The Great Founding Fathers
2010-08-08 · Guest: Anthony Sanders (Institute for Justice) · 20:56
Economic liberty and local government overreach
Bob Zadek and Anthony Sanders of the Institute for Justice discuss the ongoing struggle for economic liberty in America, focusing on local government overreach in cases ranging from pumpkin sales in Minnesota to pet store bans in San Francisco. They explore the history of eminent domain through the lens of the landmark Kelo v. New London case and argue that the original intent of the Constitution was to foster a national free trade zone and protect the right of individuals to earn an honest living without undue state interference.
Topics: Economic Liberty, Eminent Domain, Kelo v. New London, Occupational Licensing, Property Rights, Institute for Justice, San Francisco Pet Ban, Constitutional Law
Speakers:
- Bob Zadek: Host
- Anthony Sanders: Staff Attorney at the Institute for Justice
Introduction and the Battle Over Pumpkins [00:18]
Bob Zadek: Welcome to the Bob Zadek Show. I’m your host, Bob Zadek, here every Sunday at noon on 910 AM. More stimulating talk. We are the leading libertarian Bay Area talk show. We are the show of ideas, not attitude, and we are both small-d democratic and small-r republican. In that august capacity, we welcome your calls. 800-345-5639. 800-345-5639. Whether you’re listening on the web or live, your calls, your points of view are welcome.
Today’s topic: Today we worry about pumpkins and puppies. Pumpkins and puppies are today’s topic. We start with pumpkins. The battle over pumpkins in Lake Elmo, Minnesota, is a battle for economic freedom. To explain, I’m happy to welcome my guest today, Anthony Sanders. Anthony, are you there? Welcome to the show.
Anthony Sanders: Thanks so much, Bob. It’s great to be on today.
Bob Zadek: Anthony is a staff attorney with my very favorite public interest law firm, the Institute for Justice.
San Francisco’s Pet Store Ban [01:38]
Anthony Sanders: We’ve taken on cases where you need a license to pursue an occupation, but the occupation is so far removed from the license that it’s basically a bar to entry. We’ve represented a number of clients who perform African hair braiding, and that’s—
Bob Zadek: I know about the hair braiding cases. They were big in San Francisco about 10 years ago.
Anthony Sanders: Yeah, we had a California case in San Francisco a number of years ago. We’ve had them in other places, including Minnesota. And there, you have to do something usually like 2,000 hours of training in cosmetology—
Bob Zadek: Including handling dangerous chemicals, even though all you’re doing is braiding hair. But you have to be trained as a nuclear physicist in order to braid hair.
Anthony Sanders: That’s essentially the correct analogy. But in those cases, at least even if you went through these onerous restrictions, you could then get a license. Here, it doesn’t sound like even if you’re the most careful, watched, trained pet seller who vets all your customers up the yin-yang, you could even then not sell pets. So this sounds a step beyond that. It effectively makes pets contraband, which is a new one on me. You know, as much as we may not be fans of laws against certain types of contraband, I’ve never heard puppies labeled as that before. But that’s basically what this law does.
Bob Zadek: And now you’ll be buying a pet, a little kitten—you’ll be buying it in a dark alley with somebody in a trench coat, and you’ll be paying in cash with no paper trail, just because—
Anthony Sanders: The other bizarre thing about this—and this shows you how just how detestable money and commerce is to some city planners—is that if someone, I assume, if say you had a kitten and it had a litter of kittens and you gave them away, that would not be banned under this law.
Bob Zadek: But if you charge a penny a kitten, you go to kitten jail.
Anthony Sanders: Right. But think about it. If you’re going to a pet store and you’re going to buy a kitten and you pay $100 for a kitten, you’re going to be much more likely to look after that kitten than if you just get it for free. And then you think, “Well, you know, I didn’t pay anything for this and I’ll just give it back or put it out of its misery.” But if you’re actually spending money for it, then you’re going to treat it with more thoughtfulness. So this not only drives sellers underground—because of course that’s what’s going to happen and drives it into the hands of people like puppy mills—but it also makes it that pets are going to be less looked after because they’re not going to have a value attached to them.
The Economic Impact of Pet Bans [04:31]
Bob Zadek: And what’s going to happen is, just like we have factories all along the Mexico-Texas border, we’re going to have pet stores in Daly City all along the San Francisco border. And people are going to go with their families to Daly City like they’re buying drugs just to get a puppy. And Daly City is about four minutes from the heart of San Francisco.
So what has San Francisco accomplished other than look like idiots by driving pet stores out of business and sending them across the border to Daly City or Marin County or Oakland, all of the neighboring cities? So look how, once again, the core principle in all this is economic freedom—the right to operate a pet store and sell a product to somebody who wants to buy it at a price you both agree upon. That doesn’t get into the mix. That is unimportant to the San Francisco—or if they pass this statute, in all fairness, they haven’t passed it yet—totally unimportant to the supervisors in the city of San Francisco. That doesn’t get considered. Or the right of somebody who wants a puppy or a cat or a gerbil or a hamster to go to a pet store that they trust, which has taken good care of the animals, make sure the animals are healthy because a pet store will value its commercial reputation.
And San Francisco shrugs all of that aside. Now, the reason for this—the reason San Francisco wants to do this, and by the way, it’s also being considered in Austin, Texas, which is like San Francisco with a drawl; Austin is like San Francisco writ small—but the reason these cities are considering it is they say, first of all, there are puppy mills that provide inventory to the pet stores. And they breed cats and hamsters and gerbils and puppies—they breed them under fairly unpleasant conditions in order to provide inventory to the pet stores. And I say, if that is the case, then regulate the puppy mills and regulate humane treatment. We do that now on farms. So just don’t eliminate the activity, but it is a reasonable exercise of government to provide an overlay of regulations which will simply get built into the cost of the puppy or the pet. So rather than take the easy, the non-free enterprise solution and just with a swipe of the statutory pen close up the pet stores, San Francisco says, “Screw the pet stores, screw the pet buyers. We are going to preserve our reputation as a bunch of lunatics and we are going to close up all of the pet stores.” The economic right to earn an honest living doesn’t matter in San Francisco. And forget about the tax dollars and the rent that the pet stores pay. That doesn’t matter. It’s a profound ignoring of any economic considerations whatsoever. Anthony?
Anthony Sanders: That’s exactly right, Bob. The last thing on the regulator’s mind is the consumer or the business owner or the future business owner and creating a climate where an entrepreneur can come into the situation and create their own business. So now this is, as we said, people are still going to want pets. So they’re either going to go outside the city or they’re going to go to someone who is running a puppy mill inside the city and then illegally obtaining those illegal puppies. I really don’t know if the city even believes that this will rectify the problem. What I suspect is that this makes them feel good and this gets them on the right side of some extreme animal rights people, and that’s why they’re doing it. But it certainly doesn’t solve any problems.
Bob Zadek: Bob Zadek talking to Anthony Sanders from the Institute for Justice. Pumpkins and puppies. 800-345-5639. Back in 90 seconds.
The Legacy of Kelo v. New London [09:22]
Bob Zadek: Welcome back to the Bob Zadek Show. We’re here every Sunday at noon at 910 AM. More stimulating talk. I’m your host, Bob Zadek. Every Sunday at noon. If you have a point of view, 800-345-5639. I am delighted to share the hour with Anthony Sanders. Anthony is a staff attorney at the Institute for Justice, the leading, in my opinion, public interest law firm in the country. The IJ has fought many battles. Most of you are aware of some of their victories and their defeats. They fought the Kelo case. Remember that one? Eminent domain in Connecticut. Anthony, that was one of your cases, wasn’t it? Not you personally, but IJ’s case.
Anthony Sanders: Yeah, that’s right. And that was a defeat, many of your listeners may remember, in 2005. But that defeat spurred reform across the country. And now 43 states have adopted legislation to tighten up restrictions on eminent domain. So we think of that case as a victory, and we have a good track record of turning defeats into victories in the court of public opinion.
Bob Zadek: I do as well. Before the Kelo decision, nobody, I dare say—the issue of eminent domain was just not on anybody’s radar screen whatsoever. And you guys were able to make it be a household phrase and a household concept, and you got everybody so outraged and worked up over it. You accomplished as much with the defeat, just about, as you would have with the success.
Anthony Sanders: Yeah, people would tell us, you know, other lawyers and interest groups would tell us we’re crazy, you’re tilting at windmills, this isn’t going to do anything. And we eventually do get a case to the Supreme Court and we lose on the narrowest margins, five to four. And everyone was pretty shocked by that, as we’ve heard. And then after that, there was just such outrage because of the idea that the government can take your home and give it to a business because the business is going to make more money in property tax than you do. It just outrages everyone, rightfully so.
And that has led to a real change across the country. And we’ve heard a lot of states have changed their laws and they could be better, but some states have changed them in a real dramatic way. And even in states that have changed them that could have made them better than they currently are, we’ve heard that the planners at least for now don’t touch the issue because they know there’ll be so much public outrage if they try. In fact, we don’t have that many eminent domain cases right now because whenever we go and try and represent someone, the city backs off because they see our name on the letterhead.
Eminent Domain and the Bill of Rights [12:26]
Bob Zadek: Just so the audience understands the issue, eminent domain first comes up in the Bill of Rights. It’s that important. And the drafters of the Constitution and the drafters of the Bill of Rights felt that personal property, the right to own your property, was so important, was so crucial to economic freedom, that the Bill of Rights prevented initially the federal government, but then the states as well through the 14th Amendment, prevented the government—any government—from taking your property for any purpose unless they gave you, quote, “just compensation.” They couldn’t just take your property.
But initially, without getting too much into the law, which I will not get, for most of the life of our country, eminent domain seemed to allow the government to take your property for a public purpose so long as they paid you. That meant traditionally a road, building a school, building a prison. It had to be a public purpose. What happened in Connecticut was for the first time, the government wanted to take homeowners’ property—say, “Get out of your home, we’re taking your home away from you, and we will pay you some low value because we think the area is blighted.” But the government said, “We’re not going to do it to build a highway or to build a prison or a school. We are doing it to give it to somebody else, another private party, so they can economically develop it and build a lot of high-rises and condos.” So this was the first time government wanted to take personal property from one person and give it to another because the other would make better use of it than you. Can you imagine something less American than that? It was that fight that the IJ took on.
Anthony Sanders: That’s right. And this has been an issue that was brewing for a number of years. There were some early Supreme Court cases in the mid-20th century that hinted you could do this. But then city governments didn’t really get into this business until about the 1980s when they started really taking land and giving it to other private developers in order to increase property taxes. And this case that we took in New London, Connecticut, we thought it was time to press it to the Supreme Court and say enough is enough in this business. And we lost. But as I said again, this has really changed the culture. It’s really changed the atmosphere out there. And now we have the city planners and the developers on the run because people are awake to this type of situation.
Economic Liberty and the Constitution [15:52]
Anthony Sanders: And what we’re currently doing is we’re trying to bring a similar awareness to economic freedom. And that maybe in a few years we can get to a point where city planners or where bureaucrats start licensing people or taking away rights to use their land, as they have in Lake Elmo, to take away your economic liberty, that we can get it to a point where the public will be similarly outraged by those abuses and call a stop to what the government is doing. So what we did with Kelo for eminent domain, we’re hoping to do for economic liberty.
Bob Zadek: And the reason I am so sympathetic, the reason this issue just gets me to my core is, I am so respectful of those people who gamble so much simply for the right to earn a living. To me, I find myself so offended by any statute that denies somebody the right to sell their services or their goods to benefit their family. It is so—and I’ll use a phrase that is so overused, but I must use it—it is so un-American. And by un-American, I mean there’s a certain ethos, there are certain concepts that are just part of our core. It’s what we represent. It’s what we stand for. It’s what we have represented to the world as the shining city on the hill for 234 years. And any attempt to water that down, to deny people—we are the place to come if you want to better yourselves. Come here to do it, and we get the benefit as well. The founders of Google were immigrants. And come here, practice your craft, use your brains, use your brow, use your muscle. Improve yourself, and we as a country benefit as well. Once we lose that, we’re just a European country on the wrong side of the Atlantic Ocean, and we’ve lost it all. Which is why I find myself so sympathetic to the goals of IJ when they pick up this fight for economic freedom. We lose that, in my opinion, we lose it all, and we become just another boring country. We don’t become the haven for free enterprise anymore.
Anthony Sanders: And Bob, one thing that people don’t realize, and what we’re trying to bring out in this case about the pumpkins being sold across state lines, is that the original purpose of the Constitution way back when it was drafted in 1787 wasn’t so much the Bill of Rights with the freedom of speech and the freedom of religion and all the other protections, as important as those are. But the reason for it was because there were trade wars between the states, and they needed to call enough is enough to people being able to sell their products across state lines. So this created a national free trade zone where people could earn an honest living by selling across different markets. And that’s why our Constitution was written as it was. And so 200 years later, we’re still fighting the same fight because people still don’t want you to be able to earn an honest living.
Competition and Economic Cowardice [18:48]
Bob Zadek: You know, Anthony, in my view, it’s about—we have become a nation of cowards. We have all of a sudden, we have become cowards. What are we afraid of? We are afraid of competition. We pretend to like competition. We watch pro football and pro sports for the competitive nature. Competition, winning honestly, is theoretically an American goal. And yet we have minimum wage laws so people don’t compete on price of labor. We have protectionist statutes, all of which are drawn out of economic cowardice. What in God’s name have we become when we are simply afraid of competition and we have to impose tariffs and duties to prevent foreign products from competing with American products? Why are we not saying to anybody who wants to sell their products here, “Bring it on”? And the result of competition is we as consumers get to buy the best product at the cheapest price. How dare the legislature deny me, the consumer, the right to buy the best product at the cheapest price? And it’s IJ who is preserving the right to compete, goods and services for an honest price. And for that, we all owe the IJ a debt of gratitude. And Anthony, thank you and your colleagues for fighting such a good fight and keep it up.
Anthony Sanders: Thanks a lot, Bob. And it’s great to be here on the show today. Again, you can find us online, ij.org. You can learn about all our cases there, including our case in Lake Elmo, Minnesota, and you can also make a donation.
Bob Zadek: And to you folks out there, thanks for listening. I’ll be back next Sunday. 800-345-5639. 12:00 to 1:00, Libertarian Talk Radio. Speak to you soon.