LIMITS TO CONTROL
(CALIFORNIA AND RENT CONTROL)
"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
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
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 Userís 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
The sentiments expressed in this great Declaration are at
least as exhilarating as those of Rep. Tauscherís 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 worldís Userís 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. Tauscherís 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.
Tauscherís little declaration and the great one by virtue of this very brief
segment of the Constitution which grew out of it. In Rep. Tauscherís world, we
are free to act only with respect to those matters not pre-empted by her Ownerís
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. Tauscherís Ownerís 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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