Defining Coercion Down

from the Future of Freedom Foundation, posted online today…

Freedom Daily December 2010

DEFINING COERCION DOWN

by James Bovard

Coercion is the essence of government in the same way that profit is the essence of private businesses. The state can impose new prohibitions and restrictions, create new penalties, or impose taxes in order to finance benefits. It is misleading to conceive of politicians as offering both carrots and sticks: Government must first use a stick to commandeer the money to pay for the carrot.

Every increase in the size of government means an increase in coercion — either an increase in the amount of a person’s paycheck that government seizes or an increase in the number of types of behavior for which a government can jail, imprison, or fine a citizen. Every increase in government spending means an increase in political power — and a new pretext to seize private paychecks.

In order to understand the contemporary concept of the state, it is important to recognize the radical changes in the concept of coercion that have occurred over the past century in federal courts. The common use of the word “slavery” in the disputes of the Revolutionary period captured colonists’ hatred of the arbitrary coercive power vested in British government officials and Parliament members. Even if that power was not used by every British colonial official on a daily basis, the mere fact that power existed in the statute books fatally compromised the colonists’ freedom. In the mid 1800s, Southerners’ habit of referring to slavery as “the peculiar institution” indicated their squeamishness about admitting the degree of coercive power that that institution required.

In modern times, we have a new “peculiar institution”: government coercion. Many political thinkers’ fixation on government benevolence obscures the reality of the growing subjugation of American citizens to government employees. Federal agencies have been able to seize far more power over citizens in part because judges and others have redefined many forms of government coercion out of existence.

Defining coercion

The word “coercion” is not used in the U.S. Constitution. However, the Bill of Rights is a compact to restrict the amount of force that the government may use against the citizenry. As one Pennsylvania writer observed in 1776, a constitution “describes the portions of power with which the people invest the legislative and executive bodies, and the portions which they retain for themselves.”

A 1937 Senate report aptly declared that “the Constitution … is the people’s charter of the powers granted those who govern them.” The Bill of Rights recognized the rights of American citizens — it did not bestow those rights on a conquered populace. Americans of the Revolutionary era would permit a national government to come into existence only if the leaders of that government would solemnly pledge to limit their power in perpetuity. The Bill of Rights has never provided perfect protection, but it is an invaluable standard by which to judge the legitimacy of any law or government policy.

The word “coercion” was used in 378 Supreme Court decisions between 1960 and 1998. Many, if not most, of those cases involved convicted criminals who claimed that their confessions had not been fully voluntary or prayer in school and other issues involving religion. Supreme Court Justice William Douglas observed in 1957 that “it was obvious that coercion might be the product of subtlety as well as of violence.” In a 1991 case, the Court observed,

Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient…. Coercion can be mental as well as physical, and … the blood of the accused is not the only hallmark of an unconstitutional inquisition.

Some of the Court’s decisions on police procedures have restrained the boundless power of government agents. But, while the Supreme Court and other federal courts were creating intricate rules for questioning of criminal suspects, the Court stuck its head in the ground regarding government agencies’ abuse of peaceful citizens.

In the early 1900s, the Supreme Court often vigorously protected citizens’ property and contracts against the power grabs of legislatures and government agencies. But after President Franklin Roosevelt’s threat to pack the Court in 1937, the Supreme Court wrote one blank check after another to federal agencies in the late 1930s and early 1940s —checks upon which the agencies are still drawing.

Siding with special interests

In the 1938 case U.S. v. Carolene Products Co., the Court upheld a 1923 federal law enacted to benefit dairy producers by banning the interstate shipment of evaporated milk mixed with coconut oil. Geoffrey Miller, the associate dean of the University of Chicago Law School, observed,

The statute upheld in the case was an utterly unprincipled example of special interest legislation. The purported ‘public interest’ justifications … were patently bogus…. The consequences of the decision were to expropriate the property of a lawful and beneficial industry; to deprive working and poor people of a healthful, nutritious, and low-cost food; and to impair the health of the nation’s children.

Canned milk mixed with coconut oil (so-called filled milk) was much cheaper than canned whole milk because coconut oil was much cheaper than butterfat. Filled milk was also healthier than fresh whole milk, because filled milk was sterilized at high temperatures while the fresh whole milk of that period often transmitted typhoid fever and tuberculosis. But the dairy industry hated the product because butterfat was the primary source of dairy farmers’ profit. (The lobbying campaign against filled milk included racist depictions of Asians who did not consume as much whole milk as Americans.)

The Court swallowed Congress’s assertion that filled milk encouraged consumer fraud, although the main evidence offered was that recent immigrants who could not read English might buy the product by mistake. Congress also claimed that filled milk “threatened the public health,” but the only “threat” occurred because filled milk lacked the vitamin A that butterfat contained. There was no evidence that drinking filled milk deterred people from consuming vitamin A from other sources. By this same standard, Congress could have banned the vast majority of items sold in American groceries. Besides, for many consumers, it was not a choice of filled milk or whole milk, but of filled milk or no milk at all.

Justice Harlan Stone wrote, “Regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless … it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” And how much evidence was necessary to presume a “rational basis” for legislation? “Any state of facts either known or which could reasonably be assumed” would suffice, Stone announced. Thus, as long as government only destroyed people’s freedom to contract, or their freedom to work, or their freedom to use their own land, or their freedom to buy and sell, such coercion was almost always unworthy of judges’ notice.

Carolene Products enshrined the notion that the edicts of politicians have far more credibility than the voluntary decisions of private persons — that politicians are more trustworthy when seizing power over citizens’ property than citizens are when using their own property.

“Beautification” and the general welfare

In 1954, in Berman v. Parker, the Supreme Court blessed confiscation in the name of beautification. The Court heard a challenge to a federal urban renewal program operating in the District of Columbia. The previous year, a federal district court had struck down the program, observing, “There is no more subtle means of transforming the basic concepts of our government, or shifting from the preeminence of individual rights, to the preeminence of government wishes, than is afforded by redefinition of ‘general welfare,’ as that term is used to define the Government’s power of seizures.” But the Supreme Court overturned the lower-court decision and gave government officials almost unlimited power to confiscate and redistribute land.

Justice William Douglas, writing for the Court, declared, “The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” Douglas concluded, “Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.” Catholic University professor of politics Dennis Coyle characterized this decision: “The implicit message of the Court was that in land use regulation, the king can do no wrong.”

The resulting waves of urban destruction did long-term damage to the health of American cities; a 1998 Washington Post report cited the massive slum destruction campaigns of the 1950s and 1960s and the resulting dislocations as a major cause of the skyrocketing homicide rates in subsequent decades.

Douglas also stated in that decision, “When the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.” Almost 30 years later, in Chevron v. Natural Resources Defense Council, the Court awarded sweeping discretion to federal agencies to interpret federal laws as they chose — and thus, in many cases, to decree the limits of their own power. Lawyer Michael Greve, the director of the Center for Individual Rights, observed that the Supreme Court now relies on an “insanity test — if an agency’s interpretation of a federal statute is not clinically insane, then it stands.” The combination of the Court’s acceptance of legislatures’ definition of the public interest and its deference toward government agencies’ interpretations of laws creates an overwhelming bias against citizens who are seeking relief from government oppression.

Since the 1930s, Supreme Court decisions routinely rested on a blanket assumption that whatever any legislature does is “to promote the general welfare.” In a 1955 case upholding an Oklahoma law that severely restricted the practice of opticians, Justice Douglas declared, “It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Merely alleging that private evil exists becomes sufficient to sanctify practically any political seizure of power. (The Court does not show such naivete towards politicians’ motives in First Amendment cases involving freedom of the press or speech.)

The State is specific officials, specific penalties, and specific jails and prisons. The coercive power is the reality and the political rhetoric is the illusion. No number of speeches by politicians can counterweigh the vast expansion of the federal statute book. There is no rhetorical or metaphysical trick by which government can transcend its coercive nature.

James Bovard is the author of Attention Deficit Democracy [2006] as well as The Bush Betrayal [2004], Lost Rights [1994] and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation.