Fear of Freedom, an Old Malady, Settles In

Razor wire. Soldiers bivouacking in the Capitol. Extreme risk aversion is on display in our nation’s capital. It is a newish feature of the American ethos. 

Americans once habitually took and accepted big risks, and the realization of these risks, from time to time. 

One president of this great republic died weeks into his presidency because he refused to wear a coat outdoors at his inauguration. Another died while watching Tom Taylor’s Our American Cousin in a loosely guarded viewing box. Yet another delivered a speech after being shot in the chest. Calculating that, since his mouth ejected no blood, the bullet had not penetrated his lungs, Teddy Roosevelt figured carrying on was the right thing to do, as a man and as an image for his people to imitate. 

Americans of old were vigorous. A people in headlong pursuit of their liberties and happiness, they had accidents. Sometimes they died or were maimed, though to be maimed then was to be likely to die, but what the hell? Did anyone then hope to live forever?

Frontier Americans were accustomed to death and dying. I remember reading as a child a story about a panther attack in the wilds of Kentucky which killed a child. The frontier was freedom, but at the price of the safety of the urbane cities to the east. And were the cities even safe?  You were as likely to be clawed to death in New York’s Five Points as you were in a wood full of panthers. 

Product Liability Rules All

The tort system, the common law rules of civil justice for injuries, formerly embraced doctrines of assumption of risk and contributory negligence, and eschewed concepts of strict liability. This meant that accidents happened and sometimes the cost of those accidents simply fell on the unwary or the simply unlucky.

In the 20th century, this changed. Courts tinkered with the tort system to create a doctrine of strict product liability. Product liability represented a shift from the tort system’s allocation of losses due to a breach of duty (the duty to not be negligent) to a system of insurance. Those who placed a product into the stream of commerce were liable for every dollar of injury caused by that product, subject to few defenses. 

Included in the price of products today is an implicit insurance premium to pay for the accidents that inevitably occur in connection with the product’s foreseeable uses. The consumer is not charged with care or intelligence and the manufacturer is merely accountable for the cost of injuries. The manufacturer prices the insurance according to his estimates of loss—or to keep it simple, he buys third party insurance. At least that’s the idea.

The effect of these rules on product safety properly inspires amazement. For a competent man or woman to injure themselves with a modern product it takes some trying. My hairdryer warns me not to take it in the tub and has a circuit breaker just in case I do. 

Risk of injury has been engineered out of products through an evolutionary process of litigation, judgment, and redesign, and not a few bankruptcies. Where the inherent risk cannot be engineered away, the product has simply disappeared. American children no longer vault off high dives in summer, unless it’s on a PlayStation. Thanks, product liability. 

When “Safety” Trumps Happiness

The degradation of the American character implied by these changes in law also amazes. Injury and deaths may have been prevented but something else has been maimed: American derring-do, the common fortitude that is an essential part of republican virtue. The “strenuous life” became a recumbent life of safety consciousness. 

It is not that fortitude and toughness are gone from our society; but that they are no longer honored, and have become rare. 

When in 2013 Dzhokhar Tsarnaev set off a pressure cooker full of ball bearings at the finish of the Boston Marathon, he fled after a gunfight with police to nearby Watertown, Massachusetts. In a country where there are more guns than people, one might have thought Tsarnaev would have been apprehended rapidly by an armed mob of enraged (or perhaps merely curious) Americans. But police gave unprecedented orders to “shelter in place,” to lock down Watertown. 

Such orders have become commonplace. No small number of Americans trust their safety to arbitrary authority rather than to the power inherent in their intrinsic right to defend themselves, their loved ones, and their property. They are listening to curated habits of risk aversion—of fear—long in the making. 

Sixty years prior—when every boy had a Red Ryder BB gun that could put your eye out—one can be certain there would have been a chaos of a posse (or several) of veterans of the Battle of the Bulge or Okinawa on the hunt for Tsarnaev. Sixty years prior there would likely have been injuries and a high risk of accidental death in his apprehension. And everyone would have accepted that it was worth it. Inevitable. Can’t be helped. 

American risk aversion we see today in the grotesque COVID-19 orders, arbitrarily issued by executives, without input from legislatures, despite being nearly a year on from outset. The disease is deadly enough, but it is not the Spanish Flu—not even close. It is frightening only in its habit of taking some rapidly and leaving others with something akin to a mild flu or no symptoms at all. It is certainly not worth the protracted interruption of the life of a free society. 

But most Americans are habituated today to guarantees of safety, and have elevated the cause of immunity from death—a delusion outside of the Gospels—over happiness. 

The cause notwithstanding, the dying continues: from failure to thrive, suicide, addiction, et cetera, as the abandonment of sociability has collapsed the welfare of the lonely, isolated, and old. And the figurative dying continues as marginal safety has been prioritized over the education of the young and their thriving and over the vitality of small businesses, the last link between economic welfare and family.

No Risk, No Reward (And Other Anachronisms)

Now in the nation’s capital and across the country, any risk of injury or loss of life is considered an unacceptable price in the rough and tumble of a republican politics strained by widespread misfeasance. 

Statehouses and the Capitol, once the people’s tools for legislative deliberation, are hardened into fortresses to shelter officials—whatever they are doing at this point, it is not legislating—lowering over a discontented nation that is falling down for the simple fact that too many people believe government does not have their best interests in mind. A clampdown and show of force will do nothing to convince them otherwise. 

The inability of our elite to see this as a political failure—to see this as their political failureis a danger of high order. A republican legislature is not a blockhouse. You can’t govern from a blockhouse because you cannot govern without trust. 

Does it not occur to anyone in power that the risk of injury and even death of an open government—even in a time of discontent—may be simply worth it, as a gesture signifying that liberty is more important than safety and also that, yes, we are confident that we are considering your interests here in these halls and so are not afraid of you as you should not be afraid of us?  

Someone once said a coward dies a thousand deaths. Our representatives in Washington, D.C. can’t stop telling us how they keep dying in their imaginations. 

“Yesterday, they could have blown the building up. They could have killed us all,” hissed Senator Lindsey Graham (R-S.C.). These are the words of a pants-shitter in a state of delirium induced by fear. You don’t want to be with a pants-shitter in a spot. And, America, we are in a spot.

Too many Americans, especially our elites, feel entitled to an absolute guarantee of their safety, as if civic virtue were a product for which 99 of 100 design features are to keep you safe and the balance is actual function.

Washington, D.C., will be an armed camp, empty of celebration, on January 20. Love of safety, risk aversion—what we also call fear—threatens to master us as a people.  


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About Jay Whig

Jay Whig is an adjunct fellow of the Center for American Greatness. Whig practices law in New York and a resides in Connecticut, specializing in insolvency and restructuring. Opinions are his own.

Photo: Samuel Corum/Getty Images

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