Freedom in the 50 States

The personal freedom versus paternalism dimension (Figure 1) consists of the following categories: (a) incarceration and arrests for victimless crimes, (b) tobacco freedom, (c) gambling freedom, (d) gun rights, (e) educational freedom, (f) marriage freedom, (g) marijuana freedom, (h) alcohol freedom, (i) asset forfeiture, (j) other mala prohibita (acts defined as criminal in statute, but which are not considered harms in common law) and miscellaneous civil liberties, (k) travel freedom, and (l) campaign finance freedom. Weighting these categories is a challenge because the observable financial impacts of these policies often do not include the full harms to victims.

With some assumptions, one can use results in the academic literature to measure, for instance, the lost consumer surplus from marijuana prohibition, or even to make a plausible guess at the disutility incurred by a year in prison. However, it is much more difficult to measure the risks that prohibitionist policies pose to individuals who are not imprisoned—especially those who may not even engage in the activity prohibited, but who legitimately fear further restrictions on their freedoms. For example, civil asset forfeiture is another major violation of liberty that came about as a way of enforcing prohibition.

An example may help illustrate the problem. Imagine two countries, each the size of the United States. In Country A, the average tax rate is 1 percent of income lower than in Country B, but unlike Country B, Country A prohibits the practice of a minority religion—say, Zoroastrianism. Assuming personal income of $22 trillion, as in the United States in 2021, the lower tax rate in Country A allows for more freedom worth $55 billion a year, by the method of calculation used in this book.

Now suppose that 10,000 Zoroastrians go to prison for their beliefs. There are few estimates of the cost of prison, including opportunity cost and psychological harms, but the estimates that exist range between $40,000 and $60,000 per year for the average prisoner, adjusting for inflation.¹ Taking the higher figure, the prohibition of Zoroastrianism is found to have a victim cost of approximately $600 million per year: far, far lower than the benefit of lower taxes.

Is the country with slightly lower taxes, but with a blatant infringement of religious freedom, truly freer? Surely, the calculation above has missed some very significant costs to freedom from the infringement of religious liberty. This calculation is related to the discussion of fundamental rights in the “Regulatory Policy” section earlier. Freedom to believe (or disbelieve) in any religion and freedom to practice peacefully (or refuse to practice) any religion seem to be freedoms that every person rationally desires. They are fundamental rights. Many personal freedoms have this character, and it needs to be recognized in the freedom index.

Therefore, the index applies constitutional weights to personal freedoms—as with regulatory policies—but uses different values, because the direct, measurable costs to victims of policies that infringe on personal freedoms are generally a smaller percentage of true costs than the direct, measurable costs to victims of regulatory policies. Put another way, measuring the economic consequences that regulatory policies have on their full victim class is a relatively simple procedure, but the full costs of policies that infringe on personal freedoms are measurable only in part. Furthermore, as mentioned in the discussion of fiscal policy, taxes and economic regulations do not necessarily infringe on the rights of all apparent victims, unlike policies that affect personal freedoms.

Again, the index takes constitutional provisions relating to certain freedoms as prima facie evidence of a freedom’s fundamental nature, indicating that the full victim class should be thought of as quite broad. Therefore, variables relating to fundamental, high-salience rights are multiplied by a factor of 10, on the basis of their inclusion in the federal Constitution. Variables relating to rights specified only in at least one state constitution are multiplied by a factor of 5. Variables that receive the “constitutional weights” are noted in the relevant discussion of each. There is nothing magical about these numbers, of course, but they bring the personal freedom dimension into rough parity with the fiscal and regulatory policy dimensions as one-third of the overall index. In this edition, personal freedom is of slightly greater weight than both regulatory and fiscal policy.

Overall Personal Freedom Ranking

The top states in the personal freedom dimension tend to be more western and northeastern, while the bottom states are either socially conservative and southern or mid-Atlantic and liberal. As in past editions, we find a strong rural–urban division. One reason for the rural-urban relationship is likely voters’ fears of crime, which leads them to support harsh policing and prosecutorial tactics, stricter drug and gun laws, and more limits on civil liberties. However, no statistical relationship exists between personal freedom and actual violent crime rates (however, it is weakly negatively correlated with property crime rates). It is well-known that public perceptions of crime can diverge widely from the truth.² An alternative explanation is that there are more negative externalities of personal behavior in urban settings. But if that were the case, one would also expect more urbanized states to have more economic regulation and higher taxation, and they do not. Socially conservative states tend to restrict alcohol, gambling, marijuana, and, until Obergefell v. Hodges,³ marriage freedoms, but they permit greater freedom in education and have more respect for gun rights and for private property on smoking policy.

Figure 2 shows state average personal freedom scores over time. This chain-linked index excludes such federalized policies as same-sex marriage, sodomy laws, and removal of local gun bans. After personal freedom dropped nationwide between 2000 and 2008, partially due to a wave of new tobacco restrictions, it has grown even more substantially since 2010, due in large part to ballot initiatives loosening marijuana regulations, to the spread of legal gambling, and to legislative criminal justice and asset forfeiture reforms. If we were to plot the average personal freedom scores, including federalized scores, the improvement in personal freedom would be greater, but would also be disrupted by a major recent federal blow to personal freedom: tobacco prohibition for 18- to 20-year-olds. Over the past 22 years, we see a consistent pattern in which judicial engagement has increased state personal freedom, while congressional involvement has decreased it.