The Permission Society. Timothy Sandefur
religions “into such extremes as may endanger the national church.” In other words, the Toleration Act, though liberal by the standards of its day, was only a “liberty granted by power” – a privilege, not a right – or, in Blackstone’s words, a “spirit of true magnanimity” on Parliament’s part, an “indulgence” granted by courteous lawmakers.27
Madison, Jefferson, George Washington, Thomas Paine, and others found this idea repugnant. In their view, “magnanimity” was a poor substitute for freedom because it could always be revoked at the ruler’s pleasure. “Toleration is not the opposite of Intoleration, but is the counterfeit of it,” wrote Paine. “Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it.”28 Washington agreed. In a 1790 letter to a Jewish congregation, he wrote, “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” In the United States, “[a]ll possess alike liberty of conscience.”29
In 1776, the Virginia legislature asked the respected 51-year-old statesman George Mason to prepare a Declaration of Rights. His fellow lawmaker James Madison was then half Mason’s age and new to elected office, but he was not too shy to object to part of Mason’s draft – specifically, as Madison wrote in a memoir, to “the terms in which the freedom of Conscience was expressed.” Mason had “inadvertently adopted the word toleration,” and the brash young Madison urged the elder statesman to “substitute[] a phraseology which declared the freedom of conscience to be a natural and absolute right.”30 The change was adopted, and the Virginia Declaration of Rights proclaimed that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”
The difference between toleration and liberty was also made clear in a passage in Jefferson’s book Notes on the State of Virginia. Jefferson had proposed legislation to proclaim religious liberty in the state and prohibit the government from subsidizing any established church. Defending the proposal in the Notes, Jefferson made many of the same arguments that apply to all permit systems. For instance, he argued that government cannot be relied upon to choose the “correct” religion (the knowledge problem) and observed that people tried to use government’s power over religion to benefit themselves (the rent-seeking problem): “Fallible men; men governed by bad passions, by private as well as public reasons,” he wrote, would use the power of “coercion” to impose their own beliefs on others.31 Even worse, using government to control religious belief stifled innovation and discovery: “Had not the Roman government permitted free enquiry, Christianity could never have been introduced. Had not free enquiry been indulged, at the era of the reformation, the corruptions of Christianity could not have been purged away.”32
But the most essential problem with established religion was that it regarded religious freedom as a privilege bestowed by the state, rather than a freedom that people are born possessing. “Our rulers can have authority over such natural rights only as we have submitted to them,” Jefferson wrote. “The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.”33 It took ten years of lobbying by Jefferson and Madison to get the Virginia legislature to pass the Statute for Religious Freedom, which proclaimed that “Almighty God hath created the mind free” and that government-established churches represented a “sinful and tyrannical” effort by rulers to “assume[] dominion” over our freedom.34
The Propiska
The most extreme form of Permission Society – in which all rights were considered gifts bestowed by the state – has been communism. Under totalitarian rule in the Soviet Union, property was collectively owned, with its management and disposition overseen by government authorities. Consequently, some form of government approval was required for even the most mundane activities. Anyone wanting to live in Moscow, to get a job, or to reside in an apartment building was required to obtain a permit called a propiska.
First used by the czars, then reintroduced under Stalin, propiski gave the government absolute power to enforce conformity, punish undesirables, exclude unwanted foreigners, and restrict people’s travel. At first, writes anthropologist Rano Turaeva-Hoene, the Soviet government portrayed the system as “a positive initiative, granting access to all kinds of benefits, which the Soviet government offered its citizens.” This gave the propiska “a razreshitelniy kharakter (from Russian ‘allowing character’) which cast it in the more positive light of allowing or granting rights.”35 But soon the government began restricting the availability of propiski. Some people resorted to political influence, family connections, or outright bribery to obtain the stamps on their passports that would let them reside in Moscow, live in a state-owned apartment, or get a job – a necessity in a nation where joblessness was a crime punishable by deportation to the gulag.
In his epic novel Life and Fate, which was confiscated in manuscript by the KGB and banned in Russia until the Gorbachev era, Vasili Grossman depicted with chilling reality the effect the propiska system had on Russians. Early in the novel, Yevgenia, whose lover is away fighting the Nazis at Stalingrad, gets a job in a factory. But because she does not yet have a residence permit, she must visit the local police station with a letter confirming her employment. “There a police officer took Yevgenia’s passport and documents and told her to come back in three days’ time.” When she goes back, she is told that her permit has been denied.
She stands in line for hours to speak to the bureaucrat in charge. “While she waited in the queue, Yevgenia heard her fill of stories about people who had been refused residence permits: daughters who had wanted to live with their mothers, a paralyzed woman who had wanted to live with her brother.” At last allowed to speak to the officer, she finds him sympathetic but unyielding. “‘You need an official request on your behalf,’ he said. ‘Without that I can do nothing.’”
Yevgenia returns to her boss and asks him to write another letter certifying that her job is part of the war effort. He hesitates: “The police must first send a request,” he tells her. “Without that I can’t write such a document.” She goes again to the police station and stands in line once more to ask the officer to send her boss the request. He refuses. He first needs a request from the officer in charge of residence permits. Hungry and desperate, she returns to that office and waits in line yet again to see the residence permit officer. “I have no intention of making any requests,” he tells her at last. “It is not my responsibility.”
“It was his absolute calm that was so bewildering,” writes Grossman. “If he had got angry, if he had shown irritation at her muddle-headedness, Yevgenia felt it would have been easier. But he just sat there in half-profile, unhurried, not batting an eyelid.” At night she returns to the building where she is living illegally, terrified of being reported, certain her neighbor Glafira Dmitrievna is spying on her. At last, her boss writes the needed request, and with a rush of relief, she hurries back to the passport office, only to be told that she must wait three more days for a decision. When the answer arrives, it is crushing: “Residence permit refused on grounds of having no connection to the living space in question.” Yevgenia begins shouting and is escorted out by police. “This life without rights, without a residence permit, without a ration-card, this continual fear of the janitor, the house-manager, Glafira Dmitrievna, had become quite unbearable.”
Yevgenia writes a resignation letter, hoping to return to her hometown before she is punished for violating the permit requirement – and then the telephone rings. It is Limonov, a prominent official who has been making advances at her. She tells him her story, and he offers to put in a good word for her at an official meeting he’s attending that day. “Then he asked, ‘Are you free this evening?’ ‘No,’ answered Yevgenia angrily.” Nevertheless, the next morning, the phone rings at work. “An obliging voice asked her to call at the passport bureau in order to collect her residence permit.” The next time she sees Limonov, she invites him in for tea. “Well yes, thank you,” he says as he enters her room. “I suppose really you owe me some vodka for your residence permit.”36
A half century