Property Rights Foundation of America®

from Proceedings of the Fourth Annual N. Y. Conf. on Private Property Rights (PRFA, 1999)

A View Through the Grand Delusion
James Bovard
Author and Journalist, Rockville, Maryland

I want to thank Carol LaGrasse for inviting me to speak here. She has been working so hard to get this conference organized—she has done great work to pull it all together.

It is an honor to talk before a group like this—the people who are out on the frontline fighting the politicians and bureaucrats in trench warfare—inch by inch, seizure by seizure. The rise of the property rights movement has put the fear of God into a lot of zoners and planners and land-grabbers around the country. If nothing else, it should be satisfying to make some of those folks sweat.

In a lot of land-use disputes, the advocates of controls talk as if government was merely some kind of hovercraft—floating gently above the lives of the people it sought to help. In reality, government is more like a lumbering giant bulldozer that rips open the soil and ends up clear-cutting the lives of people it was created to help.

The great political issue of our times is not liberalism versus conservatism, or capitalism versus socialism, but Statism—the belief that government is inherently superior to the citizenry, that progress consists of extending the realm of compulsion, that vesting more arbitrary power in government officials will make the people happy—eventually.

The key to winning the battle of ideas—both over specific policy proposals and in the broader sense—is for Americans to recognize that government is and must always be an Iron Fist. Once people have a clear picture of what government is—they will be much more likely to understand why government is so dangerous—and why government must be leashed and penned in like any other dangerous scavenger.

The threat of government punishment increasingly permeates everyday life. The number of people in prison in this country is 500% higher now than it was in 1971. Law enforcement agencies arrested over 15 million Americans in 1996, according to the Federal Bureau of Investigation. This is almost 6 percent of the population—equivalent to slapping the handcuffs on the entire population of 14 states. Almost ten percent of American males will end up in prison at some point in their lives, according to a 1997 Justice Department report.

Trusting governments nowadays means splitting humanity into two classes: those who can be trusted with power to run other people's lives, and those who cannot even be trusted to run their own lives. Modern Leviathans give some people the power to play God with other people's lives, property, and domestic tranquility. Modern political thinking presumes that restraints are bad for the government but good for the people. The first duty of the citizen is to assume the best of the government, while government officials assume the worst of him. Congressmen are far more fretful about private gun ownership than they are about the FBI using 54-ton tanks to gas the children of gun owners.

Yet, both political parties pretend that government poses scant threat to the American people. House impeachment manager Henry Hyde declared that "the Rule of Law protects you and it protects me from... the 3 a.m. knock on our door. It challenges abuse of authority." But the Rule of Law is a mirage for millions of Americans. The New York Times noted last year that "the word of a single criminal, who is often paid for his information, can be enough to send armed police officers to break down doors and invade the homes of innocent people." No-knock raids have become so common that thieves in some places routinely kick down doors and claim to be policemen. The Clinton administration, in a 1997 brief to the Supreme Court urging blind trust in the discretion of police, declared that "it is ordinarily reasonable for police officers to dispense with a pre-entry knock and announcement."

People here have understood for a long time how asset forfeiture laws are a crime about the Bill of Rights and basic decency. Well, it has been almost amusing to see how many people are shocked at the New York City laws to allow police to confiscate automobiles based on a mere accusation of drunk driving. Worse, the government gets two swings to steal the wheel, since even if a person is found innocent of DWI charges, the government can pursue separate charges against the car itself. Unfortunately, there probably are not any judges who will speak up and say what the NYPD is doing is a violation of the federal law against carjacking.

Forfeiture laws are proliferating across the nation as governments acquire far more power than ever before to plunder people on new pretexts. The pervasive abuses of asset forfeiture have been widely recognized for almost a decade—but neither Congress nor the President have deigned to stop the pillaging of innocent Americans. Clinton administration Assistant Solicitor General Irving Gornstein, arguing before the Supreme Court in 1997, claimed that the government had a right to confiscate practically any private property involved in a violation of law. When pressed by the justices on this issue, Gornstein conceded: "I would except that one small category of cases where perhaps the property is involved in what might be a minor infraction such as a parking offense." My hunch is that this Gornstein guy is going to do very, very well in the Clinton administration.

Some liberals argue that government ownership is the ultimate safeguard of freedom—and that unless government imposes restrictions on land use, then no one will have the freedom to walk through the woods. This is nonsense—since private property maximizes the number of owners—and therefore the possibility that someone will agree to let other people to walk through their woods.

Unfortunately, federal law enforcement agents and prosecutors are making private property much less private. In 1984, the Supreme Court ruled in Oliver v. U.S. This case involved Kentucky law enforcement agents who ignored several "No Trespassing" signs, climbed over a fence, tramped a mile and a half onto a person's land, and found marijuana plants that "open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance." The Founding Fathers apparently forgot to include a parenthesis in the original Fourth Amendment specifying that it applied only to "intimate activities." It is almost as if the Supreme court implied that if a couple is not having sex in the out of doors—then no one has any right to privacy. And the Court made it clear that it was not referring only to open fields, adding: "A thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment." Even prior to this ruling, it was easy for law enforcement agents to secure warrants to search private land merely by concocting an imaginary confidential informant who told police about some malfeasance.

The core of the "open fields" decision is that the government cannot wrongfully invade a person's land because government agents have a right to go wherever they damn well please. After this decision, any "field" not surrounded by a 20 foot-high concrete fence is considered to be "open" to inspection by government agents. (And for those areas that are sufficiently fenced in, the Supreme Court has blessed low-level helicopter flights to search for any illicit plants on the ground.) The Supreme Court's decision, which has been cited in over 600 subsequent federal and state court decisions, nullified hundreds of years of common law precedents limiting the power of government agents. The ruling was a green light for warrantless raids by federal immigration agents; the New York Times reported in late 1997 cases of upstate New York farmers complaining that "immigration agents plowed into fields and barged into packing sheds like gangbusters, handcuffing all workers who might be Hispanic and asking questions later... doors were knocked down, and workers were wrestled to the ground." In a raid outside of Elba, New York, at least one INS agent opened fire on fleeing farm workers. Many farms' harvests subsequently rotted in the fields because of the shortage of farm workers.

This "open fields" doctrine provides an acid test of conflicting views on freedom. Are people more or less free when government agents can roam their land? Are they more or less free when they can be accosted by government agents any time they step past the shadow of their front door? Is freedom the result of government intrusions or of restrictions on intruders?

The bigger government becomes, the more people will suffer from the inherent abuses of bureaucratic procedures. Some government agencies carry out de facto confiscations by surrounding themselves with bureaucratic quicksand. Local zoning and planning boards are renowned for intentionally dragging out property use cases. Gideon Kanner noted in a 1998 Santa Clara Law Review article that "federal land acquisition officials have been known to delay acquisition for years in a sometimes openly brazen effort to wear the property owners down and to acquire their land for thirty cents on the dollar as one Park Service functionary put it." This is the kind of abuse that could even make some Americans cynical. The frequent result of such long delays is that government employees get their pensions and private citizens either die or go bankrupt.

Americans have more reason than ever to distrust the pretenses of their rulers to help them. Consider the federal court decision a couple weeks ago on how the federal government betrayed American Indians by grossly abusing the trust funds the government set up for them. Federal judge Royce Lamberth declared that the government "engaged in a shocking pattern of deception" regarding the records that would vindicate Indians' demands. Indians have lost their homes and land and been driven into bankruptcy because federal bureaucrats denied rightful payments to claimants. This court case should be a wake-up call to all those who still blindly trust government to bankroll Social Security—or who would blindly trust the government with a wooden nickel. None of the bureaucrats who shafted the Indians face a risk of missing even a single paycheck.

Increasingly, America is split into those who are above the law and those who are below it—those whom the law fails to bind—and those whom the law fails to protect. Because there can be no level playing field between the citizen and the State, every expansion of the State means increased subjugation of the citizen.

Government is not simply a question of planning meetings and revised maps for land use. Government is—as George Washington said—fire. And people must not forget that any government action carries the risk that innocent people will be killed or ruined.

I assume most of the folks here know of the Ruby Ridge case—of the federal entrapment of Randy Weaver into selling two sawed off shotguns, of how the U.S. marshals trespassed onto his land and killed his dog and his son, and then how the feds went completely overboard. In late 1997, an Idaho prosecutor brought manslaughter charges against Lon Horiuchi, the FBI sniper who had shot and killed 42-year-old Vicki Weaver as she stood in the door of her cabin holding her ten-month-old baby. (Moments earlier, Horiuchi had shot her husband, Randy Weaver, in the back without warning or provocation; Ms. Weaver posed no threat to anyone at the time Horiuchi killed her.) The FBI initially labeled its Ruby Ridge operation a big success and indicated Ms. Weaver was a fair target; later, the agency claimed that her killing was accidental. After the prosecutor filed charges against Horiuchi, FBI chief Louis Freeh was outraged and proclaimed that Horiuchi had an "exemplary record" and is "an outstanding agent and continues to have my total support and confidence." This raises the question: How many mothers holding babies does an FBI agent have to gun down before an FBI chief loses faith in him? Freeh declared: "The FBI is doing everything within its power to ensure [Horiuchi] is defended to the full extent and that his rights as a federal law enforcement officer are fully protected." Justice Department lawyers persuaded a judge to move Horiuchi's case from a state court to a federal court, where federal agencies have far more procedural advantages. Although a confidential Justice Department report concluded that Horiuchi acted unconstitutionally, Justice Department lawyers argued vigorously that Horiuchi was exempt from any state or local prosecution because he was carrying out federal orders at the time he gunned Ms. Weaver down.

Last May 14, federal judge Edward Lodge decreed that the state of Idaho could not prosecute Horiuchi for killing Vicki Weaver, that what the agent had done was "necessary and proper." The judge blamed Vicki Weaver for her own death. Lodge decreed that "it would be objectively reasonable for Mr. Horiuchi to believe that one would not expect a mother to place herself and her baby behind an open door outside the cabin after a shot had been fired and her husband had called out that he had been hit." Thus, if an FBI agent wrongfully shoots one family member, the government receives a presumptive right to slay the rest of the family unless they run and hide. A citizen's duty to bow before law enforcement, in Judge Lodge's view, trumps a spouse's duty to a mate in mortal danger.

Attention Deficit Democracy
Despite all these abuses, citizens are assured, as
President Clinton said in 1996, "The Government is just the people, acting together—just the people acting together." However, elections have become largely futile exercises to reveal comparative popular contempt for competing professional politicians. Voting nowadays often means trusting one's life, liberty, and property to one of two candidates, neither of whom seems trustworthy. Rather than "government by the people," we now have Attention Deficit Democracy. Less than half of the voters show up at the polls; less than half of the voters who do show up understand the issues; and politicians themselves are often unaware of what lurks in the bills they vote for. Surveys of voters show that this it is difficult to underestimate the ignorance of many voters: a 1995 Washington Post survey found that only 26% of adults knew that the length of a term for a U.S. Senator is six years. If they don't even know a senator's term—what are the chances of people being able to competently judge an incumbent's record?

As the 105th Congress was drawing to a close last October, Congressmen were presented with a 4,000 page appropriations bill with hundreds of changes to federal law and $500 billion in expenditures. Congressmen received the bill on the day before they were to vote on it—and not a single Congressman had actually read or comprehended what they were to vote on. Several Congressmen went to the well of the House of Representatives, held up the huge bill, and complained that it weighed 40 pounds. However, because members were under intense pressure from both the Democratic and Republican leadership, and because members were desperate to leave Washington to return home to begin campaigning, the bill was enacted by overwhelming majorities in both the House and the Senate. It was not surprising that complaints about the bill focused on its weight, since it is much easier to weigh a bill than to read it.

Yet, rather than an aberration, this is how Congress—and state legislatures across the land—routinely operate. The day to day practice of representative government is, at best, a parody of high school civics textbooks and, at worst, a conspiracy of coercive incompetence against the governed. Every new law is essentially a new contract between the legislature and the people—a contract which, in many cases, the legislators impose on the citizenry without even bothering to read.

Rather than "government by the people," we now have "government by numbers." In a government by the people, the bulk of the citizenry would be politically informed, would follow public policy debates, and would make sure that their legislators knew their views. In a government by numbers, in contrast, masses of voters are frightened or bribed into voting for certain candidates with little or no idea of what those candidates stand for and have stood for.

In government by the people, most citizens would understand legal processes and be capable of standing up for their rights against overreaching bureaucracies. In government by numbers, people technically have legal and constitutional rights, but most are overawed by petty government officials in their daily lives.

In government by the people, the citizenry would understand legislative practices and could not be easily deceived by political sleight of hand. In government by numbers, politicians preserve the rites of democracy to avoid triggering popular discontent in the same way that the early Roman emperors preserved the Roman Senate as a hollow formality.

The great paradox of contemporary American democracy is that people don't trust politicians, and a majority of citizens believes that government is too complex for them to understand, yet people acquiesce or actively support politicians who expand their power over them. Even though people believe that politicians are profoundly untrustworthy and that, according to a 1996 CBS poll the federal government wastes 49 cents out of every dollar it spends, people continue to tolerate government running their lives and confiscating the lion's share of their paychecks. (In the same poll, 56 percent of respondents said they believed that "more tax money" could "solve problems.") It is almost as if the more that politicians are presumed to be knaves or thieves, the more money they deserve to receive for safekeeping and spending. The key issue for modern democracy is whether politicians can fool enough of the people enough of the time in order to expand their power over all the people.

The surest effect of exalting government is to make it easier for some people to drag other people down. Government is worth far less than people are being compelled to pay for it.

We need to expect less from government and more from humanity. It is not cynical to have more faith in freedom than in subjugation. It is not cynical to have more faith in individuals vested with rights than in bureaucrats armed with power. It is not cynical to suspect that governments that have cheated so often in the past may not be dealing straight today. We do not say that an animal that escapes from a zoo is depraved and nor should we so characterize human beings who refuse to bow to their self-appointed overlords.

The State is merely another human institution—less creative than Microsoft, less reliable than Federal Express, less responsible than the average farmer husbanding his land, and less prudent than the average citizen with an incentive not to squander his paycheck.

Have we transferred to government the rights that we previously condemned in slave owners? We cannot understand the current system of government without examining the intellectual premises upon which it is built.

Government's grasp on power—in the minds of tens of millions of Americans—may be far more precarious than politicians realize. Once people begin asking the right questions about government, the foundations of today's Leviathans will dissolve. People must summon the will and resolution to drive politicians out of their own lives. What is needed is the same passion and outrage over political and bureaucratic aggrandizement/servitude now as existed towards chattel slavery 140 years ago. We must recognize that possession of government office does not confer ownership rights over human beings. If that can be done, then the stage will be set for a vast rollback in political power over private citizens. John Adams, writing in the summer in which the Declaration of Independence was issued, declared of his fellow Americans: "Idolatry to Monarchs, and servility to Aristocratical Pride was never so totally eradicated from so many Minds in so short a Time." If contemporary Americans can cease idolizing the State, a rebirth of the spirit of freedom will begin.

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