THE PERMISSION SOCIETY also by timothy sandefur The Right to Earn a Living: Economic Freedom and the Law The Conscience of the Constitution Cornerstone of Liberty: Property Rights in 21st- Century America (coauthored with Christina Sandefur) 0------------------= p ] p the ] p ] p Permission Society ] p ] p ] p ] p How the Ruling Class Turns ] p Our Freedoms into Privileges ] p ] p and What We Can Do About It ] p ] p ] p ] p TIMOTHY SANDEFUR ] p ] p ] p ] p ] p ] p ] p ] p ] p ] p ] p ] p ] p ] p ] p ] p Encounter Books ] p New York London ] l;;;;;;;;;;;;;;;;;;' © 2016 by Timothy Sandefur All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Encounter Books, 900 Broadway, Suite 601, New York, New York, 10003. First American edition published in 2016 by Encounter Books, an activity of Encounter for Culture and Education, Inc., a nonproft, tax exempt corporation. Encounter Books website address: www.encounterbooks.com Manufactured in the United States and printed on acid- free paper. The paper used in this publication meets the minimum requirements of ansi/niso z39.48ó 1992 (r 1997) (Permanence of Paper). first american edition library of congress cataloging- in- publication data Names: Sandefur, Timothy, author. Title: The permission society : how the ruling class turns our freedoms into privileges and what we can do about it/ by Timothy Sandefur. Description: New York : Encounter Books, [2016] | Includes bibliographical references and index. Identifers: lccn 2016002491 (print) | lccn 2016015051 (ebook) | isbn 9781594038396 (hardcover : alk. paper) | isbn 9781594038402 (Ebook) Subjects: lcsh: Liberty ñ United States. | Abuse of administrative power ñ United States. | Political culture ñ United States. Classifcation: lcc jc599.u5 s334 2016 (print) | lcc jc599.u5 (ebook) | ddc 323.4/90973ó dc23 LC record available at https://lccn.loc.gov/2016002491 CONTENTS Introduction ix chapter one 1 Charters of Liberty Granted by Power chapter two 28 The Free Society Versus the Permission Society chapter three 50 Prior Restraint of Speech chapter four 84 Prior Restraint and Businesses chapter five 104 The Competitorí s Veto chapter six 134 The Right to Use Private Property chapter seven 165 Guns, Drugs, and Sex chapter eight 195 The Future of Permission Afterword 215 Acknowledgments 217 Notes 219 Index 255 TO MY PARENTS, MARK AND JULIE, AND TO DANNY INTRODUCTION ot having to ask permission is one of the most essential Nparts of freedom. To be free means to be able to make oneí s own decisions ñ to take ìt he open road,î as Walt Whitman put it, ìw herever I chooseî 1 ñ without frst seeking some kind of approval from a superior. Freedom does not mean the right to do whatever pleases, regardless of harm to others ñ ìf or who could be free,î asked John Locke, ìw hen every other maní s humour might domi- neer over him?î Instead, freedom means a personí s ability to ì dis- pose, and order as he lists, his person, actions, possessions, and his whole property,î without having to obey ìt he arbitrary will of another.î 2 Freedom means the ability to follow oneí s own will: to do as one chooses with oneself ñ with oneí s own abilities and prop- erty ñ without being required to ask leave of somebody else.3 This is the diference between rights and permissions. We have freedom when we can make the operative choices about our lives ñ about what to say, what our religious beliefs are, what jobs to take, or what to build on our property. To the degree that we must ask someone else to let us act, we do not have rights but privileges ñ licenses that are granted, on limited terms, from someone who stands above us. Under the rule of monarchy, subjects enjoyed no freedoms except those that the ruler chose to allow. Someone wishing to ix Introduction travel, preach, start a business, publish a book, or engage in any number of other activities was frst required to obtain permission from the authorities. Under such rules, the people enjoyed only privileges, not rights. Their freedoms took the form of forbearance on the part of the ruler, which could be revoked at any time. When Americaí s founders broke with the mother country, they sought to reverse this polarity. The government of the new United States would not give permissions to people but would have to ask per- mission from the people. The founding fathers pledged their lives, fortunes, and sacred honor to the proposition that all human beings are fundamentally equal, with none enjoying any special right to rule another. Government existed not to give people rights, but to protect the rights that were already theirs. Sadly, today America is gradually losing this principle of free- dom and becoming instead what I call the Permission Society ñ a society in which our choices are increasingly subject to govern- ment pre-ap proval. Whether it be building a house, getting a job, owning a gun, expressing oneí s political beliefs, or even taking a life-sa ving medicine, laws and regulations at the federal, state, and local levels now impose permit requirements that forbid us to act unless we frst get permission from the government. Thanks in par- ticular to ideas that originated with the early twentieth-c entury Progressive movement, todayí s leading politicians, judges, intellec- tuals, and activists now believe that we are not free unless and until the government says we are. This book examines this dangerous trend and how we can fght back. I look at some of the diferent ways permit requirements afect our daily lives: from the most famous such rule ñ the ìp rior restraint,î which forces people to get permission before they may speak ñ to rules that require property owners to pay the govern- ment money or give it land in exchange for permission to build homes, to laws that force business owners to get permission from their own competitors before they may start operating, to laws that require government approval to take life-sa ving medications. x Introduction These laws expand the power of the state, stife innovation and entrepreneurship, and do violence to the basic principle of equality on which our nationí s institutions rest. Our Constitution promises more ñ and Americans deserve better. xi CHAPTER ONE Charters of Liberty Granted by Power n 1792, in a short essay called ìC harters,î James Madison I succinctly explained what he thought was the essential difer- ence between the United States Constitution and the constitutions of every other nation in history. ì In Europe,î he wrote, ì charters of liberty have been granted by power. America has set the example ... of charters of power granted by liberty. This revolution in the practice of the world may, with an honest praise, be pronounced the most triumphant epoch of its history.î 1 The ì charters of liberty ... granted by powerî that Madison had in mind were the celebrated documents of freedom that kings and parliaments had issued throughout the ages, many still hon- ored today: Magna Carta of 1215, the English Petition of Right of 1628, the English Bill of Rights of 1689. Documents like these had made the British constitution ñ unwritten though it was ñ the fre- est in the world prior to the American Revolution. A British sub- ject enjoyed more room to express his opinions, more liberty to do as he liked with his property, more security against government intrusion, and greater religious toleration than the subject of any other monarchy in the known world. Yet for Madison and his contemporaries, that was not enough. 1 The Permission Society He and his fellow patriots considered ì charters of liberty... granted by powerî a poor substitute for actual freedom because however noble their words, such charters were still nothing more than pledges by those in power not to invade a subjectí s freedom. And because those pledges were ì granted by power,î they could also be revoked by the same power. If freedom was only a privilege the king gave subjects out of his own magnanimity, then freedom could also be taken away whenever the king saw ft. Whether Parliament could repeal the charters of British freedom was a point of controversy among lawyers and political thinkers up to, and after, the muskets began fring at Lexington and Concord. The British judge William Blackstone, whose four- volume Com- mentaries on the Laws of England was published in the 1760s and became a landmark in legal history, was proud that Great Britain was foremost in the world in terms of respecting the rights God gave all people. Yet at the same time, he believed that Parliamentí s power was ìsup remeî and ìab soluteî 2 and that, if it chose, it could change the rules of monarchical succession, alter the countryí s reli- gion, and ì do everything that is not naturally impossible.î 3 Parlia- mentí s ì omnipotenceî was so vast that it had power over ì[a]l l mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws.î 4 Other thinkers, most notably John Locke, had argued that individual rights took precedence over government power, so that the people always retain the right to overthrow tyrannical rulers. But Blackstone rejected this idea because it ì would jeopardise the authority of all positive laws before enacted.î As long as the British government exists, he wrote, ì the power of parliament is absolute and without control.î 5 The idea that Parliamentí s ìab soluteî power included a right to revoke protections for individual rights repelled Americaí s found- ers.