The New York Post recently compiled a list of the things that the New York City Council tried to ban — not all successfully — just in 2006 alone: pit bulls; trans-fats; aluminum baseball bats; the purchase of tobacco by 18- to 20-year-olds; foie gras; pedicabs in parks; new fast-food restaurants (but only in poor neighborhoods); lobbyists from the floor of council chambers; lobbying city agencies after working at the same agency; vehicles in Central and Prospect parks; cell phones in upscale restaurants; the sale of pork products made in a processing plant in Tar Heel, N.C., because of a unionization dispute; mail-order pharmaceutical plans; candy-flavored cigarettes; gas-station operators adjusting prices more than once daily; Ringling Bros. and Barnum & Bailey Circus; Wal-Mart.
On Jan. 2 here in Washington, D.C., the city council’s smoking ban was extended to bars and nightclubs. Even private clubs, where members must pay through the teeth to associate voluntarily, are forbidden to allow smoking on their own property. In some states, you can’t smoke in your car if young children are present — your own children that is. In California, outdoor smoking bans are all the rage. In 2005, a Pennsylvania legislator received national attention for his effort to mandate that all dogs must wear seatbelts in cars. He got the idea from the winner of his annual “There Ought to Be a Law” contest, a busybody kid who thought it was hypocritical that canines be exempt from mandatory seat-belt laws. My daughter seems well on track to spend her entire childhood in a world where eating a peanut product would be as unthinkable as lighting up a stogie.
In Democracy in America, Alexis de Tocqueville warns: “It must not be forgotten that it is especially dangerous to enslave men in the minor details of life. For my own part, I should be inclined to think freedom less necessary in great things than in little ones. …”
“Subjection in minor affairs breaks out every day and is felt by the whole community indiscriminately,” he continued. “It does not drive men to resistance, but it crosses them at every turn, till they are led to surrender the exercise of their own will.” He goes on to note that in the “great things,” the burden of (temporarily) lost freedom must inevitably fall “upon a small number of men.” For example, in war we understand that some men (and now women) surrender the bulk of their liberties to protect the liberties of everybody else.
This is a typically penetrating insight, and one with new relevance these days. This country seems to have inverted de Tocqueville’s hierarchy. On countless fronts, the natural pastures of daily liberty have become circumscribed by dull-witted but well-meaning bureaucrats slapping down the paving stones of good intentions on the road to hell.
The rule of thumb for a free society should be that it infringes liberties rarely, but when it does so it is for important reasons. Today, that thumb has been cast down, Caesar-like, pointing in the opposite direction. We have democratized the small assaults on freedom so that everyone must endure them, while we caterwaul about the tyranny of any real inconvenience that might fall “disproportionately” on the few. We ban using trans fats for millions but flinch at the idea that some kid might have to endure the Pledge of Allegiance or a moment of silence in school if it conflicts with his conscience. Everyone must surrender his shoes, his regular-sized toothpaste and shampoo at the airport, but we man the barricades to protect a few young Muslim men from being inconvenienced for an extra five minutes at the airport.
Free speech is most restricted where it is most important — in political contests near Election Day — while it is maximized to an absurd level at the fringes of culture and decency. Banning “hate speech” from everybody’s lips is a progressive priority, but electronic eavesdropping on a few terrorists is an impermissible leap down the slippery slope to the police state.
Of course, there are legitimate objections to infringements of liberty or principle on what de Tocqueville would call the “great things.” What is so disturbing is how few legitimate objections are raised about the “little things.” And I can’t help but shake the feeling that civilizations fall apart, or get plowed under by the wheels of history, when they fail to understand these distinctions. One of my favorite sayings is that America can choke on a gnat, but it swallows tigers whole. These days, we seem to be choking on the tigers while our bellies fill with gnats.