Over at the Liberty Law Blog, Prof. John McGinnis has an excellent piece on legislating. He writes (emphasis added):
A Nebraska Senator has introduced a bill to require photo identification for voting, not because voting fraud is an actual problem, but because Nebraskans perceive there to be such fraud, whether it exists or not.
If voting is a fundamental right protected by the Constitution, legislation should burden its exercise only to address actual harms, not some people’s impressions of reality. Thus, the legality of these laws should turn on the question of actual voter fraud and the utility of voter identification in curbing it.
I agree with the good professor, and think this rule should apply not to just legal matters, but economic matters as well. An argument I’ve heard more and more in recent months in favor of protectionism from people who are nominally free market is that, with our current trade policy, it creates the perception of unfairness; it creates the perception of China “stealing jobs”, of a “hollowing out of the manufacturing base,” of “economic stagnation.” It doesn’t matter that the data say otherwise, but the perception is there and that’s why Trump won. Therefore, they conclude, we need some trade barriers to keep the protectionists at bay.
This argument is very similar to the one McGinnis addresses: there is this perception, so therefore we should pass legislation to combat the perception, even if it infringes on people’s rights. For the same reasons McGinnis rejects the argument in the link, I do so here: legislation that burdens the free exercise of a right should only address an actual harm, not a perceived harm. Given that free exchange is a fundamental human right, the infringement of such requires the burden of proof to be on those calling for tariffs; they must demonstrate actual unique and substantial harm, not just the perception of it and demonstrate the usefulness of their proposed actions in addressing the harm.*
In short, the perception of harm is not enough to justify the infringement of the right to trade.
*Notice I said “actual unique and substantial harm,” instead of just “harm.” The reason for this, which will be addressed in a forthcoming blog post, is because any action whatsoever can conceivably harm anyone, but that alone is not grounds for outlawing it.