Mr. Foley, a parmer in Schwabe, Williamson and Wyatt, practices law in Portland, Oregon.
The coercers of the mandate state employ many artifices to camouflage their true intent. They utilize these devices for two different reasons: first, they fear the truth, because truth is freedom, so stratagems that mask their desires serve their ultimate ends well; second, they realize that human greed and envy will permit them access to their goals, if that greed and envy can be cloaked in acceptable garb.
A particularly apt example of this modern approach to merchandising malice appears in the current vogue for citizen participation in governmental decisions, especially at the county, city, and quasi-municipal corporate level. The coercers ostensibly theorize that local governmental decisions will reach a political nirvana if those persons affected have their say and provide “meaningful input” (in the argot of the social planner) into state determinations. In fact, the social engineers recognize that they can find and fund a sufficient number of people to offer the appearance of probity and approval, whatever the scheme. This essay proposes a brief exploration into this late-20th century phenomenon.
I. The Town Meeting Justification
One might wonder at an attack on participatory democracy—after all, didn’t the Founding Fathers pattern our governance after the New England town meeting and representative governmental theories of the 18th century? Shouldn’t the governed be permitted, nay encouraged, a voice in their political control?
No one decries representative or participatory democracy in theory, so long as the actions don’t tread upon a minority, even a minority of one, and so long as the democratic process is real and not just a charade. While the national Constitutional Convention assembled in 1787 established a republican form of government expressly for the states and by implication for the Federal aggregate, Jeffersonian theory, at least, favored subsidiarity (the local unit of government best performs all needed collective functions) which inherently subsumes democratic participation by the governed. Also, while the New England town meeting was not carved into national policy, many 18th-century thinkers recognized its worth.
The fundamental question must always be asked: What constitutes a proper function for the state? If one passes that inquiry for the moment, many would agree that all citizens affected by a decision concerning a proper governmental act should be invited to participate in such rule-making.
Several reasons support personal participation in regulation. First, an essential element of justice views self-government as intrinsically correct and proper. Second, no autocrat or oligarchy possesses sufficient knowledge and judgment to pass satisfactory laws controlling other human beings. Third, citizen participation tends to induce agreement and prod obedience to the laws thus enacted. Fourth, better rules of order develop from cross-pollination of many minds. Given these valid reasons undergirding participatory democracy, a substantial defect must exist in the current operation to explain the assault apparent from the thrust of this essay. In fact, two very substantial reasons uphold a protest against the current fashion.
II. Current Use of the “Public Hearing” Concept
The present use of community meetings in lawmaking gains much of its currency from explicit national and state policies decreeing citizen participation to be a necessary good which must be invoked before stated and governmentally desired results start to flow. At the national level, application and entitlement to “Federal funds” may require “input” from the community to be served as a precondition to distribution. At the state level, the legislative, executive, or judicial branches may enact an overall policy (deemed good) but compel residents to appear and voice opinions regarding elements and application of that policy to specific instances.
A Federal example: consider the urban mass transit grant program, a Congressional concoction designed to disburse hundreds of millions of taxpayer dollars in the quest for riders on state-subsidized buses. The Congress has decided that public mass transit constitutes a desirable end; to achieve the details of that end and to imbue the affected recipients of this largess with a sense of belonging, the legislators also provide for public hearings in 49 USC Sec. 16040):
Upon submission for approval of a proposed project under this section, the Governor or the designated recipient of the urbanized area shall certify to the Secretary that he or it has conducted public hearings (or has afforded the opportunity for such heatings) and that these hearings included (or were scheduled to include) consideration of the economic and social effects of such project, its impact on the environment, including requirements under the Clean Air Act, the Federal Water Pollution Control Act, and other applicable Federal environmental statutes, and its consistency with the goals and objectives of such urban planning as has been promulgated by the com munity. Such certification shall be accompanied by (1) a report which indicates the economic, social, environmental, and other effects of the proposed project, including, for construction projects, the effects of its location or design, and the consideration given to the various alternatives which were raised during the hearing or which were otherwise considered, (2) upon the Secretary’s request, a copy of the transcript of the heatings, and (3) assurances satisfactory to the Secretary that any public mass transportation system receiving financial assistance under such project will not change any fare and will not substantially change any service except (A) after having held public hearings or having afforded an adequate opportunity for such hearings, after adequate public notice, (B) after having given proper consideration to views and comments expressed in such hearings, and (C) after having given consideration to the effect on energy conservation, and the economic, environmental, and social impact of the change in such fare or such service.
A state example: the Oregon Land Conservation and Development Commission, Created by the Oregon Legislative Assembly, defines “land use goals and guidelines,” a euphemism for classifying and totally regulating the entire acreage of the state. However, within those broad state policies, the Land Conservation and Development Commission compels each governmental unit—with requisite citizen participation—to proceed through almost eternal and certainly wasteful hearings in order to develop a local “comprehensive plan” fitted to the city, county, or quasi-municipality. The enabling statute specifies the requirement of citizen participation:
197.160. State Citizen Involvement Advisory Committee; city and county citizen advisory committees. (1) To assure widespread citizen involvement in all phases of the planning process:
(a) The commission shall appoint a State Citizen Involvement Advisory Committee, broadly representative of geographic areas of the state and of interests relating to land uses and land use decisions, to develop a program for the commission that promotes and enhances public participation in the adoption and amendment of the [state-wide planning] goals and guidelines.
(b) Each city and county governing body shall sub-reit to the commission, on a periodic basis established by commission rule, a program for citizen involvement in preparing, adopting and amending comprehensive plans and land use regulations within the respective city and county. Such program shall at least contain provision for a citizen advisory committee or committees broadly representative of geographic areas and of interests relating to land uses and land use decisions.
(c) The State Citizen Involvement Advisory Committee appointed under paragraph (a) of this subsection shall review the proposed programs submitted by each city and county and report to the commission whether or not the proposed program adequately provides for public involvement in the planning process and, if it does not so provide, in what respects it is inadequate.
(2) The State Citizen Involvement Advisory Committee is limited to an advisory role to the Commission. It has no express or implied authority over any local government or state agency.
Thus, given the explosion in regulatory reach and detail afflicting the commonwealth today, the observer notes a virtual plethora of neighborhood associations, community planning organizations, local improvement districts, and myriad other squanderers of time and liberty, each devoted to the boredom of eternal explanatory meetings (work sessions) and forums for “citizen comment” (public hearings). It remains to consider the dual criticisms that detract from the beatific allure of public meetings.
III. The Twin Defects of Recent Pseudo-Democratic Strains
A. Pandering to Personal Greed and Covetousness
Remember the fundamental question that must be asked of any proposed governmental or public activity: Does this constitute an appropriate state function? If the answer lies in the affirmative, the town meeting may afford an acceptable, if not superior, method of determining and implementing public policy. However, if the answer is negative, no amount of “citizen involvement” procedures will convert an improper act into an ethical and acceptable one. Unfortunately, almost all the instances of participatory democracy assume the propriety of the end sought, concentrate on the superficial means employed, and avoid this central issue which should be studied and answered.
Elsewhere, I have suggested the test to be applied to the central question: Does the proposed state function reasonably concern (1) the protection of nonaggressive persons from acts of force or fraud, (2) a defense of the realm, or (3) the resolution of otherwise insoluble disputes? If the function falls within these limited boundaries, it provides a ripe source for public concern and the exercise of the coercive force we term “government”; if the function lands outside these narrowly circumscribed perimeters, human conduct ought to be left to the individual choices of the people involved.
Deplorably, omission of this seminal question serves to obscure the fact that most, if not all, public hearings relate to matters properly relegated to private choice. Land-use planners don’t consider whether or not the state, or any individual or group of citizens, ought (philosophically, morally, and empirically) to dictate to other, unwilling neighbors the uses of the real property belonging to the latter. Instead, they hold witless hearings (ignoring the basic question or assuming its answer) designed to carve up the countryside into brightly colored blocks and blobs on a map, representing the (presumed) community calculation of how land ought to be employed. Likewise, advocates of mass transit never examine whether taxpayer-residents (1) want a bus system or (2) if so, desire to pay public monies for a municipally owned system as opposed to a private enterprise; instead they ignore the indispensable disquisition and spend citizen time, money, and energy in a search for ways to implement their grand design—through street closures, residence relocation, mandatory ridership in the name of energy conservation, and the like.
A deeper moral evil afflicts this activity than appears at first blush. The social architects seek their ends, knowing for the most part their goals and their reasons. They also recognize that a real and fair statement of the debate—freedom versus slavery, choice versus chains, contract versus coercion—might provoke an outcry from the public that would scuttle their plans. The planner “knows” that his plan represents a superior view of man’s destiny; he cannot tolerate opposition or objection. With this attitude, the planner indulges in some sleight of hand (believing that his chosen end justifies any means) to assure public acquiescence if not acceptance. He panders to those sinister human emotions of greed and covetousness, playing what Gary North so fittingly calls “the politics of envy.” He encourages neighbor against neighbor, friend against friend, business competitor against business competitor, in a dark quest for conformity to his aims.
Members of a neighborhood association testify as to the “proper” uses of property in the area. “We don’t want any more gas stations, car washes, or fast food restaurants in our nice residential district.” Never mind that kindly old Mr. Smith down the block invested his life savings in a 100×100 corner lot and negotiated a lease to Arco or Mobil as his retirement security. The planners know what they want; the neighborhood will be told what it wants; and that human malady of envy will come to the fore.
One can easily criticize the malevolence of the social engineer who wishes to coerce other people and fit them into his or her mold, caring not a whit if this means catering to the most base and despicable of human emotions to achieve the desired end. However, a just judge must reserve some fair share of anger for the citizen who becomes a pawn in this depraved play, who permits the panderer to appeal to his low emotions and immoral desires. The vocal resident who protests the opening of a new restaurant, who favors zoning or down-zoning of his neighbor’s parcel, or who testifies in favor of street closure or limited access in order to improve his lot in life or to enforce his subjective value judgments regarding a “perfect neighborhood” should go to a special kind of hell. And few modern citizens have the right to cast the first—or any—stone!
B. A Masquerade of Self-Limitation
To this point, we have considered the question of the propriety of the means chosen in relation to the ends sought, and have found them wanting. It remains to analyze the efficacy of the means employed by the planners in regard to their stated purpose. These, too, prove wanting.
In essence, the message of this essay is that public testimony means nothing; it constitutes an exercise in futility, a charade of the classic first order. The planners and statists know what they seek, and they will always secure their ends with apparent (but unreal) public support.
Men and women of a certain mind-set tend to dominate the present political scene at the national, state, county, and city levels. Schooled in the relativism and futile delights of statism, these individuals display a particular predilection in favor of government solutions for all real or imagined ills of society, and a distinct distrust and disfavor of private ownership of real property and personal motor vehicles. Given their options, these statists would eliminate the single-family dwelling and the private automobile from the face of America, and would substitute in their stead a gaggle of happy serfs trundling between their governmentally owned and subsidized hovels and their state-regulated employers on the shiny, gaudy buses of the urban mass transit system.
Maintenance of a bias against private ownership and the accumulation of wealth is one thing; control of the political apparatus and legal system with ability to effect these prejudices is quite another. Unfortunately, persons possessing the catechism set forth now occupy a position to destroy ownership, particularly of real property and motor vehicles, in their drive to subjugate the citizenry. Even more unfortunately, the victims—those people who have labored creatively for years to exchange their stored-up labor for an automobile, home, and garden—cannot or do not grasp what their traducers are about. Too often too many of us believe that man is inherently good, that mankind is perfectible, if only left to its own devices; that is simply not true, but because of this fantasy, the victims-the producing class of the United States—just cannot believe how mean and low the modern slave-masters have become. I believe. I have been there. And, I am here to reveal the warts and blemishes of this ugly play.
Sovereignty consists of three great divisions of legal power (eminent domain, taxation, and police power), and the dictators of our communities make most effective use of each type of power in their quest for total control of all real property in the area. And, make no mistake, the goal is complete government dominance and ownership of all realty within a few short years. Concomitantly, they seek to do away with the mobility provided by the automobile, cognizant of the fact that freedom falters without personal mobility and a sanctuary to which to repair. By taxation, by regulation, by planning, the Machiavellis of “Our Town” bite off great chunks of liberty by the subterfuge of conservation, environmental protection, and progress. As delineated earlier, they gain their ends by playing to base human emotions and inducing citizen participation in a monumental farce.
Of course, home ownership and our love affair with the automobile constitute two of America’s most desirable and cherished personal rights, ranking high on the list of values maintained by many people. Therefore, a frontal attack by the statists might meet with too great an opposition; not only might the power play fail but also those who tried to seize control might lose their state-paid jobs with all the fringe benefits of wealth and power. Thus, we witness a subtle yet effective assault upon our ownership and our freedom of movement, an assault fueled by the politics of envy. Companion to this veiled riposte, one soon discovers that the victim is given a role to play, a role that tends to make him or her a willing participant in his own hanging. This role is labeled “participatory democracy,” and it is molded cleverly and wielded well by the power-masters and their lackeys.
Simply put, today’s town meeting never serves to correct or constrain the planner. By means of careful orchestration, the state architects always produce seeming community support for their preordained choices. Their supporters, often cloaked, always muster forth with pat lines; their detractors strangely never receive notice of the meeting or, if by mistake notice does arrive, they find it postponed, or their comments ignored, or their participation strictly limited. The hearing room is always stifling in summer and freezing in winter. The meetings are long-delayed or boring, so that citizens who must arise in the morning to attend to work or school cannot stay until their regulated turn arrives. Plan contents change magically and without notice. Transcripts and exhibits vanish. All but the most hardy become discouraged, as the assault of the meetings continues until all adversaries disappear from weariness or frustration. Thereafter, the commission or hearing officer always smiles sweetly while making an “objective” decision forecast by the staff henchmen.
In a sentence, the coercers offer the opiate of a public heating, of citizen involvement, to the residents of the area, encouraging them to believe that they are participating in a grand experiment in self-governance, when in reality they are executioners of their neighbors’ rights, and pallbearers at the funeral of their own freedom.
4. Note that the committee is “advisory” only; as demon-mated under section m B, infra, it would not do to give residents too much control over their own lives and land. They might rebel and abolish the Land Conservation and Development Commission, and then how could the power-hungry and cost-absorbing bureaucrats achieve their ends?
5. See, e.g., Ridgway K. Foley, Jr., “Individual Liberty and the Rule of Law,” Willamette Law Journal, December 1971, pp. 396-418 and The Freeman, June 1971, pp. 357-78; and “The Source of Sovereignty,” The Freeman, March 1982, pp. 167-75.