In The Permission Society, Timothy Sandefur wrote that there are two ways for government to regulate the actions of people. The first is the nuisance system which states that people have a right to freely act however they choose unless it will harm someone else. This includes one’s free choice as what to do with their property unless it harms his neighbor. The drawback of this system is that it is reactive. On occasion the danger of harm may be of great magnitude, either immediately or cumulative over time. Under these circumstances, the nuisance system does not preemptively protect a neighbor. On these occasions it may not be possible for the harmed neighbor to be adequately and/or timely compensated for his loss.[1] Where the potential for this type of harm is present, the deficiency in a reactive nuisance system can be mitigated through prudent but infrequent intervention and prior restraint.
The second system to regulate actions of people is the permit system which forbids people from doing anything with his property unless approved by the appropriate authorities. The permit or “prior restraint” system is proactive and does not allow a person to act until he meets the requirements dictated by the governing authorities.[2] Sandefur lists six destructive consequences of the permit system.
1. “Rent-seeking” – Even under a permit system, the laws of supply and demand continue to operate. Permits become valuable because everyone cannot have one, and in a business environment time and money are spent to acquire and preserve the coveted permit. Since the 1930s, the power of government to redistribute wealth or opportunities has grown exponentially “either by transferring money from some people to others or by granting licenses to do profitable things that are otherwise illegal.” Payments to government in whatever form they take (fees, concessions, etc.) are a form of rent charged for the privileges dispensed by government, i.e., rent-seeking. The government uses these rents for purposes that may or may not be worthwhile, but it is the government that decides what those purposes will be, right or wrong, without consultation with the electorate. And the rent received by the government will ultimately be paid by the citizens themselves.[3]
2. Knowledge problem – The permit system is based on the faulty assumption that government officials and bureaucrats in charge of granting permits have the knowledge and information necessary to make the right choices when deciding what should and should not be permitted. If the regulators/permit issuers make wrong choices, they are seldom held accountable.[4]
3. Enforcement by unelected bureaucrats – Once issued, the privileges granted by permits must be monitored and their limitations enforced. Permit issuance decisions based on vague or confusing laws or criteria effectively delegate power to administrators and judges to enforce the terms of the permits even though their decisions may be arbitrary, irrational, unfair, and pose a conflict of interest. It is difficult and extremely expensive to challenge the decisions of unelected bureaucrats and their self-created fiefdoms which have become a hostile fourth branch of government unaccountable to the electorate and certainly not envisioned by the Constitution.[5]
4. Corruption and forced concessions – Officials with power to issue permits and regulate the execution of the services granted by those permits are in the position to demand something in return. The first amounts to blatant corruption when government officials solicit and receive innumerable forms of personal gain or favor in exchange for permits or regulatory approvals. The second type is the demand by government for concessions to the government to advance or accomplish some governmentally-determined general social need, e.g., the surrender of a portion of one’s property in exchange for permission to sell or develop the rest.[6]
5. Violation of illegal requirements – Some permit requirements may be illegal in themselves. When a permit holder violates the terms of the permit, he is considered to have violated the law. Yet, the terms violated may themselves be a violation of the law. Effectively, it is difficult for the permit holder to defend himself against violating the terms of the permit by challenging the illegality of those requirements.[7] In other words, the permit holder cannot get beyond being judged guilty of violating the illegal conditions of the permit.
6. Innovation is stifled – Sandefur believes that the most troubling aspect of the permit system is that it stifles innovation. He calls innovation a fragile and elusive quality, a potential, a chance for the future. It can’t be quantified, measured, qualified, or justified. Innovation is vital to a growing and robust society. But the permit system often wants people who want to “start a new business to prove to the satisfaction of the government regulators that there is a ‘public need’ for the business before the person may set up shop.”[8]
If the citizens of a society value their freedom above all else, then the drawbacks of a pervasive permit system are fatal to freedom and the survival of a society. Article V of the Bill of Rights states that men should not “…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
This concern for the inalienable right of property is not just an academic exercise. The loss of this inalienable right impacts virtually every individual citizen in ways that are often lost in the daily information overload amidst the fast-paced buzz of life. The following example is just one of many well-intended actions of social engineers that erode the fundamental freedoms associated with one’s property and possessions.
Tulsa’s governmental fix for food deserts
A Tulsa City Counselor proposed that the City of Tulsa impose a moratorium on new grocery stores in council districts with food deserts, an area deemed to be deficient in full-service grocery stores. Counselor Vanessa Hall-Harper believes that a moratorium would solve what is believed to a problem of too many small grocery stores which prevent developers and larger full-service grocery stores from building in areas of the city considered to be food deserts. She claims that a lack of full-service stores is contributing to the decline of general health conditions in these areas.[9]
Hall-Harper cites one example in which a few of her constituents protested the issuance of a permit for a new Dollar General store in North Tulsa which they feel is inadequate. She believes this type of store discourages the building of full-service stores in so-called food deserts.[10] It would appear that for Hall-Harper and the protesters, investment of private funds in the City of Tulsa are to be dictated by political concerns and agendas as opposed to free-market forces.
But this is not government over-reach according to Hall-Harper. She says that the moratorium would be temporary and that it wouldn’t target any specific store or chains. “In my opinion, developers should work with communities.”[11]
The larger concern is that proposals of this nature have become typical of the thinking of elected government officials and especially bureaucrats who have become virtually independent and unanswerable to the electorate. Instead of a free society, we have become a “Please, may I…?” society. In a free society, a mom-and-pop grocer or a Dollar General are free to survey an area, determine if there is a need, and find an economically viable way to meet that need. These entrepreneurs must still consult local authorities about zoning matters, building permits, and the like. But, in a “Please, may I…?” society, they must also consult the local social engineers to determine if the individual or business owners’ plans fit in with the social agenda for the betterment of the community (as determined by the permission givers), even if the supposed betterment infringes on the rights and bank accounts of certain classes of citizens.
Who will be hurt by the City of Tulsa social planners’ scheme to address the lack of supermarkets in certain parts of Tulsa? The real victims will be the mom-and-pop grocers who have dreams of owning their own business, a grocery store that may one day grow into supermarket. Another victim will be the Dollar Generals of the world who research an area and determine that there are sufficient potential customers who desire what they have to offer. The local community will suffer because it will be deprived of another business to supply them with what they want and need and who will also benefit from jobs created for the area’s residents. The land owner who wants to sell his property to Dollar General will suffer because he will lose the proceeds from the sale of his land, and the contractor who would have built or remodeled the building for Dollar General will suffer of a loss of revenue because the project is prohibited.
Such arbitrary actions of government (city, state, and federal) stand in opposition to the inalienable right of property which transcends even the Constitution’s documentation of those rights. These actions have a chilling effect on developers who may be disinclined to begin future projects for fear of payments that will be extracted by government officials in the form of concessions and fees to meet some unrelated social need identified by social planners in exchange for permission to do business. This is little more than a legalized form of extortion, i.e., protection money paid to government. But the greatest damage among both the populace and government officials is the loss of the simple concept of freedom upon which the nation was founded.
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This article has very briefly dealt with matters pertaining to the loss of freedom to do what one wishes with one’s property and possessions. This loss of freedom has occurred because the emergent permission society is dominated by a government and its bureaucracies that have intruded into the private and business affairs of the citizenry.
As discussed in Part I, the permission society began with the massive intrusion of government into the lives of its citizens during the 1930s under new, liberalized interpretations of the general welfare clause of the Constitution. Concurrently, government expansion began in Roosevelt’s New Deal years and accelerated with Lyndon Johnson’s Great Society of the 1960s. However, the exponential growth of government intrusion into the minutest details of the daily lives of American citizens has become suffocating over the last two decades.
Perhaps the best summation of the outcome of massive governmental intrusion comes from Alexis De Tocqueville in his 1835 Democracy in America. He had a prophet’s foresight into the reasons for America’s loss of freedom as it slides into the permission society whose destination is socialism and inevitably totalitarianism.
We forget that it is, above all, in the details that we run the risk of enslaving men…Subjection in the minor things of life is obvious every day and is experienced indiscriminately by all citizens. It does not cause them to lose hope but it constantly irks them until they give up the exercise of their will. It gradually blots out their mind and enfeebles their spirit …
I may add that they will soon lose the capacity to exercise the great and only privilege open to them. The democratic nations which introduced freedom into politics at the same time that they were increasing despotism in the administrative sphere have been led into the strangest paradoxes. Faced with the need to manage small affairs where common sense can be enough, they reckon citizens are incompetent. When it comes to governing the whole state, they give these citizens immense prerogatives. They turn them by degrees into playthings of the ruler or his masters, higher than kings or lower than men. Having exhausted all the various electoral systems without finding one which suited them, they look surprised and continue to search, as if the effects they see had far more to do with the country’s constitution than with that of the electorate.[12] [emphasis added]
As noted in Part I, the intent of the Founders in proposing the addition of the Bill of Rights to the Constitution was to foster greater trust in government by adding language to limit or restrict the ability of government to abuse its powers by infringing on the inalienable rights of its citizens. But the leaders of American government over the last century have so eroded the meaning of the Constitution and the intent of the Founders that trust in government is at an all time low. Once we trusted in God from whom those inalienable rights flow. We are now told that we must trust in the leaders of the permission society from whom all privileges are dispensed to the greatest number for the greatest good.
Larry G. Johnson
Sources:
[1] Timothy Sandefur, The Permission Society, (New York, London: Encounter Books, 2016), pp. 28-29.
[2] Ibid.
[3] Ibid., p. 29.
[4[ Ibid., p. 30-31.
[5] Ibid., p. 32-34.
[6] Ibid., pp. 34-35.
[7] Ibid., p. 35.
[8] Ibid., p 36.
[9] Jarrel Wade, “Grocery store proposal on tap,” Tulsa World, May 9, 2017, A-1
[10] Ibid.
[11] Ibid.
[12] Alexis De Tocqueville, Democracy in America, Gerald E. Bevan, Trans., (London, England: Penguin Books, 2003), pp. 807-808.
