Absurdite, Complexite, Precaucite: Part 4, reserved to the people

June 26, 2013 | Accessibility, Democracy, Eminent domain, France, Government, Incentives, Local Government, Local issues, Precautionary principle, Real estate taxes, Regulation, Subsidy, Takings, Tenth Amendment

[Continued from yesterday’s Part 3 and the preceding Part 1 and Part 2 ]


By:David A. Smith


Our story of Mayor Therond and his daily bombardment from Paris, using an article in the Washington Post (April 16, 2013) that reported the facts without questioning either the premise or the conclusion, has reached the point of him opting out of enforcing many regulations from afar that he regards as unfunded, infeasible, or downright counterproductive – but none of this explains the why, the true root cause of runaway regulation.  To my way of thinking, runaway regulation is a symptom of something more fundamental: loss of democracy.



Defender of individual liberties: James Madison


  1. Regulation without public comment/ pushback disenfranchises voters


Elections enfranchise voters because votes are political equity; regulations, which necessarily follow from statutes enacted by those we elect, disenfranchise voters because power is exercised not by those elected but by those appointed by or hired by those elected.  To correct the disenfranchisement, in the US we use the notice and public comment approach, with the statutory check that regulations cannot exceed the mandate given in the enabling legislation.   Without that, we have the tyranny of the sequentially noisy:


A big part of the problem is public demand.


Nonsense; in just the same way that notional demand is not effective demand, notional political demand (meaning what some people will vocalize if vocalizing costs nothing) is not the same as effective political demand (what people will pay for or give up something for). 


After revelations last month that some meat labeled beef in prepared dishes was actually horsemeat, for instance, Hollande’s government was called on the carpet for inadequate regulation of the wholesale meat market.


So, to address an incident of false advertising, the solution is to add another layer of regulation? 



It’s illegal for you to evade our incompetent administration of our imposed laws


(Take a look at the sign above: is that not the perfect expression of officious run rampant?  If we cannot service our meters to charge you for parking at an open parking space, then we will make it illegal for oyu to park at an open space.)


Nanny states arise when politicians mistake political notional demand for political effective demand, otherwise known as ‘pandering to the voters.’



I am not a pander bear


The consumer protection minister, Benoit Hamon, responded with promises of more regulations and tighter inspections.



What?  There are regulations being ignored?


When the additional regulations are ignored and the tighter inspections are not done, what then?  That happens when the regulations themselves impose a burden on the regulator to do something that seems to have minimal benefit:


Therond said the most outrageous directive to hit his desk recently was a March 28 explanation from the departmental prefecture, 20 pages replete with color-coordinated graphics, of how the area’s inter-communal towns and villages are to organize local elections scheduled for next year.


Because, you realize, the French have had no practice at all an elections.



No practice at all!


The prescriptions are so detailed and arcane, he protested, that he would have to be a constitutional lawyer to understand what the prefecture was driving at.


“Look at this,” he said, fingering the thick sheaf of papers. “I defy you to understand what they mean. Nobody could possibly understand it.”


Incomprehensible rules are fuzzy rules.  (The soccer offside rule, anyone?) 



Clear, no?


Fuzzy boundaries are bad boundaries.  Rules too fuzzy to use can’t be used.  Rules too complicated to internalize get interpreted for simplicity.  Rules you don’t enforce are worse than useless.


The directive joined a pile of papers filed away without action by the City Hall secretary, Alain Chastang.


Thus the new regulations, representing an expenditure of effort to create, are matched by an expenditure of effort to interpret, and the result is worse than nothing – no change, in fact a flouting of regulation by a local official, who knows full well that nobody will check up on the regulation.  The distancing of commune from the capital increases.


And that leads to the most fundamental problem of all:


  1. Government’s right to regulate is not inherent, it’s bestowed


Nowhere in the Post‘s article, and for that matter nowhere in Mayor Therond’s thinking, is this question: What gives the French government the right to issue these regulations at all?


The question is far from trivial; its roots go back more than two centuries, to the French Enlightenment and the US Constitution.  Deriving from Rousseau (man in the state of nature) and John Locke, Enlightenment thinkers sought to limit the sovereign’s powers by reference to moral philosophy; what should a sovereign be entitled to do? 


In the United States, the sovereign’s entitlement are defined by the U S Constitution, in which the people themselves have collectively hired the government to do a job, a very specific job:



We’re the boss, not the government


We the people of the United States, in order to:


Form a more perfect union

Establish justice

Insure domestic tranquility

Provide for the common defense

Promote the general welfare, and

Secure the blessings of liberty to ourselves and our posterity,


do ordain and establish this Constitution for the United States of America.


We the people do thisgovernment derives from us.  America’s national government is the fulfillment of a contractual relationship between the people and their government, in which the people are the client, the government is the counterparty – and the government’s authority to regulate is limited to the enumerated powers in the contract itself.  This concept was then hammered home in the Tenth Amendment, which states:




The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


Add to this the Fifth Amendment, whose takings clause, which I have often cited, states:


nor shall private property be taken for public use, without just compensation


Importantly, the Supreme Court gradually recognized that an ever-expanding Federal government would by its power of regulation gradually take citizens’ rights, and in Pennsylvania Coal (1922):


There, Justice Holmes wrote for the majority that “[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”



Like Potter Stewart long after me, I’ll know it when I see it


The court went on to say:


“We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Id. at 416.


Restraining a central government’s natural acquisitive urges is the bedrock of the Constitution, from checks and balances (even the existence of a Supreme Court) through the tenth Amendment’s reservation clause, and in modern times to the dialing back of eminent domain, whether for economic development or otherwise.  The state always has more power than any individual citizen, so the state’s power must be checked by the law:


Justice Holmes throughout his time as a judge on the state and federal levels, “held a consistent view throughout his career that restrictions imposed through the police power could reach a point where they become takings and violate the Just Compensation Clause.” 58 U. Miami L. Rev. 471 at 506.


If Albaret Sainte-Marie were a town in the United States, the town could sue the Federal government challenging its authority to impose these regulations without a public process, and without paying for the economic or property damage they cause.


Maybe we could offer Albaret Sainte-Marie inclusion in the United States, on the single condition that the commune not ask America for any funding. 



From my home town


Mayor Therond might well jump at it.