The Permission Society. Timothy Sandefur
arranged sham marriages with those allowed to reside in the city. Others simply broke the rule, which was sometimes only loosely enforced. But violators risked arrest and deportation at any time – illegal immigrants in their own country.37 Sadly, the propiska system survived the fall of the Soviet Union, in modified form. Today, people must still be registered at a local address to get jobs, open bank accounts, enroll in school, or obtain medical benefits.38
The propiska was only one of the many forms of permit required of Soviet citizens. Publishing anything required a viza from Glavlit, the government ministry of literature.39 Music concerts required a license from Muzo, the ministry of music.40 Owning a typewriter or a Xerox machine required permission.41 Soviets had to carry with them not only their propiska but also their birth certificate, their “labor book” (which listed their education and work history), and other documents. So essential were these papers that Russians were fond of a saying attributed to Dostoyevsky: “A human being is composed of three things, a body, a soul, and a passport.”42 When the Berlin Wall fell in 1989, Communist officials told citizens they could leave, but if they did, the government would confiscate their homes. In defiance, thousands hung their house keys on fences or around the necks of statues, or nailed them to trees, before fleeing to the west.43
Who Must Ask Permission
The difference between rights and privileges becomes clearer when we consider what sorts of people are typically required to ask permission. Slaves, children, and, until recently, women all stand in a position of having to seek approval rather than being free to act as of right. They are, or were, regarded as inferiors, whose freedom existed only at the will of their betters.
Slavery obviously rested on the proposition that blacks were “so far inferior, that they had no rights which the white man was bound to respect,” as the Supreme Court put it in Dred Scott.44 Nineteenth-century southerners denounced the proclamations of equality and freedom in the Declaration of Independence. For John C. Calhoun, the pro-slavery South Carolina senator and vice president, there was “not a word of truth” in the Declaration’s “erroneous” opening paragraphs.45 People were not born “either free or equal.” Rather, freedom is a privilege society gives people: “a reward to be earned ... a reward reserved for the intelligent, the patriotic, the virtuous and deserving.” The idea that people are born free, and that others must justify any restriction on that freedom, was “a great and dangerous error.”46
Calhoun’s ally George Fitzhugh agreed, denouncing the Declaration as “unphilosophical,” “presumptuous,” and “infidel philosophy.”47 Slaves were not entitled to any abstract conception of equality, because they were essentially like children, who “cannot be governed by mere law; first, because they do not understand it, and secondly, because they are so much under the influence of impulse, passion and appetite, that they want sufficient self control.” A “government of mere law” could not “suffice for the individual negro. He is but a grown up child, and must be governed as a child.... The master occupies towards him the place of parent or guardian.”48
For generations, women, too, were deprived of their freedom under rules that treated them like children who needed permission from men. Until the passage of the Married Women’s Property Acts in the nineteenth century, married women had few legal rights to own or use private property or to sign contracts without approval from their husbands. In 1871, the Connecticut Woman Suffrage Association complained that “[t]he legal rights of the husband to the custody of the person, to the strict obedience, and to the services, of the wife, are almost precisely the same that the father has to the custody, obedience and services of his minor child.”49
Such infantilizing treatment was eloquently exposed eight years later, in Henrik Ibsen’s classic play, A Doll’s House. The action centers around the realization by Nora Helmer that her marriage has only been a part of a system of debilitating rules and attitudes. She illegally borrowed money while her husband was recovering from an illness, by signing a loan agreement without his permission. Now he is well, and she is paying it back with money earned by working on the sly. The work, she confesses to a friend, has actually been “a tremendous pleasure.” To earn her own money “was like being a man.”50 But when her creditor tries to blackmail her, Nora learns that her husband does not admire her independent spirit. Instead, he regards her as a child – he finds her “womanly helplessness” attractive.51 Nora is shocked by the realization that he sees her only as a plaything, not a person. “When I was at home with papa,” she tells him in the play’s climax, “[h]e called me his doll-child, and he played with me just as I used to play with my dolls. And when I came to live with you ... I was simply transferred from papa’s hands into yours.” As a “doll-wife,” she has been comfortable – but crippled. “It is your fault that I have made nothing of my life.”52
For nearly another century after these words were written, American women were generally barred from economic and social spheres unless they got permission from men. Texas did not allow a married woman to sign contracts or own property without her husband’s permission until 1967.53
In the 1908 case of Muller v. Oregon,54 the United States Supreme Court upheld the constitutionality of a law that decreed how long a woman was allowed to work. Assuming that women were incapable of making wise choices about what jobs to take, the legislature prohibited employers from offering them jobs that required more than ten hours per day. Businesses challenged the law as a violation of the constitutional right to make contracts, the same right the Supreme Court had protected against the government’s “meddlesome interference” in the Lochner case only three years before.55 But the justices rejected the argument that women are “as competent to contract with reference to their labor as are men.”56 It was “obvious,” they wrote, that women’s “physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence.”57 A woman’s “disposition and habits of life” made her inherently incapable of making such choices for herself, and justified “limitations ... upon her right to agree with her employer as to the time she shall labor.” These limits were “not imposed solely for her benefit,” but would also “preserve the strength and vigor of the race” by keeping women fit for childbearing. The male bakers in the Lochner case may have had the “intelligence and capacity” to make their own economic decisions, but the female workers in Muller did not.58
The natural consequence of limiting women’s right to work long hours was to create a disincentive to hire them. Laws barring women from certain jobs or restricting their freedom to negotiate employment contracts encouraged businesses to hire men instead, since men were willing and able to work longer hours for lower wages. Male-dominated labor unions therefore supported these laws, typically using the excuse the court had provided: protecting women from themselves.59
Fifteen years later, the court overruled the Muller decision in a case called Adkins.60 Congress had adopted a law that decreed a minimum wage for women working in the District of Columbia. Willie Lyons, an elevator operator at a hospital in Washington, lost her job when the law made it too expensive to retain her. She sued, arguing that she had the right to decide for herself what jobs to take, and on what terms, and that any law that deprived her of that freedom without good reason violated her right to liberty without due process of law. Speaking through Justice George Sutherland – an outspoken advocate of women’s rights – the court agreed. Even assuming the Muller case had been correctly decided, Sutherland wrote, the newly adopted Nineteenth Amendment had ended the era of female subordination. “In view of the great – not to say revolutionary – changes which have taken place,” he wrote, the legal differences between the “contractual, political, and civil status” of men and women had “now come almost, if not quite, to the vanishing point.” Women had been freed “from the old doctrine that [they] must be given special protection or be subjected to special restraint in [their] contractual and civil relationships.”61
By freeing women to make their own choices, decisions like Adkins helped women escape