Another Good Morning in America

First things first. To Barack Obama, go congratulations on an historic victory. I grew up in Wilmington, North Carolina at a time when schools were segregated and blacks and whites drank from separate water fountains. The stain of slavery and Jim Crow will always be part of America's history.

But America is nothing if not a work in progress. To my mind, America is, and always hopefully will be, not just a country, but a country with special ideals. A country with aspirations to build that "shining city upon a hill" of which the Pilgrim John Winthrop first spoke, and of which President Reagan so eloquently spoke over three and a half centuries later. To invoke Reagan's spirit is to invoke the idea it is always a new "morning in America."

Apart from everything and anything else, it speaks to America's goodness, and its capacity for change, that we have elected our first black president. That reality should be celebrated, and in no way minimized.

America is not only a country with ideals, but a country in which ideas matter. If you go to the Free State Foundation's website, you will see our mantra: "Because Ideas Matter…" Ideas matter in America because of the success, thus far, of our democratic experiment. We are fortunate to live in a country in which it is possible, without fear of persecution, to contest notions of public policy and the public good in the marketplace of ideas. That is still not true in many parts of the world today.

The FSF home page also makes clear the fundamental principles that guide the "ideas" work of the Foundation. FSF's purpose, broadly speaking, is to promote understanding of free market, limited government, and rule of law principles.

This is not the day or the space to lay out policy prescriptions or to criticize the policy prescriptions of others. Back to that business of debating specific ideas soon enough, I'm sure. But I do want to take the occasion to say, at least broadly speaking, a few words about what FSF's commitment to the core principles stated above means, including in the context of some of the issues on which FSF labors.

As a result of the financial crisis, there is much talk to the effect that America needs to adopt much more pro-regulatory, interventionist policies. Whatever the merits of the need for more regulation in the financial services arena – and overly simplistic or overtly political analyses and sloganeering here will have long-term harmful effects – it would be a serious mistake for policymakers to apply any such pro-regulatory agenda indiscriminately to America's private sector. This certainly would be true in the communications marketplace, where free market-oriented policies, however haltingly applied at times, have already brought consumers many benefits, including competition in most markets, choices of an array of services and products unimaginable a decade ago, and at affordable prices. As I explained in "Deregulation as Scapegoat" in the Washington Times last month, if policymakers now were to take steps to re-regulate today's competitive communications markets in a way that resembles the command-and-control regulation that prevailed in the generally monopolistic analog era, overall consumer welfare and the nation's economy will suffer.

The promotion of free market policies is inextricably linked to the principle of limited government. Limited government provides the breathing space for America's entrepreneurial spirit to take root and flourish. Policies that respect the limited government principle empower individuals, without undue government interference and burdens, to seize opportunities to achieve their dreams. And the principle of limited government is linked to perhaps the foremost American ideal -- individual liberty. The new President and Congress, and state officials as well, ought to be keenly aware, always, of the inherent tension and trade-offs between individual liberty and government intervention. The balance struck between the two is struck differently depending upon time and circumstance. But without a sympathetic understanding that more government intervention almost always means less individual freedom, the balance is likely to be struck in a way that gives liberty short shrift.

And the rule of law. It undergirds all. Without the rule of law, free market policies could not exist, and limited government would be a chimera. The notion of the rule of law can be expressed in many ways. But, in short, as Ronald Cass, former dean of the Boston University School of Law, puts it in his book, The Rule of Law in America, the constitutive elements of the rule of law are: (1) fidelity to rules (2) of principled predictability (3) embodied in valid authority (4) that is external to individual government decision makers.

Another way of expressing the idea of the rule of law is to speak of respect for and adherence to our constitutional principles. For example, a good deal of communications law and policy implicates First Amendment rights. Talk of resurrecting the Fairness Doctrine in today's digital communications marketplace, with its multiplicity of voices, surely implicates the broadcasters' free speech rights. In my view, a resurrected Fairness Doctrine in today's environment would be constitutionally impermissible. And, as I have explained elsewhere in a law review article, proposals to impose Fairness Doctrine-like net neutrality mandates on broadband Internet service providers not only constitute unsound policy, but likely violate the providers' First Amendment rights as well.

Ultimately the rule of law principle which undergirds all is dependent upon a shared understanding and commitment that law and politics are not the same, and that it is the judiciary's role to interpret the law, not make policy. As important as any other charge, our new President and Congress should always fulfill their responsibility to promote and preserve such commitment and understanding.

With all that said, it's just another good morning in America.