LIMITED GOVERNMENT — A QUAINT IDEA?

Unprecedented affluence has had an unprecedented impact on the nation's political agenda. It has altered the nation's political sensibilities, reducing to the vanishing point the once-sturdy concern for limited government. Though I would be the last one on the planet to argue for less affluence, I have to wonder whether our prosperity has made limited government nothing more than a quaint idea in many people's minds.

Let's look at the record. The nation's freedom and prosperity have been secured. Even after the terrorist attacks of September 11, we have recorded the shortest recession on record. Most of the problems that used to dominate the legislature on a day-to-day basis have been solved, i.e., reducing pollution, improving medical care, providing more police, etc. These problems are no longer resource problems, and the sacrifices involved in paying for such things are no longer prohibitive. Americans are exceptionally prosperous, self-sufficient, and at peace with one another, and yet, government continues to grow at a prodigious rate. Why?

Let's begin with the numbers. Government outlays (federal, state, local) and regulatory costs imposed on the private sector have grown more than 50 percent faster than the economy as a whole for five decades and now claim more than one-third of our entire GDP. The federal government owns one-third of all the land, it pays for 40 percent of all the medical care, it manages nearly 50 percent of our people's retirement funds, and of course it regulates countless industries. Most Americans have become accustomed to living and working within a web of government rules.

Granted, there are some forces which tend to work against the unstoppable growth of government. Money can always move to a more hospitable jurisdiction, as can people and services. But increasingly, government is using what I would call the "terrorist" excuse to inevitably track and intimidate even the movement of money. This is one reason why I'm in favor of a new Financial Privacy Act, to protect our right to keep assets below the radar of government. Just think about what government requires you to report. Every birth, every death, every trip into or out of the country, every dollar you earn, every capital asset you sell, every home you buy, every gift you make, every deposit or withdrawal of cash. Isn't it about time we put a stop to this?

Yet even with such protections in place, the growth of government is apt to continue unabated, especially in the area of regulation.

Consider the extraordinarily complex Clean Air Act. It has in effect been written mostly by unelected officials. The parties to the negotiations have been the Environmental Protection Agency, the courts, and certain environmental groups, for lack of a better word, the "Greenies". Together, and sometimes behind close doors, these groups have negotiated rules which put flesh on what was at first a thin skeleton of congressional sentiments.

The same goes for Title IX of the Education Act. It has been used as an excuse for writing rules which compel colleges to abolish some men's sports to achieve equal expenditures and participation in men's and women's sports. But Congress mentioned no such requirement in Title IX.

Contrary to the Constitution, the executive branch now engages in its own taxation and spending. The Federal Communications Commission, for instance, established by regulation a tax on long-distance telephone service, a tax which now produces annual revenues in excess of $5 billion. The FCC sets the rate and adjusts it to suit its plans for spending on computers for schools and other projects. I thought that only Congress could pass a spending bill or raise taxes?

The latest wrinkle in "executive taxation" is, of course, recoupment litigation as it is sometimes called, such as the tobacco and gun suits. The government selects targets — legal industries manufacturing a legal product — and goes after them with private lawyers working for a percentage of the take. The idea is to force the target, under threat of litigation, to disgorge some of their profits and pay some of the government's own expenses. I thought that took an act of the legislature?

Limited government, as conceived by the Founders, is slipping through our fingers. Certain presidents, like FDR and LBJ, along with a compliant Supreme Court have long ago forgotten that the federal government was supposed to be limited by the Constitution's enumeration of its powers, that significant spheres of life were supposed to be fenced off from the federal government's interference, that there are some human wants and needs that are not properly public business.

If we permit our government to become unlimited in scope, then it will no longer be limited by the politics of legislature. What need is there then for public deliberations? For accommodations to rival constituencies? For compromise and competition in allocating scarce resources? What need then for Congress and open elections?

If government is no longer limited by the rule of law — a quaint idea to be sure — then all is lost. We will have finally arrived at "strip mall socialism," with its sprawling government, its lack of theme or theory, just momentum.