Bonfires and illuminations

Our friends at the New York Sun kicked the Independence Day holiday off with their annual July 4 editorial decrying New York’s prohibition of fireworks for personal use:

Although safety is often cited as a justification for such laws, personal responsibility seems to have more bearing on safety than the fireworks themselves. According to the American Pyrotechnics Association, a trade group, consumption of fireworks, measured in millions of pounds, increased 870% between 1976 and 2005. During the same period, injuries, measured in injuries per 100,000 pounds of fireworks sold, fell 90.1%, so that last year there were only 3.8 injuries reported per 100,000 pounds sold. Fireworks account for only about 0.01% of the 70 million personal injuries suffered by Americans each year. Ovens are at least four times as dangerous.

On the same day the Wall Street Journal published an illuminating story (subscribers only) on New York City’s trans fat ban:

New York’s new law banning artificial trans fats in many dishes served in restaurants and other food-service outlets is a triumph for health officials nationwide who have lobbied against the artery-clogging fat for years. But it’s bad news for the French fries served at Brooks 1890 restaurant in Queens, says owner William Gounaris.
“The French fries look like they’ve been standing on a steam table for an hour when they have not,” says Mr. Gounaris, who ditched his partially hydrogenated vegetable shortening for a trans-fat-free soybean shortening five months ago in preparation for the ban, which took effect Sunday. Fried chicken doesn’t get as crispy in the new oil, Mr. Gounaris complains, and the fries are pale and limp….

While the fireworks and trans fat bans seem a kind of nanny state reductio ad absurdum, they are consistent with the far more serious infringement of First Amendment speech rights worked by campaign finance law. In his compelling City Journal essay “Campaign finance reform’s war on political freedom,” former Federal Election Commission Chairman Bradley Smith argues that it’s “imperative that we speak up to defend freedom of speech — before that very speaking up becomes impossible.” Inspired by Smith’s work, I tried to make a similar argument two years ago in “Dream palace of the goo-goos.”
The political speech that subject to regulation under campaign finance law lies at the heart of the intended protection of the First Amendment. While the Supreme Court’s modern First Amendment jurisprudence has afforded constitutional protection to such vital speech as nude dancing, flag burning, simulated online child pornography, and sexually explicit cable programming, the Supreme Court has mostly gotten out of the way of campaign finance law. As Allison Hayward explains, the Supreme Court’s recent decision in FEC v. Wisconsin Right to Life v. FEC is no exception, or not much of an exception.
In Democracy in America, Alexis de Tocqueville famously concludes with a warning of the kind of despotism democratic nations have to fear. Tocqueville warns that the passion for equality will give rise to a certain kind of degradation in which citizens will surrender their freedom democratically to a tutelary power:

Above these [citizens] an immense tutelary power is elevated, which alone takes charge of assuring their enjoyments and watching over their fate. It is absolute, detailed, far-seeing, and mild. It would resemble paternal power if, like that, it had for its object to prepare men for manhood; but on the contrary, it seeks only to keep them fixed irrevocably in childhood; it likes citizens to enjoy themselves provided that they think only of enjoying themselves. It willingly works for their happiness; but it wants to be the unique agent and sole arbiter of that; it provides for their security, foresees and secures their needs, facilitates their pleasures, conducts their principal affairs, directs their industry, regulates their estates, divides their inheritances; can it not take away from them entirely the trouble of thinking and the pain of living?
Subjection in small affairs manifests itself every day and makes itself felt without distinction by all citizens. It does not make them desperate, but it constantly thwarts them and brings them to renounce the use of their wills. Thus little by little, it extinguishes their spirits and enervates their souls….

I anticipate that the coming days will provide many occasions for us to return to Tocqueville’s teaching and attempt to understand it better.
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