Lawless legislation

My last post brought up the story of Jack Melton, an elderly man who ran afoul of an obscure law by selling fruitcakes he had made in his own home rather than at a commercial bakery. Last time I wrote about some economic aspects of the story, but there’s another angle that’s also worth looking at.

Melton did not go sneaking around at night, covertly selling his cakes in dark alleys and cackling about how the police would never catch him. Instead, he openly advertised for customers. He clearly had no idea he was doing anything illegal. Why should he have? The rules he violated are likely buried deep in the bowels of some phonebook-sized tome of regulations, and selling homemade fruitcake is hardly the sort of clearly improper activity that a reasonable person would simply assume to be illegal.

This illustrates the limitations of “the rule of law” in America. Usually, that concept includes the requirement that the law be publicly made known in advance, so that citizens know what is required of them and cannot be arbitrarily persecuted. This is a concept familiar to classical liberals and libertarians; Friedrich Hayek in particular considered it one of the cornerstones of a free society. In theory, the United States mostly fulfills that requirement- legislation and the rules of regulatory agencies are public knowledge. (Though even here there are exceptions- for instance, many “anti-gouging” laws give essentially no explanation of what the law requires.)

In practice, the laws and regulations a citizen is expected to follow in the modern U.S. are so numerous, so arcane, so rapidly changing, and often so obscure and so difficult to understand, as to create a situation that is often all but indistinguishable from one where they are kept secret. The problem is aggravated by the fact that only a small percentage of them have any relation to widely accepted customs or moral concepts that one could reasonably expect every citizen to know.

It is quite easy to break the law by sheer chance, and it is likely only because government officials often do not enforce the rules to the hilt at every opportunity- whether out of sloth, compassion, or sheer whim- that many of us are not being blindsided with punishments for obscure infractions on a regular basis. Of course, this also means that a government official often has all manner of entirely legal means of tormenting you, should he take a dislike to you. Indeed, the system would likely be considered completely intolerable even by arch-statists if all the rules were rigorously enforced. Arbitrariness and unpredictability is inevitable, and would be so even if every government official was scrupulously honest and selfless

Obviously, this is a matter of degree- no human legal system can ever have perfect clockwork regularity and predictability, and there are countries much worse than America in this regard. Nevertheless, it could certainly be a lot better, too, and the more numerous and intrusive the laws of a country, the more that country is necessarily characterized by the rule of men and not that of law.

The dread scourge of unlicensed Christmas desserts

Hello, all! Unfortunately, my ill-fated holiday season sapped a lot of my energy, so I’ve been out of action for a bit. It’s good to be back.

It’s always comforting to know that the government is protecting us from nightmarish menaces like this: (Hat tip: Hit and Run)

Shasta County health officials are cracking down on an 86-year-old disabled World War II veteran who has been selling homemade fruitcakes for more than a decade.

The Department of Environmental Health cites an obscure law banning food businesses in private homes.

Jack Melton of Redding gave away many of his pecan-filled fruitcakes. But health officials saw a small handmade window sign offering some for sale.

Health specialist Fern Hastings says Melton must use a commercial bakery that has passed a health inspection even if he gives his cakes to the public.

The threat posed by elderly World War II veterans with access to unlicensed baking equipment cannot be overstated. Back when I was in high school, my Uncle Bob died tragically when he was decapitated by a piece of rye bread my grandfather had recklessly over-toasted. Remember the glass pane scene in The Omen? Just like that.

This is a nice example of the numerous little things the government does to inhibit small entrepreneurs- remember, Melton ran afoul of a prohibition on the distribution of cakes not made in a “commercial bakery.” A lot of government restrictions on business, combined with things like zoning laws, serve the purpose of suppressing forms of entrepreneurship that would otherwise be accessible to huge swaths of the population, including many people too poor to invest in any sort of new production equipment or training, simply using equipment and skills they already have- running a jitney service with your own car, cutting styling hair out of your own home, fixing appliances and machines in your garage, and so on. (See also Wendy McElroy on cottage industries.)

Even when such activity is not illegal, the government can often make it such a pain in the ass to comply with all the bureaucracy and regulations that it isn’t worth it, or is too daunting a task to get started on. (Or is done off the books, which creates a risk of punishment and leaves the businessman without access to the courts.) It’s often pointed out that, due to some of the fixed costs involved, regulatory compliance often disproportionately burdens smaller firms. This factor would become most extreme in a one-man business, especially if the entrepreneur is poor and using household goods as capital.

Regulation also poses a particular barrier two entrepreneurial efforts by the poor in another way, which I haven’t seen mentioned as much. If your childhood education was of low quality, you’re at a disadvantage in researching and dealing with all the rules that apply to you. This is even more of a potential problem if you were born elsewhere and English is not your first language.

The example seen here, baked goods, is another obvious candidate for something many people could do- plenty of people know how to cook, almost everyone already owns an oven, and necessary materials are a few dollars at the grocery store. Time requirements are not overwhelming- you don’t have to sit continuously by the oven while you’re baking something- so it’s something that can be done by a homemaker or someone who already works out of the house. It’s also an area where average people with no special training can often produce products that are better than most of what is available in stores- my mother routinely made cookies much better than what the grocery had, for instance. And, of course, the very nature of the operation provides a built-in incentive for honesty and safety- your customers know where you live. You’re not going to make a living at it, but it’s certainly a way many people could supplement their income.

Doing something like that probably doesn’t occur to all that many people. Most people don’t sit around trying to figure out ways to run businesses from their house or engage in other small-scale local entrepreneurship, of course, and so don’t directly feel the burden of not being allowed to, but I suspect that is itself largely a product of the legal environment.

People imitate successful examples. In the sort of highly regulated environment that ensnared Jack Melton, positive local entrepreneurial role models are discouraged or prevented from arising in the first place. If the economy suddenly became laissez-faire, most modern Americans still wouldn’t start looking around for new, independent forms of trade and production that they could pursue, because they haven’t seen it and don’t think of it themselves. However, simply allowing the few that do hit upon the idea on their own to succeed unmolested will show more people that it can be done and inspire more people to make their own attempts, which will create more positive examples, and so on and so on until doing it no longer strikes a people as odd. In such a culture, the legal regime we have now would seem absurdly constrictive.

If large numbers of people started engaging in small-scale entrepreneurship of this sort, alone or in small groups, many established firms would start to feel the pinch in two ways. There would be a horde of tiny competitors nibbling away bits and pieces of market share. Further, some people who start out working from their home or garage may grow enough to become bigger contenders in their field, and thus a rival to the established players. In this respect, many regulations that discourage small-scale entrepreneurship have an effect much like one of the effects of minimum wage laws, which can make people with extremely limited skills unemployable and thus unable to get work experience and skills that would make them more competitive workers. Likewise, if you have little business experience and little capital, the regulatory state makes it harder to acquire more of either. The bottom rungs of the ladder have been sawed off.

I think a number of fields in the economy, especially many services and household goods, would be considerably more competitive with these forces unleashed, with newer firms rising up to challenge incumbents at an accelerated rate and a relentless swarm of small-timers and part-timers forever gnawing away at the edges. Of course, no one likes being gnawed at by relentless swarms of things, least of all the people already on top with the most to lose, so there are numerous businesses with a vested interest in preserving or strengthening the current system, and the means to get it done- largely, in one of life’s nasty ironies, thanks to the aid of their alleged foes.

I’ve got a bit more to say, but his has become rather long already, so I think I’ll save it for another post.

Unintended consequences

Writing about the problems that arise when the government intertwines itself with an area of the private economy, in this case medicine, Roderick Long writes:

When so much of the health care system has been unnaturally sucked into the federal embrace, such selective de-funding unfairly limits people’s choices in a way that they would not be limited in a free market. If I and my gang use the violence of the state to gain a near-monopoly of some good or service, our decision to refuse to provide that good or service to people we don’t like begins to look not so innocent…

…it’s a great example of how the Rawlsian/Dworkinian [Ronald, not Andrea or poor Gerald] dream of a state apparatus that is neutral among its citizens’ competing conceptions of the good is ultimately incoherent. Federal funding for contraception and abortion violates the rights of taxpayers who oppose those practices on moral grounds; selectively de-funding those practices in the context of a heavily statised health care industry threatens people’s reproductive freedom.

Quite right. There's an important consequence to this: Because neutrality is impossible, state involvement in any area of society encourages additional conflict between citizens, as formerly private activities become public business.

For this reason, it’s somewhat ironic that pro-choicers are generally much more likely than pro-lifers to support more government in health care. As things stand now in the United States, abortion is fairly difficult to assail successfully- totally outlawing it on either the national or state level would require an amendment to the national constitution. But suppose we had universal health care, with everything paid for by the government. Now it’s simpler- you don’t have to outlaw a medical procedure to stop it, you just have to deny it funding.

Getting support for such a de facto outlawing of abortion would be much easier to pull off if universal healthcare existed, as well. As it is now, some people want abortion outlawed, but there are a lot of people who don’t want any part of it themselves but don’t think it should be illegal. However, if all abortions are paid for by the taxpayer, the “disapproving but tolerant” portion of the population is faced with a problem- if you don’t want your own money paying for abortions, or just for particular types (late-term abortions, for instance), your only means of self-defense is to eliminate access to it. (History strongly suggests that once universal healthcare is instituted, conservatives will quickly come to accommodate it and adapted into their own ideology, so any sustained attempt by pro-lifers to fix the problem by returning health care to the private sector is unlikely.) You could try to avoid the problem by making abortions an exception to otherwise universal government funding of health care, but liberal pro-choicers would be the first to condemn such a thing.

There are other possible outcomes to conservative-controlled government medicine that many liberals would find uncongenial- things like sex reassignment surgery or in vitro fertilization could also be made inaccessible through de-funding, and such a thing would be easier to accomplish than making them officially illegal when they’re being directly paid for by those who want them. Making health care a purely government responsibility could also strengthen the hand of conservatives when they argue in favor of government control in people’s personal lives. Sex is the obvious example, since it can be a vector for disease and thus a source of health care expenses. If smoking restrictions, helmet laws, “fat taxes,” and the like are permissible because bad health habits can increase government health care expenses-and liberals have become quite insistent that they are- than such restrictions would only become more desirable when the government is footing the entire bill, and many conservatives have their own list of private activities they would like to interfere with.

As usual, virtually no one ever anticipates the possibility that all the powers they want to give the government will sometimes be in the hands of their opponents.

Visit scenic Illinois: Third-World government at First-World prices!

Today, I am proud to be an... Illinoisian? Illinoisite? What the hell are we called, anyway? It doesn't matter. You know, other states can claim their petty distinctions- their monuments, their scenic mountains and forests, their low murder rates. But how many other states in the Union will soon be able to claim the distinction of having two consecutive governors go to prison for corruption?

#@$&% MACHINES!

I just wanted to assure any readers wondering about my absence that I have not been slain in a gangland assassination or died an ironic death entombed beneath a pile of old Jack Vance paperbacks that came crashing down on me when their weight proved too much for my cheap self-assembled bookshelves to withstand. I’ve just been plagued with computer problems, and my computer usage has thus been limited. I should be fully operational and writing on a timelier schedule soon, though, provided the damn thing doesn’t become sentient and murder me in my sleep. Which, considering my usual luck with electronics, is a serious possibility.