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CHAPTER TWO

THE FREE SOCIETY VERSUS THE PERMISSION SOCIETY

THERE ARE essentially two ways for the government to regulate the things people do: the nuisance system or the permit system. These two approaches are based on the two different conceptions of freedom: right versus permission. The nuisance model rests on the premise that people have a right to act freely unless they harm someone else, while the permit system – as the word implies – assumes that people may not act unless the government allows them.

Nuisance law embodies an old legal principle, typically phrased in Latin: sic utere tuo ut alienum non laedas, or “do what you will with your property, so long as you do not harm another.” This ancient slogan, well over 1,000 years old,¹ allows a person to use his property as he wishes, but if he harms his neighbor – say, causes too much noise or invites traffic that blocks the roads – his neighbor can sue for damages or for an injunction that will stop such abuses.

The permit system works in the opposite direction. It holds that a person may not do anything with his property that has not been approved by the authorities. This system – sometimes called “prior restraint” – bars the person from acting until he meets whatever criteria are set down as the requirements for obtaining permission to use his property as he wishes.

Each model has costs and benefits. One major drawback to the nuisance system is that it is essentially reactive: the neighbor typically cannot seek damages or an injunction until after he has suffered harm from some noxious act (or immediately before he does). This means that if the behavior in question is especially dangerous, the nuisance system might be ill-suited to preventing the neighbor’s injury. A property owner, for instance, who discovers that a dynamite factory is being built next door would probably not be reassured by being told that he can sue if the factory blows up. A nuisance system also seems poorly designed for regulating activities that inflict small but cumulative harms – as with some kinds of environmental contamination. If a factory emits tiny amounts of pollution over long periods of time, and problems only become obvious much later, neighbors might not be in a position to seek damages or an injunction afterward. The factory may have gone out of business by that time, or the harm may turn out so much greater than expected that the factory owners cannot afford to pay.

The permit system, by contrast, is proactive. It forbids the owner from opening the factory at all unless he first takes steps to prevent pollution or other harms. Neighboring property owners can, in theory, rest assured that the new factory has met certain safety standards before it is allowed to operate. Yet the permit system has severe drawbacks as well.

First, when a permit is valuable – for example, a business permit in a market where the government otherwise blocks people from doing business – those seeking permits will invest valuable time and energy trying to obtain one. This gives rise to the phenomenon economists call “rent-seeking.” When the government can redistribute wealth or opportunities – either by transferring money from some people to others or by granting licenses to do profitable things that are otherwise illegal – lobbyists will expend a proportional amount of effort to gain control of those opportunities. So if the government declares that only 13,000 taxicabs may operate in New York City – essentially the law today² – then the value of a taxi medallion will be quite high, and businesses will invest heavily in their efforts to obtain a medallion and prevent others from getting one. That’s why New York City taxi medallions now sell for about $1 million.

Alongside this rent-seeking problem is the “knowledge problem” identified by Nobel Prize–winning economist Friedrich Hayek. Economic behavior is extremely complex, involving innumerable factors and information dispersed all over the globe. It is simply not possible for any individual or group to gather that information and organize it in ways that will enable them to plan an economy from the top down.

Another economist, Leonard Read, illustrated this point with a simple example.³ Nobody in the world, Read pointed out, can actually make a pencil. Although a pencil is a simple device, made of wood, graphite, and a few other materials, actually building a pencil from scratch involves too many factors for any central intelligence to actually manage. The wood comes from trees, which must be felled by lumberjacks. But the lumberjacks must be fed, which requires a restaurant to serve them lunch. The restaurant, in turn, needs bread and beef to serve, and that comes from wheat and cattle, which means the economic planner must also arrange for farms and ranches, as well as threshing machines, slaughterhouses, and trains. A few simple steps along this sort of “old lady who swallowed the fly” reasoning, and it is easy to see that all of the planet’s economic factors are somehow involved in making even a simple pencil. And if the manufacture of a pencil is too complicated for any person or group to organize, then there can be no hope that government can properly organize the taxicab business in New York City. There are simply too many details involved.

Permit systems run into the knowledge problem because they are based on the assumption that the officials charged with granting permits have the information necessary to make the “right” choices about what things should or should not be permitted. But bureaucrats rarely have that information, and they are often unable to consult the one factor – prices on a free market – that might help them decide. Even if such information were available, it would generally be drowned out by private interests, who (as we will see in chapter 5) often try to influence officials for their own benefit, or activist groups who exercise political influence but do not reflect the actual desires of consumers.

Meanwhile, bureaucrats’ own incentives cause further confusion. They face few consequences if they make the wrong choice because they are government employees, paid with tax dollars, and will probably not be penalized if they deny a permit to a much-needed business or give one to a business that does not satisfy consumers. Ordinarily, the forces of supply and demand on the free market would gauge public needs in an objectively measurable way, enabling business owners to determine what consumers want. If the demand for taxi services goes up, prices will increase, creating an incentive for companies to add more taxis to meet the new demand. The relative costs of wood, graphite, and rubber will help pencil manufacturers judge how many pencils to produce and when. But the permit system short-circuits this process, so that prices, the only reliable indicator of public preferences, are ignored. Officials instead base decisions on political considerations – popularity, influence, sound bites, personal favors – rather than the forces of supply and demand that reveal what consumers actually want.

This knowledge problem gets worse when laws that impose permit requirements try to specify the conditions people must meet in order to qualify for permits. Such conditions are often set forth in ambiguous and confusing terms. Vague laws are essentially a way of delegating power to administrators or judges to do as they see fit, with little oversight and virtually no accountability to voters.

Consider the New Jersey law that regulates when and where banks can open new branches. One section of that law, now repealed, blocked any national bank from opening a new office in a city with a population of less than 10,000 if there was already another bank headquartered in that city.⁴ State bureaucrats were allowed to waive that prohibition, but because the law did not specify the standards for when or why they should do so, a bank could not know whether it would qualify for a waiver or not. When one bank challenged the law, the Third Circuit Court of Appeals was reluctant to admit that the law provided no standards at all, so it turned to a report drafted years before for members of the legislature when they originally voted on the law. That report told lawmakers that the law would “permit the Commissioner to override the statutory prohibitions against [branches in towns with populations below 10,000] if he decides that the establishment of such banks is in the public interest.”⁵ Seizing on this extraordinarily broad language – which was not actually in the law itself but appeared in a report written by an unknown, unelected legislative staff member – the court announced that it had found a rule for officials to follow: they could grant a waiver if it was “in the public interest.” What does “public interest” mean? Whatever the officials said it meant. This is about as unclear as a law can get, but the court claimed it was not too vague, because after all, “a more precise formula cannot be devised without hurtful inflexibility.”⁶

Enforcement by Unelected Bureaucrats

Any law that requires citizens to get a permit before they can do something, and then provides only mushy and obscure criteria for getting a permit, gives officials power to enforce their will arbitrarily and unpredictably. After all, nearly anything can be plausibly described as “in the public interest.” That is why philosopher Hannah Arendt wrote that bureaucracy substitutes the “rule of cleverness” for the rule of law.⁷

Yet judges are usually reluctant to interfere with bureaucratic agencies. Agencies are staffed by experts in environmental science, or whatever the bureaucracy regulates, and therefore presumably know best. Judges have adopted a theory of deference, which allows bureaucrats to stretch their authority as broadly as they want so long as their acts are “reasonable,”⁸ an expansive grant of power that deprives citizens of the judicial protection promised by the Constitution, emboldens agencies to stretch their prerogative to the limit, and encourages lawmakers to write ever more vague laws to evade their responsibilities to the voters.

The result is something like this: A politician runs for office on a platform promising, say, to stop pollution. Once in office, he writes a bill that forbids anyone from emitting pollutants without a permit – and also establishes a new bureaucratic agency charged with determining what qualifies as a “pollutant” and how one goes about getting a permit. Once the bill is passed, the politician can tell his constituents that he has taken bold action to solve the problem and move on to the next issue. While voters are applauding his achievement, the new agency begins writing regulations, often with little public attention. These regulations are intricately complex, are backed up by severe penalties, and sometimes have nasty unintended consequences. The unelected officials employed by the agency have every incentive to interpret their mandate as broadly as possible because, after all, they act “in the public interest.” Within a few years, the agency has implemented thousands of petty and complicated rules, which are in effect a code of laws that no elected official ever approved and which neither they nor the voters can realistically control. If the agency ever takes a step that causes a controversy in the media – for instance, declaring a July 4 fireworks display to be illegal “pollution”⁹ – the politician who wrote the law can shake his head, claim that was not his intention, and chide bureaucrats for going too far – again winning the applause of voters. But since nothing short of a new law is likely to rein the bureaucracy in, he can probably do nothing meaningful about it, even if he wants to.

Agencies combine legislative, judicial, and executive powers. They write regulations, prosecute alleged infractions, and punish those they find guilty. This is particularly disturbing because although people can sometimes go to court to challenge an agency decision, judges are generally not allowed to consider evidence that was not first presented to the agency at one of its own hearings. Yet the legal rules of evidence typically do not apply to those agency hearings, which means that agencies can base their decisions on types of evidence that courts are not usually allowed to consider – hearsay, for example. Later, when the agency’s decision based on hearsay is appealed to an actual court, the judge is typically forced to rely exclusively on the evidence the agency used, including hearsay or other evidence courts normally cannot use. In some cases, courts are not allowed to review agency decisions at all.

The agencies that oversee permit requirements form a branch of government not contemplated by the Constitution, run by officials who do not answer to voters. The result is a powerful, invisible branch of government that the people cannot control. After the 2013 rollout of healthcare.gov became a fiasco, many critics demanded that Secretary of Health and Human Services Kathleen Sebelius resign. She refused, saying, “The majority of people calling for me to resign are people who I don’t work for.”¹⁰ That was true: as the head of an enforcement agency, she worked for the President, not voters. Americans spend much time and energy arguing over who should be elected to Congress or sent to the White House, but most of the laws that govern citizens’ lives are written not by elected officials but by bureaucrats whose decisions are shielded against the democratic process.

A fourth problem with permit systems is that whenever officials have the power to make decisions from which citizens will profit, those officials are in a position to demand something in return. At times this can take the form of outright corruption. More often, people seeking permits are forced to provide concessions to the government to serve some general social need. Property owners seeking to develop their land are often subjected to “exactions” that force them to give up property or cash to the government in exchange for development permits – or to surrender some of their property in exchange for permission to sell the rest. As we will see in chapter 6, one California city even forced a couple to give up their right to vote on certain property taxes in exchange for a permit to renovate their home.

Still another problem with permit requirements is that any violation of the requirement is itself against the law, even if the requirement is illegal. This two-layer effect often blocks people from challenging these laws in court. In 1963, city officials in Birmingham, Alabama, persuaded a state judge to order Martin Luther King Jr. and his supporters not to march in protest against segregation. City ordinances required protesters to obtain a permit, and King and his allies had not been issued one. King chose to ignore the court order and march anyway. He and over 1,000 protesters were arrested and sent to jail, where he wrote his famous “Letter from Birmingham Jail” on paper smuggled in by friends. His attorneys appealed, arguing that the permit requirement and the court order violated the First Amendment, but even sympathetic justices of the U.S. Supreme Court were unconvinced. Had King patiently appealed the order, they wrote, they might have ruled in his favor – in fact, the court later did declare the Birmingham permit requirement unconstitutional.¹¹ But King’s outright defiance could not be tolerated, the court said, “however righteous his motives.” People may not “ignore all the procedures of the law and carry their battle to the streets,” because “respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”¹² That is true, but as King explained, such litigation can often take years and can become a “pseudo-legal way of breaking the back of legitimate moral protest.”¹³

Faced with endless permitting delays and burdensome demands from bureaucrats, property owners often find themselves in a similar position. A person who is told that he may only have a building permit on certain conditions, and believes those conditions are illegal, may not simply ignore them and build anyway. Laws in California and some other states bar him from accepting the permit under protest, starting construction, and later asking a court to rule on the question. Instead, he must postpone work, file a lawsuit, and wait – often for years, sometimes for decades – for courts to rule. However “civilizing” this might be, it is also a “pseudo-legal way of breaking the back” of property owners, with the effect of insulating permit requirements from judicial review. Few citizens can afford such tedious, expensive delays, and those who lose patience and violate the law can then find it impossible to challenge the validity of that law.

But the most troubling aspect of the permit system is that it stifles innovation. As we will see in chapter 5, some permit rules force people who want to start new businesses to prove to the satisfaction of government regulators that there is a “public need” for the business before the person may set up shop. But it is hardly ever possible to prove such a thing or to justify some new idea or new way of doing business beforehand. It would not have been possible in the late 1980s to prove that the United States “needed” a new chain of coffee shops: the country had plenty. Yet within a decade, Starbucks’s brilliant success proved that the public did, in fact, want a new chain of coffee shops. It is never possible to prove – it’s often impossible even to guess – whether a new idea will take off. The only way to tell is to try. But the permit system often makes it impossible to experiment, thus hampering the most important quality of free markets: the possibility of innovation.

Innovation is an elusive quality. It cannot be held in the hand or shown to the eye. It is potential. It is a chance for the future. Its impalpable and vital quality is captured eloquently in a story sometimes told about Benjamin Franklin: asked what some new invention was good for, he is said to have replied, “What is the use of a newborn baby?”¹⁴ One can never know what promise a new idea holds. Yet licensing laws and permit requirements essentially force one to know and quantify this unknowable value. And the cost and difficulty of obtaining a permit often stifles the fragile first steps toward innovation.

The costs of permits can be severe. To take just one example, the Endangered Species Act makes it illegal to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” an endangered plant or animal without a federal permit.¹⁵ Since construction usually causes some kind of “harassment,” property owners who discover, say, the Delhi Sands flower-loving fly (Rhaphiomidas terminatus abdominalis) or the western prairie fringed orchid (Platanthera praeclara) on their land must get federal permits before beginning construction. It is impossible to say how much these permits will cost because the government treats each applicant differently, often requiring people to pay for extensive “mitigation” projects in exchange for permits. When one Georgia paper company sought a permit in 1999, the federal government forced it to fund a “conservation bank” to protect the red-cockaded woodpecker, at the cost of $50,000 per bird.¹⁶ In a Texas case, the government forced homebuilders to pay $1,500 per house into a fund for habitat preservation.¹⁷ And when Delhi Sands flower-loving flies were found on the future site of the San Bernardino County Medical Center, the government forced the center to pay over $3 million toward fly preservation¹⁸ – an expense and delay that likely cost human lives for the sake of flies. Simply negotiating over the terms of a permit can take years, with additional delays to prepare mandatory scientific reports, allow public comment, and evaluate proposals.¹⁹

In places where corruption is common or where permits are distributed only to influential insiders, the process is even bleaker. Permit requirements encourage corruption because the costs and delays lead people to seek extralegal alternatives. In an effort to demonstrate this problem, Peruvian economist Hernando de Soto tried to start a small business in his home country. It took 11 permits and 278 days. He was asked for bribes ten times during the process.²⁰ That was minor compared to other countries he studied. Tanzania, for example, has such complicated and corrupt licensing rules that, according to de Soto’s calculations, a business that lasts 50 years will have to pay $91,000 to government officials and spend four years in bureaucrats’ offices seeking some form of permit. That doesn’t count the nine years of time waiting for the permits to be issued. “Is it any wonder that 98 percent of all businesses in Tanzania choose to be extralegal?” asks de Soto. “How else could a business owner get things done in an efficient manner, but to grease the palms of underpaid functionaries? No matter where you look, where you find more bureaucracy, you’ll find greater corruption.”²¹

Even without corruption and high fees, the cost of a permitting system can be incalculably high in one respect: potential new ideas can be lost forever if an inventor or entrepreneur decides he just doesn’t want to go through the hassle and delay. Innovations often begin as a hunch, as a barely articulable notion that a new way of doing business, or a new recipe, or a small tweak on existing technology might be better, more useful, or more satisfying. But when told that they will have to undergo expensive and time-consuming permit processes before being allowed to pursue a new idea, many simply give up without trying. The cost to society of stifling innovation is literally immeasurable. It takes the form of what economist Frederic Bastiat called “unseen” costs:²² wealth that might have come into existence but never does. Because it remains uncreated, it cannot be quantified and people don’t notice it precisely because it never exists. Yet these “unseen” costs are real – they are the new businesses, new technologies, new opportunities that never come about.

Consider the licensing requirements that the Food and Drug Act imposes on new drugs and medical technologies. The average cost of federal approval of a new drug is $1.3 billion,²³ and the process involves years of tedious bureaucratic delay. Sick and dying patients – or people whose lives could be improved by new medicines to treat their eyesight, their allergies, or their daily pain – need new medicines now. The Food and Drug Administration (FDA), focused on preventing dangerous drugs from reaching the market, has little incentive to streamline its procedures. It gets no reward for quickly approving new drugs for sale, but it would be harshly condemned if it accidentally let a dangerous drug reach the market. The FDA is therefore biased against approving new medicines, to the detriment of patients who have no alternative but to wait. The diabetes drug Byuredon, for instance, was invented in the 1990s, but in 2010, after the developer had proven it safe through several clinical trials involving thousands of patients, the FDA refused to approve it for sale. Only after two more years of still more tests and reports did the agency grant approval. As we will see in chapter 7, states are now taking action to address the problem of federal delay, but for now the immense cost of developing new drugs makes it impossible to measure how many potential innovations are stifled – and how much needless human suffering is caused – by the permit requirement.

Ideas, said the poet John Milton, are actually more precious than life itself: “no age can restore a life, whereof perhaps there is no great losse,” he wrote, but “revolutions of ages do not oft recover the losse of a rejected truth.”²⁴ It’s impossible to say how many innovations – whether they be as simple as a new kind of restaurant or coffee shop, or something as life-changing as a new medicine – have disappeared into the ether thanks to rules that block innovation.

Religious Liberty: The Victory of Freedom over Permission

Milton made that comment in the midst of England’s bitter seventeenth-century religious wars, and it was in the history of the struggle for religious freedom that America’s founding fathers learned the many problems with the permit system: the knowledge problem, the rent-seeking, the stifling of innovation, and the tendency toward corruption. They chose to reject the Permission Society established by British law. One particularly revealing example was their choice to establish a law of religious liberty, instead of the “toleration” that existed under the law of Great Britain.

When the founders were born, the Anglican Church was the official religious institution of the British empire. All subjects were expected to attend it and support it financially. For centuries, the monarchy had used the permit power to control both the church and the people. In 1549, for instance, representatives of King Edward VI warned England’s preachers that while he had “sent unto you the King’s Majesty’s License to preach,” they were “in no wise” to “stir and provoke the People to any alteration or Innovation ... but contrariwise, That you do in all your Sermons exhort Men to ... obedience to their Heads and Rulers.”²⁵

Matters improved in the century that followed. The 1689 Toleration Act, signed by William and Mary as one of the conditions of taking the throne, promised to withhold persecution from Christians who believed in the Trinity, rejected the doctrine of transubstantiation, and pledged allegiance to the king as head of state and of the Anglican Church. This act, wrote the English jurist William Blackstone, represented “a very just and christian [sic] indulgence” toward religious minorities. Yet it excluded Unitarians, Catholics, and, of course, Jews, Muslims, and atheists. Even Baptists and Quakers were barred from public office and regularly jailed for unlicensed preaching. Although Blackstone believed “all persecution and oppression” on account of religion was “highly unjustifiable,”²⁶ he supported the limited scope of the Toleration Act, writing that “care must be taken not to carry this indulgence” of other religions “into such extremes as may endanger the national church.” In other words, the Toleration Act, though liberal by the standards of its day, was only a “liberty granted by power” – a privilege, not a right – or, in Blackstone’s words, a “spirit of true magnanimity” on Parliament’s part, an “indulgence” granted by courteous lawmakers.²⁷

Madison, Jefferson, George Washington, Thomas Paine, and others found this idea repugnant. In their view, “magnanimity” was a poor substitute for freedom because it could always be revoked at the ruler’s pleasure. “Toleration is not the opposite of Intoleration, but is the counterfeit of it,” wrote Paine. “Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it.”²⁸ Washington agreed. In a 1790 letter to a Jewish congregation, he wrote, “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” In the United States, “[a]ll possess alike liberty of conscience.”²⁹

In 1776, the Virginia legislature asked the respected 51-year-old statesman George Mason to prepare a Declaration of Rights. His fellow lawmaker James Madison was then half Mason’s age and new to elected office, but he was not too shy to object to part of Mason’s draft – specifically, as Madison wrote in a memoir, to “the terms in which the freedom of Conscience was expressed.” Mason had “inadvertently adopted the word toleration,” and the brash young Madison urged the elder statesman to “substitute[] a phraseology which declared the freedom of conscience to be a natural and absolute right.”³⁰ The change was adopted, and the Virginia Declaration of Rights proclaimed that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

The difference between toleration and liberty was also made clear in a passage in Jefferson’s book Notes on the State of Virginia. Jefferson had proposed legislation to proclaim religious liberty in the state and prohibit the government from subsidizing any established church. Defending the proposal in the Notes, Jefferson made many of the same arguments that apply to all permit systems. For instance, he argued that government cannot be relied upon to choose the “correct” religion (the knowledge problem) and observed that people tried to use government’s power over religion to benefit themselves (the rent-seeking problem): “Fallible men; men governed by bad passions, by private as well as public reasons,” he wrote, would use the power of “coercion” to impose their own beliefs on others.³¹ Even worse, using government to control religious belief stifled innovation and discovery: “Had not the Roman government permitted free enquiry, Christianity could never have been introduced. Had not free enquiry been indulged, at the era of the reformation, the corruptions of Christianity could not have been purged away.”³²

But the most essential problem with established religion was that it regarded religious freedom as a privilege bestowed by the state, rather than a freedom that people are born possessing. “Our rulers can have authority over such natural rights only as we have submitted to them,” Jefferson wrote. “The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.”³³ It took ten years of lobbying by Jefferson and Madison to get the Virginia legislature to pass the Statute for Religious Freedom, which proclaimed that “Almighty God hath created the mind free” and that government-established churches represented a “sinful and tyrannical” effort by rulers to “assume[] dominion” over our freedom.³⁴

The Propiska

The most extreme form of Permission Society – in which all rights were considered gifts bestowed by the state – has been communism. Under totalitarian rule in the Soviet Union, property was collectively owned, with its management and disposition overseen by government authorities. Consequently, some form of government approval was required for even the most mundane activities. Anyone wanting to live in Moscow, to get a job, or to reside in an apartment building was required to obtain a permit called a propiska.

First used by the czars, then reintroduced under Stalin, propiski gave the government absolute power to enforce conformity, punish undesirables, exclude unwanted foreigners, and restrict people’s travel. At first, writes anthropologist Rano Turaeva-Hoene, the Soviet government portrayed the system as “a positive initiative, granting access to all kinds of benefits, which the Soviet government offered its citizens.” This gave the propiska “a razreshitelniy kharakter (from Russian ‘allowing character’) which cast it in the more positive light of allowing or granting rights.”³⁵ But soon the government began restricting the availability of propiski. Some people resorted to political influence, family connections, or outright bribery to obtain the stamps on their passports that would let them reside in Moscow, live in a state-owned apartment, or get a job – a necessity in a nation where joblessness was a crime punishable by deportation to the gulag.

In his epic novel Life and Fate, which was confiscated in manuscript by the KGB and banned in Russia until the Gorbachev era, Vasili Grossman depicted with chilling reality the effect the propiska system had on Russians. Early in the novel, Yevgenia, whose lover is away fighting the Nazis at Stalingrad, gets a job in a factory. But because she does not yet have a residence permit, she must visit the local police station with a letter confirming her employment. “There a police officer took Yevgenia’s passport and documents and told her to come back in three days’ time.” When she goes back, she is told that her permit has been denied.

She stands in line for hours to speak to the bureaucrat in charge. “While she waited in the queue, Yevgenia heard her fill of stories about people who had been refused residence permits: daughters who had wanted to live with their mothers, a paralyzed woman who had wanted to live with her brother.” At last allowed to speak to the officer, she finds him sympathetic but unyielding. “‘You need an official request on your behalf,’ he said. ‘Without that I can do nothing.’”

Yevgenia returns to her boss and asks him to write another letter certifying that her job is part of the war effort. He hesitates: “The police must first send a request,” he tells her. “Without that I can’t write such a document.” She goes again to the police station and stands in line once more to ask the officer to send her boss the request. He refuses. He first needs a request from the officer in charge of residence permits. Hungry and desperate, she returns to that office and waits in line yet again to see the residence permit officer. “I have no intention of making any requests,” he tells her at last. “It is not my responsibility.”

“It was his absolute calm that was so bewildering,” writes Grossman. “If he had got angry, if he had shown irritation at her muddle-headedness, Yevgenia felt it would have been easier. But he just sat there in half-profile, unhurried, not batting an eyelid.” At night she returns to the building where she is living illegally, terrified of being reported, certain her neighbor Glafira Dmitrievna is spying on her. At last, her boss writes the needed request, and with a rush of relief, she hurries back to the passport office, only to be told that she must wait three more days for a decision. When the answer arrives, it is crushing: “Residence permit refused on grounds of having no connection to the living space in question.” Yevgenia begins shouting and is escorted out by police. “This life without rights, without a residence permit, without a ration-card, this continual fear of the janitor, the house-manager, Glafira Dmitrievna, had become quite unbearable.”

Yevgenia writes a resignation letter, hoping to return to her hometown before she is punished for violating the permit requirement – and then the telephone rings. It is Limonov, a prominent official who has been making advances at her. She tells him her story, and he offers to put in a good word for her at an official meeting he’s attending that day. “Then he asked, ‘Are you free this evening?’ ‘No,’ answered Yevgenia angrily.” Nevertheless, the next morning, the phone rings at work. “An obliging voice asked her to call at the passport bureau in order to collect her residence permit.” The next time she sees Limonov, she invites him in for tea. “Well yes, thank you,” he says as he enters her room. “I suppose really you owe me some vodka for your residence permit.”³⁶

A half century after the end of the war, the propiska system remained in place, its social consequences no less perverse. Eager to obtain government permission to live in Moscow, some Russians arranged sham marriages with those allowed to reside in the city. Others simply broke the rule, which was sometimes only loosely enforced. But violators risked arrest and deportation at any time – illegal immigrants in their own country.³⁷ Sadly, the propiska system survived the fall of the Soviet Union, in modified form. Today, people must still be registered at a local address to get jobs, open bank accounts, enroll in school, or obtain medical benefits.³⁸

The propiska was only one of the many forms of permit required of Soviet citizens. Publishing anything required a viza from Glavlit, the government ministry of literature.³⁹ Music concerts required a license from Muzo, the ministry of music.⁴⁰ Owning a typewriter or a Xerox machine required permission.⁴¹ Soviets had to carry with them not only their propiska but also their birth certificate, their “labor book” (which listed their education and work history), and other documents. So essential were these papers that Russians were fond of a saying attributed to Dostoyevsky: “A human being is composed of three things, a body, a soul, and a passport.”⁴² When the Berlin Wall fell in 1989, Communist officials told citizens they could leave, but if they did, the government would confiscate their homes. In defiance, thousands hung their house keys on fences or around the necks of statues, or nailed them to trees, before fleeing to the west.⁴³

Who Must Ask Permission

The difference between rights and privileges becomes clearer when we consider what sorts of people are typically required to ask permission. Slaves, children, and, until recently, women all stand in a position of having to seek approval rather than being free to act as of right. They are, or were, regarded as inferiors, whose freedom existed only at the will of their betters.

Slavery obviously rested on the proposition that blacks were “so far inferior, that they had no rights which the white man was bound to respect,” as the Supreme Court put it in Dred Scott.⁴⁴ Nineteenth-century southerners denounced the proclamations of equality and freedom in the Declaration of Independence. For John C. Calhoun, the pro-slavery South Carolina senator and vice president, there was “not a word of truth” in the Declaration’s “erroneous” opening paragraphs.⁴⁵ People were not born “either free or equal.” Rather, freedom is a privilege society gives people: “a reward to be earned ... a reward reserved for the intelligent, the patriotic, the virtuous and deserving.” The idea that people are born free, and that others must justify any restriction on that freedom, was “a great and dangerous error.”⁴⁶

Calhoun’s ally George Fitzhugh agreed, denouncing the Declaration as “unphilosophical,” “presumptuous,” and “infidel philosophy.”⁴⁷ Slaves were not entitled to any abstract conception of equality, because they were essentially like children, who “cannot be governed by mere law; first, because they do not understand it, and secondly, because they are so much under the influence of impulse, passion and appetite, that they want sufficient self control.” A “government of mere law” could not “suffice for the individual negro. He is but a grown up child, and must be governed as a child.... The master occupies towards him the place of parent or guardian.”⁴⁸

For generations, women, too, were deprived of their freedom under rules that treated them like children who needed permission from men. Until the passage of the Married Women’s Property Acts in the nineteenth century, married women had few legal rights to own or use private property or to sign contracts without approval from their husbands. In 1871, the Connecticut Woman Suffrage Association complained that “[t]he legal rights of the husband to the custody of the person, to the strict obedience, and to the services, of the wife, are almost precisely the same that the father has to the custody, obedience and services of his minor child.”⁴⁹

Such infantilizing treatment was eloquently exposed eight years later, in Henrik Ibsen’s classic play, A Doll’s House. The action centers around the realization by Nora Helmer that her marriage has only been a part of a system of debilitating rules and attitudes. She illegally borrowed money while her husband was recovering from an illness, by signing a loan agreement without his permission. Now he is well, and she is paying it back with money earned by working on the sly. The work, she confesses to a friend, has actually been “a tremendous pleasure.” To earn her own money “was like being a man.”⁵⁰ But when her creditor tries to blackmail her, Nora learns that her husband does not admire her independent spirit. Instead, he regards her as a child – he finds her “womanly helplessness” attractive.⁵¹ Nora is shocked by the realization that he sees her only as a plaything, not a person. “When I was at home with papa,” she tells him in the play’s climax, “[h]e called me his doll-child, and he played with me just as I used to play with my dolls. And when I came to live with you ... I was simply transferred from papa’s hands into yours.” As a “doll-wife,” she has been comfortable – but crippled. “It is your fault that I have made nothing of my life.”⁵²

For nearly another century after these words were written, American women were generally barred from economic and social spheres unless they got permission from men. Texas did not allow a married woman to sign contracts or own property without her husband’s permission until 1967.⁵³

In the 1908 case of Muller v. Oregon,⁵⁴ the United States Supreme Court upheld the constitutionality of a law that decreed how long a woman was allowed to work. Assuming that women were incapable of making wise choices about what jobs to take, the legislature prohibited employers from offering them jobs that required more than ten hours per day. Businesses challenged the law as a violation of the constitutional right to make contracts, the same right the Supreme Court had protected against the government’s “meddlesome interference” in the Lochner case only three years before.⁵⁵ But the justices rejected the argument that women are “as competent to contract with reference to their labor as are men.”⁵⁶ It was “obvious,” they wrote, that women’s “physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence.”⁵⁷ A woman’s “disposition and habits of life” made her inherently incapable of making such choices for herself, and justified “limitations ... upon her right to agree with her employer as to the time she shall labor.” These limits were “not imposed solely for her benefit,” but would also “preserve the strength and vigor of the race” by keeping women fit for childbearing. The male bakers in the Lochner case may have had the “intelligence and capacity” to make their own economic decisions, but the female workers in Muller did not.⁵⁸

The natural consequence of limiting women’s right to work long hours was to create a disincentive to hire them. Laws barring women from certain jobs or restricting their freedom to negotiate employment contracts encouraged businesses to hire men instead, since men were willing and able to work longer hours for lower wages. Male-dominated labor unions therefore supported these laws, typically using the excuse the court had provided: protecting women from themselves.⁵⁹

Fifteen years later, the court overruled the Muller decision in a case called Adkins.⁶⁰ Congress had adopted a law that decreed a minimum wage for women working in the District of Columbia. Willie Lyons, an elevator operator at a hospital in Washington, lost her job when the law made it too expensive to retain her. She sued, arguing that she had the right to decide for herself what jobs to take, and on what terms, and that any law that deprived her of that freedom without good reason violated her right to liberty without due process of law. Speaking through Justice George Sutherland – an outspoken advocate of women’s rights – the court agreed. Even assuming the Muller case had been correctly decided, Sutherland wrote, the newly adopted Nineteenth Amendment had ended the era of female subordination. “In view of the great – not to say revolutionary – changes which have taken place,” he wrote, the legal differences between the “contractual, political, and civil status” of men and women had “now come almost, if not quite, to the vanishing point.” Women had been freed “from the old doctrine that [they] must be given special protection or be subjected to special restraint in [their] contractual and civil relationships.”⁶¹

By freeing women to make their own choices, decisions like Adkins helped women escape the infantilizing control of the Victorian era’s Permission Society, just as James Madison and his colleagues had helped free religious minorities and dissenters from the control of established churches by replacing the rule of toleration with the principle of religious liberty.

Whatever form it takes, the permit system, which presumes that people may not act unless they get permission from the authorities, clashes with freedom by forcing people to obey the will of those in power. It allows rulers to dictate terms to the people, often in vague, incomprehensible language that maximizes bureaucratic authority. It conflicts with the principle of equality, the basis of our Constitution, by regarding people not as equals to be respected but as subjects to be punished or rewarded – as children, not as mature citizens ultimately responsible for their own actions. And it treats government officials as parents, who rule by command, rather than as fellow citizens bound by the same laws that govern everybody else.