Conservatives like Rand Paul like to complain about government regulation and government intrusion into the lives of citizens. They say that they support “limited government.” This seems premised on the idea that there once was a time, in our golden yesteryear, when government was “limited” and didn’t get involved in the lives of American citizens.
Not long ago I was doing some research and came across some laws from Virginia in the early 1800’s. Among the laws were a number of “slave laws,” one which stood out to me. It said that slaves could not own certain fabrics, like gingham. The reality of the law was, of course, that it regulated the behavior and action not of the slave, but of the slave owner. There were all sorts of “slave laws” that governed the behavior of slave owners. In the 1840’s, for example, most states passed laws that forbid teaching slaves to read, write, and do arithmetic. That meant that a slave owner could not train his laborer to read a recipe or instructions for preparing a product.
How intrusive is a government that can tell people what kinds of fabric they can own and how they can use it? If these “slave laws” aren’t examples of heavy handed government involvement in both the economy and in the lives of individuals, I don’t know what is.
After the Civil War many Southern states passed laws preventing the freed slaves from voting, owning weapons, or property. The Fourteenth Amendment was enacted to try to prevent this. But in response many states, particularly in the South, enacted a wide range of “black codes” which often fall under the system known as Jim Crow. While these did not outright deny blacks the ability to vote or own property, they enacted a wide variety of restrictions. Rand Paul once said that he opposed the civil rights laws of the 1960’s because he doesn’t think the government has the right to tell a business owner who he can serve. But the reality was that in many states there were laws that specifically said that white business owners could not serve blacks. So the Civil Rights Act of 1964 was actually removing a restriction, not creating one.
For many years states had laws that restricted where blacks could own property, where they could go to school, and what professions they could practice. And the United States government limited their ability to serve in the military until 1948, when President Truman integrated the Armed Forces. Is that limited government? It certainly wasn’t for racial minorities.
Things were not much better for women. Most people know that women were not allowed to vote until the passages of the Nineteenth Amendment in 1920. But many have forgotten that in many states women were generally restricted in their ability to own property, sign enforceable contracts, and serve on juries until the 1960’s and 1970’s. It wasn’t until 1975 that the Supreme Court struck down state laws banning women from serving on juries. And in 1981 the Supreme Court, in the case of Kirchberg v. Feenstra, struck down state laws that declared a husband the “head and master” of the household, with unilateral control over the property owned jointly with the wife. That may be hard to believe, but it’s true. So up until the 1980s the government sanctioned policies that essentially subjugated half of the American population. If that’s limited government, I’ll eat my head.
These racist and misogynistic laws may have been simple, one line affairs, so they didn’t lard up the statute books. But if the ability of government to impose itself into the lives of the people is the measure of the limit of government, these laws were the work of a nearly unlimited government.
Another example involves censorship. The government has long engaged in censorship, despite the words of the First Amendment. Many states had laws against obscenity that were very broadly interpreted, and included works of classic literature. These laws were nationalized because the U.S. Postal Service had a regulation that said that it wouldn’t transport works of “obscenity.” This law wasn’t overturned until the early 1960’s, with a case involving the novel “Lady Chatterley’s Lover.” How “limited” is a government that tells its citizens what it can, and cannot read?
I’m not denying that the size of government has grown, as has the scope of its involvement in the economy. It has. But it is far less involved in our day to day lives than it has ever been. (That is unless you’re a woman and you want to control your own body, then the government is all over you.) Most of the growth of government regulation since the 1970’s involves the environment, consumer products, and workplace health and safety. These laws fill the statute books, so if one looks at the U.S. Code, it has undoubtedly grown dramatically.
Where once the government told slave owners how they could dress their slaves, now the government tells businesses that they can’t sell dangerous products to the public. One law, from the good old days, tells a property owner what he can and can’t do with his property. That’s a pretty major government imposition on individual behavior. (Leaving aside the nauseating fact that the property in question was a human being.) Laws from the bad new modern times tell businesses that they can’t sell tainted food or flammable baby clothing.
Where once the government said you can’t read Henry Miller, now it tells a factory owner it can’t dump toxins into the environment. You tell me which is the example of government overreach?
Once upon a time the government told black Americans where they could live, and told women where they could work. Those seem like a far greater imposition on “freedom” than a law that says a company can’t abuse its workers, or tells a company that it can’t sell unsafe products to the public.
So the idea, that there was once a time when the government was “limited,” is a myth. But I guess the difference was that the government was imposing restrictions on minorities and women (and the intellectually curious) and not guys like Rand Paul.