Freedom in One Lesson

20.

Preemption: Legal Thievery

While it is not a very common term, preemption shows up on occasion in our discourse. Sporting events and specials preempt regularly scheduled programs, and under the supremacy clause of the Constitution, federal law is said to preempt state legislative powers. But seldom have I seen it applied to government preemption of citizens’ rights, the protection of which, according to John Locke, is its central task.

Locke makes the point clear in his Second Treatise of Government, when he wrote that “political power . . . can have no other end . . . but to preserve the members of that society in their lives, liberties, and possessions” (Locke 1690). This principle limits government efforts to advance the “general welfare,” as the Constitution’s preamble puts it, to actions that preserve our rights. As a result, “the supreme power cannot take from any man any part of his property without his own consent . . . the preservation of property being the end of government, and that for which men enter society.” Consequently, “whenever the legislators endeavor to take away . . . the property of the people . . . by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends.”

Leonard Read addresses this lacuna in attention to government’s preemption of what it should defend in “Pre-emption: Legal Thievery,” from his 1981 book Thoughts Rule the World. Given that such preemption has expanded dramatically, shrinking Americans’ rights even further in the four decades since he wrote this essay, Read’s words merit serious consideration.

Of all the devilish tactics which are leading the U.S.A. head-on into socialism pre-emption tops the list . . . legal thievery on the grand scale! . . .

Government is organized force! It issues edicts backed by a constabulary—a physical force . . . [that] can restrain, inhibit and penalize. What, in all good conscience, should be restrained, inhibited and penalized? The answer was given in the moral codes long before Christianity: the “Thou shalt nots”—destructive actions such as stealing, killing, and so on. Inhibit those destructive acts: that’s what government can legitimately do—period!

Most important is what government can not do. It is not and can never be a creative force. . . .

What, then, is government’s proper role? It is to inhibit all destructive actions, keep the peace, and invoke a common justice. Leave all creative actions . . . to citizens acting privately, voluntarily, competitively, cooperatively.

Read gives a dictionary definition of preemption—“ To seize before anyone else can; excluding others”—to open a discussion about government acts that don’t preempt Americans’ charitable efforts but often act as if they do. He points out that government preemption extends beyond what government officially takes over. “Government has not pre-empted welfare. We can, if we so choose, give to others as generously as we please. However, government spends so much on welfare . . . that most citizens behave as if it were pre-empted. Their reaction to a starving neighbor: ‘That’s the government’s job.’ Were they not afflicted with the pre-emptive error, they would share their last loaf of bread with their starving neighbor.”

He then turns to the more formal government preemption of its citizens’ rights.

What do I mean by legal pre-emption? . . . Any productive, peaceful activity or service which government puts out of bounds to ordinary citizens, like the service of delivering private messages as a profit-making enterprise. The national government has legally pre-empted this service; it runs the U.S. Postal Service, and there is a law . . . making it a crime for any private citizen to go into the business of first-class mail delivery. . . .

Legal pre-emption of any peaceful service . . . results in a species of thievery. In the case of mail delivery, legal preemption robs entrepreneurs . . . of the opportunity to deliver mail . . . [which should be] left to the free market where the wisdom is. . . .

Governmental pre-emption of mail delivery results in ever-increasing prices and the service declines year by year.

Why is government preemption not only a violation of its citizens’ rights but also a severe detriment to voluntary arrangements in society and the well-being they make possible?

. . . Creative wisdom never originates in political action. . . .

. . . An officeholder tends to speak or to write as a member of a party or as the voice of a political collective. The individual and the personal are unwanted byproducts when words are fed into the political meatgrinder, only to come out as a homogenized communique! The truth is ultimately a personal witness issuing from a man’s highest self. . . . Words . . . must match the man who voices them; take away the man and his words have lost any attachment to reality . . . and with it the truth. . . .

The freedom way of life has its birth in a nation of self-responsible, self-reliant citizens—individualism—but never from a collectivistic society. . . . Political collectives do not nor can they create!

Read reminds us that it is not only politicians who deserve condemnation for their preemptive tendencies but also all those who try to manipulate government policy to create preemptions that let them “feather their own nests,” as he so often describes it, at others’ expense.

Let us not cast the derogatory eye only at political officeholders. Many citizens in all walks of life seek private advantage from some form of pre-emptive action. Labor unions keep non-members and youngsters from job opportunities; minimum wage laws outlaw the more or less unskilled. Then there are businessmen who obtain or advocate embargoes or tariffs in their effort to pre-empt freedom to trade goods and services. There is not an occupational category in which preemptive thinking or action does not exist. . . . Thus, we have ‘thievery on the grand scale, honored by a triumphal procession.’

Is there a solution for indefensible government preemption? It is not to coercively correct the ways of others. As Leonard Read emphasized over and over in his writing, the best each of us can do is to reform ourselves, resisting the desire to benefit ourselves by harming others. “The nearest one can come to remedying this thievery is by example: Make oneself an honest person and there will be one less rascal in the world!”