I’ve been astounded, for instance, about the heated debate over the Ground Zero mosque. It’s not at Ground Zero and the proposed Muslim community center isn’t really a mosque. But never mind those side points. My question: Who owns the property? Apparently the center is a private project and a lawful use of the property, per the government’s standards. End of story. But critics—many of whom claim to be champions of property rights, religious freedom, and the free market—remain opposed to it because they do not like the idea of a group of individual Muslims building something near a site where some other Muslims committed an atrocity.

The beauty of property rights is that they grant individuals the ability to determine their own future regardless of whether other people like them or not. If I own a property and propose a project that conforms to some easily recognizable preexisting rules, then I have the right to build on it whether or not my neighbors prefer that something else be built on the site—or whether or not they like me, the facility, or my religion.

Likewise, if I own a home or a business, I have a right to decide who gets to visit me on that property. It’s a simple concept. Surprisingly, California’s courts—which seem to have specialized in eroding property rights—cut through the nonsense last July and ruled in a way that would make any parent of a kindergartner proud, even though the same court contradicted itself in a different ruling the next month. Still, it’s progress.

California’s Third District Court of Appeals “struck down a union-backed California law Monday that allows labor picketing on a store’s parking lots and private sidewalks, saying it unconstitutionally requires property owners to host speakers with whom they disagree,” reported the San Francisco Chronicle.

In this case the Sacramento local of the United Food and Commercial Workers Union began picketing a Foods Co. supermarket, owned by the Ralphs Grocery chain. Union protesters stood only a few feet from the door, handed out flyers to customers, and occasionally marched in front of the door.

When the company tried to evict the protesters the union invoked the 1975 Moscone Act. As the court of appeals explained in its decision, “The Moscone Act declares that conduct relating to a ‘labor dispute,’ such as peaceful picketing, ‘shall be legal,’ . . . .” The state’s labor code, the court stated, requires that before a court grants an injunction in a labor dispute, it must find that “unlawful acts have been threatened and will be committed unless restrained” and “That substantial and irreparable injury to complainant’s property will follow” and “That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief” and “That complainant has no adequate remedy at law” and “That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.”

Free Speech vs. Organized Labor

This is an absurdly hard-to-meet standard. Under the state law, then, protesters can swarm a property unless the owner can prove the protesters will destroy the property and meet all the other impossible-to-prove caveats stated above. In the name of protecting unions in labor disputes, the state code obliterated what one would normally consider the most basic tenet of property rights: the right to keep intruders off of one’s property.

In its 3-0 ruling in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, the court ruled: “This case presents the question of whether the state, based on the content of the speech, can force the owner or possessor of real property that is not a public forum to give an uninvited group access to the private property to engage in speech. We conclude that such legislation violates the First and Fourteenth Amendments of the United States Constitution and, therefore, is invalid.”

And more simple clarity from the court: “Forcing a speaker to host or accommodate another speaker’s message violates the host’s free speech rights.”

This is not an inconsequential point. I recall during the four-month grocery union strike in southern California in 2004 the degree to which union protesters disrupted business, harassed customers, yelled at store employees, and did so right by the entrance to these privately owned buildings. In some cases the employees blocked store entrances. (Ironically, the leader of that strike is now speaker of the California Assembly, which offers some insight into the type of legislation that moves forward in California these days.) As I wrote in The Freeman in September 2004, the strike “disrupted most people’s lives. Store hours at almost all major grocery stores were curtailed; food selection was limited; and shoppers who continued to frequent Ralphs, Vons, or Albertsons stores were forced to cross picket lines manned by increasingly surly workers.” Unions gained a leg up in their bargaining because they could wantonly violate private property rights.

In a series of legal decisions over the years, California courts had come up with some convoluted distinctions regarding free speech on private property that is accessible to the public. Before the July ruling the basic standard was that in malls and multistore facilities serving as a de facto town square, individuals have more speech rights than at single-store facilities that are not intended as meeting places. But even at these free-standing stores, labor speech is protected by the above-referenced Moscone Act and other sections of the state labor code.

Public Private Property

In this particular case the unions showed up about five days a week and picketed the store for about eight hours. The company provided the union with a memo detailing its rules for speech on store property, and union members generally ignored those rules. The store called the Sacramento police, but the police refused to do anything other than give the union picketers the same copy of the rules they already had been ignoring.

The unions argued that the store was actually a public forum because another part of the shopping center had sitting areas. Those sitting areas, in the union’s view, made the store equivalent to a multistore facility that served as a town hall for public debate. The trial court ruled in the union’s favor, noting that the grocery company did not meet the five standards detailed in the Moscone Act.

It also agreed that the store is something of a public forum given that other groups had solicited money and signatures in front of the store. This is like saying one’s front lawn is the equivalent of a public park because the homeowners had allowed neighbors to congregate there. The beauty of property rights is that the owner can decide whom to allow on his property, at what times, and under what conditions—a point thoroughly lost on the trial court but overturned by the appeals court. As the appeals court explained, “A private owner may selectively permit speech or prohibit speech in a private forum without affecting the private nature of the forum.”

The appeals court also rebuked previous courts for decisions that “were based on the now-discredited notion that the First Amendment of the United States Constitution may prohibit private property owners from restricting expressive activities on their properties.” The court found the Moscone act unconstitutional: “The Act affords preferential treatment to speech concerning labor disputes over speech about other issues. It declares that labor protests on private property are legal, even though a similar protest concerning a different issue would constitute trespassing.” It similarly voided the relevant section of the state labor code (section 1138.1).

Attorney General Jerry Brown, recently elected governor again, filed an amicus brief in the Ralphs case that in 21 pages made no reference to private property and no distinction between the speech rights one has in the public square and the rights one has in a private space. His brief noted that “the state has no obligation to assist a property owner in restricting the expression of others.” All this time I thought the main purpose of the government was to ensure the life, liberty, and property of residents are protected from trespass.

Fortunately, the court grasped the latter point. Yes, the court acknowledged, a private property owner can limit access to his property, even to unions that are there to disrupt and harm the business. Yes, there are different free-speech standards—not depending on union membership, but based on where the speech is taking place (private versus public property).

Mixed Messages

Ironically, in August the same court came to a rather different conclusion in a free-speech case involving the Westfield Galleria, a large indoor shopping mall in the Sacramento suburb of Roseville, when it ruled against a set of severe speech restrictions adopted by the mall’s management. This is one of the more bizarre such speech issues since the Galleria had adopted a set of rules that prohibit people in the mall’s common areas from “approaching patrons with whom he or she was not previously acquainted for the purpose of communicating with them on a topic unrelated to the business interests” of the mall or shops within the mall, according to a Sacramento Bee report.

The rules are silly and offensive. Hearing about them would make me avoid the Galleria—although I already do so because I hate mall shopping. Nevertheless, despite the complications and circumstances, the same principle should be at work here as in the union-picketing case. Property owners get to set the rules on their own property, even bad ones, just as I get to determine the guests at my own house, even if I decide to invite a group of ne’er-do-wells and deadbeats.

Instead, the court ruled that the Galleria’s rules “are unconstitutional on their face.” Still, I can’t help but be thrilled by its decision in the Ralphs case and its recognition that unions do not have a set of free-speech rights elevated above everyone else. Overall, it’s a step forward for property rights in California, given that disruptive union picketing is common and few malls arrest customers who chat about the weather.

—Aesop

In a sensible world the folks who had predicted doom and gloom because of dramatic increases in the price of gasoline would be revising their scenarios now that gas prices have fallen. 

My article in November’s Freeman extensively quoted environ-metal/New Urbanist writer James Howard Kunstler gleefully pointing to soaring oil prices—the result, he argued, of “unsustainable” policies that promote urban sprawl. Those prices will signal the end, he added, of America’s “Happy Motoring utopia.” (I’d love some logical explanation of the word “sustainable,” but I digress.)

Then in the short period between my writing the article and its arrival in your mailbox, local gas prices fell from about $4.50 a gallon, with predictions by analysts of ever-escalating prices, shortages, and gas lines, to about 2 bucks a gallon, with predictions of prices going even lower. As I write this, there are no gas lines and local stations can barely give the stuff away at around $1.59. Who knows where prices are as you read this, but the fluctuations suggest that some economic factor is at work that probably can’t be explained by Kunstler’s “unsustainability” hysteria.

Yet his analysis hasn’t changed. Writing in late November for the Whiskey and Gunpowder blog, Kunstler offers the same solutions without directly addressing the change in his oil-pricing forecasts, but this time he keys off the latest crisis du jour—the subprime housing problem and potential collapse of the U.S. auto industry: “All the activities based on getting something-for-nothing are dead or dying now, in particular buying houses and cars on credit and so it should not be a surprise that the two major victims are the housing and car industries. Notice, by the way, that these are the two major ingredients of an economy based on building suburban sprawl. That’s over, too.”

I quote Kunstler because he says forthrightly what most of those in the Smart Growth, New Urbanist, and environmental movements refuse to say directly. These folks want a radical transformation of the economic system in a statist direction (Kunstler argues that “a much larger proportion of the U.S. population will have to be employed in growing the food we eat”), complete government control over land-use decisions, and policies that coerce Americans out of their cars and into mass-transit systems, especially rail lines. Here’s where the Aesop quote above comes in handy: No matter what the economic circumstances—high gas prices or low, housing boom or bust—Kunstler and his ilk declare that the situation is proof that Americans must radically change the way they live.

None of this would be worth taking seriously except that recently the California legislature passed and Gov. Arnold Schwarzenegger signed a law that attempts to establish a planning regime based on the notions outlined above. Although gas prices and the housing situation were part of the debate for SB 375, the real rationale for its passage was—drum roll please—the so-called crisis of global warming. The bill radically changes land-use law in California, yet it was passed on a mostly partisan basis with little public discourse or notice. Granted, Californians are used to having their property rights assaulted for a variety of reasons, but this measure was big even for this state. Few newspapers extensively covered the debate over the bill, and those that did generally supported it. Few Californians have ever heard of it. I’ve talked with legislators—including a couple of supporters—who are unfamiliar with its contents, even though its advocates and detractors agree that it is one of the most significant laws to come out of Sacramento in a decade.

“This legislation constitutes the most sweeping revision of land-use policies since Gov. Ronald Reagan signed the California Environmental Quality Act,” said Schwarzenegger. Its author, Senate Leader Darrell Steinberg, said the bill “will be used as the national framework for fighting sprawl and transforming inevitable growth to smart growth.” Although the pro-Smart Growth California Planning and Development Report complained that the bill is too based on incentives rather than regulation, it declared: “It’s more powerful than advertised because it contains potentially revolutionary changes in California’s arcane processes of regional planning for transportation and housing—largely by mandating the creation of ‘sustainable’ regional growth plans. And those changes could become more important . . . when the California Air Resources Board is expected to double the greenhouse gas emissions reduction targets that local governments must meet through land-use planning.” 

Other supporters compare its passage to that of the California Coastal Act (creating the authoritarian California Coastal Commission, which has untrammeled power to dictate land-use decisions near the coast) and to Proposition 13 (limiting property taxes) in terms of significance. They appear to be right.

It All Started with Global Warming

In 2006 Schwarzenegger signed into law AB 32, designed to steeply reduce California’s so-called greenhouse gas emissions. AB 32 gave state officials widespread authority to regulate business to halt these emissions, but it largely left untouched emissions from cars and trucks. That’s where SB 375 comes in. Vehicle emissions are to be reduced partly through land-use plans designed to cut miles traveled.

It was an amazingly slippery slope that took California from the dubious theory of manmade global warming—and the even more dubious idea that the California legislature, which can’t even come close to balancing its budget, can save the entire earth from temperature change—to draconian regulations that could outlaw (or at least severely punish local governments that allow) the creation of new suburban-style subdivisions in this largely suburban and quickly growing state.

And despite the governor’s prattle about “market mechanisms,” there is nothing market-oriented about unelected regulators telling local officials that they must stop private developers from building what they term suburban sprawl or else lose transportation funds.

As with any political fad, it’s hard to separate the shysters from the true believers. Many developers love Smart Growth because it provides a politically correct means to lobby for something they always want—approvals to build highly lucrative, higher-density housing projects. In many communities it’s tough for developers to gain approval to build high rises, condominiums, and houses on tiny lots. It’s not always easy to market these projects either, as long as there are readily available single-family alternatives. The current suburban zoning restrictions often forbid higher densities, and NIMBY (Not In My Back Yard) activists often oppose plans to add density to their neighborhoods.

Now, with global warming the “in” thing, developers can claim to be helping the environment. They can talk about how their projects conform to California’s ever-tightening land-use restrictions. As a side note, I advocate dramatic reduction in land-use regulations of all kinds so that neither high-density nor low-density developments are mandated. The market should determine these matters, not regulators. It’s true that what critics call sprawl has to a large degree been mandated by government, but the solution is to stop mandating, not to mandate urban-style developments that will supposedly help deal with global warming. Yet the latter is all the rage in the world of government planning.

Smart Growth blogger Paul Shigley, writing about a conference held by the California chapter of the American Planning Association last year, noted: “Clearly, land use planners have gotten the green religion. Every session—heck, every conversation in the hallway—seems to touch on global warming.

It’s the old Baptist and Bootlegger scenario, like during Prohibition when the Baptist foes of liquor teamed up with bootleggers, who wanted to keep Prohibition going to stifle the legal competition. Here we see the true green religionists working with developers to assure that all California communities must promote high-density developments, transit-oriented projects, and other highly subsidized government-backed programs.

Some developers aren’t all that keen on the new types of buildings that will be mandated, but they have accepted the “deal” that SB 375 will streamline the environmental review process. As conservative political observer Stephen Frank of the California Political News and Views explained, “They are in for a shock. The environmentalists will use other laws to end the streamlining, like AB 32 and federal regulations.”

A Heated Argument

It’s strange that there is little discussion over whether forced urbanization will actually reduce global warming. Libertarian blogger and activist Wayne Lusvardi of Pasadena argues on Frank’s website that “Concentrating housing development in already highly dense urban areas will only worsen the urban heat island effect and thus increase ‘global warming.’ The obvious solution from the greenhouse effect resulting from pollution is dispersion, not concentration.” The U.S. Environmental Protection Agency explains: “Heat islands can affect communities by increasing summertime peak energy demand, air conditioning costs, air pollution and greenhouse gas emissions, heat-related illness and mortality, and water quality.”

It’s a reasonable point to at least consider before undertaking government policies that cram more people into urban areas. Another related point raised by Lusvardi: “The environmental intent of SB 375 is to reduce auto commuter trips, air pollution and gasoline consumption. However, the legislation will unintentionally result in more reliance on imported water supplies from the Sacramento Delta, Mono Lake and the Colorado River for thirsty cities along California’s coastline instead of diverting development to inland areas which have more ‘sustainable’ groundwater supplies.”

Clearly, these are questions that need to be analyzed scientifically, but I have more than a small suspicion that those who promote urbanization will do so no matter what it does for the climate. The answer for them is always the same: more urbanization. Don’t worry about the exact question.

The result of SB 375 will be that an “unaccountable tribunal can set any greenhouse-gas target for the 17 regional transportation agencies that it wants,” wrote Auburn City Councilman Kevin Hanley in a September 29 Sacramento Bee column. “If this unaccountable tribunal decides that the ‘sustainable communities strategy’ doesn’t cut the mustard, then the SACOG (Sacramento Area Council of Governments) will have to submit an ‘alternative planning strategy’ showing how the greenhouse-gas targets will be achieved in the region through alternative development patterns, infrastructure or additional transportation measures or policies. They want to change where we live and how we get to work.”

Becoming like Marin

For a real-world idea of what these anti-global-warming crusaders have in mind, take a look at Marin County, the wealthy suburban county just north of San Francisco. Government officials in Marin have been doing for years what Attorney General Jerry Brown and other environmentalists want the rest of us in California to do. As Sacramento Bee columnist Dan Weintraub explains, “Brown, in fact, cites Marin as a model for how every local government should be complying with the California Environmental Quality Act, which requires cities and counties to identify potential environmental impacts from proposed developments and take reasonable measures to mitigate them.”

Marin County has overall low density but that’s only because most of the land is off limits to development. Most people live in a few fairly dense communities along the main freeway, and Smart Growthers—in Marin and elsewhere—seek to force all new growth into the existing urban footprint.

One person’s reasonableness is another’s insanity. In an Orange County Register column in August 2007, I looked at how Marin deals with development matters. For instance, 84 percent of the county’s land is set aside by the local, state, or federal government as permanent open space. The developers I know who have tried to build anything on the remaining 16 percent explain that local and county restrictions make it nearly impossible to do so. It’s even worse to build there than in the rest of this highly restrictive state.

“California has more than 36 million residents and is expected by some projections to have 60 million by 2050,” I wrote at the time. “If other counties embrace Marin’s overall approach toward development, the newcomers will have nowhere to live. . . . Smug state officials might believe that Marin County is successfully battling global warming and urban sprawl, but these no-growth policies simply are pushing sprawl and all the global-warming-inducing development toward the outer reaches of the Bay Area.”

With SB 375, state officials have the tools to stop the growth in those outer reaches. It’s not hard to figure out what happens next. Although this is now state law, there still are a few years before its full implementation, which means there’s still time for the legislature to turn this radical antisprawl law into something less destructive of property rights and the American Dream. But this being California, don’t count on anything rational taking place in the legislature.

Certainly, gas prices are high for various reasons, not the least of them being ridiculous government regulatory, environmental, and monetary policies. Nevertheless, consumers and businesses respond rapidly to changing conditions and rising prices. A few months ago, I was surrounded on the freeways by large SUVs, minivans, and those mega-pickup trucks that look like they’ve been plucked from a monster-truck event at Anaheim Stadium. Of course, the roads still have their share of bigger vehicles, but these days the roads are abuzz with Focuses, Priuses, and Civics. Traffic is noticeably down, as drivers have cut back on trips or have chosen carpooling, mass transit, and other alternatives, such as telecommuting.

As the Los Angeles Times recently reported, Americans seem to have lost their “faith” in free markets in the wake of higher gas prices, the housing bust, and bank troubles. But whether or not individuals trust the market is not as important as this reality: they live by the market. They make changes—sometimes lifestyle changes—based on their own budgets, and price signals are more effective (and more in keeping with a free society) than government rules at spurring such change.

So those of us who understand a few things about free markets aren’t too worried (beyond our normal pocketbook considerations) when we see the trends. As long as the government doesn’t place too many barriers in the way, increasing gas prices will make it economically feasible for oil companies to find new sources of oil or more efficiently tap existing wells. Oil alternatives will spring up. It doesn’t matter if my car is powered by gasoline or chicken droppings. People might be encouraged to adjust their lifestyles somewhat, but I would be shocked if the energy situation causes widespread changes in most Americans’ daily lives.

Doomsayers Versus the Market

Every “crisis,” however, gives voice to those who believe that current lifestyles are “unsustainable” and must be changed—for the sake of the planet! The telling point: these doomsayers never are content allowing the natural market process to cause these changes. Nope. They always are pushing for government policies to mandate the changes.

James Howard Kunstler is the author of World Made by Hand, described as “a novel about America’s post-oil future.” He is closely associated with the New Urbanist and Smart Growth movements, which seek to use government regulation to promote high-density urban living and restrict the development of traditional suburbs. In a June 8 column in the Dallas Morning News, Kunstler seemed almost gleeful about the high energy prices that have been annoying car-driving Americans.

“Everywhere I go these days, talking about the global energy predicament on the college lecture circuit or at environmental conferences, I hear an increasingly shrill cry for ‘solutions,’ ” Kunstler wrote. “This is just another symptom of the delusional thinking that now grips the nation. . . . I say this because I detect in this strident plea the desperate wish to keep our ‘Happy Motoring’ utopia running by means other than oil and its byproducts. But the truth is that no combination of solar, wind and nuclear power, ethanol, biodiesel, tar sands and used French fry oil will allow us to power Wal-Mart, Disney World and the Interstate Highway System—or even a fraction of these things—in the future. We have to make other arrangements.”

In Kunstler’s view, our modern economic system doesn’t create vibrant economies, healthy diets, and wonderful health care. Instead, our oil-based “utopia” is about keeping running those things most disdained by Kunstler and other environmental elites—theme parks, discount stores, highways.

Kunstler, who is a fairly typical voice among environmental/urban-planning doomsayers, sees no possibility for additional oil exploration or for meaningful alternatives. Once “global demand for oil exceeds the global supply,” that’s it. Our “complex systems of daily life” will be shaken to the core. Everything will change. He lists these things: food production, commerce and trade, our means of travel, urban development, our acquisition of capital, governance, health care, education, and more. “These problems are all interrelated. They all face a crisis.”

Are We in Denial?

The nation is, in his view, engaged in a massive fantasy or is in a deep state of denial. Most of us are too dimwitted to understand what Kunstler sees:

So what are intelligent responses to our predicament? First, we’ll have to dramatically reorganize the everyday activities of American life. We’ll have to grow our food closer to home, in a manner that will require more human attention. In fact, agriculture needs to return to the center of economic life. We’ll have to restore local economic networks—the very networks that the big-box stores systematically destroyed—made of fine-grained layers of wholesalers, middlemen and retailers. We’ll also have to occupy the landscape differently, in traditional towns, villages and small cities. Our giant metroplexes are not going to make it, and the successful places will be ones that encourage local farming.

Kunstler sees an end to regular airline travel, but believes that “fixing the U.S. passenger railroad system is probably the one project we could undertake right away that would have the greatest impact on the country’s oil consumption.” But don’t worry, he explains, “We don’t have to be crybabies about this.” Americans simply need to understand that we can’t keep “getting something for nothing” and we need to be “honest about the way the universe really works.”

These are shocking suggestions, of course, and when Kunstler says “we,” one can only surmise that he means “the government.” Most Americans tend to be unwilling to dramatically reorganize their everyday lives just because some academics don’t like their suburban, car-oriented lifestyles. But Kunstler does remind us, albeit accidentally, about one way the world works: ideologues try to gain power for their world-saving visions, and if they do, the rest of us better watch out. Kunstler’s ideas seem more closely related to Pol Pot’s urban-clearing experiment than anything envisioned by our founders.

There’s so much silliness here to debunk. How exactly could farmers grow sufficient amounts of food close to home here in the sprawling 17-million-population, quasi-desert Los Angeles basin? If anyone tried this, wouldn’t industrial techniques be needed to produce the highest possible yield on the least amount of land if it were to succeed? Yet Kunstler wants this food to have “more human attention.” He wants agriculture to return to the center of our economic life. I suppose the government can tear up the existing network of freeways and plant corn and alfalfa there instead, but I can’t quite see why this is such a necessity. I don’t have any great desire to spend my days either harvesting food or working as a cog in one of those “fine-grained layers of wholesalers, middlemen and retailers.” Then again, personal desire has no place in this dystopia. (As urban author Jane Jacobs wrote, “As in all utopias, the right to have plans of any significance belonged only to the planners in charge.”) Kunstler is saying that we should give up our professions as writers, academics, doctors, entrepreneurs, and builders and instead trade foodstuffs or sell things in giant farmers’ markets. No thank you. Now you see why a little force might be necessary to implement this vision.

As a prominent New Urbanist/Smart Growther, Kunstler predictably prefers living in small, traditional towns. Most New Urbanists I know are content building Yuppie malls that pretend to be old townes (you’ve got to have the “e” at the end if you want to target the right demographic), railing against suburbia, and lobbying city councils to stop proposed new housing tracts. But how exactly would those of us living in suburbia come to occupy the landscape differently? I know Kunstler’s proposal is post-apocalyptic. He sees the oil crisis as a shock to the current system. But, still, we can’t just abandon the equity (such as it is in this declining market!) in our four-bedroom “McMansions” (the derogatory elitist term for newer suburban homes), push our $30,000 cars over the cliffs at Malibu, and try to find some village in the Sierras to move into.

Yet it’s Kunstler who suggests that the rest of us are living in a fantasy world.

Not everyone in the environmental and planning “communities” is looking to such radical solutions, but there’s lots of gloating about high gas prices by anti-suburban scolds.

In an article titled “Gas Prices Changing the Face of America,” the website “Smart Growth America” argues: “Though struggling with near-term implications, many are starting to wonder how a future of costly energy will reshape their lives and landscape. You can already see it in the housing market, where people are unable to unload McMansions in partly finished, distant subdivisions for the same reason they can’t sell their large SUVs: Potential buyers don’t want the high gas bills. Americans are beginning to ask themselves the big questions: ‘How did we get to a situation where the only option we have is to drive? Why can’t I take a train to work? Why can’t my kids walk to school like I did?’”

Of course, it’s perfectly reasonable for people to seek out such options when gas prices go up (although as a former East Coast transit rider, I can’t understand the love affair with dirty buses and crammed subway cars). Farther-out suburbs are suffering the most as gas prices soar, for the obvious reason that it becomes more costly to commute from such neighborhoods. It would be nice for Smart Growthers to call for fewer building regulations rather than more of them, which would enable more Americans to live closer to their jobs. But that’s expecting a bit much from activists who believe that Americans should live packed together in condos and apartments.

Increased Government Control

The Smart Growth folks have a series of proposals also detailed on the website. They almost all involve more government control over land use and other decisions. The philosophy is best summarized by this proposal: “By directing growth to communities where people already live and work, smart growth limits the amount of farmland and open space that is developed, makes existing communities more attractive—with a mix of housing, restaurants, parks, cafes, and jobs, and minimizes the need for new water, sewer and road infrastructure that increase taxpayer burdens.”

This is all about coercion. All growth will be directed into existing communities. Farmland and open space will be “protected” from growth. This Smart Growth agenda would obliterate America’s system of property rights. If cities are bad, and the countryside must be protected, then where will 300 million Americans live? Wouldn’t the creation of a new village-based society cause the massive sprawl that these urban planners are so worried about? Ironically, some of Kunstler’s ideas have support among paleoconservatives, who are trying to create a Norman Rockwell-esque America. Don’t any of these folks have any concern about the ideas of freedom or individualism? Ignore the last question; we already know the answer.

Ideas generated by folks such as Kunstler, who was celebrated at a Congress for the New Urbanism conference I attended a couple of years ago, create the philosophical base for these Smart Growth organizations, which have successfully influenced planning groups and government organizations—so much so that we can see their footprint in every new subdivision built. One proposed near my house is typical. The city approved 16 homes on 30 acres, but all the homes must be crammed together on tiny lots, with the bulk of the land set aside as open space. That’s a New Urbanist concept. I’ve written about local cities that subsidize downtown development and promote condo construction and “live/work lofts” even as they use regulatory takings to deprive property owners of the right to build on open space. These are the real-world outgrowths of the Kunstler philosophy. It’s easy to laugh at the absurdity of what he proposes, but these doom-and-gloom scenarios lead to specific regulatory agendas. In California, state officials are using global-warming rules and water access as specific means to shut down suburban growth. At the federal level a California Democratic congresswoman and a Republican senator are pushing for a return to that old Nixon- and Carter-era “gas-saving” standby—the 55 mph national speed limit. Never mind that most Americans drive at the natural speed limit of any given road and that few savings would result. There’s no end to coercive proposals by those who are hostile to freedom and the market or believe that government’s role is to prod and improve individuals to help them make the “right” decisions.

The Survival of Suburbia

Media coverage certainly enhances the urgency of these proposals. A recent CNN.com news story was headlined, “Is America’s Suburban Dream Collapsing into a Nightmare?” The article was about the subprime mess, which has certainly been nightmarish for some individuals. But suburbia, I suspect, will survive. If anything, the subprime-driven housing crisis is a needed self-correction of a government-driven problem. But that’s a difficult argument to make in the face of Armageddon! Here’s Kunstler again (he’s so quotable) from a speech he gave in 2005 to the PetroCollapse New York Conference:

We’ve become a nation of overfed clowns and crybabies, afraid of the truth, indifferent to the common good, hardly even a common culture, selfish, belligerent, narcissistic whiners seeking every means possible to live outside a reality-based community. These are the consequences of a value system that puts comfort, convenience, and leisure above all other considerations. . . . We’ve signed off on all other values since the end of World War II. . . . Consumers have no duties, obligations or responsibilities to anything besides their own desire to eat more Cheez Doodles and drink more beer.

Apparently, Kunstler’s issues go deeper than concern about the loss of an important energy source. Keep these quotations in mind, though, given that they offer a window in the thinking of those who will use this and every other “crisis” to push for what they have always really wanted: massive, government reorganization of society.

I recalled that exchange recently after reading that government employees get an entire week dedicated to their “service.” This year, “Public Service Recognition Week” ran from May 5 to 11, and state government workers got their own recognition day on May 7. The U.S. Senate and House of Representatives honored the occasion by passing proclamations commending the nation’s noble public servants.

Special weeks or not, many of us have no special appreciation for government workers. The vast majority of them perform jobs that should either be eliminated or handled by the private sector (the real private sector, not “private” firms using taxpayer dollars). Besides, even workers who perform arguably legitimate tasks are well paid for their efforts. Roofers, car mechanics, taxi drivers, and journalists perform important services also, but one doesn’t find entire weeks devoted to their heroics. Furthermore, government officials do not behave like noble doers of the public good. Instead, they are regular human beings who use their power and position to advance their own interests. That’s to be expected, so why treat them like heroes?

But the best argument against honoring public “servants” is the one made by my mother in her concise rebuttal: Isn’t every day Public Employees’ Day?

A Public-Employee Smorgasbord

Thanks to craven politicians seeking government-union support, shameless exploitation by those unions of national tragedy (such as the death of firefighters in the World Trade Center collapse), and other factors, including the public’s increasing embrace of big government, government workers have turned themselves into a coddled class that lives better than their private-sector counterparts and is exempt from many of the standards and laws that apply to the rest of us. Instead of offering accolades and honors, the public should be mad at the current situation and ought to question what it says about the nature of our society.

The Orange County Register published a front-page investigation in April about a special license-plate program for California government workers. The drivers of nearly 1 million cars and light trucks—out of a total statewide registration of 22 million—have their addresses shielded under a confidential records program.

“Vehicles with protected license plates can run through dozens of intersections controlled by red light cameras with impunity,” according to the Register’s Jennifer Muir. “Parking citations issued to vehicles with protected plates are often dismissed because the process necessary to pierce the shield is too cumbersome. Some patrol officers let drivers with protected plates off with a warning because the plates signal that drivers are ‘one of their own’ or related to someone who is.”

As I wrote in my newspaper column, “Readers have been shocked to learn that California has about 1 million citizens who are literally above the law. Members of this group . . . can drive their cars as fast as they choose. They can drink a six-pack of beer at a bar and then get behind the wheel and weave their way home. They can zoom in and out of traffic, run traffic lights, roll through stop signs and ignore school crossing zones. They can ride on toll roads for free, park in illegal spots and drive on High Occupancy Vehicle lanes even if they have no passengers in the car with them. Chances are they will never have to pay a fine or get a traffic citation.”

Yes, rank has its privileges, and it’s clear that government workers have a rank above the rest of us.

If officials who claim to be protecting the public’s safety were told that one out of every 22 California drivers had a license to drive any way they choose, these officials would be demanding action and more power to protect Californians from the potential carnage. But until the newspaper series, we’d heard nothing about the situation from police officials and legislators. The reason, of course, is that the scofflaws are the police, their family members, and other government agents.

The special-license program started in 1978 with the seemingly unobjectionable purpose of protecting the personal addresses of officials who deal directly with criminals. Police argued that the bad guys could call the DMV and get home addresses. They could then go and harm the officers and their family members. There was no rash of such actions, only the possibility that this danger could take place.

So police and their families got their confidentiality, but then the program expanded from one set of government workers to another. So now parole officers, retired parking-enforcement employees, DMV workers, county supervisors, social workers, and many other categories of workers get the special protections. By the way, the protections are pointless now, given that the DMV long ago abandoned the practice of giving out personal information to the public. Yet the list of categories keeps growing and growing.

A few days after the newspaper investigation caused a buzz in Sacramento, legislators voted to expand the protections to even more classes of government workers. An Assembly committee, on a bipartisan 13–0 vote, agreed to extend the protections to veterinarians, firefighters, and code officers. One legislator justified the vote with a horrific story about code officials who were murdered after breaking up a dog-fighting ring. After the vote, the story was revealed as largely bogus, but just as government officials constantly parade their heroes in front of the public to secure more funding, so too do they tell tales of the grave dangers they face.

Rationalizations for Special Privileges

One Democratic Assembly member justified her support for the bill this way: “[T]his is a public safety issue. And there are lives of public workers, public safety officers, that are put on the line every day on our behalf that need to be protected.” Said a Republican member of the committee: “I don’t want to say no to the firefighters and veterinarians that are doing these things that need to be protected.” Never mind that there is no longer any need for the protection and that the main purpose of the special plates is to protect government employees and their families from tickets and tolls while they drive in their personal vehicles on their personal time.

With the government employees’ addresses kept confidential, toll-road operators, parking enforcement, and red-light-camera operators either cannot access them or don’t go through the extra steps necessary to find the addresses. So the government employees often rack up thousands of dollars individually in unpaid fines or in tolls. This costs the quasi-private toll operators millions of dollars. Furthermore, when police spot these special plates or pull people over and look up the plates, they realize that the driver is special. They then extend what the police call “professional courtesy”—that is, they don’t ticket other members of the brotherhood of government enforcers.

“It’s a courtesy, law enforcement to law enforcement,” said one police spokesman to the Register.

I have gotten calls from police whistleblowers alerting me to, for example, a local cop’s spouse who allegedly was pulled over stone drunk, then given a courtesy ride home. Any average citizen pulled over for a DUI would end up in the county’s notoriously abusive jail system for a day or more. Don’t ever expect such “courtesy” for a mere citizen or taxpayer! This obviously is the type of thing more appropriate to an authoritarian or totalitarian society, where the rulers get to behave according to a different set of laws than the ruled.

In California, law enforcement gets its own “Peace Officers Bill of Rights,” which offers a comprehensive list of special protections in case officers are accused of wrongdoing. Even the name of that law is offensive—the Bill of Rights is meant to protect the public from the government, but this one offers an added layer of protection from public accountability for the agents of government.

“More”

Being exempt from traffic laws is bad, but government workers are always pushing the envelope. It’s like the union leader who was once asked, ultimately, what it was he wanted for his members. His answer: “More.” That applies not only to salary and benefits but to special protections.

In April the California Assembly Public Safety Committee was set to consider—and most likely pass, with little apparent opposition—Assembly Bill 2819 by Mark DeSaulnier. The bill states, “No firefighters, EMT-1, EMT-II or EMT-P employed by the state or a local agency shall be subject to criminal prosecution for any legal act performed in the course and scope of his or her employment to carry out his or her professional responsibilities.” The only way a firefighter could be prosecuted is if he or she committed an act “with demonstrable general criminal intent”—an extremely high standard for a prosecutor to meet. An earlier version of the legislation would have prevented firefighters from “civil or criminal liability unless the act was performed in bad faith or in a grossly negligent manner with demonstrable, willful criminal intent.”

Despite the words “legal act,” the clear result of the legislation would have been to protect firefighters from prosecution for gross negligence. If, say, a firefighter committed an intentionally illegal act such as murder or theft, he would still be subject to prosecution. But if he was involved in otherwise legal behavior, such as driving, but acted in a grossly negligent way when doing so, he would be exempt from prosecution. This goes far beyond the current civil protections for “good faith” mistakes a firefighter or paramedic might make in the line of duty.

The impetus for the legislation was a controversial prosecution by a district attorney against a firefighter who killed someone because he was driving a fire truck allegedly in violation of department standards. Even though prosecutors are loath to file charges against firefighters, the firefighter unions grabbed onto this one incident as a means to gain blanket immunity for their members, even for outright misbehavior. One Assembly member told me that if the legislation became law, a firefighter or paramedic would be protected from any civil or criminal claim even if he showed up at an accident, saw someone in severe distress, but decided to get a hamburger instead of doing his job.

As the Register opined at the time: “The Assembly Public Safety Committee today is considering one of the most noxious, special-interest pieces of legislation we’ve seen in a while—one that will endanger public safety, tread on the California constitution and reinforce the perception that some government workers are part of a special, coddled group that’s exempt from the normal legal and ethical standards that are applied to other Californians.”

The constitutional problem: The legislature cannot dictate to the executive branch who it can and cannot prosecute. This legislation was first introduced for firefighters, but before long police, animal-control officers, and others would be demanding the same protection. The bill was pulled from the calendar at the last minute due mostly to the bad publicity the editorial generated, but it will surely be back again. Government workers and their unions are quite shameless about pushing their self-interest.

There was a time when government work offered lower salaries than comparable jobs in the private sector, but more security and somewhat better benefits. These days, government workers fare better than private-sector workers in almost every area—pay, benefits, time off, and security.

“Today, government employees in the vast majority of job classifications earn considerably more than those in the private sector doing similar work,” wrote Jon Coupal of the Howard Jarvis Taxpayers Association and Richard Rider of the San Diego Tax Fighters in a recent column in the California Republic. “They have even better job security than before and they enjoy many far superior benefits—including a pension which can exceed the salary they earned while working.”

The Asbury Park Press in New Jersey reported recently that “Federal workers, on average, are paid almost 50 percent more than employees in the private sector.” The reason, according to a Heritage Foundation legal analyst quoted in the article: “The government doesn’t have to worry about going bankrupt, and there isn’t much competition.”

One result is the huge public liability created by government pension and retiree health-care plans. Elected officials are generous in granting expanded benefits to government employees. They buy labor peace and political support, letting future legislatures, councils, and taxpayers deal with the growing debt. This is no minor problem. “The funds that pay pension and health benefits to police officers, teachers and millions of other public employees across the country are facing a shortfall that could soon run into trillions of dollars,” the Washington Post reported in May. “But the accounting techniques used by state and local governments to balance their pension books disguise the extent of the crisis facing these retirees and the taxpayers who may ultimately be called on to pay the freight.”

The second part of that quotation is harrowing. The unions and government agencies have cleverly hidden the extent of the deficit. But courts have ruled that the promises made by elected officials to government unions are ironclad contracts that must be kept. That leaves the nation’s taxpayers stuck footing the bill. Even as private-sector workers must toil longer to shore up their eroding retirement funds, so too must they work extra to make good on the unsustainable promises elected officials have made to government workers. Only the best for our rulers!

Institutionalizing Perverse Incentives

It’s easy to understand why the pension deficit continues to grow. In California, for instance, public-safety employees—police, fire, prison guards, and an expanding number of law-enforcement categories—receive “3 percent at 50” retirements. That means at age 50 they are eligible for 3 percent of their final year’s pay times the number of years worked. So if a police officer starts working at age 20, he can retire at 50 with 90 percent of his final salary until he dies, and then his spouse receives half that for the rest of her life. The taxpayer typically makes the complete retirement contribution throughout the officer’s years of work. Many police—more than half in some agencies—claim an injury (such as back pain or bad knees) a year before their retirement age, which not only gives them a year off for disability, but protects half their retirement from taxes.

Police and firefighters are legally presumed to have a work-related illness when they get common ailments such as heart attacks or cancer. The bottom line: Public-safety officials have many ways to gin up their already generous retirements benefits to astronomical levels. Most garden-variety government employees get lucrative pensions also. It is common for them to retire at age 55 with more than 80 percent of their final year’s pay. Most public employees receive defined-benefit retirement plans, in which the taxpayer promises a set rate of return, as opposed to private-sector workers who have 401(k)s and other defined-contribution plans in which the market sets the return.

The Trouble with Vallejo

This situation is bringing trouble. Vallejo, a city of 120,000 in the San Francisco Bay area, declared bankruptcy because tax revenues remained relatively static while public-employee salaries continued to grow out of control. Police and fire budgets consume three-quarters of the city’s budget, leading to the zeroing out of other government programs (libraries, museums, senior-citizen centers). Despite the enormous spending on public safety, city officials have warned citizens to be judicious in their use of 911. When government overspends, the public has to suffer.

The San Francisco Chronicle reported that the base salary of firefighters in Vallejo is $80,000 a year, that 21 firefighters earn more than $200,000, and that 77 of them earn more than $170,000. The Chronicle also reported that these excessively paid folks have been spending their time “going abalone diving, grilling tri-tip and drinking cocktails on the public’s dime.” The city manager, by the way, earns a total compensation package of $400,000 a year. The downtown is decrepit, in large part because the city has no money to spend on infrastructure.

Even with bankruptcy, it’s uncertain whether Vallejo can get out from under the outrageous union contracts that are turning it into a Third World city—one that comes complete with an arrogant and corrupt aristocracy that doesn’t care about the public.

Even worse than the fiscal mess is the kind of society we’re creating. It’s one where the government elite get special pay, special benefits, special privileges, and special exemptions from the law, and where the rest of us have to play by the rules and work extra hard to pay for these excesses. And yet so many people believe the private sector is the problem! Go figure.

I offer this as a background to an article on homeschooling for this simple reason: California officials operate some of the worst education bureaucracies in the nation. Yet some officials here are concerned not so much with the government-run schools, but with the possibility that a fraction of the state’s students are being educated by their non-credentialed parents at home. This is the “let no flower bloom” approach to public policy, as government officials and public-sector unions react against small private successes in their midst, mainly, I suppose, because of the embarrassment it entails. If for a few bucks a year parents can teach kids who go on to excel in state tests, get accepted to Berkeley, and win spelling bees, then why can’t the professional “educators” do as well with $11,000 or more per student each year taken from taxpayers?

In California this issue of homeschooling had been dormant for about five years, after the current superintendent of public instruction overruled his predecessor’s policy of harassing homeschools. But a February ruling by the state district court of appeal brought back reminders of the bad old days after it ruled that “parents do not have a constitutional right to homeschool their children. . . . Because parents have a legal duty to see to their children’s schooling within the provisions of these laws, parents who fail to do so may be subject . . . to imposition of fines or an order to complete a parent education and counseling program.” The court even issued a threat to parents that they could lose custody of their children if they persist in teaching them at home: “the juvenile court has authority to limit a parent’s control over a dependent child.”

This ruling—which stemmed from a Child Protective Services action against a Los Angeles County homeschooling parent accused of physically and emotionally harming his kids—was remarkably broad and viewed by most observers as outlawing homeschooling. My newspaper columns argued that parents had much to fear from the ruling, which could give local school districts the rationale to declare homeschooled kids truants. The case needs to be overturned, but two significant things happened in the ensuing weeks.

First, although the California Teachers Association celebrated the ruling, prominent Republican and Democratic politicians rebuked it. Gov. Arnold Schwarzenegger vowed to push for a legislative fix, but he seems unclear on what course his administration is going to take. More important, the superintendent of public instruction, Jack O’Connell, declared that homeschooling is legal and that his department would respect the choices made by homeschooling parents.

Second, in the wake of such political and public outrage, the court of appeal vacated the ruling and said it would rehear the case. It will take months to get a new ruling, but homeschool families are safe for now, and it’s likely that any new ruling will be tailored in a narrower manner. Homeschoolers still have reason for worry, though, so it’s worth looking closely at how such a basic freedom could come under a sustained government assault.

The good news is that the homeschooling landscape has changed significantly in California in the past five years. In a February 2003 Freeman article, I described “California’s War on Homeschoolers” under then-Superintendent Delaine Eastin. A teachers’ union ideologue (who lacked a teaching credential herself!), Eastin believed homeschooling to be illegal and was dedicated to stamping it out. She argued that parents who homeschooled needed a state teaching credential, even though at the time about 13 percent of public-school teachers in California lacked one.

The problem: California law then, as now, is unclear on the issue of homeschooling. The state has compulsory-education laws that require government schooling for minor children unless they attend private schools or are tutored by someone with a teaching certificate or meet some other narrow exceptions. Foes of homeschooling argue that homeschooled kids don’t meet any of those exceptions. But homeschool defenders point to another section of the education code: “Children who are being instructed in a private full-time day school by persons capable of teaching shall be exempted” from the compulsory-education law.

Legislation and Unions

In an ideal world (or some place more rational than the California legislature), some sort of legislative clarification would be welcome, but homeschooling families and their defenders have been correctly frightened by such a direct approach. They understand that the teachers’ unions, which have much power in both houses of the Democratic-dominated legislature, could easily steer such a “fix” into a direct banishment of homeschooling, which could leave families far worse off than they are now.

So homeschoolers and most school districts—which ultimately decide whether to pursue cases against truants—embraced a sort of “don’t ask, don’t tell” work-around. Parents registered their homeschools as private schools or enrolled in a private or charter school, then taught their kids in a home-study program. Those who chose to call themselves private schools filled out a private-school affidavit at their local county department of education. The occasional department challenged this, but most did not.

But in 2002 the state Department of Education adopted a change in how parents were required to file those affidavits. Instead of filing with their county education departments, parents were told to file the affidavits directly with the state’s department online. It sounded simpler, but homeschoolers got nervous, given the department’s position on homeschooling. To make matters worse, Eastin sent a letter to the local departments explaining the state’s policy regarding the new private-school filing procedures:

“As generally understood, the term homeschooling describes a situation in which non-credentialed parents . . . teach their own children, exclusively, at home, often using a correspondence course or other types of courses. Defined in this way, homeschooling is not authorized in California, and children receiving homeschooling of this kind are in violation of the state’s truancy laws.”

Eastin was clear. The “not authorized in California” line is a giveaway. Yet she denied that she was using her post to outlaw homeschooling.

Fortunately, Eastin’s term ended soon after this, and she left the state. Although he was noncommittal during his campaign for superintendent, former legislator Jack O’Connell quickly put the kibosh on Eastin’s anti-homeschool efforts after he was elected. He said he believed in homeschooling as a choice in education, and homeschoolers have operated in peace until the court decision in February.

The Rachel L. case should send shivers down any freedom-lover’s spine. Three judges—two Republican appointees and one Democratic appointee—not only denied that there is any right to homeschool in California, but described education and the role of parents in starkly big-government terms. The case also gives disturbing insight into the state of parental rights in America today.

In giving the case background, the judges explained that the family’s eldest child reported physical and emotional mistreatment by the father: “The Los Angeles County Department of Children and Family Services investigated the situation and discovered, among other things, that all eight of the children in the family had been homeschooled by the mother rather than educated in a public or private school.”

In a footnote the court explained that one of the explanations the parents offered for not sending their kids to school was that “educating children outside the home exposes them to ‘snitches.’ ” The court seems to be mocking the parents here, but Leslie Heimov, executive director of the organization that represented the family’s two children in the case, told the San Francisco Chronicle that “her organization’s chief concern was not the quality of the children’s education, but their ‘being in a place daily where they would be observed by people who had a duty to ensure their ongoing safety’” (emphasis added). So the winning party in the case argued directly that education per se wasn’t at issue, only the ability of outsiders to monitor what was going on inside this particular family’s home.

The State’s View of Education

The court then quoted the California Constitution, which states: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” Based on that sentence, the court echoed this point from an earlier case: “In obedience to the constitutional mandate to bring about a general diffusion of knowledge and intelligence, the Legislature, over the years, enacted a series of laws. A primary purpose of the educational system is to train school children in good citizenship, patriotism and loyalty to the state and the nation as a means of protecting the public welfare.”

Read that again for full effect: A primary purpose of education is train children to be loyal to the state! This is ironic, because when libertarian critics of public education argue that the main goal of public education is not to teach, but to promote the government or to propagandize, we are mocked as extremists. Yet the court’s own opinion supports this view.

Here’s the court explaining why private schools are acceptable, but homeschools are not, based on what is known as the Turner case (1953): “The court observed that whereas it is unreasonably difficult and expensive for a state to supervise parents who instruct children in their homes, supervising teachers in organized private schools is less difficult and expensive.”

The sole focus of the court was the prerogative of government. The above statement is most telling, in that it mentions nothing about the rights of the people and is committed to approving a scenario that is most convenient for the government. Have things really gotten this bad?

But as bad as this case has been, some homeschooling advocates told the public not to worry. They argued that the appeals court’s decision here was narrow and only dealt with one family that happened to homeschool through a home-study arrangement with a religious school. One blogger, called Ace of Spades, argued, “If only the parents had attempted to homeschool their kids in one of the statutorily prescribed methods, they would have prevailed.” It’s just one opinion, of course, but the blog post was e-mailed widely—even by homeschool supporters who wanted to reassure fellow homeschoolers that they had nothing to worry about. But falsely reassuring people is no better than unnecessarily scaring them. Most legal authorities on both sides of the issue, however, agreed that the ruling could spell trouble for the state’s homeschoolers.

Those who echoed Ace of Spades’ reasoning clearly misunderstand California’s law regarding homeschooling. Parents could not simply follow “statutorily prescribed methods” for homeschooling because there are no clear statutorily prescribed methods. The law is unclear, which leaves parents dependent on the latest interpretations of state officials. The court ruling gives ammunition to districts that might want to take a negative view of homeschooling.

By striking down homeschooling through a private-school program, the court attacked one of the main ways parents homeschool in this state. Parents can enroll their kids in private or charter schools, the court argued, but their kids must actually go to those schools and not be schooled instead at home, unless the tutor or parent has a government teaching certificate (something few parents have or even would want). No wonder most homeschool families have been alarmed by the decision; it seems to undermine the way most of them operate within the current system.

The Scope of the Decision

The scope of this decision by the appellate court is breathtaking,” said Brad Dacus, president of the Pacific Justice Institute (PJI) in Sacramento, which defends homeschool families. “It not only attacks traditional homeschooling, but also calls into question homeschooling through charter schools and teaching children at home via independent study through public and private schools.”

Fortunately, homeschoolers got agitated at the decision and the state’s political establishment reacted appropriately. Right after the decision was publicized, I called O’Connell’s office and his spokeswoman emphasized that the superintendent supports homeschooling as an educational choice.

The superintendent issued a statement: “I have reviewed this case, and I want to assure parents that chose to homeschool that California Department of Education policy will not change in any way as a result of this ruling. Parents still have the right to homeschool in our state. . . . As the head of California’s public school system, I hope that every parent would want to send their children to public school. However, traditional public schools may not be the best fit for every student. . . . [S]ome parents choose to send their children to private schools or to homeschool, and I respect that right. I admire the dedication of parents who commit to oversee their children’s education through homeschooling.”

That statement was exactly what was needed. It reinforced that the state still considers homeschooling legal, and it was respectful toward the “right” parents have to homeschool. This was great news, especially coming from a prominent Democrat who is running for governor.

Furthermore, the current Republican governor said, “Every California child deserves a quality education and parents should have the right to decide what’s best for their children. Parents should not be penalized for acting in the best interests of their children’s education. This outrageous ruling must be overturned by the courts and if the courts don’t protect parents’ rights then, as elected officials, we will.”

Then came word that the court would rehear the case.

The outcry against the case has been broad, and news of the court’s reconsideration was well-received. My sense is homeschooling has come into its own in the last few years—so much so that it’s harder to attack now than it was in 2002, when Eastin was trying to treat homeschoolers as truants. Eternal vigilance remains the key to preserving fundamental liberties. And what is more fundamental to the idea of a free society than the ability to teach one’s children at home without the prying eyes and approval of the state?

Homeschoolers will be watching the rehearing closely.

The MacDonald killing sparked an unusual amount of public outrage. This shooting, in particular, was hard to grasp. An empty park and a tiny teenager hardly make for a life-threatening situation for the officers. Couldn’t they just have backed away and used nonlethal alternatives such as pepper spray? The police admitted that they were readying a beanbag gun in the parking lot when the officers claimed that “time ran out.”

Angry that anyone would question their “split-second decisions,” the law enforcement “community” said it was wrong to jump to conclusions before the details of the investigation were complete. The sheriff defended the police publicly before any investigation even started, so he apparently was jumping to conclusions, but never mind. The consensus: calm down and wait for the department to see what happened.

I called the Huntington Beach Police Department (HBPD) and asked for the completed reports for two other high-profile officer-involved deadly shootings from 2001 and 2004. In the one case a troubled man reportedly with a toy gun was shot 29 times and bullets riddled several houses behind him. In another case, officers followed a suspect, lost track of him, and then started following a different man, 18-year-old Antonio Saldivar. Police shot him to death after they claimed he pulled a toy gun on them. The officer who shot Saldivar, by the way, has a disturbing disciplinary history, including allegations of excessive force.

Plenty of time had passed, so the reports should have been completed in those two cases. Well, the HBPD said I could have neither report because both are exempt from the California Public Records Act. What a great Catch-22: the public has no right to comment on police shootings until the investigation is complete, but once it is complete the public has no right to see the report.

In the teenaged girl’s case district-attorney (DA) investigators ultimately prepared a report arguing that the officers had “no choice” but to shoot. The DA’s office did not conduct any of its own interviews with witnesses. Investigators simply took the reports produced by the sheriff’s department, which detailed a “perfect storm” scenario: the police were backed up against a fence with nowhere to go; the girl lunged toward them; officers gently implored her to back away but reluctantly shot her as she intruded on their 21-foot safety barrier.

Although a local newsweekly easily found witnesses who stridently disputed that account, the DA was content with what it found. No Orange County district attorney has ever filed charges against police officers for an on-duty shooting, which is typical of most DAs. And district attorneys, by the way, only look at whether officers committed a crime—whether they fired the shots with criminal intent. But no one thinks there was criminal intent. DAs do not look at police procedures, and the newspapers were quick to find police training officials who declared that the officers “did what they are trained to do.”

That’s what is so worrisome.

As the MacDonald case reveals, despite many official oversight channels and processes, there is no serious oversight of police behavior. Law enforcement writes the rules of engagement, investigates its own officers, and has a well-oiled public-relations machine that kicks in whenever something disturbing takes place. District attorneys and grand juries are part of the law-enforcement establishment, and politicians usually defend the “heroic” officers. No information gets out until the family files a civil lawsuit against the department. No one ever discusses police policy, which is an internal matter.

Typical Shooting

Yet the MacDonald shooting is sadly typical. Here’s an Orange County Register report about a 2004 incident: “Robert Velarde said his son Jason stood beside the bed and appeared to freeze out of fear when four police officers, their guns drawn, entered the room the night of May 10. ‘They told him to drop the scissors. I told him to drop the scissors. He didn’t look like he could let them go, so I wrestled to take them away,’ said Velarde, a quadriplegic with partial use of his arms. . . . ‘Then one officer yelled ‘knife’ and they all fired,’ Velarde, 62, said. His son, Jason Velarde, 22, was killed.”

In September 2007, a 15-year-old autistic teen went missing. The mother called the sheriff’s department, which, she said, did nothing to help find him. Ten hours later, someone reported that a man was wandering around a busy street. It was the missing teen. Deputies responded by tasering the teen and then handcuffing him. The teen’s father said his son was tasered when he already was on the ground and that the deputies treated him roughly as he tried to comply with their orders. The sheriff’s department alternately claimed that the deputies had no choice but to taser the boy because they feared he might have a weapon and that they tasered him to protect him from himself.

In one case I recall several years ago, Anaheim police went to arrest an elderly doctor for a nonviolent crime. They drove one of those mini-tanks into his wealthy suburban neighborhood, black-clad SWAT-team members hanging onto the sides clutching high-powered rifles. (SWAT stands for Special Weapons and Tactics.)

Police often tell me, “Our only concern is getting home safely at the end of the day.” Such statements reveal two common traits in modern police forces. The first is an outsized sense of danger. In reality, police work isn’t in the top ten dangerous professions, according to the federal Bureau of Labor Statistics. Indeed, no government job is in the top ten. The second attitude is the self-centered nature of police work. Concern for the public takes a backseat to concern for “officer safety.”

Police officials always depict their officers as reluctant warriors who rarely, if ever, use or even brandish their weapons. But this is a fiction from the past. Officers tell me the old-school guys are mostly gone and that the new breed of cop has a military mentality and often a military background. The SWAT-team members are the ones who do the training and get promoted to top positions in the departments.

There’s plenty of anecdotal evidence that police are far from reluctant to pull their weapons or feel much remorse when they do. After Riverside police gunned down a sleeping girl named Tyisha Miller in a car in 1998 (she had a gun in her lap, was unconscious, and after police smashed her window, she moved and they immediately opened fire), the officers involved in the shooting stood around, joked, and animatedly reenacted the shooting, according to Los Angeles Times reports. One of the officers commented, “This is going to ruin their Kwanzaa,” after upset family members showed up at the scene. One local man arrived at the scene of another officer-involved shooting and reported that the police were high-fiving each other.

In another recent local case, a Costa Mesa police officer admitted pulling a gun on a teenager after the officer noticed that the boy and his friends were riding their bikes without helmets. He chased the boy into the boy’s backyard and drew his gun. After the boy’s dog came to defend him, the officer shot the dog 15 times. The city paid the family a large sum of money, but the police department insists the officer’s behavior was correct police policy. That’s perhaps the scariest part of this whole disreputable incident.

Former San Jose Police Chief Joseph McNamara, now a scholar at the Hoover Institution, captured the essence of the problem in a November 29, 2006, column he wrote for the Wall Street Journal. McNamara focused on an incident a few days earlier in New York, when several plainclothes police officers fired 50 shots at a car, wounding two men and killing a third, Sean Bell, who was to be married later that day.

How did this and other cases like it happen?

“Simply put,” wrote McNamara, “the police culture in our country has changed. An emphasis on ‘officer safety’ and paramilitary training pervades today’s policing, in contrast to the older culture, which held that cops didn’t shoot until they were about to be shot or stabbed. Police in large cities formerly carried revolvers holding six .38-caliber rounds. Nowadays, police carry semi-automatic pistols with 16 high-caliber rounds, shotguns and military assault rifles, weapons once relegated to SWAT teams facing extraordinary circumstances. Concern about such firepower in densely populated areas hitting innocent citizens has given way to an attitude that police are fighting a war against drugs and crime and must be heavily armed.”

According to McNamara, “Reasonable people accept that a cop’s job is difficult and dangerous, and most people understand that sometimes an officer will have to shoot someone. But the police are not and should never be allowed to think of themselves as soldiers or to believe they face the same level of danger.”

That’s exactly right. Even worse, there is virtually no public oversight or accountability, not only for police who follow these new policies and kill or hurt citizens, but for police who act outside proper authority and abuse their power. In Orange County, deputies spend about seven years patrolling the jail before being sent out onto the streets of our cities. Some critics wonder whether the experience dealing with prisoners leads at least some officers to treat members of the public with a high level of disdain. While police militarization is a problem on city streets, it is even worse for anyone under police custody.

Beaten by Inmates

In March of 2006, John Derek Chamberlain, who was stopped by an officer for public urination then arrested after he was found to possess child pornography, was savagely beaten to death for 20 minutes by fellow inmates. The Register reported that “[w]hile inmates beat John Derek Chamberlain to death, the senior deputy at the minimum-security barracks sat in the guard station, watching television. . . . The deputies’ failure to prevent the torture and killing of a man thought by jail inmates to be a child molester is at the center of an ongoing criminal inquiry.”

An inmate claims the deputy, who was several feet from the beating, actually instigated it after falsely outing Chamberlain as a child molester. Before any investigation was done, the county sheriff declared that his deputies did nothing wrong. Although other agencies typically investigate these killings, the sheriff’s department took charge of the investigation itself and even “cleaned up” the scene before the county supervisors’ staff arrived. The department refused to give the inmate a lie-detector test to corroborate his accusations. According to many solid sources, a group of deputies that calls itself “The Psycho Crew” routinely inflicts rough justice on inmates, picking particularly on minorities and drunks. The department denies this, but county taxpayers end up paying civil settlements to abused victims.

The Chamberlain case led to enough of a public outcry that the county board of supervisors voted to take the first steps toward creating an independent oversight panel. The sheriff, DA, and deputies’ union have tried to derail the proposal. It has been approved but the current plan, although useful, would create only a few advisory responsibilities. And, under current state law, almost all information regarding the disciplinary records of deputies and police are off-limits to civilian oversight panels, the public, and the media. As the American Civil Liberties Union explained, “On August 29, 2006, the California Supreme Court in Copley Press v. Superior Court held that records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public. The decision prevents the public from learning the extent to which police officers have been disciplined as a result of misconduct.”

Police supporters claim the public already has plenty of oversight. But observers always find the same pattern: The internal investigations are not public, and the deputies stay on the force with no obvious punishment. The DA exonerates the deputies. The grand jury only gets involved in the most highly publicized cases, and such juries are controlled by the DA and represent a narrow, conservative demographic. (Around here, it’s mostly retired government workers who can afford to spend half their day working at the court for virtually no pay.) When a member of the public files a complaint with a police or sheriff’s department, it typically takes months to hear anything back. Then the only legal requirement is for the agency to say whether the complaint was “sustained” or “not sustained.” Such complaints are rarely sustained.

Code of Silence

Even when police engage in obvious misbehavior, fellow officers stand by the miscreants. There’s a well-known “code of silence.” Many people have watched the videotape of the savage beating of a barmaid by an off-duty Chicago police officer. The department had to be shamed into filing serious charges, and fellow officers showed up in force in solidarity when their compatriot had his court date. Juries in suburban communities are notoriously conservative, so when a case gets to trial, it’s difficult to convict an ill-behaving cop. In February former Irvine Police Officer David Alex Park went to court for pulling over a woman motorist, threatening to arrest her, but letting her off after she performed a sex act. Park argued that he pulled the victim over for her own safety and that the sex was consensual—as if sex could ever be consensual when an armed police officer has pulled a woman over and threatens to take her to jail.

The jury, however, bought the argument, and Park went free. He did lose his job, however, and the woman received a civil settlement from the city. Indeed, the only real oversight and justice in police-abuse cases comes from trial attorneys who sue police departments. It’s better than nothing, and such actions often dislodge police documents, but it’s a sad day when the only serious oversight of the most powerful government agents most people will encounter comes in the tort system. In many cases when police are caught abusing their power, their union defends them and keeps them on the force.

No wonder police officers behave as if they can do as they please. The Los Angeles Times reported last October 4 that Los Angeles County deputies play a game on the job called “Operation Any Booking,” in which the winner is the deputy who makes the most arrests or most car seizures in a 24-hour period. “It’s just a friendly competition to have a little fun out here,” said the department spokesman. Never mind that such “games” encourage officers to make unnecessary arrests and seizures.

Officers at times behave like they are part of an occupying army, and there are many stories of excessive force that don’t rise to the level of investigations and lawsuits, but are indicative of what’s going on out there. One of the Register’s independent contractors who services newspaper racks in the wee hours of the morning tells about the time recently when he was emptying money from a rack while wearing his newspaper apron and he saw an officer looking at him. Rather than approach and ask him what he was doing, several police cars surrounded him and officers came at him with weapons drawn; he was shoved to the ground, his arms painfully wrenched behind his back, and he was even taunted by an officer. He was let go after a short time, but is this really the way we want our communities policed?

Police officers in California in particular are well paid, so this is not a case of insufficient funds to hire quality candidates, as some people argue. In Orange County the average deputy earns a total salary and benefit package of $111,000 a year. They are eligible to retire at age 50 with 90 percent of their final pay after 30 years of service, guaranteed forever, courtesy of taxpayers. Police agencies in California complain about a hiring shortage. The reason for the shortage is simple: a) rapid increases in retirement benefits have encouraged a large portion of local forces to retire; and b) unions are always lobbying cities to provide more police positions, and politicians often comply for political reasons. Who can say no? Police and deputies, after all, have been afforded near-hero status following the 9/11 attacks. And the media often provide photo ops for their anti-terrorism training exercises, so the public knows about the importance of their work. In a recent political battle police organizations made direct references to 9/11 as a reason to oppose any rollback of benefits. Politicians who go against the blue tide pay a heavy political price.

There’s no apparent limit to the political gains that can be made by pandering to the “law and order” crowd. Last June the Assembly Public Safety Committee considered a bill that would have overturned the Copley decision and restored some public oversight to police misbehavior. The room was filled with police officers speaking out against it. The cops told emotional stories about police officers being killed in the line of duty—even though news reports later revealed that none of the examples had anything to do with the release of public records. The committee could not muster a single Democratic or Republican vote for the bill. In the state legislature Democrats mostly oppose such reforms because of their ties to the unions, and Republicans mostly oppose such bills because of their commitment to “law and order.” It’s the perfect scenario for law enforcement, and a troubling one for the public.

Yet something needs to be done. While I was writing this article, the Santa Ana police gunned down an apparently unarmed man in a stolen car, and then shut down the freeway for five hours. The department would say nothing, according to the Los Angeles Times: the police spokesman “referred questions to the district attorney’s office, which investigates officer-related shootings. A spokeswoman declined to discuss the probe, citing district attorney policy.” And so it goes.

Police use deadly force at their discretion. Police agencies then investigate themselves. They release only the information they choose to release. Few politicians are willing to discuss police procedures, and the courts and legislatures uphold the “right” of police agencies to hide information about misbehaving officers. In California, police have a special officer’s “bill of rights.” America may not be a police state—that is, a political system characterized “by an arbitrary exercise of power by police”—but it’s getting too close for comfort.

In his World War I-era essay, “War Is the Health of the State,” writer Randolph Bourne argued that during peaceful times people concern themselves mostly with their own business, but that during war everything changes. “To most Americans of the classes which consider themselves significant, the war brought a sense of the sanctity of the State which, if they had had time to think about it, would have seemed a sudden and surprising alteration in their habits of thought,” he argued.

It’s not just during war that the state is sanctified and government critics are prodded into altering their habits of thought. The media were aflame with government-worship last fall, during and after the disastrous wildfires that forced tens of thousands of southern Californians out of their homes and caused billions of dollars in property damage. Any tragedy helps these folks promote bigger government, and natural disasters, like war, always do the trick.

Southern California is home to about 20 million people crammed into the valleys and basins between the coastal ranges and the Pacific Ocean. The region is interspersed with government-protected hillsides and is hemmed in by national forests. The area can go months without rain, and open areas become tinderboxes. Last year was drier than most, and fires were sparked in Los Angeles, Orange, San Bernardino, and San Diego counties. Then 100-mph Santa Ana winds, which blow toward the coast from the desert, spread the wildfires rapidly over hundreds of thousands of acres of land. As neighborhoods burned, the air throughout the region was filled with ash. Several people died from smoke and fire.

Such destruction should never be treated lightly, but most of us realized that this disaster would be short-lived. Most homeowners were insured. The air soon cleared (at least back to tolerable smog-laden levels). The tragedy was tightly contained. Reports of up to 1.2 million residents displaced during the worst of the fire were vast overestimates based on faulty assumptions. Yet despite that reality, the government-worshipers got quickly to work, blaming the private sector for the problems (how dare developers build homes near open space!), portraying the government workers who fought the blazes as selfless heroes, and attacking residents of the fire-ravaged communities for selfishly depriving the government of the resources needed to protect them.

Newspapers and TV programs were filled with dramatic photographs of firefighters battling the blazes. There’s nothing wrong with this as part of the broader fire coverage, but such scenes dominated the media. There was a steady drumbeat of propaganda and emotion-laden news footage, which makes it hard to offer arguments about free markets and limited government, or even to point out government’s firefighting incompetence.

We heard from the governor, legislators, and every other elected official who could get near a TV camera about all the wonderful work the government and the “first responders” were doing to protect us. A typical front-page news story in the Orange County Register was titled in large type, “After fire, gratitude,” and included these words accompanying the huge photo of firefighters: “On Sunday evening, two weeks after a 50-foot-tall wall of flames raged within feet of some neighborhood homes, more than 200 local residents gathered outside Orange County Fire Authority Station 43 to pay tribute. . . . They opened their wallets, donating $6,000 worth of cash and [supermarket] gift certificates. . . . They baked chocolate chip cookies. Their cards and posters of thanks hung like fresh laundry outside the station. Firefighters said they don’t need gifts to do their job, but they seemed warmed by the outpouring of thanks and the crowds of worshipful children who donned plastic firefighter hats.”

Once the public responds in this manner, the distorted analyses and troubling policy prescriptions are close behind.

It didn’t take long for the “progressive” website Calitics to figure why so much of southern California was burning. Its analysis was soon championed across the state. Blogger “Robert in Monterey” explained  

how anti-tax sentiment in San Diego County left firefighters without adequate resources to respond to this week’s inferno. Unsurprisingly, this has happened elsewhere. As firefighters battle to save Silverado Canyon and prevent the Santiago Fire from reaching Riverside County homes, we are now learning that Orange County firefighters faced similar crippling shortages of equipment and personnel. . . . Specifically, Orange County Republicans campaigned hard against Measure D, a 2005 ballot proposal that would have diverted $80 million in surplus public safety funds from Proposition 172 to help properly staff Orange County fire departments. The failure of Measure D leads directly to the OCFA’s [Orange County Fire Authority's] inability to quickly contain the Santiago Fire when it broke out Sunday evening.

 Fire officials didn’t throw water on such allegations, dubious as they are. Orange County Fire Chief Chip Prather complained to the Los Angeles Times: “We’re out there with a handful of crews trying to stop this big fire, and all we could do was just put out spot fires. It would have been great to have the cavalry come in, but there were several fires burning, and it was taking time for the resources to get here.”

Push for Higher Taxes

The stage had been set for the obvious: a push for higher taxes. “Unfortunately, it is as certain as night follows day that prior to thoroughly evaluating any actual need, there will be politicians, bureaucrats and leaders of public safety employee unions who will be advocating new taxes ‘to keep us safe,’” wrote Jon Coupal, president of the Howard Jarvis Taxpayers Association, in an October 31 column in the Register. “Indeed, an opinion piece in the San Diego newspaper has already blamed Proposition 13—‘which slashed property taxes’—for the inability to organize a more regionalized response to fire dangers. Never mind that per capita property-tax collections in San Diego, even adjusted for inflation, are far higher than they were in 1978, just prior to Prop. 13.”

The previous week Los Angeles Times columnist George Skelton called for higher taxes: “But while the combined state-local tax hit has remained relatively constant in California, hardly anyone would argue that the quality of life has. It noticeably has deteriorated: clogged traffic, overwhelmed emergency rooms, unkempt parks, smog-befouled San Joaquin Valley. And we’re losing to the wildfires. . . . Commentators keep talking about a ‘perfect storm’: Santa Ana winds, hot temperatures, drought. But there’s also another kind of perfect storm: poor land-use planning, population sprawl, refusal to raise taxes for fire suppression.”

Skelton would never consider the possibility that the state keeps misusing its resources, thus spending a far smaller proportion than it used to spend on infrastructure and quality-of-life issues and far more on social programs and pay and benefits for government workers. Skelton’s answer is to “impose a surtax—call it a fee—on each new job that’s created, paid by the employer.” But even more troubling than that idea is his suggestion—quite common following the fires—that government needs to engage in even more rigorous land-use planning to keep people from living so close to the wild lands.

Environmentalists and Hollywood actors, many of whom no doubt already have their fancy homes tucked into the hillsides, made their usual outrageous pronouncements. “People are selfish,” said comedian George Carlin to People magazine. “These people with the fires and the floods and everything, they overbuild and they put nature to the test, and they get what’s coming to them, that’s what I say.” Actress Jamie Lee Curtis added, “Global warming, combined with people building houses in places they shouldn’t, et cetera, et cetera, et cetera. It just compounds to become, as they call it, a perfect storm experience here. It’s not by accident. This isn’t an act of God. This is an act of man.”

Limits on Growth

News stories were filled with suggestions for new limits on growth in outlying areas, despite the state’s continually escalating population, and new government mandates for building houses with fire-resistant materials. Some planners called for some burned-out areas to be abandoned, just like low-lying New Orleans flood zones. If the experience from the last fire is any guide, regulators will make it virtually impossible, or at least economically infeasible, for many homeowners to rebuild on their existing lots. And while the private insurance industry has a better record at helping victims rebuild their lives than the government does, state officials publicly warned insurance companies that they better not take advantage of fire victims. The state offered inspectors to help fire victims in case insurers commit fraud. The message was clear on all fronts: The private sector is greedy, but the government will be there to help you.

Here is some necessary perspective:

While no one minds thanking firefighters for a job well done, we all should take issue with the hero-worship. Firefighters in southern California are highly paid professionals, who average $175,000 a year in total salary and benefit packages in Orange County. Firefighters in most southern California jurisdictions can retire after 30 years with 90 percent of their final year’s pay guaranteed by taxpayers. They enjoy some of the most generous health-care benefits imaginable. So they are well paid for their work. That work has certain dangers, but they are compensated for enduring them.

Most of the time firefighters have little to do. According to a local fire-union official, about 95 percent of their calls in Orange County are nonfire-related—mostly paramedic calls, as the fire unions have successfully used the political system to put most private paramedic services out of business. Firefighters generally work three-day weeks and are paid while sleeping. Taxpayers provide these generous benefits and allow firefighters to spend their days in relative leisure so they are available when fires do occur. They certainly are not coerced into taking on this sometimes dangerous work, given that thousands of applicants line up for every firefighting job. The unions have driven away volunteer firefighters, by the way, to maintain this cartel. We don’t treat our doctors or roofers as heroes, but then again they don’t have unions that pull out the hero card every time they want more money.

Public safety budgets are not shortchanged by greedy anti-tax activists. The left-statist critics who blamed Orange and San Diego County residents for “shortchanging” government apparently didn’t do much research. Those “conservative” counties spend about the same portion of their budgets on firefighting as “liberal” Los Angeles County. The example of Orange County anti-tax sentiment was Measure D, a countywide initiative that failed overwhelmingly in 2005. But that measure would not have increased taxes; it merely was about divvying an existing stream of taxes between law enforcement and the fire unions. Conservatives were on both sides of the issue.

The anti-D forces argued accurately in 2005: “The Fire Authority has a substantial budget surplus. If their fire stations are truly understaffed, then why did the Fire Authority recently spend $50 million to build a new luxury Administration Building that even their own ballot signer, Joe Kerr, called a ‘multimillion-dollar Taj Mahal’? The Fire Authority needs more financial accountability, NOT more of our tax dollars!”

The problem is not a lack of funds, but a firefighting agency that spends its money recklessly—on grandiose building projects and excessive salaries and benefits for its employees. As is typical with government agencies, these officials spend their money on things the government workers prefer, then shortchange the public by underfunding those things that would most benefit it. At the time, the fire authority was not calling mainly for more capital expenditures had Measure D passed, but for putting a fourth firefighter on every engine.

The police and firefighting agencies were battling over funds from Proposition 172, a half-cent statewide “public-safety” sales tax placed on the 1993 ballot by legislators. “Ten days before Election Day, tracking polls showed the measure lagging,” the Jarvis group’s Coupal wrote. “Then several wildfires broke out and made fighting fires a topical issue. The tax promoters seized the opportunity and ran a last-minute blitz on television featuring soaring flames and sweating firefighters. . . . Politicians who will propose new taxes in the aftermath of the recent disaster are hoping voters will have forgotten that we are already paying higher taxes for fire protection.” But to government-worshipers, the state never has enough.

It’s foolish to accept the need for more government involvement when government failed in its firefighting efforts. According to the Los Angeles Times, “A special panel appointed by [Gov. Arnold] Schwarzenegger recommended in 2004 that California buy 150 more fire trucks for emergencies. So far only 19 have been ordered. They are scheduled to arrive in time for next year’s fire season.” Government officials say they did the best they could, but a “perfect storm” hindered their efforts. However, government-run systems are no better at providing firefighting service than they are at providing anything else. The incentives are wrong. California governments are no more efficient than Soviet-era governments at getting the right resources to the right places.

More Private Approaches

We need more private approaches, not more government. In a privately run system, where private property is at stake, insurers and their private fire companies would have incentives to patrol open spaces during the high-risk season, adopt other preventive measures, and have sufficient modern equipment—rather than waiting for the fires to rage, then insisting that they heroically did everything they could do, while complaining about too few resources. Insurance companies, rather than government agencies, could require the use of fire-resistant materials or reward those owners who use them, and insurance rates would take full risk factors into account. (They do this to an extent, but insurers are highly regulated and the government mitigates or absorbs much risk.)

California’s massive government ownership of land is largely to blame. In his article “Land Socialism: Playing With Fire,” Ludwig von Mises Institute President Lew Rockwell captured the essence of what went wrong in California: “The problem is the theory of environmentalism. Under it, ownership is the enemy. Nature is an end in itself. So it must be owned publicly, that is, by the state. The state, in its management of this land, must not do anything to it. There must not be controlled burning, brush clearing, clear cutting, or even tourism.” I’ve read stories of homeowners who were threatened with lawsuits by the Forest Service for cutting down brush on nearby public lands to save their homes. I know homeowners who were kept away from their own private property by the government and treated rudely when they tried to find out the status of their homestead.

Command and Control

This is government at work: command and control. And Rockwell noted that government bureaucracies had no incentive to innovate or “plan for and assess risks.” The private approach, he wrote, is far preferable: “Are we under the impression that private markets can’t handle risk management? Private markets specialize in protection of property, particularly against natural risk. If the land were privately owned, it would be protected against burning through better management. If it had to be burned, the burning would be controlled. Unexpected events like droughts and winds would be calculated into management decisions.”

Instead, Californians are told that their homes burnt to the ground because they selfishly chose to live in high-risk areas; they are told that the fires raged because they are too greedy to pay higher taxes; they are told that there’s nothing they can do but allow government to have more power to tax and control them. And, thanks to the media’s coverage of the “heroic” actions of government, most Californians don’t even know that there’s any other possible explanation or alternative.

A casual reader could be forgiven for skimming through a front-page Los Angeles Times article from February 12 and thinking that the story was just another Times exposé of political corruption in some Third World backwater. The article is like so many others, offering a tale of a government without contested elections, the use of police powers against political insurgents, and leaders who enrich themselves and choose economic winners and losers within their domain.

On closer examination we learn that the story took place, not in some far-off nation, but in California, in the tiny industrial city of Vernon, located only a few miles south of that newspaper’s downtown offices.

“Twenty-five years after its elected officials last had a contested ballot, eight strangers took up residence,” the Times reported, noting that the newcomers had instantly filed papers to run for city council. “Within days, city utility trucks had turned off their power. The building they shared was slapped with red tags by inspectors who said the property was ‘unsafe and dangerous’ as a residence. Strobe lights flashed through their windows. They and some of their relatives were placed under surveillance. Shortly, city police and the officials drilled holes in the locks and evicted the would-be office-seekers. Having deprived the interlopers of city residence, Vernon officials on Jan. 27 disqualified them from the ballot.”

With the newcomers gone, the old guard could stay in power, eliminating yet another election and clinging to the benefits they receive for running this five-square-mile city of 93 people. Who says small towns can’t be plagued by big government?

Because Vernon is, in essence, an industrial park that is incorporated as a city, it is an oddity. But in reality, the city is just an extreme example of what’s happening in California and nationwide when it comes to municipal government.

City officials don’t see themselves as representatives of the “people” who busy themselves with protecting their rights and providing a few fundamental “services,” such as infrastructure, public safety, and the like. Instead, city staff and city councils view themselves as economic developers, charged with luring new businesses, keeping old ones from leaving, and micromanaging their micro economies.

Sometimes their goals sound high-minded (rejuvenating downtown), but basically it’s about the cash. Municipal governments are hell-bent on maximizing tax revenues at every turn, and they use their vast powers to achieve that end. It’s the corporate state at the local level, yet something that many observers and activists—even libertarians and conservatives—overlook as they fixate on state capitals and Washington, D.C.

Cities have carrots and sticks available to achieve the desired outcomes. In Vernon we see the stick in action. The city controls the entire housing market and used its regulatory powers to deny legal residence to newcomers. One cannot live in a non-approved industrial building, so the city sent code officials and police to drive the new residents out of town. I’ve never seen this before, but I routinely watch cities deny conditional-use permits (CUPs) to churches that want to locate in industrial parks. That’s because city planners know that by shifting a use from industry to religion, they lose some of their tax base.

I have repeatedly seen cities deny approvals for housing tracts for similar reasons—officials view such tracts as a drain on their budget. They much prefer that raw land be used for the construction of big-box stores, hotels, and auto malls, which offer lucrative sales-tax bounty.

The biggest economic-development stick is, of course, eminent domain. That process has gained much attention since last summer, when the U.S. Supreme Court ruled in Kelo v. the City of New London (Connecticut) that it’s okay for cities to use eminent domain to take nonblighted properties from their owners and give them to developers in order to improve economic development.

The public, understandably, has been outraged at the notion that their homes or small businesses are not safe from the greedy eyes of developers colluding with tax-hungry city officials, and the backlash is still unfolding in Congress and state legislatures. But most of the considerable nationwide focus, and all of the proposed legislative fixes, have been on the act of taking property from one owner and giving it to another owner. Yes, there is a broad understanding that cities do this to expand the tax base, but there has yet to be a wider understanding of the dangers of the entire economic-development process—the driving force behind the eminent-domain controversies.

Too often foes of the eminent-domain aspect of that process bend over backwards to assure officials that they agree with the concept of removing blight and boosting local economies. It’s just that cities shouldn’t rob one set of owners and benefit another set. Redevelopment is good, as long as eminent domain is left out of the picture, they say.

But it’s not just eminent domain that’s the problem. It’s the entire economic-planning regimen, spoon-fed to cities nationwide by groups such as the National League of Cities and the American Planning Association. It’s not just the stick that’s the problem, but the carrot, also.

Tools of the Trade

Governments have vast economic-planning tools at their disposal, which usually come with complicated names (Strategic Investment Programs, Tax Increment Financing, Industrial Development Bonds, Enterprise Zones, and more) designed to disguise what they truly are: corporate welfare. The two main categories are direct subsidies and tax breaks, or abatements, in which specific companies or businesses located in specific areas get reductions in their tax payments.

Libertarians are united in recognizing the evil of the first category. Government should not be in the business of robbing Peter and paying Paul. They have different views on the second category. Some argue that any tax break is good, in that it reduces government’s transfer of dollars from the private sector to the public sector. Others argue that giving a tax break to one targeted recipient increases the burden on all other taxpayers.

“One theory,” says Steve Frates, director of the Rose Institute for State and Local Government in Claremont, California, is “that because government is bloated and not efficient, a targeted tax break can be efficient. The government might tighten its belt, and anytime you cut taxes, it’s a good thing. The other argument is that targeted tax breaks allow government decision-makers to make value judgments. Very rarely are government officials good at making such judgments. When they make a decision about economic rewards, it’s not based on economic efficiency but on aesthetics, such as deciding they want a new boutique downtown.”

Sometimes, Frates argues, government planners succeed at doing things that benefit the city, from a government-finance point of view. Giving a tax break to a car dealership, for instance, might help a city’s tax base if the alternative is the dealership locating in a nearby city. But that doesn’t necessarily benefit local citizens or the region in general.

The basic question, according to Frates, is: “Does city staff make better decisions than the market?”

Not too tough to answer.

We can argue philosophically about whether a targeted tax break is ever acceptable. The broader point is that such breaks are part of a process whereby local officials pick winners and losers, and those companies that win typically are the ones most adept at political gamesmanship.

In addition to targeted tax breaks, cities offer industrial revenue bonds (IRBs), the interest on which is tax-exempt for investors. As the city of Albuquerque explains in promoting such bonds, “The city issues the bonds but is not making the loan. The investor buying the bond makes the loan. The company must find its own bond purchaser. It can also buy its own IRBs. The city technically owns title to the facility built with IRBs and leases it to the company for up to 20 years. At the end of the term, title is transferred to the company. . . . Because the city owns the title to the project, it’s exempt for up to 20 years from 95 percent of property taxes on land, buildings, and equipment. And a company may also receive gross receipts and compensating tax exemptions on initial purchases of equipment made with bond proceeds.”

Cities can offer direct loans to companies. I’ve seen cities give major companies valuable commercial real estate for some nominal fee, such as $1. Sometimes cities will float a bond and use that money to build something for the developer. In one California case, the city of Mission Viejo built a parking garage at a privately owned mall, defending its action as part of the city’s infrastructure mission.

Sometimes cities will kick back tax revenues to the business, or offer low-interest loans, subsidized by taxpayers. Pretty much any way you can think of to provide benefits to a favored company has been proposed or tried. These financial benefits are often mated with favorable land-use approvals. Usually, city officials defend these policies as net gains: the city supposedly gets more back in tax revenue than it loses from the transfer. How many times have we heard mayors boast about the latest “win-win” situation? It’s not much of a win for taxpayers, who see some of their dollars used to build infrastructure for the new project. Typically, tax dollars are diverted from traditional public services, such as police, fire, and libraries, to parking garages, roads, and other elements of the new redevelopment project.

The Grand Plan

Specific incentives, whether tax breaks or outright subsidies, aren’t offered in a vacuum. They are usually part of some grand redevelopment idea. If, for instance, a city wanted just to keep a business from leaving by reducing that business’s taxes, that’s fairly understandable, even if objectionable compared to an across-the-board tax cut. I’ve witnessed that in small rustbelt cities which were sure they couldn’t afford to lose a major employer.

Increasingly, though, cities are not content using incentives for the occasional hard case. The goal is to embrace an overall central-planning vision, in which local officials carefully control land use and manipulate the market to bring in the highest amount of tax revenues for the city.

There are slightly different rules and processes in each state, but it’s done basically the same way everywhere. In California the process is known simply as “redevelopment.” Everyone is in favor of redeveloping grimy areas, so the process has marched along its merry way with little criticism for many years.

“There is an unknown layer of government in California, which few understand,” explains the booklet “Redevelopment: The Unknown Government,” by Orange County supervisor Chris Norby. “This unknown government currently consumes 8 percent of all property taxes statewide. . . . It is supported by a powerful Sacramento lobby, backed by an army of lawyers, consultants, bond brokers and land developers. Unlike new counties, cities and school districts, it can be created without a vote of the citizens affected. Unlike other levels of government, it can incur bonded indebtedness without voter approval.”

This unknown government can lavish subsidies on companies and use eminent domain to take properties away from existing owners. Cities—the redevelopment agency is typically run by the city council and city staff—create project areas within their boundaries. Some cities have made their entire boundary a project area.

In California and some other states the agency must first discover “blight” before creating a project area. Almost anything passes for blight. For instance, municipalities can call areas blighted if they have excessive urbanization or too little urbanization, if the median property values are below the state median, or if officials find “piecemeal development” (most properties in an area owned by different owners) or even chipping paint on a few houses.

Blight is usually discussed in the context of eminent domain, because once an area is found to be blighted officials can use that power. But the discovery of blight is also the cornerstone for the creation of these often massive redevelopment areas that transfer decision-making from individual property owners to the government. Within those areas, government can do largely as it chooses, from taking properties to lavishing subsidies on specific developers.

The key financial mechanism that supports “redevelopment” is Tax Increment Financing, or TIF. It works this way: property-tax revenues from a project go to the city’s redevelopment agency, which must use those dollars to pay off bonds that were floated to finance the project. So instead of the tax dollars going to traditional government services, such as road building, schools, and the fire department, the money goes to the agency for development, which gives cities a huge incentive to create as many project areas as possible. It means money and power.

The theory is that the city deserves the new tax dollars because its efforts are improving the supposedly blighted area. But the reality is quite different. Cities don’t often use TIF to fix up blight, but to increase their tax base. Often they engage in what is called “growth capture”—city planners wait until a stable or depressed area is starting to bounce back on its own. They then brand the area “blighted” and use that as an excuse to capture the new values and transfer the gain from the old owners, who held onto the properties during the lean years, to new developers who savor the prospect of getting prime property for far-below-market rates.

Because those tax-increment dollars must be used to pay off debt, the cities engage in wild debt-spending sprees. One small city in California with 32,000 people (Brea) racked up more than $600 million in total indebtedness in part to bulldoze its old downtown and create a brand-new one from scratch, built by one developer.

The financial aspect of this is shaky. The redevelopers depend on a constant long-term stream of revenue (usually for the 30-year life of the bond) to pay off the debt used to fund the project. But central plans don’t always work as well as the central planners hope. I’ve witnessed quite a few failed projects, and have watched cities constantly ratchet up the redevelopment game to feed the beast.

Is the tax increment in the project area less than expected due to an economic downturn or competition from a neighboring city engaged in a similar retail project? If yes, then cities create new project areas that can bring in even more tax dollars to backfill the shortfall from the old project areas. Redevelopment debt gets constantly refinanced, and cash-hungry cities frantically look for new projects by luring businesses from neighboring cities.

In southern California, where one city runs into the next, the cross-town rivalry can become intense. It doesn’t often matter to, say, a car dealership whether it locates on one side of the 57 freeway in Placentia or the other side in Fullerton. So cities will bid up the subsidies, and current councils will let future councils clean up the mess if the promises don’t pan out.

Does It Work?

When these proposed projects are debated before the public (sometimes the projects are snuck through redevelopment agency meetings as quietly as possible to avoid public outrage), city-council members and staff talk about all the great economic benefits that will flood the community. The Favored Developer will stand before the council and show his architecturally lovely drawings of the new downtown, new industrial park, new neighborhood, or new retail center.

I’m reminded of journalist Henry Hazlitt’s story about the bridge in Economics in One Lesson: “When providing employment becomes the end, need becomes a subordinate consideration. ‘Projects’ have to be invented. Instead of thinking only of where bridges must be built the government spenders begin to ask themselves where bridges can be built. Can they think of plausible reasons why an additional bridge should connect Easton and Weston? It soon becomes absolutely essential. Those who doubt the necessity are dismissed as obstructionists and reactionaries.”

While redevelopment is more about tax revenue than job creation, the same process is at work. Officials look for reasons to create a project. Then the whole economic well-being of the community rests on the shoulders of that project. Those who criticize the project are indeed deemed reactionaries who don’t care about the future of the community. Years later, no one examines whether the project actually did as promised, and by then a new council is on to another great idea.

Here’s Hazlitt’s bigger point:

The bridge exists. It is, let us suppose, a beautiful and not an ugly bridge. It has come into being through the magic of government spending. Where would it have been if the obstructionists and the reactionaries had had their way? There would have been no bridge. The country would have been just that much poorer. Here again the government spenders have the better of the argument with all those who cannot see beyond the immediate range of their physical eyes. They can see the bridge. But if they have taught themselves to look for indirect as well as direct consequences they can once more see in the eye of imagination the possibilities that have never been allowed to come into existence. They can see the unbuilt homes, the unmade cars and washing machines, the unmade dresses and coats, perhaps the ungrown and unsold foodstuffs.

Yes, redevelopment and corporate subsidies bring to fruition specific projects, some of which are pretty nice, create jobs, and offer valuable things. The issue is what we don’t see. Redevelopers act as if nothing would be built on the spot had they not built it. This is a ludicrous argument here in Orange County, where land often tops $1 million an acre. Something good, even better than the current project, would certainly have been built in most instances had the market been left to its own devices.

A Net Loser

Even on their own terms, however, these projects typically don’t pan out. In Garden Grove, California, officials were intent on capturing tourist dollars from the nearby Anaheim Disneyland resort area, so they “invested” heavily in hotel construction. As an Orange County Register editorial explained in 2004, officials in 2000 predicted $33 million in revenue to the city after seven years, but revenues ended up at a mere $13.6 million after three and a half years. Then after the loan and bond payments were subtracted, the gain totaled $2.7 million over that period. Activists argue that if the cost of the land and other costs are figured in, the city was a net loser in the process.

And because the dollars are far short of what was predicted, Garden Grove officials have been on a mission to develop an attraction (theme park or Indian casino) that will keep the underused hotels filled. That mission has driven them to consider using eminent domain against well-maintained neighborhoods and to shower even more subsidies on corporations. Here we see how central planning pushes officials to first abuse taxpayers and then abuse landowners.

“Does the tax abatement method meet with success?” asked Michael LaFaive of the Mackinac Center for Public Policy in a 1999 article. “Not as much as if local officials simply would keep taxes low in the first place. CRC [Citizens Research Council of Michigan] found that economic growth takes place in jurisdictions where taxes are low and which consequently grant fewer abatements.”

Even free-enterprise-oriented economic development ideas fall short. Remember “enterprise zones,” the brainchild of former congressman and Housing and Urban Development secretary Jack Kemp? Based on the sound idea that grimy areas could be fixed up by reducing regulations and taxes, the Reagan administration made this the basis of its urban policy. Yet because the zones ultimately became the creature of government rule-makers, the results have been less than stellar. A Los Angeles Times article from January found that such zones have produced few jobs for low-income people in California.

“Businesses in upscale areas such as the Long Beach waterfront and San Francisco’s fashionable South of Market district get tax breaks because zone boundaries are based on decades-old census data,” the newspaper reported. “Employees of such companies who live in town houses in and around parts of San Francisco’s exclusive Nob Hill neighborhood, beach lofts in Long Beach and vintage bungalows of Oakland’s upscale Rockridge district can qualify their employers for credits; dated maps show those neighborhoods as low-income. The state is subsidizing six-figure salaries in these zones.”

The obvious point: If fewer regulations and lower taxes cause an economic boom, why not simply reduce regulations and taxes across the board?

Local economic planning, especially the creation of redevelopment project areas, actually slows down neighborhood improvement. Once an area is deemed a redevelopment area, property owners stop investing in their properties because they are not sure that they will ultimately reap the benefit of the investment. They become subjects of the central planners who will make the main decisions that affect the economic vitality of the area.

The L.A. Times in 2000 did a computer analysis of North Hollywood, recipient of some of the most aggressive redevelopment activities in the region. “Two decades and $117 million in public money later, efforts by the city of Los Angeles to rescue suburban North Hollywood from creeping blight have largely struck out,” the newspaper concluded. “Of perhaps greater significance, North Hollywood’s recovery has lagged behind other depressed areas in Los Angeles that improved without any money from the city’s CRA [Community Redevelopment Agency], according to the Times analysis of census, property and employment data.”

Could it be that the marketplace works after all?

Problems with Incentives

Most city managers and economic-development officials that I’ve talked to fancy themselves as CEOs of companies, and they argue that what they are doing is no different from what private companies do: maximizing revenues. “Why wouldn’t a libertarian support what we’re doing given that you value private business and understand the importance of profit?” I’ve often been asked.

The answer is simple. Cities are not businesses. They take the tax dollars of residents and make decisions about land use that are backed by police powers. They do not operate in a market; they do not have voluntary stockholders. Despite the delusions of city managers, the city staff usually is not as sophisticated or as skilled as corporate staff, which means cities often get a poor deal when negotiating with rent-seeking corporations.

When cities insert themselves into the economic development game, either with carrots or sticks, they:
• Shift decision-making from individuals to governments;
• Take money from taxpayers and redistribute it to individuals and companies;
• Undermine property rights and other freedoms;
• Encourage a class of rent-seekers, who learn to lobby city officials for favors and special financial benefits;
• Put unfavored businesses at a competitive disadvantage with those who are favored; and
• Stifle political dissent, as companies that are dependent on the city for lucrative work become reluctant to speak their minds about any number of city issues.

Despite what city managers will tell you, the choice is not between economic development and letting a city rot. The choice is between central planning, empowering officials to decide which businesses are worthy of their help, and the good old free market, which lets free people decide which business should succeed or fail.

City officials like to be “proactive,” as they say, and help with economic development. There is something they can do. They can get out of the way, by lowering tax rates, deregulating, ending zoning restrictions, and eliminating exclusive contracts with utilities and developers. It’s not out of the question. The city of Anaheim is doing just that, with remarkable results.

Mackinac’s LaFaive puts it well in a 2003 article: “The best business climate is one in which government ‘sticks to its knitting’ and does its particular assignments well, at the lowest possible cost while creating a ‘fair field with no favors’ environment for private enterprise.”

Not a bad template. Sure beats a world of central planning, where city officials can choose who gets handouts and even who gets driven out of town.

That’s become a heated question as this architectural philosophy gains traction, not only in academia and the media, but in the planning agencies and government bureaus that have power over development decisions in cities, counties, and states.

Is this an essentially totalitarian attempt to impose a utopian idea on America through the use of heavy-handed regulation, or is it merely a market-based alternative to the current planning regimen? The answer is important, given that local land-use decisions and local planning officials have an enormous impact on Americans’ property rights and other freedoms.

I argue that it is mostly the former—that New Urbanism is, too often, about coercion and regulation—but that there is no reason it cannot be the latter. In other words, New Urbanists should be opposed when they try to impose their philosophy on the country, but supported when individual developers seek to offer New Urbanist-style products in the marketplace.

New Urbanism’s tenets are simple: Suburban life undermines a sense of community. People spend too much time in their own private space and in their automobiles. Communities should be built at much higher densities. People should be able to walk from their homes to stores.They should be able to hop on a bus or a rail line rather than take their car. Every town should have a vibrant and hip central area, and there should be open space between towns. Cities should grow mostly within existing urban boundaries. Each urban area would have a core, with growth occurring in an orderly diameter around it. Neighborhoods should be diverse, ethnically and economically.

I take issue with many of these points. Suburban neighborhoods are often filled with the vibrant sense of community the New Urbanists say is lacking. There’s nothing wrong with preferring to spend time in a private backyard rather than in the commons area New Urbanists want us to spend time in.

Automobiles offer more lifestyle choices than transit dependency. Although hip neighborhoods are great for a certain stage in life (young adulthood), they lose their appeal during other stages (married with kids). I don’t understand why a city as New Urbanists conceive it is any more appealing than any other form of city, and I do not think diversity, economic or ethnic, is either good or bad in and of itself. People should live around whomever they want to live around, for any reason.

Nevertheless, my personal disagreements with the New Urbanist analysis are largely beside the point. There isn’t anything necessarily more libertarian about one lifestyle choice over another. Some people will prefer urban lifestyles, others suburban ones, still others rural ones. To a large degree they all have been influenced by government planning and zoning regulations.

Unfortunately, New Urbanism offers one acceptable planning blueprint, and ultimately must rely on government regulation to impose it on all of us. One cannot, say, ensure the creation of open space around cities and stop what New Urbanists derisively call “suburban sprawl” without imposing restrictions on property rights. We can’t move to a transit-dependent society without new regulations and massive subsidies. New Urbanist leaders, despite their insistence that they only want the freedom to build their projects in the marketplace, advocate what is known as the SmartCode. Andres Duany, one of New Urbanism’s founders and a leader of the Congress for the New Urbanism (CNU), explains that “The SmartCode is a planning tool that promotes a sustainable urban pattern while protecting landscape that is considered ecologically and culturally valuable. This is accomplished through the creation of plans and standards that determine where development will occur and how it will be implemented.”

That sounds eerily coercive. And influential New Urbanist thinkers paint a doom-and-gloom scenario designed to scare most Americans into embracing a new regimen of rules and regulations, lest our suburban nation descend into a pit of despair, soullessness, and economic ruin.

James Howard Kunstler, an author, academic, and ally of the movement, argues in a recent column posted on his website that “The overriding imperative task for us in the face of the problems ahead will be the downscaling of virtually all activities in America. . . . America made the unfortunate choice (by inattention, really) of allowing nearly all of its retail trade to be consolidated by a very few huge national operations, the Wal-Marts and other gigantic discounters.” He calls for American society “to be reorganized at the local and regional scale.” Kunstler is eagerly awaiting the demise of cheap oil and predicting a crash in home values and the subsequent destruction of suburbia, with nice neighborhoods turning into festering slums.

He’s welcome to his predictions, but his talk of “downscaling” society, of being mistaken in “allowing” the proliferation of Wal-Marts, and of massive “reorganization” is not the language of freedom. And Kunstler offers a “we know best” rebuttal to those who ask whether it’s okay to live in suburbia.

“The argument that people like driving around in their SUVs and living in pod subdivisions is really beside the point,” Kunstler said on CNN in 2001. “People also like shooting heroin. People also like drinking too much. . . .We are spiritually impoverishing ourselves by living in these environments.”

The subtitle of his website article is “Notes on the coming transformation of American life.” Most of us get a little nervous when people advocate transformations of society, yet these apocalyptic words are embraced not only by those on the political left, but also among “paleoconservatives” pining for a simpler, more traditional life.

The Language of Deregulation

To sell their far-reaching goals to people who don’t necessarily want their lives reordered by experts, New Urbanists have been clever, and even deceptive. They use the language of deregulation and fairness, meanwhile denying that calls for heavy-handed central planning have anything to do with their movement. On closer examination we find that New Urbanists are serious about deregulating land use—but only when it helps them achieve their goals. They are quite comfortable with new land-use rules, urban growth boundaries, eminent domain, and other government “tools” when such regulations advance their ultimate goal of promoting the types of communities they prefer.They do not seem to care about freedom, only about their design goals.

The Chicago-based CNU is run by John Norquist, former mayor of Milwaukee. Norquist is a moderate guy, best known for standing up to unruly public-employee unions and advocating school vouchers while mayor. He filed an amicus brief on behalf of the property owners in Kelo v. City of New London and spoke out against the Supreme Court’s decision in that case allowing the city to use eminent domain for economic development. He argues, persuasively, for more deregulation of land-use decisions.

What’s not for a libertarian to like? Unfortunately, Norquist is the moderate face on a movement filled by people who view Portland, Oregon, as Nirvana. In Portland local officials installed a Metro government to control all regional planning decisions and imposed a “green line” that virtually outlaws development outside an urban boundary. Land is being deregulated within the boundary to allow the creation of high-rise living, but it is totally controlled outside the boundary. Huge subsidies are poured into the creation of a rail system.

After I referred to New Urbanism as “totalitarian” in an Orange County Register column, Norquist responded with these arguments:

“The New Urbanists do not demand the elimination of suburbia—only that we be allowed to build compact, walkable and mixed-use communities. Current zoning codes in most areas allow only the development of single-use, auto-dependent housing subdivisions, shopping centers and office parks. New Urbanists have found that there is a strong market demand for traditional towns, and that towns should not face regulatory obstacles greater than conventional suburbia.”

Those are reasonable points, ideas that libertarians can support. That perhaps explains why some libertarians gave me a hard time after I wrote several columns critiquing New Urbanism. But there’s much more to the movement than that benign aspect.

Norquist made the distinction between New Urbanism, which he describes as a market phenomenon, and Smart Growth, which he describes as a public-policy movement. Some New Urbanist defenders place Kunstler in the Smart Growth movement and say he doesn’t epitomize New Urbanism. When I criticized a local city’s (Brea, California) use of eminent domain to create a New Urbanist downtown, New Urbanists told me that isn’t really New Urbanism. Norquist invited me to speak on a panel at a CNU conference in Pasadena to air my criticisms of the movement.

No Distinctions to Be Found

Yet after speaking to the Congress and attending its conference, I found that the distinctions Norquist made between government-heavy Smart Growth and market-oriented New Urbanism seem phony. A flier in the information packet promoted Smart Growth. The New Urbanists I’ve talked to always seem eager to use government to promote their ends. The website www.newurbanism.org includes a glowing description of Smart Growth, which advocates nearly identical principles to those advanced by New Urbanism—compact walkable communities, development within existing urban boundaries, and so forth.

As I mentioned in my speech at the conference, the CNU’s charter for the New Urbanism is filled with governmental demands: “We advocate the restructuring of public policy and development practices to support the following principles: neighborhoods should be diverse in use and population; communities should be designed for the pedestrian and transit as well as the car . . . .” New Urbanists call for metropolitan government, which would make it far more difficult for individuals to escape any foolish public policies. Suburbs, with their individual governments, have long bothered those who promote high taxes, burdensome regulations, and other socialist ideas. In a region with multiple governments, residents can flee to ones with better school systems, lower taxes, and fewer regulations. With metropolitan government, one must leave the region to flee the government planners, but the New Urbanists prefer metropolitan “solutions” that reduce individual freedom and choice.

Ironically, the Brea downtown, built on eminent domain and enormous subsidies, was celebrated at the conference as a New Urbanist success, with tours of the area offered to attendees. During one presentation Kunstler was celebrated as a visionary. Norquist took an honorable stance on eminent domain, but during my panel Duany made an impassioned case for its use, insisting that New Urbanists would use any means available to achieve their ends.

So what’s the difference between market-oriented New Urbanism and government-intensive Smart Growth?

Nothing as far as I can tell. It’s the same movement, but whenever critics point to its coercive policies, New Urbanists say, “Don’t blame us. That’s Smart Growth. We’re just a design movement.” That is intellectually dishonest. New Urbanism and Smart Growth are the flip-sides of the same coin—a planning regimen that wants to deregulate current land-use practices to impose a new set of even-more-draconian land-use rules that promote the creation of urban rather than suburban environments. If the New Urbanists were serious about deregulation, argues Randal O’Toole of the American Dream Coalition, then Houston, with its lack of zoning, would be their favorite city. Instead, Portland invariably tops the New Urban list.

“For many New Urbanists, it isn’t enough to build to the market,” argue O’Toole and Stephen Town, in a February 2005 Reason magazine article. “The Congress for the New Urbanism, founded in 1993, declares on its Web site that ‘all development should be in the form of compact, walkable neighborhoods.’ New Urbanists eagerly helped write zoning codes that forbade things that had been previously mandated—broad streets, low densities, separation of residential from commercial uses—while mandating things that had formerly been forbidden, such as narrow streets, high densities and mixed uses.”

Stephen Town, an architectural liaison officer with a British police department, argues that New Urbanist communities increase crime. For instance, New Urbanist communities obliterate private backyards and replace them with broad common areas, and mix commercial space within residential areas. In that situation “everyone has the right or excuse to be present, and offenders are indistinguishable from law-abiding citizens,” Town argues. In suburbia, people know who belongs on the street and who doesn’t.

Living in such projects is fine if people want to choose to live that way, but New Urbanists are using their political influence to mandate such designs. As Town notes, there will be unfavorable consequences.

At the Congress for the New Urbanism

My experience at the Congress confirmed what I had long believed. When I attended a session on religion and the New Urbanism, I naively expected it to be about the way suburban land-use rules make it difficult for churches to locate their properties, or the way cities, in their zeal for sales-tax dollars, refuse to allow churches to use land that could be “better” used by big-box stores.

I heard none of that. Instead, panelists spent their time criticizing “mega-churches.” One panelist couldn’t understand why churches felt the need to include basketball courts. My thought: Because they would like to have those things. The whole tone of the discussion was elitist, and the focus was on what churches ought to be allowed to do. During the question-and-answer time, audience members ranted about the Bush administration, corporations, and the like. It was almost funny, except that these people had no interest in freedom—only in promoting an architectural aesthetic that they claim would promote “community.” That seemed dishonest, given that the churches they hate—big suburban churches—tend to be growing and filled with community, while the churches they advocated—architecturally beautiful mainline churches—often are dying from lack of attendance. In reality, New Urbanism is about imposing a certain aesthetic on the country, one more to the liking of an elite group of architects and planners.

One of the big concerns among New Urbanists is that suburbanization causes people to be less willing to have their taxes increased to pay for social programs.The best-attended seminar was the one on light rail, in which New Urbanists actively pushed for massive subsidies to build these little-used trolley systems. No doubt, the New Urbanists hate the 1960s-era urban renewal projects that libertarians also hate. But libertarians understand that all central planning is bad, while the New Urbanists simply want to replace the old central plans with their new and improved versions. It’s a big difference.

Of course, the suburbs can be bland and lacking in style and entertainment offerings. Ditto for small towns and exurbs. Professor Richard Florida argues that the key to urban development is to lure a “creative class” by building hip neighborhoods, vibrant gay communities, subsidizing downtown lofts, and other marks of urban culture. I don’t agree, but that argument understandably appeals to some lifestyle libertarians.

Nick Gillespie, editor of the libertarian Reason magazine, echoes that idea in his February 2005 column, “Live Free and Die of Boredom.” He chides a “U.S. Economic Freedom Index” compiled by Forbes magazine and the Pacific Research Institute, which ranks U.S. states based on regulatory issues, taxation, legal risk, and other freedom-related measures. New York was last, Kansas first.

“If you had to choose somewhere to live, would you really move to Jayhawk country if you could figure out any way, short of acting in porn, to stay in New York?” Gillespie asks. “ ‘Economic freedom’ . . . is pretty far down the list of what drives decisions about location, whether for businesses or individuals.” Although Gillespie doesn’t address the New Urbanism directly, his column reflects why the New Urbanism, in its promised antidote to suburban boredom, has a certain appeal, especially among younger, entertainment-oriented people. (I would have hoped, however, that the editor of a major libertarian magazine would have put a higher priority on freedom, but I digress!)

Developers and planners I know argue that New Urbanism is fine in reaching that small demographic. By all means, regulations should be reduced so that developers can reinvigorate older urban areas with exciting new projects. But it makes no sense, and is an affront to freedom, to use SmartCodes and the like to impose this narrow preference on the entire nation.

Deregulation Is the Answer

In the September 2005 New Urban News, Robert Steuteville argues: “Greenhut lives in what is commonly called suburban sprawl, and he likes it. That’s fine, but his neighborhood is not free of regulation. Every subdivision, including those in Houston, the city without zoning, has to submit to regulations and approvals, which involve a degree of coercion. Greenhut and other so-called libertarians such as Randal O’Toole never seem to be outraged by the coercion of zoning that mandates low-density sprawl.”

Steuteville is right that no neighborhood is free from regulation, although he is wrong about my supposed lack of outrage about regulation that mandates low-density sprawl. My column criticizes every form of land-use regulation, and I have defended the right of developers to build projects that can be called New Urbanist. Maybe within his criticism lie the seeds of common ground. Perhaps we, as libertarians, should make an offer to Steuteville and other New Urbanists: Let’s join in the fight to deregulate all land use. Then New Urbanists can build what they want; and we’ll all let the market decide.

Based on my experiences with New Urbanists, however, I don’t think we’ll get many takers.

What a difference a lousy U.S. Supreme Court decision makes.

Now state legislatures, city councils, and Congress are up in arms about the subject. It is a true water-cooler topic. Newspapers, which in the past typically ignored the “abuse” of eminent domain when they wrote glowing reports about “economic development,” are touching on the troubling ramifications of Kelo v. City of New London, in which a 5–4 Court majority declared in June that the city may hand over unblighted private homes near the waterfront to a developer for high-end condos and other private uses. Opinion polls show that an overwhelming majority of Americans oppose the ruling.

The word abuse is in quotation marks above because eminent domain is abusive per se: it compels the sale of private property, and since the sale is forced, there can be no “just compensation” as required by the Takings Clause in the Fifth Amendment to the U.S. Constitution. In most discussions,“abuse” pertains exclusively to takings not for “public use,” as the clause requires, but for any vague “public purpose” that might be carried out by the new private owners of the property.

The Court’s decision, however wretched, contained an important blueprint for reform. The majority wrote: “We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power.” And Americans are taking the Court at its word.

Already, one state—Alabama—has enacted a law prohibiting the use of eminent domain to increase tax revenue or for private development. Delaware has enacted a law that “requires eminent domain only be exercised for the purposes of a recognized public use.” But the Washington, D.C.-based Institute for Justice (IJ), which argued Kelo before the Supreme Court, says that law essentially upholds the ruling. The Institute reports that, as of August, 31 states have taken some kind of action, with 17 legislatures introducing bills, seven announcing plans to do so, and other states introducing constitutional amendments or setting up commissions to study ways to stop eminent domain from being used for private development.

Unfortunately, while citizens are reacting to the decision, so too are cities, which are taking Kelo as carte blanche for the most aggressive redevelopment plans. The New York Times on July 30 explained that “the ruling has emboldened some cities to take property for development plans on private land. . . . [I]n Santa Cruz [Calif.], for example city officials started legal action this month to seize a parcel of family-owned land that holds a restaurant with a high Zagat rating, two other businesses and a conspicuous hole in the ground and force a sale to a developer who plans to build 54 condominiums.”

Members of Congress also have proposed some limited restrictions on eminent domain. As the Environment and Energy Daily reported on July 19, “The Congressional Western Caucus has formed a new task force meant to defend property rights in light of a controversial June Supreme Court decision on eminent domain, as members continue to propose legislation to lessen the effects of the ruling. ”The goal, according to the publication, is to create a united front in Congress, given that six bills have been proposed.

“Sen. John Cornyn, R-Texas, has introduced a . . . bill (S. 1313), which would clarify that the power of eminent domain should be available only for public use and specify that economic development does not count as a ‘public use,’ ” according to the article. Also, the House voted 365 to 33 denouncing the decision, a resolution that has no teeth. However, the Washington Post reported that the House voted 231 to 189 to ban the use of eminent domain on projects that involve federal housing or transportation dollars.

The legal strategy will vary from state to state, given our federalist system and the fact that each state finds itself in a unique legal and statutory position with regard to eminent-domain uses for economic development. In six states—Kansas, Connecticut, Maryland, Minnesota, New York, and North Dakota—the highest courts have already ruled in favor of cities in cases of eminent domain for private use. That means that residents of those states must live with the standard set up in Kelo—that is, basically anything goes. Nine state supreme courts have addressed the issue and come down on the side of property owners. These are Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, Michigan, and Washington. But even in these states the situation is shaky for property owners. Many of the decisions are old, and some of the states have statutes that explicitly allow eminent domain for economic development, Dana Berliner, attorney for IJ, explains.

“The remaining 35 states are up in the air,” Berliner said. “Most haven’t looked at [eminent domain] in decades, and most haven’t looked at it since the modern practice of taking property just for business development. So state supreme courts need to revisit this issue now.”

Even the states with the best protections could use new laws or constitutional amendments banning the practice of eminent domain for private uses, she argues. In her report looking at such abuses from 1998 to 2002, Berliner found that eminent domain for private use had been carried out or threatened in 41 states, and she later found some other states to add to that list. That shows the degree to which this is a nationwide problem.

Poletown Decision Overturned

Last year the Michigan Supreme Court overturned the infamous 1981 Poletown decision. The original decision set the stage for the abuses evident in New London. The cities of Detroit and Hamtramck used their power of eminent domain on behalf of General Motors, which wanted to build a Cadillac assembly plant on the site of a 425-acre neighborhood—a thriving middle-class area filled with nicely kept homes, businesses, and churches.

The cities didn’t argue that the neighborhood, named for the Polish immigrants who first settled the area, was blighted. Rather, officials argued that the economic fate of the depressed Detroit region was at stake if eminent domain wasn’t used to help GM. The facility was built, though it never performed up to promises. The ruling was on the books 23 years until Michigan’s high court revisited it in July 2004. The Court described the original Poletown decision as a “radical departure from fundamental constitutional principles. . . . [I]f one’s ownership of private property is forever subject to the government’s determination that another private party would put one’s land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, ‘megastore,’ or the like. ”That decision reads like Justice O’Connor’s dissent in Kelo. Unfortunately, Michigan is the rare state where the court has spoken so clearly.

Several states don’t go nearly as far as Michigan, but require that governments prove that blight exists before invoking eminent domain. That is the standard in California, but I’ve found it to be an ephemeral protection at best.

Following, Kelo the California Redevelopment Association (CRA), in its overheated response to efforts to restrict eminent domain, argued that a proposed constitutional amendment “is a solution in search of a problem. California is not Connecticut.” The CRA emphasizes that the blight requirement keeps cities from abusing the process.

Yet my reporting in Orange County and elsewhere has shown the degree to which this is a genuine problem desperately in need of a substantive solution, as city governments routinely declare nice neighborhoods blighted in order to clear them away and build tax generating facilities.

IJ’s Berliner echoes that view, pointing out that property owners who challenge a blight designation in California often win, but it is so costly and difficult to fight that challenges are rare. It’s similar in other states with blight requirements.

“The statutory definition of blight in Illinois is broader than the Mississippi River at its mouth,” said Illinois state Sen. Steve Rauschenberger, who recently sponsored legislation to ban eminent domain for private uses, according to the Associated Press.

Berliner, speaking before the Illinois Assembly, offered specific advice to protect property owners in Illinois. One idea gets to the heart of the blight-protection problem:

“Illinois needs to . . . remove from the various definitions of blight factors that are too vague or allow condemnation simply for what local planners think is a better use.” Indeed, blight becomes whatever government officials want it to be. They have declared newer housing tracts, decent shopping centers, upscale buildings with chipping paint, and empty desert land as “blight.” In Mammoth Lakes, California, a rural resort community in the Sierras, officials called the downtown blighted because of excessive urbanization—something so absurd that even the courts overturned that finding.

The California Model

In California two main reform efforts failed in the final days of the legislative session. Unsurprisingly, neither challenged eminent domain per se. The first, introduced by state Sen. Tom McClintock and Assemblyman Doug LaMalfa, proposed an amendment to the state constitution. Here’s the key language: “Private property may be taken or damaged by eminent domain only for a stated public use and only upon an independent judicial determination on the evidence that no reasonable alternative exists. Property taken or damaged by eminent domain must be owned and occupied by the condemnor or may be leased only to entities regulated by the Public Utilities Commission. All such property must be used only for the stated public use.”

The second, introduced by Assemblywoman Mimi Walters, offered a simple statutory improvement: “This bill would provide that ‘public use’ does not include the taking or damaging of property for private use, including, but not limited to, the condemnation of nonblighted property for private business development.” If passed, the legislation would reinforce that the Connecticut standard does not apply in California, but it would not fix the abuse of the blight provisions by zealous California cities.

In addition to California, IJ reports that Texas and four other states are pursuing a constitutional amendment.

The Reason Public Policy Institute has offered sample state legislation. As Reason explains, the simplest method is to “delete the statutory authority for such uses of eminent domain. . . . [I]n 2004, Utah simply removed the authorization for eminent domain from its act giving powers to redevelopment authorities. . . . Three other types of provisions that also discourage the abuse of eminent domain are (1) allowing a former owner to regain ownership of condemned property if the government fails to use it within a given period of time; (2) time limits on blight or redevelopment designations; (3) attorneys fees for condemnees challenging the validity of takings.” Reason also proposes possible language that specifically prohibits eminent domain for private business.

The final approach, described by Reason, would ban eminent domain for economic development, and includes a definition of such as “any activity to increase tax revenue, tax base, employment or general economic health.”

Various state bills typically embody one of these forms. IJ’s list of proposed state legislation includes Colorado, which would limit the ability of agencies to declare a property blighted; Massachusetts, which would ban eminent domain unless the property is blighted; Minnesota, which would forbid using eminent domain to transfer property to a “nongovernmental entity without the power of eminent domain”; and New Jersey, which would forbid eminent domain under redevelopment law.

Many states have several proposals circulating at once. The Connecticut legislature defeated one measure that would prohibit the taking of residential dwellings for use “in a municipal development project that will be privately owned or controlled.” But the governor called on the legislature to issue a moratorium on eminent domain until the law is revised.

Even cities are getting in on the act. The city of Orange, California, voted to express opposition to the Kelo decision. Although such resolutions by city councils have no real weight, what does have weight is the understanding that council members will vote against eminent-domain actions. In California 90 percent of redevelopment agencies are run by the city councils and state law requires a supermajority of members to invoke eminent domain.

Most California city councils have five members. If every one of those councils had two members opposed to eminent domain for private use, these projects would always be stopped. Cities can also pass ordinances and change their charters to limit eminent-domain abuses. Those ordinances would have language similar to the language in Reason’s model statutes.

The best response in California has come from Anaheim. Mayor Curt Pringle announced, immediately following the Kelo decision, that his city would never use eminent domain for private development. These words are backed up not only by an anti-eminent-domain council majority, but also by several years of taking an alternative approach that contradicts the conventional wisdom offered by redevelopment agencies. Anaheim has refused to use subsidies and eminent domain, preferring to expand free-market opportunities for redevelopment.

For instance, the city targeted an area that it perceives as the next downtown. It is an area comprising onestory warehouses near the baseball stadium and hockey arena. So the city council said to developers: Come bring us your plans for the area. Build what you want. The only thing we will do is change the zoning so virtually anything can be built there. Sure enough, there are fascinating development proposals for the site.

This, ultimately, is the alternative to the redevelopment mindset, and the antidote to wanton eminent domain.

Until cities across the country embrace the Anaheim model, or until states impose legislative reforms that at least restrict eminent domain, there is only one avenue left to citizens who face such abuses. They can organize.

In Garden Grove, California, I watched hundreds of residents turn out to oppose a plan that would have leveled their neighborhood through eminent domain to allow for a theme park. Council members heard their voices and decided to stop the plan. In Lakewood, Ohio, where the city wanted to clear lovely historic homes along a park to make way for new condos and shopping, residents stopped the plan through a referendum and eventually succeeded in recalling the mayor.

It would have been best had the Supreme Court stopped the abuse of American homeowners and the Constitution, but even with this bad decision Americans have many avenues to pursue. The best news is that a backlash is in full swing. The key now is to keep the movement going until residents of every state are protected in the way the nation’s founders envisioned.