Chewing the Fat with Jeff Fisher - Jeffy's Corner: The Permission Society w/ Timothy Sandefur

Episode Date: September 17, 2016

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You're listening to the Jeff Fisher Show. How many times have you read the stories that have told you that someone was trying to, I don't know, have a lemonade stand? Have a little kids selling cookies outside the store. And people came along and shut it down. And why did they shut it down? because they didn't have a permit. Timothy Sandoffor has written a book called The Permission Society. And Tim, the Permission Society is exactly that, isn't it?

I can't even sell lemonade without some sort of permit from the government. That's right. I think it's important whenever people hear the word permits to keep in mind that what that means is permission. You're having to get the government's permission to do something. And when you think about how many things in our, lives today, we have to ask the government's permission to do. I mean, build a house, start a business, hire somebody, buy a gun, even medicine, right? What is a prescription? A medical prescription is a government permit allowing you to have a medicine. That's unbelievable. You are

absolutely right. So, Tim, what, first of all, has it just been because we've just looked the other way and said, yeah, well, you know, that sounds good. Because when you think about it, you'll Use prescription for an example. You think about, well, yeah, you know, if they say, well, you know, somebody probably needs to oversee that. You know, I don't, you know, I obviously, depending on, you know, what type of political leaning you are, either you think, yeah, well, you know, people should be regulated or, you know what, people should live and die on their own regulations. And so what? If they take more medicine than they're supposed to, that's up to them, not you.

But yeah, I think in the book I argue that it is just a gradual thing like you said that what happens is it's very easy to fall into this way of thinking of saying well such and such an activity is dangerous. So we're going to just have a rule that says you have to prove that you know what you're doing before you do the thing. The problem is you can apply that kind of thinking if you're not careful to absolutely anything. And I give examples in the book of how people have tried to force you to get government permits to have children or in some cases there's one argument. a couple of philosophers who have made the argument that you have to get the government's permission before you treat your children well by sending them to private schools and stuff. That is, and that's actually more and more, right? I mean, more states are going against the homeschool thought process by saying,

well, you know, yeah, you can homeschool but prove to us that you know what you're doing. In Michigan in the 1990s, they tried to shut down homeschoolers by requiring them to get teacher credentials before they could homeschool their children. And fortunately, the Michigan Supreme Court said, no, that intrudes too much on the constitutional rights of parents. But, you know, these kinds of permit requirements are pervasive. We find them everywhere. What got you started writing this book down this line of the Permission Society?

Because I absolutely love the idea. Well, I was talking to a lawyer friend named Alan Gurra. He won the big Second Amendment cases before the Supreme Court in the previous years, the Chicago case and the D.C. case about gun rights. And he was saying, you know, in the First Amendment realm, when we're talking about freedom of speech or freedom of the press, the constitutional rule is very clear. You're not allowed to have a law that forces people to get permission from the government before they can speak. A permit requirement is simply unconstitutional. Well, why shouldn't that be the case for the right to possess a firearm? How come the government can impose these extremely vague standards that say you're not allowed to own a gun unless there's good cause?

And of course, good cause means whatever the bureaucrats say it means. And I got to thinking, well, gosh, you could look at everything in life that way. I mean, why is it that the government can, for instance, if you want to build a house, they can impose a permit requirement that tells you what your house can look like. Well, gosh, you know, architecture is a form of free speech. If you look at Frank Lloyd Wright Houses, those are beautiful artistic achievements. How can the government come in and restrict speech by telling me what my house can look like when I build it? Well, I mean, again, when we have our homeowners tribe in the neighborhoods, our neighborhood watch societies, they tell people they can't have stuff in their front yards, their backyards, what color their fence can be,

know those windows are wrong all the time. And the argument is, well, hey, you moved into the neighborhood, you knew what you were getting into. But why are those rules there in the first place? Well, and I make it, I try to argue, I'm not saying that permit requirements are never a good idea, or that, and I'm arguing actually that the free market can provide protections when necessary that are better than government protections. So take, for example, zoning rules. Zoning was created about 100 years ago on the theory that this would be a way of rationally organizing cities and making sure that things were located in the best places. So they didn't have haphazard development where you'd have a factory next to. a school and so forth. Well, 100 years later, it turns out, if you look at the Manhattan zoning map today, it is every bit as crazy quilt and lunatic as it was 100 years ago, because

everybody gets variances and exceptions and exclusions and grandfathered in and so forth. The difference is back then, the choices about how land use was going to be done were made by the people who own the property, and it was based on supply and demand and what the market wanted, what consumers wanted, and so forth. Today, those decisions are made by political bodies, by who knows a politician, who contributes the most to his campaign, who can get a favor from City Hall and so forth. That's the big difference. It's not a difference between no planning on one hand and planning on the other hand. It's a question about whether the planning is done by the people or by bureaucrats. I mean, we've seen evidence of that in this

latest presidential election. One of the candidates is proud of doing that. I mean, that's what his deal is. Yeah, I gave to everybody. I had to get stuff done. I mean, it's amazing. That's right. You talk a little bit about it in your book, we'll go to Chapter 7 here, guns, and we touch

a little bit on guns and a little bit on drugs for prescriptions, but guns, drugs, and sex. I mean, those are three things that are definite permission society. Yes. Well, I think the reason why is because permits the rule that you can't do something unless the government lets you. That's obviously an

extremely powerful tool for the people in government. And so permits have become a device where those in government can impose not just their preferences when it comes to economics or property use, but also their preferences when it comes to morality or how society ought to look and so forth. And so I argue that we've seen in recent years, we've seen the development of these so-called yes means yes rules that presume that you're a rapist unless you can prove afterwards that you got consent from your partner at every stage throughout the evening. Well, we've pretty much reached, I mean, we have pretty much reached the guilty unless proven innocent instead of innocent and self-proven guilty stage right now with almost everything,

let alone rape. And this is now the law in California for college campuses. All colleges in California are required to have one of these. one of these what they call affirmative consent rules that presumes that you're guilty of rape unless you can prove a negative. I mean, this is a reversal of a thousand years of criminal law in the Anglo-American common law system that has always presumed people to be innocent until proven guilty. And the reason why you're presumed innocent until proving guilty is because it's never possible to literally prove your innocence. You could come up with all sorts of

hypothetical, well, gosh, what if you did it this way? Oh, what? What if you did it that way and so forth if the presumption is guilt? And so we have the presumption of innocence because it's just not logically possible for a person to prove that he didn't commit a crime. Well, for the same reason, I think all permit requirements suffer from the same handicap. A rule that says you're not allowed to build a home unless you can prove that it would be absolutely safe. You're not allowed to possess a firearm unless you can prove that you would be absolutely qualified to possess that firearm. You're not allowed to start a business unless you can prove that you would absolutely not cause pollution or whatever. Right, right.

These rules always presume you guilty unless you can prove that you're innocent or presume you unfree unless you can prove that you should be free. Where are we headed with this, Tim? I mean, are we just going to get just worse and worse? Because it certainly seems that way. And then there are times when I feel like, no, you know what? People are starting to get it. We're going away from it. They realize that, hey, we want to be free.

As an example, I live here in Texas. And, you know, everybody talks about the great freedoms of Texas. And it's true to a point. But Texas is being invaded from other states. And those things that they're coming to Texas, yeah, we love Texas for the freedom. But, you know, we should really do it the way we did it in our state. No, we shouldn't.

And it's getting worse. That is so true, yeah. No, I'm in the same campus view. Some days I feel optimistic and some days I feel pessimistic. I feel very pessimistic when I look at the national level. But when I look at the young generation, I feel more confident. I think the kids who are coming out of college today, a lot of them have pretty crazy ideas, but a lot of them also see what a real threat this is and how their generation is being harmed

and deprived of opportunity because of the permission society. To me, this is the main. problem with the permission society is that saying you have to get government's permission first is a real handicap to innovation and opportunity and discovery and growth. And so it's the younger generation that has the most to lose because those people who already have permits to run a business or whatever, they're set. They're secure. It's the rising generation of entrepreneurs and newcomers to the market. They're the ones who get locked out because of the permission Society. So I'm hoping that they see this problem and are willing to say, you know what, we should

have a rule that you're free unless proven otherwise instead of a rule under the Permission Society that you are not free unless the government says that you are. And you think that these students coming out of colleges and their safe spaces are going to do that? I don't know. I like it. You know, that is a main concern for me. It really is. But, you know, I also, I have to talk to a lot the students who really get it. I know. It's not, it is, it most definitely isn't everyone. No question. We are definitely in a surrounding world of the minority is getting the, getting the coverage and the majority is just like, well, that's just stupid and move on.

Right. Well, it's so stupid. We can hardly believe that that's actually going on. Right. I mean, the whole safe space thing took me totally by surprise. I'm still astonished by how stupid that is. And yet it's, it seems. to be getting more and more common. I don't understand it. Yes, it is. I don't either. Okay, so one of the things, it's kind of a catch-22 as well, because you talk about the people who already have their permits are good, so they've locked out the ones that don't. But really, when you think about it, if you have a permit, that was issued by whoever, and we'll just use the government as the overall permitter, they can come in at any time and say, you know what,

No, no, we're shutting you down. That permit isn't good for you anymore. And that's the problem. And there's no way to find it. It's always different rules on you as you go forward. I mean, a good example of the kinds of ways that permit holders can be exploited is with building permits. So if you want a building permit, very often local officials will come to you and say, okay, you can have your building permit, but you have to give us a little something in exchange for that permit.

And, you know, the little something can often be a tremendous amount. And there have been Supreme Court cases that say permit officials are not allowed to use the permit requirement as a way of just a plan of extortion to take things from people. But unfortunately, local officials very often find clever ways to get around that and to force people to often give up their land in exchange for a permit to use the rest of their land. Or in a case that I litigated some years ago, my clients were forced to give up their right to vote in exchange. for a building permit in Southern California. Wow. First of all, I mean, I don't know that I would ever say yes to that, but what caused that to happen?

I want to hear. In California, the Constitution of California guarantees your right to vote on certain kinds of property taxes called assessments. And it's illegal for the local government to impose these assessments on people without having an election. But the city of Carlsbad decided that it wanted to impose these assessments. so when my clients went in for a building permit, the city said,

okay, you have to pay $115,000 in assessments up front, which is already illegal. And then they said, but if you can't afford it, and of course nobody can, then you can sign this waiver that says that you give up your right to vote on any future assessments and that waiver runs with the land so anybody who buys their property afterwards also doesn't have the right to vote on property assessments. And unfortunately, the Ninth Circuit Court of Appeals rejected that case. on a technicality, and so that law remains on the books today. Wow.

I mean, I don't know what else to say, except, wow, that really amazes me. But why not, why wouldn't they try? Because if it works, okay, yeah, you know. Right. Timothy Sanderford, the Permission Society, available now in every available place that you could possibly find it, the Permission Society. Is there a website that you'd like anyone to go to, Tim, or are you just good with sending them to the usual suspects and

purchase the book. Well, you can check out my work and the work of my colleagues at the Goldwater Institute at goldwater institute.org. And for more information about the book and go to Encounter Books's website. Great. Timothy Sanford, thank you very much, man. I appreciate you joining us on the broadcast today. Thank you. Hey, this is Jeff Fisher. Let me tell you about this, and then we'll get to the show, okay? If you're in the market for a new mattress, casper.com slash fisher should be the next website you visit. Casper created one perfect mattress that sold directly to you at a shockingly fair price, eliminating the need to endure one of those commissioned salesman mattress stores with inflated prices.

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