polio in the first half of the 20th century, which was far, far more contagious than COVID-19 among children, and did much greater damage, on a widespread scale, to children (and adults) who started with no other health vulnerabilities. (And note that to this day, we don’t deny economic participation on the basis of non-vaccination for polio. We keep children out of school if they haven’t been vaccinated for it, which makes sense because of its virulence, contagiousness, and life-altering impact.)
On principle, few if any “crises” warrant excluding people from the economy. If such an exclusion were a real “solution,” the people would recognize the necessity within the scope of every single one of their own lives, and would self-select for effective economic quarantine, as many have done throughout the centuries in an attempt to evade a ravaging plague. (That’s actually going on with the COVID-19 reaction, as the elderly, who are most at risk, are sheltered, protected, and prioritized for vaccination.) The fact that the vast majority of lower-risk people aren’t doing that now is due to common sense, not recalcitrance.
12. Taxing income – including government tracking of it.
Governments need funds to operate. But there is no problem of “government operating funds” for which the solution is taxing income.
If securing tax revenue on a form of auto-pilot is the goal, as it usually is, taxing commercial goods as they are bought and sold is a tried-and-true method. It never fails to yield income for the government. Taxing imports is another method, one that carries more political freight, especially for foreign relations. But it also yields income reliably.
For local governments, taxing property has long been standard. There are naturally people who dislike property taxes on principle, and the taxes do have their hazards. They can target individual property owners in a way sales and import taxes can’t. That’s why religious and some other public-interest institutions are exempt from property taxes: to eliminate a method of targeting them politically. (This principle applies to taxing income as well, although benefiting from it is less automatic and is frequently a bone of political contention.)
But taxing income is not a necessary solution to any actual public problem. It’s an alternative method of collecting tax revenue – and one that explicitly targets both individuals and economic “classes.”
Indeed, it’s now the main mechanism that creates the entire debate about economic classes, and the permanent, dead-end political effort to inflame hostility between the classes. Without the income-tax infrastructure, we (including the government) wouldn’t even know what everyone’s income is, or how many are in each income “tier” or what they’re “contributing” by paying taxes.
That wouldn’t stop communities across the land from providing relief to the destitute. The condition of destitution is obvious, and alleviating it is a real service.
Obsessing over differences in income is not a public service, however. There’s no compassion in it. There’s only politics. It is no form of compassion to point out that Ms. C has more income than Mr. D, and to angrily pressure the whole society of E-through-Z to do something about that. It’s politics, and that’s all it is. It gets people riled up and creates new mechanisms for power and control.
The only thing that’s actual compassion is opening your own hand to relieve the real, evident distress of A and B.
Relieving their distress by spending tax revenue, without vilifying those who aren’t in distress, can also be a public service. It isn’t compassion when it’s done that way; it’s a public welfare measure to ward off systemic ills – and there’s value to that. But only that – relieving distress instance by instance – is an actual solution to an actual problem (and how effective it is will be a function of how it’s administered).
Policing income differences via politics, which is the sole unique, non-replicable outcome of taxing income, isn’t a “solution” to anything at all. It’s just a policy that creates political, legal, and social problems unnecessarily.