LIMITS TO CONTROL (CALIFORNIA AND RENT CONTROL)

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"The Constitution was never meant to be the only set of laws that we follow. I had a blue dress when I was five, but I can't wear it because it doesn't fit me anymore. There are lots of things that change over time and you have a whole bunch of legislation enacted every day, every month, every year that adjusts and calibrates to the times and to the issues...what is perceived to be the best thing for the American people...and these are called laws, and, you know, I think they've been doing a pretty good job."

Hon. Ellen Tauscher, Democrat, California Congressional delegation, addressing her constituents during a town meeting in San Ramon, California.

There was a time when one could go through life with a minimum number of contacts with the government. Aside from filing a tax return each April, the occasional traffic ticket, and a short brush with the Selective Service System early on, the government was peripheral to the lives of average citizens. Important decisions were not made with reference to State and Federal statutes and local ordinances. If contact was made with a government entity, by virtue of a zoning ordinance, say, this was generally viewed as a rare and weird catastrophe.

The average landlord in the City and County of San Francisco in 1999 can, on any given day, count on having to bring his conduct into compliance with at least the following statutes, regulations and ordinances -- I am going by memory, so there may be some I leave out, as might the average landlord, which is why he often gets into trouble -- the Federal Fair Credit Reporting Act, the Federal Fair Debt Collection Practices Act, Federal HUD occupancy regulations, Federal EPA lead based paint disclosure statutes and regulations, the Federal Americans with Disabilities Act, Federal fair housing laws and regulations, a large variety of Federal tax regulations pertaining to assessments and loopholes applicable to his property, Federal employment standards for his employees, if any, California employment standards for his employees, the California fair housing laws, the California Unruh Civil Rights Act, California security deposit laws, California holding deposit laws, the California Lock Law, the California laws specifically dealing with telephone lines, utilities distribution and liquid filled furniture in particular units, the San Francisco Residential Rent Stabilization and Arbitration Ordinance, the San Francisco Rent Board and its regulations and hearing officers and procedures, the San Francisco Human Rights Commission, the San Francisco interest on security deposit ordinance, the San Francisco building security ordinance, and a variety of San Francisco zoning ordinances dealing with in-law units. This only covers the laws the landlord will encounter in his chosen profession, not all of those that he will have to deal with only because he is breathing.

People who study and philosophize about such things generally classify laws as of two types. These are proscriptive or prescriptive. A proscriptive law is a prohibition. A prescriptive law is a command. Proscriptive laws impose a much smaller burden on individual freedom and creativity. If one has a choice of 26 different courses of action, designated by the letters "A" through "Z," and the law provides that one may not do "B" or "X," then there are still 24 courses of action legally available. While the law may be inconvenient, few would consider it oppressive. Where the law is prescriptive, however, it will read that one must do "A," effectively eliminating 25 possible alternative courses of action. The implications for oppression are obvious. Most of the laws and regulations which I have cited above are of the prescriptive type.

This is what Rep. Tauscher means when she says, "you have a whole bunch of legislation enacted every day, every month, every year that adjusts and calibrates to the times and to the issues...what is perceived to be the best thing for the American people...and these are called laws." Not only must these laws be enacted, but they must be fine tuned, "calibrated," all the time to that the American people will always do (what she perceives to be) the best thing. Indeed, this imperative has led to a third type of legislation, even more odious that the prescriptive type. This is the type in which a legislative body passes a relatively simple prescriptive or proscriptive law, but then creates a quasi-legislative body to formulate "regulations" to carry out the "legislative intent."

This is the new legislative impulse. In the past the laws were viewed as simple proscriptions to permit people to go about their business freely and with minimum friction (God, for example, got along with ten, mostly proscriptive), now the law is viewed as a sort of User’s Manual to the world, with a mandated course of action for each and every conceivable situation. The paternalism and distrust by legislators, regardless of the governmental level at which they "serve," and the contempt in which they hold the ability of the American people to work things out for themselves, is illustrated by the explosion of quasi-legislative bodies. Having arrogated to themselves the duty to make all our life decisions for us, legislators have found that they are too few to "adjust and calibrate" to the times and issues confronting we other 270 million. Thus we have battalions of bureaucrats whose only job is to regulate the rest of us.

As a part of the outcome of this new legislative impulse, there have been some casualties. For example, to quote from a quaint document from our past, we used to:

"...hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The sentiments expressed in this great Declaration are at least as exhilarating as those of Rep. Tauscher’s small one. Most Americans would hold that both declarations are true, but in reality, they are irreconcilable. Life is still pretty secure, but the proposed rationing of health care may make it less so, remember what happened in 1993 and 1994. Liberty -- how can such an outmoded concept exist side by side with the need to "adjust and calibrate" all the prescriptions we need to get through the day. Liberty, after all, can lead only to confusion and disorder, as each American does what he thinks best for himself and those for whom he has accepted responsibility. The pursuit of Happiness, i.e., property and wealth, must also die with dignity, as it implies that the individual American might be free to move in directions not thought of by the legislators and bureaucrats busily fine tuning and "calibrating" the world’s User’s Manual. The Manual is enough, as it will lead to a tolerable existence without the need to make decisions. Excellence and achievement must be eliminated as they are antithetical to control.

The following language is from one of the inside labels of Rep. Tauscher’s old "blue dress." It is generally not discussed in polite company, especially among legislators.

"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."

One can see the inherent incompatibility between Rep. Tauscher’s little declaration and the great one by virtue of this very brief segment of the Constitution which grew out of it. In Rep. Tauscher’s world, we are free to act only with respect to those matters not pre-empted by her Owner’s Manual. In a world which prizes independence, on the other hand, Rep. Tauscher is only free to act in those areas in which we consent that government is essential, and then only in such a way as to enhance, not restrict, choice.

It is incoherent for any American to think that he can be free while all others are regulated. Yet, if asked, the average American will always say that he insists on the rights and freedoms which he thinks important. The decision is inescapable. Americans may elect to act as operators of the world according to Rep. Tauscher’s Owner’s Manual, or they may elect to live their lives as they choose, complying with those minimum controls and regulations which are necessary to assure free and secure exchange among themselves. The attitudes to life which the two approaches imply are not compatible. We cannot have it both ways.

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