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Hey! We’re Still Free!
Writing for National Review, Jonah Goldberg asks “who’s running the country?” His conclusion: nobody. And that’s a very good thing.
As I read the article, the thought occurred to me that not only is nobody running the country but that — to a very large extent — we are running ourselves. That is reassuring. In a world where many governments do run their countries and the private lives of their citizens, Americans still have overwhelming control over our personal affairs. That is: we are still very free.
A quick look around the world shows how little freedom is afforded the majority of human beings. In Iran, for example, anyone who dances to a silly little song risks a whipping. In Russia, homosexuals live in fear. As for China, res ipsa loquitor. Even Canada has criminalized vaguely-defined hate speech and — although one of the more opprobrious of those laws has been repealed — an amorphous criminal code provision still imposes the risk of prosecution and jail time on those who dare speak their minds in public.
In the United States, however, most people wake up in the morning and think little — if at all — about the government. When the coffee is poured, we can greet the day comfortable in the fact that the guys in black masks are not likely to burst in and haul us off to the Gulag. The day-to-day of life is still pretty much under the individual’s control.
Government intrusion is a huge concern, of course, and things may soon get much worse. I am enough of a reactionary to see that the future is bleak if things stay this way. Still, for the most part — and at least for right now — Americans speak and act freely without worrying about what the government will do to them.
It’s certainly true that business owners have to consider what the government might do to them. Just about every large corporation has a compliance office busy with the task of reviewing laws and regulations imposed from on high by noxious bureaucrasies. Small businesses often have retainers with law firm they can turn to if some government agency comes calling. But frank government action is relatively rare, and owners and employees can safely occupy themselves with their individual responsibilities free of concern.
Both the criminal and the civil law are ultimately controlled by private citizens who sit on juries and adjudicate cases without coercion. Moreover, the overwhelming majority of civil lawsuits are settled before trial. This means that the parties are ultimately in control of their legal destinies. Compromise between free people is the order of the day in American law.
And while there are loud voices calling for the government to enforce political correctness, most of the present day attacks on speech are in the private sector. Brendan Eich was forced out at Mozilla by a bunch of whining cranks, not by government edict. Phil Robertson survived the demands that he surrender his Duck Dynasty. Under a government empowered to take him into custody, he wouldn’t have spoken at all. Al Sharpton — notwithstanding his status as the most toxic man in the nation — is at liberty to blather and lie. Short of sedition (one wonders) he will not be arrested, even by the good folks who rightly loathe him.
Have we noticed that the press enjoys greater freedom now than at any time in history? Sure, the mainstream media is in the leftwing tank. Even so, the media is still run by private businesses. It’s good to remember that for every windbag like Brian Williams there is a windbag like Bill O’Reilly.
Things are really looking up in the entertainment industry. I just got a smart TV, and have been enjoying streaming videos through hulu and Amazon Prime. My freedom to watch what I want is constrained only by my wife’s taste for French films.
Actually, most of us need think of the government only once a year on tax day. Taxes are out of control at every level of government — and many of them are hidden — but the fact of the matter is that government is rarely on our minds.
None of this means we should bury out heads in the sand. The government is a behemoth and must be reined in. But there is still time, and all is not yet lost. Absent some catastrophe in which Homeland Security pounces on the citizenry, the political system will allow for reform — even radical reform — if the people and their representatives have the will and the nerve to roll things back. In the midst of trouble, there is still freedom to hope.
Americans are the freest people who have ever walked the earth. There is no question that a free people must be ever vigilant. We are, however, still at liberty to be peaceful vigilantes. Indeed, between cable and the internet, we can now gather together from coast-to-coast.
We have a fight on our hands. But our hands are not yet tied behind our backs.
Published in General
Thanks for the reminder, Mike!
Meh.
You can say the same of Sweden, a country with more regulation. Pay your taxes and keep your head low enough, and you’re free to run your own affairs.
Even in today’s Russia that’s true. Putin has put millionaires in jail that didn’t keep their heads’ low, and harasses outspoken journalists. Our country is freer than that because the Koch brothers are allowed to do what they do.
But keep your head low you can thrive even in Russia (ok, it’s probably harder right now with oil prices).
So I don’t disagree with what you and Goldberg are saying, it’s just not an impressive argument to me.
Sorry, but we are only free to the extent that we do not come under scrutiny of omni-politicized authorities. Stalin’s secret police chief, Lavrentiy Berea, is famous for saying, “You bring me the man and I will find you the crime.” Unfortunately, much or ordinary everyday life in the US has been criminalized. This has been documented in numerous places, including Silverglate’s “Three Felonies a Day.”
Living in vague fear of coming under scrutiny and being crushed – financially, even if you “best the rap” – is not the same thing as liberty. Hedonic license is also not the same thing as freedom. Wish I could see it your way, but personal experience tells me otherwise.
I wrote a fantastic reply to one section, but it’s so long I’m making it a post.
King Prawn:
I commented on your post. Just so you know.
They settle because they (a) don’t want to incur or keep incurring heavy attorney’s fees and/or (b) don’t want to run the risk of having their cases decided by jurors who are biased, poorly informed, disengaged and/or irrational.
It’s about as much an exercise in freedom as amputating your own gangrenous limb because you can’t afford alternative therapy and the only alternative is Dr. Nick Riviera.
The idea that juries are disengaged is just not true. I tried a lot of jury cases, and interviewed many jurors after trial, and never came across a single juror who was disengaged. In fact, I was deeply impressed at how seriously they took their duty.
I’ve had many jury trials in my 30 years of practice. I have seen jurors staring vacantly, nodding off and even sleeping in court. I have learned from both formal and informal jury interviews about jurors who stopped paying attention early in the case and said they would go along with whatever everyone one else wanted.
I have also learned from such interviews that some jurors openly expressed their biases against corporate defendants and said they didn’t care what the evidence was, the “big company” could afford to pay.
You say that you’ve never come across a disengaged juror in your interviews. That’s exactly what one would expect. If a juror was disengaged during trial, he or she would not participate in a post-trial interview with you, whereas an engaged juror would.
I have never participated in a mediation in which the mediator – who is court certified – failed to make the point that letting a jury decide a case is a crapshoot for the reasons I described.
You have your experiences and I have mine. That said, in my experience jurors do a very good job of sorting through the evidence. Even in cases where I lost, and there were many, I never felt the jury was capricious. I recall one case in particular in which I represented a national common carrier. The jury did exactly as I suspected it would and reach what I considered a just outcome. The verdict, which was a loss on liability, but on win on the question of comparative negligence, was entirely consistent with the proof. I had been warned that juries in the community where the trial was held were anti-business. I didn’t see it.
Yes, as a mediator I used the same line about juries being a crap shoot. But then a mediators job is to try to get the case settled, and they rely on popular suppositions as much as they rely on the facts and the law.
Also, for every juror who defies the law because they “hate” corporations, there will be one or more who insist that the law be followed regardless of the parties. That is what juries are supposed to do. That is why juries work.
I’ve tried cases where jurors came out weeping. This was proof enough for me that they took their job very seriously.
By the way, what is the alternative?
What does it say that we live in the freest country on earth except with respect to our own past?
Mike – I expect no other stand from you as a lawyer. AND I have to say that this nation has been in dire straits before – and managed to pull itself out. But I don’t believe we have a populace nearly as well informed on history, especially ours, and the reasoning behind our constructs. Very few people today have any working knowledge of the constitution, nor of what it says about our freedoms.
Based upon this I would like to agree with you. But I can’t. I don’t find I feel free. Perhaps the better statement is that we may be the least enslaved people about, but we don’t hold a candle to our ancestors. And that’s a pity.
I really have to disagree with the notion that since nobody is running the country we are still free. Our lives are increasingly restricted by the ever growing and often faceless administrative state that Paul Rahe has previously discussed (http://ricochet.com/archives/what-is-the-administrative-state/).
So you either admit jury trials are crapshoots and the parties are better off avoiding them or as a mediator you are misrepresenting the nature of jury trials to trick the parties into settlement. In either case, the fact that parties settle so often is not evidence of freedom – it’s evidence that the are responding to the realities of a broken system.
One or more? So a significant number of jurors – by your estimate up to 50% – ignore the law – and that’s the system working?
I’ve seen the same thing. Of course there are many cases in which the jurors act properly. But the fact is jury trials are, as you tell the parties in your role as mediator – are wildly unpredictable, and mostly for the wrong reasons. That’s one of the main reasons so many cases settle, and it’s not a good thing.
It’s not a complete solution, but I would abolish jury trials for most if not all civil litigation. I would also recommend the establishment of courts with specialized jurisdictions – for example, a med mal court, an employment discrimination/wage and hour court, a complex business dispute court, etc. If possible, cases would be decided by a three person panel.
BTW – I agree with the general thrust of your piece.
Jonah also talks about different Freedoms in his past writings. Technology helps with freedom.
I have watched some of the TV shows with the Mountain Men. I guess they are pretty free of government and others telling them what to do. They are not free to slack off. They are not free to get sick. They live hard lives with limited choices.
I like the freedom to get in my car and just go. In order to do that, I give up some freedoms about how and where I drive. Heck, I give up privacy, in that google tracks me.
I feel free. I think “three felonies a day” is off even as hyperbole and just wrong when taken literally. That does not mean I think everything is just fine or that there are no risks or that we could do without some paring back of law. Mike is correct: if we compare ourselves to the rest of the world and to the rest of history then we should all be falling to our knees thanking whichever deity we believe to be the creator of all things for our good fortune.