Americans today face a crisis of liberty. Even in Texas, where free enterprise ostensibly prospers, real freedom is in danger. Over time, a perversion of law has allowed the balance of power to shift, emboldening the government to tell citizens how they can and cannot act. Worst of all, the use of laws with the praiseworthy intent to create a better society has had unintended negative consequences that have hurt the poor and low skilled. With a few key reforms, Texas can lead the way in social progress by turning to the free market.
America was founded to be a nation of laws, rather than a nation of men. This critical distinction sought to place all people on equal footing before the law, which would be the arbiter, rather than capricious politicians. The peoples’ representatives write law, which is duly enacted and recorded in plain text. That law creates structure, like the frame of a building, and allows society to prosper within it. That structure is plainly seen, so that all people know how the system works and know how to function within it. But that structure should be passive. It should exist to treat all people equally, and it should not be used to impose burdens on individuals.
As John Locke said, “The end of law is not to abolish or restrain, but to preserve and enlarge freedom.” We have laws to promote human flourishing – not to restrict freedom, but to preserve and expand it. When the law says, “you shall not murder”, it does not restrict the freedom of the murderer, rather it preserves the life of the innocent, and the order of society. Laws like this restrict only wrongful action. Known as “malum in se” laws, these are laws we all know innately as humans. Natural law tells us that killing, stealing, trespass, and other actions are wrong, and impose costs on others, so our laws prohibit them in order to allow freedom from the impact of others. A second class of laws, known as “malum prohibitum” laws, are not intuitive and include things like seatbelt laws or operating a business without a license – things that are illegal because a statute says so.
Individuals in a free state should have the liberty to do virtually anything they choose, as long as it does not harm others. Instead, the law has grown into an unwieldy mass that not only provides a framework for society, but arbitrarily opens and shuts doors with discriminatory and freedom-restricting effect.
A few misguided laws can truly halt progress. Whether it is the minimum wage, which hurts the poor and limits employment, or licensing laws, which stifle economic potential, when the law tells people how to act, it directly threatens their freedom.
The minimum wage, which Texas adopts in accordance with the federal minimum wage, is a government-mandated price. This example of the law telling businesses how much to pay workers is the very foundation of the socialist playbook. Free enterprise is free precisely because the government does not control it. But when legislators or bureaucrats are allowed to compel a shop owner to pay a worker, regardless of the value created or worker’s productivity, the law has become a weapon. And like all weapons, its effect is to damage. For the minimum wage, the damage is discrimination against low skill workers and destruction of their bargaining power. Business owners cannot increase employment or economic growth, because the government raises their costs. With just one law telling business owners what to do, thousands of low-skill workers will be without a job and lack the critical ability to gain experience.
More egregious is the government telling individuals that if they want to improve their lives, they must get a government-approved license or certificate before they can offer goods or services to others. An entrepreneur cannot start a business cutting hair or interior decorating unless the state gives her the green light. Learning a trade or starting a business is a personal investment, which does not harm others or go against obvious natural law concepts. The only harm done with occupational licensing is done by the state. It tells individuals they cannot participate in the market to offer competitive goods and services. It tells them if they want to improve their lives and potentially the lives of others, they must follow a bureaucratic hopscotch. And it tells lower class citizens that the keys to the kingdom are several rungs up a ladder that elites control. It is clear that in this instance, the law certainly does not guarantee equal footing.
Social justice and progress are only achieved from just laws that provide an unambiguous and unobtrusive framework for society. Free markets liberate low skill, unprivileged citizens to bargain for better deals, to improve their skills, and to get ahead in life.
Texas can create a more prosperous future for all its citizens if the law is restored as a mechanism for preserving and enlarging freedom rather than compelling and restricting. Now is the time to restore freedom to the markets, so that we can restore freedom to the many.
Benjamin R. Dierker, Legal Affairs Analyst
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