Magazine | February 11, 2013, Issue

Every Man a Criminal

For Chris Matthews, the sob-sister sap who hosts MSNBC’s hilariously misnamed Hardball, President Obama’s inaugural address bore comparison to Lincoln at Gettysburg. Whether>Lincoln would have felt the same is doubtful. “He talked about the government that we want,” enthused Chris, “which is infrastructure, education, regulation, all the good things . . .”

Infrastructure? If you’re going to go for Big Government, you might as well have something to show for it. Sweden and Denmark have the Øresund Bridge, Britain and France the Channel Tunnel, Russia the St. Petersburg flood barrier. But, four years after Obama’s first stimulus bill, America still isn’t shovel-ready. A New York flood barrier? As the president would say, you didn’t build that, and neither will he.

Education? The more we spend, the more mediocre American education gets, the more it declines relative to the rest of the developed world.

So that leaves regulation as the “good thing” that gets Chris Matthews hot. And, while we will have no infrastructure projects or education improvements in the next four years, it seems safe to say we will have plenty of new regulations, bazillions of them, intruding on every aspect of life. There is now almost no activity an American can engage in that doesn’t fall under the regulation of some level of government — from handing out complimentary coffee in California hardware stores to rescuing a bird from the jaws of a cat in Virginia. And even if you do nothing at all except stay at home and sit on the toilet, the government regulates that, too.

In economic terms, around one-tenth of America’s GDP is consumed by federal regulation alone. But there are psychological costs, too. John Moulton was a distinguished judge, a man of science, and a chap who held the splendid title during the Great War of Britain’s “director-general of explosive supplies,” a job he did brilliantly. Lord Moulton divided society into three sectors, of which he considered the most important to be the “middle land” between law and absolute freedom — the domain of manners, in which the individual has to be “trusted to obey self-imposed law.” “To my mind,” wrote Moulton, “the real greatness of a nation, its true civilization, is measured by the extent of this land.” By that measure, our greatness is shriveling fast: The land of self-regulation has been encroached on remorselessly, to the point where we increasingly accept that everything is either legal or illegal, and therefore to render any judgment of our own upon the merits of this or that would be presumptuous.

#page#A small example: The other day, I visited a Shaw’s supermarket in New Hampshire. On the front door was a sign: “No bare feet — for Health & Safety reasons.” Really? Yes, it’s true that the bare foot is particularly prone to fungus and bacteria, and one wouldn’t want it promenading in large numbers around the meat department — in the same sense that it would be unhygienic to take a leak in the produce department. But the reason a civilized person neither urinates nor pads barefoot amid the fruit and veg is not that it’s a health-code violation but that it’s (in the Moulton sense) ill mannered. Shaw’s can no longer rely on its clients to know this (and to “obey self-imposed law”), and it apparently feels it cannot prohibit such behavior merely as an affront to societal norms, so it can disapprove of barefoot shopping only as an act of regulatory non-compliance.

Speaking of “societal norms,” whatever happened to those? We used to accept that different places had broadly observed customs. “When in Rome, do as the Romans do.” But in Rome these days they do all kinds of things: There are still a few more or less observant Catholics, but there’s also a lively crowd of gay hedonists, and a big bunch of disapproving Muslims. A norm to one is an abomination to the other, which is one reason the state is increasingly comfortable in micro-mediating social behavior.

A land of hyper-regulation is not the same as a land of law. The European Court of Human Rights recently ruled on two cases of British women whose employers forbade them to wear crucifixes — one an NHS nurse, the other a British Airways baggage handler. The court ruled against the nurse but in favor of the baggage handler. Why? What particular legal principle illuminated both cases? Don’t ask the jurists. Re the BA employee, they declared that “the court has reached the conclusion in the present case that a fair balance was not struck.” How is BA or any other employer to know what constitutes a “fair balance”? They can’t — or not reliably. Only the state and the courts can definitively establish that, by colonizing Moulton’s “middle land” unto policing dress codes, religious expression, social habits, and even casual conversational exchanges.

As that Shaw’s sign suggests, a kind of civic paralysis sets in: It is a small step from a citizenry that no longer knows how it should act to a citizenry that no longer knows whether or if it can act, and from there to a citizenry that can no longer act. When everything is the domain of law, everyone is potentially a criminal. Over the decades, National Review has been famously antipathetic to Ayn Rand, but she called this one a long time ago. In Atlas Shrugged, one of her characters muses: “One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

Which is about where we are. And, pace Chris Matthews, that’s not a “good thing.”

– Mr. Steyn blogs at SteynOnline (www.steynonline.com).

Mark Steyn — Mark Steyn is an international bestselling author, a Top 41 recording artist, and a leading Canadian human-rights activist. That’s to say, his latest book, After America (2011), is a top-five bestseller in ...

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