Looking through the freedom index data over time, it can look like a depressing series of new laws and restrictions on people’s lives. Now, freedom has increased at the state level on certain issues (local gun bans overturned, sodomy laws overturned, medical marijuana laws passed, eminent domain reforms enacted, same-sex partnerships spreading). But there are ever more areas in which state governments find new ways to intervene: E-Verify mandates (which are likely coming to the entire country soon), smoking bans, online gambling bans, salvia bans, DNA databases for arrestees (recently upheld by the U.S. Supreme Court), trans-fat bans, and ever-more occupations coming under the license Raj.
Libertarians often look at this endless march of new regulations and dourly quote Thomas Jefferson, “The natural progress of things is for liberty to yield and government to gain ground.” Yet what this ignores is the explosion in the unregulated areas of human life. Ever-lengthening statute books do not necessarily mean more restrictions on what people are actually doing.
Advocates of positive freedom have always celebrated technological change as liberating. More options mean more choices mean more freedom. Traditional libertarians don’t often seem to want to think this way, probably because they think of negative freedom as more important: i.e., the absence of restrictions on peaceful choices. I agree with them there: positive freedom is desirable but not at the expense of negative freedom.
I am arguing here that technological change enhances negative freedom, even if the number of laws and formal restrictions remains constant. How is this possible? Most importantly, technological change opens up new domains of human endeavor that have yet to be regulated. Secondarily, certain technological changes can disrupt government regulation. Finally, crowded agendas mean that governments stop enforcing certain laws, which leads to new social expectations about what laws will be enforced.
To understand the first point, it is important to recognize that human life is finite. Therefore, every new technology that gives us a new activity or way of life crowds out whatever we were doing before. The growth of Internet technologies and social networking has crowded out letter writing and watching TV. Even if you use the Internet just to communicate with friends and family and look at funny pictures of cats, you are freer with the Internet than you were when you watched TV to entertain yourself. (Television is a more regulated medium.) So even if the laws don’t change, technological change squeezes those regulated areas of life — unless and until government tries to catch up.
Second, new technologies often disrupt the application of existing laws. Government opening your mail? Use encrypted e-mail. Monopoly schools failing your kids? Join a home school association. Inflation or deposit taxes eroding your savings? Get your money out of the country by buying bitcoin, using an under-the-radar electronic payment service, or buying unregulated derivatives. Smoking ban got you antsy? Suck on an e-cigarette. Sometimes new technologies develop precisely because people are looking for a way around a restriction on their lives. This is inefficient in the sense that those efforts could otherwise have been aimed in another direction were it not for the regulation, but it still means that any government regulation people want to get around will suffer from eroding effectiveness.
Finally, as new laws are added to the statute books, the old ones diminish in importance. Government suffers from a crowded agenda. Now that they are trying to regulate how you self-medicate, they are no longer putting adulterers in jail, even though laws criminalizing adultery remain on the books in most states. This process can happen surprisingly quickly when a regulation is difficult to enforce. New Hampshire technically banned all corporate contributions to campaigns until last year. But the prohibition wasn’t enforced despite having been enacted comparatively recently (during the Progressive era), and the legislature eventually decided to remove it from the books. There are negatives to the desuetude of regulation. Even justifiable restrictions will suffer when government’s agenda becomes crowded. The police don’t try to solve petty thefts when they’re running after drug money.
The conclusion is that when we assess change in freedom over time, we need to look at the denominator as well as the numerator: not just the number of restrictions, but the percentage of our active lives to which they apply. Libertarians should celebrate economic growth because it makes us freer — in the sense that our activities become less regulated and restricted.