Free Sample Chapter

Introduction: What This Book Is

By Scott Smithers

At one minute past midnight on April 7, 1933, the steam whistles at the Anheuser-Busch brewery on Pestalozzi Street in St. Louis blew, and a crowd the newspapers put at twenty-five thousand people, who had been standing in the street since evening, began to cheer. Trucks that had been loaded and idling for hours rolled out of the gates carrying the first legal beer sold in the United States in thirteen years. Across the country, in the nineteen states that had chosen to allow it, the same thing was happening: taverns that had been speakeasies the day before opened their doors at the stroke of the hour, breweries that had survived by making ice cream and malt syrup ran their lines through the night, and by the following midnight Americans had bought, on the brewers' own count, something like a million and a half barrels.¹ A team of Clydesdales delivered a case of Budweiser to Al Smith in front of the Empire State Building, and another to the White House. A study of the employment records found that legalizing beer created between forty-four and sixty-eight thousand jobs that spring, in the depth of the Depression, at no cost to anyone.²

Here is the part of the story that gets left out. The beer was 3.2 percent alcohol. Nothing stronger was legal. Prohibition had not been repealed; Congress had amended the Volstead Act to redefine what counted as intoxicating, which it could do by ordinary majority, while the Twenty-first Amendment worked its way through the state conventions.³ Full repeal came on December 5, eight months later, and even then the amendment did not legalize alcohol. It returned the question to the states, and let any state that wanted to stay dry stay dry. Eight never voted on the amendment at all. Two-thirds of the states allowed counties and towns to keep their own prohibitions. Kansas and Tennessee stayed dry by default; Mississippi kept Prohibition until 1966, thirty-three years after the whistles blew in St. Louis.⁴

The repeal of Prohibition is the most successful repeal of a bad law in American history, and it was done in two steps, over most of a year, with the strongest product last, and with every state free to go at its own pace or not at all. Nobody pushed a button. I open with it because this is a book about repealing bad laws, and I want to say at the outset how I think that is done.

What this book is

I am a libertarian. I think the government of the United States does far too much, that most of what it does it does badly, and that a great deal of what it does causes the harm it claims to cure. I also think that most books that say so are useless, including the one I started to write before this one. They explain what libertarians believe. They quote Friedman and Hayek and Rand. They describe the free market as a philosophy and leave the reader to imagine what it would look like on a Tuesday in Cook County. They do not argue with anyone, because they are written for people who already agree, and they do not cite anything, because their readers do not ask.

This is not that book. Each chapter that follows takes one issue, one real problem in the United States in 2026, and does seven things with it. It states the problem, with the human stakes, and a real person's name where I could find one and the record supports it. It states the conventional response, the thing the government does now or is asked to do, as fairly as its best defenders would. It says why that response falls short, with data. It states the libertarian solution precisely enough that you could tell whether it had been enacted. It gives the evidence, from studies and from places that have tried something like it. It states the strongest argument against the solution, in the words its opponents would choose, and answers it. And it says what the solution does not settle, what no country has tried, and where I might be wrong.

The seventh part is the one I'd ask the reader to hold me to. A chapter that admits nothing is a pamphlet. Every chapter in this book concedes something real to the other side: that the Civil Rights Act of 1964 did what the market had failed to do for seventy years; that the Great Moderation happened under the Federal Reserve; that transfers reduce poverty; that unions raise their members' wages; that a carbon price reduces emissions; that Italian opera got better under copyright. Where the evidence is contested I say so and cite both sides. Where a proposal has no track record, because no rich country has tried it, I say that too, and I say it in the chapter, not in a footnote.

Every number in this book has a source, and the sources are in the notes at the end of each chapter. Where I have relied on someone else's summary of a study rather than the study, the note says so. Where I could not verify a figure to the standard I set, I left it out or flagged it. I would rather the book be shorter than wrong.

The method

The hardest question for anyone who believes what I believe is not whether the state should do less. It is how to get from here to there, and the honest answer is that no one knows, because it has never been done from here.

There are two temptations. The first is to say that it cannot be done, and to settle for tinkering. The second is to say that it should be done at once, and to describe the endpoint as though the road did not exist. Murray Rothbard, who held the purest form of the second view, wrote that the true abolitionist "would blister his thumb pushing a button that would abolish the State immediately," and then, in the same essay, that "there is not a single abolitionist who would not grab a feasible method, or a gradual gain, if it came his way," accepting it "grudgingly, as merely a first step toward a goal which he always keeps blazingly clear."⁵ I accept both halves of that, without the grudge.

Here is why the button is the wrong instrument, and it is not a matter of principle but of what happens to people. A country that has been built for ninety years around a set of laws has built its mortgages, its retirements, its hospitals, its towns, its farms, and its expectations around them. Remove the laws in a day and you do not get a free society; you get the day after, and on the day after the people who were promised things by the old regime are still owed them, the institutions that would replace the state's do not yet exist, and the constituency for putting everything back is every person who lost something. The Soviet Union's successor states tried the button in 1992. Poland had tried something that looked similar two years earlier and it worked; Russia's did not, and the difference was not the speed of the reform but whether there were courts, contracts, a currency, and a political consensus to hold it.⁶ The reforms that lasted were the ones that had built what was needed before they removed what was there.

And here is the evidence on the other side, which I include because the reader is owed it. In 1984 New Zealand's incoming government abolished, in a single budget, about thirty agricultural subsidies that had supplied nearly forty percent of the average sheep farmer's income. Official forecasts said eight thousand farms would fail. About eight hundred were sold under duress, one in a hundred, by the farmers' own federation's count; farm land prices fell by more than half before they recovered, some farmers lost everything they had, and the survivors built the most efficient pastoral industry in the world and now oppose subsidies more fiercely than anyone.⁷ The button can work. It worked on a small country's farm sector with an export market waiting for the product, and it still cost eight hundred families their farms. It is not a model for a country of 340 million and a $6 trillion federal budget, and I don't propose it as one.

So the method of this book is a road, and every chapter's solution is written as one. It has three parts, and the reader will see the same shape eighteen times.

First, the step the evidence supports today. In most chapters this is a repeal: of a program, a tax, a mandate, a ban, a monopoly. Where a full repeal has no track record, the first step is to consolidate. The welfare chapter proposes to fold eighty overlapping programs into one cash floor, not because one program is the endpoint but because one program can be seen whole, measured, and shrunk, and eighty cannot. The money chapter proposes to bind the Federal Reserve to a published rule before proposing to close it, because a rule can be tightened and discretion cannot. The intellectual-property chapter proposes to return patents and copyrights to the terms the first Congress set before proposing to abolish them. Consolidate, then eliminate. This is not a compromise with the state; it is the only form of the state that can be made smaller.

Second, the next step, and what would justify taking it. Each chapter says what the country would learn from the first step and what evidence would license the second. Where the evidence does not arrive, the second step does not happen. That is not a hedge. It is the difference between a plan and a wish.

Third, the endpoint, stated plainly. Every chapter says where the road goes, and says it in the chapter, so that no reader can accuse me of hiding it: no war on drugs; no federal role in schools; no zoning; no central bank; no standing garrisons abroad; no patents; no labor board; no federal law on whom a private employer may hire. And every chapter says, where it is true, that no rich country has run the endpoint, and what it would cost if the evidence turns out to run the other way.

That is the whole method. Where the country already stands at an endpoint, as with abortion after Dobbs, the chapter's job is to keep the federal government from walking back onto the road in either direction.

The rules I have held to

A few rules recur in every chapter, and I'd rather state them once than have the reader infer them.

Repeal, don't regulate. When a chapter finds a harm the government causes, the answer is to stop the government causing it, not to add a rule. This book proposes almost no new laws. Where an existing general law already covers the harm, and it nearly always does, the chapter says so: fraud law covers the mislabeled product; nuisance and trespass cover the polluter; the law against driving impaired covers the impaired driver whatever he took; the Fourteenth Amendment covers the government that discriminates. A new statute for each new worry is how the country got here.

No sin taxes. A tax designed to change behavior is a regulation with a price tag, and the evidence in the cannabis chapter is that it feeds the black market it was meant to replace. Where the book proposes that something be legal, it proposes that it be taxed like everything else.

The market, not the ministry, controls quality. Certification, reputation, insurance, liability, and competition are how quality is enforced in every part of life the state has not taken over, and the chapters on cannabis, healthcare, and housing say how they would do it here.

Advice is not legislation. In several chapters I say what I think a person should do: that nobody under twenty-five should use cannabis, that a family should not build on a floodplain. I say it as one adult to another. The state's job is not to enforce my advice, and a reader who takes the second sentence without the first has missed the book.

The federal exit comes first. Where a question divides the country in half and no evidence can settle it, the federal government's role is to leave, in every direction at once, and let the states and their voters decide. Abortion is that chapter. The principle runs through the others.

The courts are the instrument. This last one needs a paragraph of its own, because it runs against what many of my fellow libertarians say.

A word about lawsuits

Much of this book replaces regulators with courts. The polluter answers to his neighbors under nuisance law instead of to a permit. The mislabeled drug answers under fraud law instead of to an agency. The employer who discriminates by race answers, in the first step of that chapter, to a judge and a jury instead of to a commission that finds no cause in two cases out of three. If the courts are to do that work, they must be open, and the injured must be able to afford to walk in.

That is why this book does not contain the chapter on "tort reform" that its first draft did, and why I want to say what happened to it. The premise of that chapter, and of most tort-reform proposals, is that Americans are drowning in frivolous lawsuits and runaway juries. The premise is false. Marc Galanter, who has studied American litigation rates longer than anyone, found that the colonial litigation rate was up to six times today's, that the nineteenth century's was double, and that since 1920 the rate has been roughly flat; the National Center for State Courts found tort filings down 21 percent between 1996 and 2005 in the thirty states with comparable data, and still falling: 13 percent lower in 2022 than in 2018.⁸ Punitive damages, the villain of the story, were awarded in about five percent of the trials that plaintiffs won in the last comprehensive federal survey.⁹ The remedies usually proposed do not do what they promise. Texas capped non-economic damages in malpractice cases in 2003; the cap cut payouts to injured patients by about a quarter and had no measurable effect on the supply of doctors or on what Texans spend on health care.¹⁰ Florida tried loser-pays for malpractice suits from 1980 to 1985 and repealed it, because it turned out to raise the stakes of every case rather than to deter the weak ones.¹¹

What the tort system does have are specific abuses, and this book meets them where they live rather than capping the remedy of everyone who is hurt. The accommodations statute that lets thirty-one plaintiffs file half of 8,667 lawsuits in a year is met in the discrimination chapter, by repealing the fee-shifting that makes the suits a business. The copyright statute that awards $150,000 a work without proof of loss is met in the intellectual-property chapter, by repealing statutory damages. The people who want to settle their disputes privately can already do so, by contract, in arbitration, and should be free to. But the general remedy for a state that regulates too much is a court that is open to the person harmed, and I will not propose to close it on the way to opening the market.

What I am not claiming

I am a citizen, not a scholar. I have read the studies I cite and I have tried to read them fairly; where I have leaned on a summary, the notes say so. I have no credential that should make you believe me, and I ask you not to. The book's argument is in its evidence, and the evidence is there to be checked.

I am not claiming that the libertarian solution is painless. The road described here has costs, and the seventh section of every chapter names them: the farms that fail when the subsidy ends, the worker who loses a job to a machine when the wage floor is removed, the restaurant that may refuse a customer when the mandate is repealed. I have not hidden any that I found.

I am not claiming that a free society has been tried. It has not, not in the form this book describes, not by any country with the wealth and the institutions of this one. What has been tried, in pieces, in places, is enough to say which direction the evidence points, and that is what the chapters report. Where it points the other way, they report that too.

And I am not claiming to speak for libertarians. Libertarians disagree with each other about immigration, abortion, intellectual property, and how fast to walk; some of them will think this book too slow and some too far. The positions here are mine. Where a thinker's argument is the point, the notes cite the argument, and where an attribution could not be checked, it is not here. A book that quotes Milton Friedman on subjects he never wrote about is not a book about evidence.

How to read it

The chapters stand alone; each can be read without the others. They are ordered so that the ones with the strongest evidence and the clearest solutions come first, and the ones that ask the reader to accept a cost for a principle come last, and they fall into five parts on that scale: the war the state lost, the things everyone needs, force and its limits, the institutions, and the hardest cases. The cross-references between them are real: the unions chapter's case against bargaining over police discipline is completed by the crime chapter's specific proposal; the healthcare chapter's proposal on drug approval is what the abortion chapter relies on; the housing chapter's tariffs reappear in the climate chapter. A reader who wants the whole argument will find it accumulates.

On April 7, 1933, the country did not get its freedom back. It got beer, and the promise of the rest by Christmas, and a rule that let every state and county decide for itself when. That was enough to put twenty-five thousand people in a street in St. Louis at midnight. This book is an argument that the same thing can be done again, issue by issue, with the same patience and the same honesty about what comes first. The endpoint is a country in which the government does what the Constitution says and nothing else. The road is what follows.