Commentary: The Steady Erosion of Liberty (February, 2018)

by John McClaughryJohn 2

From Revolutionary days into modern times, Vermonters have championed the liberty extolled in our 1777 Constitution. Article I declared that “all men have certain natural, inherent , and unalienable rights, amongst which are the enjoying of and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”

That pro-liberty tradition persisted, even through the great economic, social and political changes of the twentieth century that brought ever-greater government interference in our lives.  We are now, however, well into an era where that once-vital tradition has lost much of its meaning, or receded beyond mention altogether.

A noteworthy – to some, notorious – landmark of this malign progression is a 1994 decision rendered by Vermont Supreme Court Justice John Dooley. His opinion rested on a wholly invented legal principle: “your life belongs to the State”.

The case was brought by a Northeast Kingdom motorcyclist who objected to a law requiring him to wear a helmet on the highway. Dooley ruled against his plea. He could have done so on the theory that the highways of the state belong to the public, and the public can make reasonable rules about operating on those highways – so obtain a license, wear corrective lenses, drive sober, and wear a helmet.

But Dooley, taking note of the ongoing debate about health care reform, wrote these two key sentences: “Whether in taxes or insurance rates, our costs are linked to the actions of others and are driven up when others fail to take preventive steps that would minimize health care consumption. We see no constitutional barrier to legislation that requires preventive measures to minimize health care costs that are inevitably imposed on society.”

Today’s General Assembly seems to have but a handful of members who reject the Nanny State temptations of the Dooley Principle, and actually believe that the people’s right to enjoy and defend life and liberty transcends what legislators might believe is nice or good for them. (Ironically, one of them is the biker who challenged the helmet law, Sen. Joe Benning.)

Just look at the invasions of liberty under consideration in Montpelier. The House, on a vote of 133-7, has just passed a bill forbidding Vermonters from buying appliances that the State finds to be insufficiently energy efficient. The covered appliances aren’t dangerous or harmful. They are merely deemed by the State to be uneconomic. The VPIRG advocate boasted that the ban would “protect Vermont consumers from those added energy costs”, as if Vermonters don’t have enough wit to decide how best to spend their own money.

The mandatory seat belt bill, rejected repeatedly over the past quarter century, is back. If enacted, cops could stop and ticket motorists only for not wearing a seat belt to protect themselves. (Driving unbelted has long been a secondary offense; nearly 90% of Vermont drivers already choose to wear seat belts.)

There are the new computerized vehicle inspection rules (that no one ever voted on), which automatically fail vehicles for non-safety-related defects like non-working tire pressure gauges. This burden, of course, falls most heavily on working people and the poor, who will be forced to shell out hundreds of dollars to pass inspection, or replace their cars and trucks altogether.

There’s the recurring battle over enacting a universal background check to prevent gun sales to “people who shouldn’t have firearms”. This is a vaguely defined class will go well beyond the currently prohibited transferees (felons and involuntarily committee mental patients). This requirement would make little difference to bad guys, who know better than to risk failing a background check (itself a felony). But woe to the law-abiding citizen who transfers a shotgun to a hunting pal down the street, without undergoing – and paying for – the background check.

There is admittedly no constitutional right to use the highways on one’s own terms. But Vermonters have an explicit constitutional right to bear arms “for the defence of themselves and the state.”  Vermont’s Constitution writers, familiar with British experience under the Stuart kings, unquestionably believed that that citizen right would defeat a tyrannical government’s steps toward universal gun registration, licensing, and ultimately confiscation.

Last but not least, there’s the Dooley Principle-inspired individual mandate to purchase state-approved health insurance or pay a punitive fine, now promoted by Sen. Claire Ayer and Rep William Lippert.

Conscientious legislators should commit themselves to honoring our Constitution’s bold defense of liberty. Faced with more Nanny State legislation, they should memorize this from economist Thomas Sowell: Liberty is “the right of ordinary people to find elbow room for themselves, and a refuge from the rampaging presumptions of their ‘betters’”.

John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).

 

{ 1 comment… read it below or add one }

Mark Shepard February 19, 2018 at 1:33 am

John,

You don’t suppose that there is a connection between weakening the defense for life and the weakening of the defense for liberty. That the right to life is listed before the right to liberty is likely not an accident. What type of liberty are we really defending if we do not first stand up for innocent life. Pretty hollow, it seems to me … and if we can tolerate the taking of innocent human life, then most certainly the taking of various liberty can and will be tolerated. And so we really have no rational reason to be surprised. A top priority of the right to bear arms is the defending innocent life. Of course that right is weakened when we strip its purpose. And Dooley’s rationale “cost on the state” has been used to strip away the right to life … including Planned Parrenthood’s founder’s eugenics goals.

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