June 30, 2013

One of the (myriad) ways we’ve become a less free society is in the multitude of things for which you need permits or approvals before you can do them legally. This empowers bureaucrats and rule-makers over ordinary citizens, and in some cases comes close to a “guilty until proven innocent” presumption.

One recent example comes from the IRS scandal concerning Tea Party-related applications for 501(c) status. Why should an organization need approval from the IRS before receiving this status? Shouldn’t it work for an organization to just file a promise to comply with the 501(c) rules, and then if in actual practice it violates those rules the IRS could impose fines and other penalties? This certainly wouldn’t eliminate the ability of the government agency to engage in politically-motivated harassment, but at least the people starting these organizations could begin immediately to exercise their rights without having to wait on a corrupt bureaucracy.

Another example is section 4 of the Voting Rights Act, which the Supreme Court struck down this week. This section listed several states that had to have all voting-related changes approved by the Justice Department. This section was struck down on the principle that federal laws should apply equally to all states unless there’s some compelling reason. The reason existed when the law was first passed, but the justification had not been updated with any data since 1972. While Holder and other progressives have tried to frame this decision as an attack on voting rights, the sections of the VRA that actually guarantee those rights still stand. Even section 5, that outlines the procedures for Justice Department approvals still stands, and section 3, which as James Taranto points out, allows the government to ask the courts to add jurisdictions that have been proven to engage in discriminatory actions to the list of those requiring approvals, also still stands. All that has been lost is the ability for Justice Department officials to meddle in political decisions made in places that haven’t been shown to discriminate for over 40 years.

There’s an old saying that sometimes it’s easier to get forgiveness that permission, but in the relationship between a government and free citizens neither forgiveness nor permission should be an issue. Actions are either right or wrong, and laws should make behaviors legal or illegal, without a “legal only if we decide to let you” category that makes abuse and oppression easier.