Transcripts For CSPAN2 The Permission Society 20161105 : vim

Welcome to the Cato Institute. I am the director for the center for constitutional studies and together with the Federalist Society, we are hosting todays forum. I want to thank the Federalist Society dean and julie who are with us today for their assistance in organizing the forum and also want to welcome those that are seeing us through cspan and our live stream audience as well. We are here to discuss an important subject, the Permission Society, the title of a new book by the Goldwater Institute tim sandefur, the Permission Society how the ruling class turns our freedoms into privileges and what we can do about it. This book documents the many ways especially since the progressive era the presumption of liberty and freedom is at the heart of the founding principles and documents and has been extinguished in favor of the perception of government with individuals having to obtain permission to government officials before being able to act. Property owners have long experienced this reversal of course and today they often find before they can make any changes in the property. It has to be from the Environmental Protection agency and the u. S. Army corps of engineers resulting often an extremely huge expenses and lengthy delays but it isnt the use of property alone. Its starting and running a business and so much more all of which tim sandefur covers in the book. We will discuss the issue in some detail both pro and con and i will introduce each before they speak. We love comments from the other guests and then a brief comments before we open up to you in the audience at the Conference Center. The Vice President for litigation at the institute in phoenix arizona and as i write in the new book, his fourth magnificent plus countless articles, speeches and legal briefs he has emerged as one of the most important of and coming political and legal theorists a graduate of Hillsdale College at the University School of law he served for 15 years as a litigator at the Pacific Legal foundation before joining goldwater. He won important victories for economic liberty and the several states, some of which he will discuss today. Hes the author of four books, the cornerstone of liberty, Property Rights in 21st Century America coauthored with his lovely wife christina which came out earlier this year. The right to earn a living that came out in 2010, the conscience of the constitution and now the permissions for the society plus some 45 articles on subjects ranging from Eminent Domain and economic liberty to antitrust, copyright, slavery in the civil war and political issues issue than shakespeare, ancient greece and star trek with a range of interests those accomplishments at such an early age we are proud to have him as an adjunct scholar. Please welcome tim sandefur. [applause] thank you very much. Its an honor to be here. I see some old friends out there considering alan, one of the inspirations for the buck. The passage from James Madison 1792 charters he starts by saying the charters and liberty have been granted by power and america has sent the charters granted by liberty. This revolution in practice of the world of may with an honest praise be the most triumphant in its history and what madison and is unlike the old documents of the english civil war of the glorious revolution, those documents all gave freedoms to the people whereas the American Revolution is founded on the principle that people are basically free and create a government through their own agreements and so forth. Contrast the opening with the language of the magna carta the 800th anniversary of when you read the document its surprising the language it uses. To all we have granted all of the liberties written out below. So it is very clear i am giving you the following freedoms and it lists out the following. That is the office at the start off by saying all men are created equal, all people are basically free they then create the government and give certain powers much most of which are listed. What the Founding Fathers did is reversed the older conception of freedom and on the basis of the principle in enunciated by john locke. Its a person too poor to afford things that are free that is the argument that those are distractions from what freedom really is and that is it is not having to ask permission. It is not permission for every man to do whatever he pleases as he lives but liberty to dispose the actions, possessions and property within the allowance under which he is and they were not to be subject to the arbitrary will of another but to freely follow his own not to have to ask permission from someone before using your property subject to the same law thalaws that applied to everyone else. There was this principle that we tend to call prior restraint. It said you have to give the governments permission before you can publish something and then this was overturned and it became the pride of british subjects that no prior restraint could be placed on a person before they published the sentiments. They might be publishe published afterwards if they committed a slander but they couldnt be required to ask permission before uttering the view. At the same principle of applies across the board. Under the british system if you read William Blackstone and the commentaries its very proud of the british subjects enjoy the religious toleration more than any other nation. It was pretty liberal by the standards of that day. But it was toleration, tolerating religious differences, giving not liberty but toleration to the people. The founders repudiated the concept. Thomas paine said it is not the pain of it but the tolerance. One is the pope armed with fire in the state and the other with indulgences. When hes talking about the proposal for what became the statute for religious freedom he says our rulers can only have authority as we have said that to them. We are answerable for them but legitimate powers extend only to such acts as to others but it does me no injury for my neighbor to say there is no god or 20 gods. It neither picks my pocket nor breaks my leg. It neither picks my pocket or breaks my leg and is none of the governments business. Madison in his old age was very proud and he wrote a memoir where he told the story once was in his 20s she served on the committee that drafted the declaration of rights and the primary figure was george mason respected statesman and in the original draft he wrote all people would enjoy the total toleration of religion and matheson, this then basically unknown upstart jumps up and says no, you cant use the word toleration, you must use the word liberty. He was proud of that, what the founders did here and elsewhere is embraced the presumption we are all free, not that we are on the free until the government gives it to us and that is reflected in the text of the constitution securing the blessings that say our rights shall not be abridged. No law respecting the freedom of speech shall be passed. The right of the people shall not be infringed and of course the ninth amendment that make clear the list of rights is not exclusive. Just because it doesnt say you have the right to run barefoot through the sprinklers on a hot summer day doesnt mean you dont have that right. It says the government isnt giving you freedom. Its listing a few of your freedoms in the bill of rights. So how have we come to the point where today you basically need to get the governments position for a wide variety of things you spend your daily life doing. Think of the things you have to ask government permission to do, a permit to build a house, get a gun, buy things sometimes, run businesses cant pay your employees can even freedom of speech now often comes with a sort of permit requirement. We have these colleges and Political Convention setting up the speech zones which are basically cages where youre allowed to express your opinion as the popular saying i always thought america was a free speech zone but its also a subtle sort of thing you find in places you wouldnt expect. The example uses the Architectural Design review that occurs when an architect has planned out may be a single building or subdivision and goes before the city zoning board and they say it complies with all of the safety codes but i just dont like the way that it looks. I would prefer that it be colonial instead of whatever style is defined. Its an expression that should be protected by the First Amendment. No one can walk through the doping from the masterpiece like this without experiencing the aesthetic feelings artists seek to convey. The Architectural Design review shows that the architects own. Whats happening is we are replacing the free society where you are not free unless the government gives you permission. The model they use for this that i describe in the book is the difference between the nuisance and a permit system. Its built on the classical principle. As opposed to the permit system that says you are not allowed to do this thing unless the government allows you that there are problems with the system. One of the problems is that its basically reactive. That allows people to commit harm anything you can sue them or get an injunction against them after. It says you have to prove to us that you are qualified before you act. No individual government can possibly know all of the information necessary to run an entire economy. An example given is the pencil. Nobody decides how to build a pencil because to get the wood you have to have slumber and that means you have to have arms. A few steps into the entire economy is spent building a single pencil and it avoids this Knowledge Problem. It causes the problem. In defense of an object or that wanted to start the company in most states youre not allowed to start a moving company on till you get permission from the moving companies and the state. Its called the mississippi law. To say there is no need and guess what, they often say that. We took the case to court and i asked how do you decide whether there is a public need or even worse a future public need for a company somewhere down the line. The bureaucrat asking the questions that there is no objective criteria. That is another problem with the system. You cant have a gun unless there is good cause. One violates the principle of equality. Who has to ask permission. An inferior has to ask permission of a superior. Slaves have to ask permission, children have to ask permission, until recently, women had to ask permission to get jobs andsign contract and so forth. To ask permission of someone else means appeasing the person rather than treating them as equal citizens were Government Employees who stand beneath the citizen in that sense. It substitutes political or economic power. It creates a class of people that can use that power to benefit themselves. It was a class of people whose cousins served on the board or whose cousin served on the committee in exchange for a Little Something that might be able to get some time in front of the bureaucrats. Thats another problem. It allows those in power to demand something in exchange for a permit. They come back and demand property or cash in exchange for the permit. Several years ago my client was giving up the right for a building permit. But the most offensive part of the Promotion System across the board is how it deters innovation. Think of all the permits they have to get involved hearings they have to go through. It is just too much trouble. He can never assess the cost. How many jobs might have created and how much wealth and how much others because of his innovation that vaporize in that instant. We will never know what might have been if there wasnt a government apparatus barring innovation and you can prove that there needs to be a new business of that kind. Ive been a libertarian since i was in high school and remember how often i would Say Something about freedom is good and the answer would come back yes but you also have to have responsibility and this is the response i would get it is supposed to impose responsibility but the problem is responsibility can take two different meanings either dont hurt people or it can mean do what we say and that is the permit system. I think the nuisance system is a bad way better way to approach problems and needs presuming people free unless they are going to harm another person. We are sliding more and a society unless you get the governments permission and in the Permission Society we are moving away from the principles of freedom. 1946 Justice Robert jackson was looking for the right way to describe the freedom he hoped would rise from the ashes of europe and he found those words in a poem. All we have of freedom is our fathers bought from us long ago ancient right unnoticed as the rest of the troll live by no mans leave underneath the wall. It is the essence of freedom. The more we are required to ask someone for permission to more of the government consumes we are not free unless the government says we are the less freedom we have. There is no reason for it. We accept the idea people are free most of their lives and most of the Dangerous Things we do, driving were eating we dont have to get the governments permission before we do those things. Why cant we trust our fellow citizens freedom and if we cant, who can we trust with hours ours. [applause] once again, we ar were hereo mark the publication of the Permission Society which does in the audience can purchase outside along with other book. Feel free to do so and he would be glad to sign it for you. While you were talking, my colleague sent an email with breakinofbreaking news that thet judge has struck massive unchecked power of the consumer bureau. So keep talking. [laughter] to offer a somewhat different perspective people here from an old friend at the Cato Institute that has spoken more than once, professor Alan Morrison who is the Lerner Family associate dean for Public Interest at George Washington University School of law and for most of his career, dean morrison worked for the Public Citizen Litigation Group he cofounded in 1972 and directed. His work involved litigation in various areas including open government, opening up the Legal Profession but failed to comply with the law, forcing separation of power and protecting unrepresented class action settlements. Hes argued 20 cases in the Supreme Court including victories in the Virginia State bar subject to antitrust rules for using minimum fee schedules, the state board of pharmacy, the Consumer Council making commercial speech subject to the First Amendment and the famous case that struck down over 200 federal walls containing the legislative veto as a separation of powers. Dean morrison teaches civil procedure and previously taught at harvard, nyu, stanford, hawaii and America American uniy law schools. Hes a member of the American Academy and was president from 1999 to 2000. He was the assistant attorney in new york. Please welcome Alan Morrison. [applause] the thesis of the book is the society is inverted and we need a permission instead of having the freedom to do what we want to do. No doubt in my mind permission is needed and its inverted and its nowhere near the ratio the book would suggest in terms of permission versus freedom. As i thought about the stories in the book some of which i would agree with i remember the old saying that the plural of anecdote isnt the data. So i thought i would start with a story of my own about the Permission Society that occurred when i was at the end of my first year of college. It was very hot and it was lunchtime so i went below and got ice cream to bring it on back. They came up to me and said what are you doing with that ice cream and i said i eating it. Nobody told me i couldnt. Did anybody tell you you could, and that is when i knew there was a difference between an mep and a civilian. So that would be the true Permission Society than i envisioned but i dont find that to be the Permission Society in the world at large today. Let me start with the respective licensing and certificate of necessity. The first time i had a matter is when the Cato Institute was in a small house in the northeast and i came over to talk about some cases i got involved in the unauthorized practice of law when i was recommended to Florida State bar tightening up divorce papers for people who couldnt afford to have lawyers. We have challenges to that in other activities and cato was very much in line involving the Legal Profession as you heard of. Many of them were successful but in the area i have been largely unsuccessful and i had tried to bring cases to that area raising a First Amendment chall