Responding to the Supreme Court decision upholding the Affordable Care Act, President Obama declared that the purpose of government (he used the euphemism “public service”) is taking care of each other. His exact words included: “That’s when America soars, when we look out for one another, when we take care of each other. That’s why we do what we do. That’s the whole point of public service.”
I don’t disagree. But America also soars when government empowers people and then leaves them alone. My point here is pretty trivial. But I am thrilled by one particular government-insured freedom that I enjoy, and I want to talk about it. (Full disclosure: if it weren’t raining, I be out doing it instead of sitting here writing about it.)
Most rights we enjoy as Americans come with constraint. You can own and drive a car, but you have to pass a test and pay a fee first. You can march down the street shouting controversial slogans, but you have to get a permit first. You can buy liquor, tobacco and other things that are bad for you, but only if you are a certain age.The Clash song, “Know Your Rights” provides a pretty accurate commentary about the balance between our rights and the hoops we have to jump through to exercise them.
And it is in contrast to these hemmed-in and whittled-down rights that my point comes in. Because our freedom to float down an American river in a canoe is vast and nearly unlimited. There is a long train of federal and state practices, policies, laws and customs surrounding inland navigation, and the effect of it all is an extraordinary freedom that is nearly unheard of in this “Land of the Free.”
Briefly, the highest laws in the land insist that people can use American rivers, full stop. Unlike most other human activities that come with the limits, prerequisites and fees mentioned by The Clash, inland navigation is truly free. You need a license to put a boat on a lake, but you need nobody’s permission to launch on a river. To understand this, we need to consider some of the specifics. The best brief source of information on this topic is this pamphlet from the National Organization for Rivers.
Rivers were tremendously important to the exploration and settling of America in the 17th and 18th centuries. To block a river was to hamper commerce and thwart the public interest. So the US has always insisted that rivers and streams be open to traffic. It is not that people can boat when and where government allows — but that people can boat on any river and government has nothing to say about it.
A court case dating back to 1874 found that, while (federal or state) government may create lists of waterways that it deems officially navigable, people are still allowed to go where they wish. If a boat floats, then the water it’s floating on is navigable whether the government says so or not.
Indiana has such a roster of officially navigable waterways. And there’s no harm in the list. But there’s no great significance either. Stretches of river that are not on Indiana’s list are navigable, too. If there is water, people may float. The people, in this one small area, are sovereign.
Does the rule saying boaters are free on the water also insist that they stay on the water and respect the private property alone the banks? Nope, the law doesn’t limit boaters to the water. It says they can use the banks, too, up to the high-water mark.
[R]ivers are subject to the federal navigational servitude, including the federal navigational easement for “the benefit of the public, regardless of who owns the riverbed.” This easement is similar to a utility easement or a rural road easement passing through private land. It includes public rights to portage around obstacles, rapids, or waterfalls, to engage in “sport fishing and duck hunting,” to walk on the gravel bars and beaches, and to walk above the high water line as needed when walking along the banks of these rivers. Landowner fences, cables, or “No Trespassing” signs across these rivers violate federal law, exposing the landowner to criminal prosecution as well as liability for wrongful death or injury.
All of this comes into law by way of the Constitution’s Commerce Clause. So you might expect it to protect barges carrying trade goods, but not fishermen and canoers. But, again, the law breathtakingly embraces all uses. The courts agree that the enjoyment of nature is a kind of commerce that should be protected. Nor is it protected only when money is changing hands. A man can put his own canoe in the water and float all day without paying anyone a dime. He’s free.
Each time I go for a float down Indiana’s Wabash River or Sugar Creek, I am grateful for this freedom. I am grateful for the majestic eagles above me, the startling Asian carp that leap out of the water right next to my head, and for the glimpses of deer, turtles, muskrats and other wildlife. I’m happy with the chance to exercise the skill I have to both propel and steer the canoe with a single balanced J-stroke. And I’m pleased with the chance to forget the clock for a few hours, which I do when I remember that around the bend that lies just ahead is another bend, and another and another and another. I know my ability to enjoy canoeing is based on accidents of good luck. I live in a place where water is plentiful, I can afford the gear, and I’m physically fit. But I’m nonetheless appreciative of government that stops landowners from stretching cables from bank to bank to stop me.
Now, as I said above, recreation is trivial. It is not as important as someone’s life, health, education, or safety. I would not judge government a success because it allowed me my canoe while it deprived others of more urgent needs.
I think the lesson here is that freedom and enjoyment are very high and worthy goals. The extraordinary freedom and enjoyment that I and others get from canoeing belies the arguments of those who say that getting government off our backs is necessary and or sufficient. Because often strong government makes freedom possible.
I’ll leave you with the wisdom of John Hartford:
Well I sure do love the Tennessee River, the Ohio and the Illinois
And I love the old Mississippi River, It’s a good old place for a boy
Just to step on board a steamboat, ride all the way to the sea
Where else but a muddy old river, would a person want to be?
Would a person want to be?