When Legislation Penalizes the Poor

In communities with more legislation and regulations, more people are tripped up by the law more often. Local corruption follows the wisdom of Roman historian Tacitus: The more corrupt the state, the more numerous the laws. (See similar quotes from scholars at the Independent Institute’s OnPower.org.)

Megan McArdle writes on overly-regulated Ferguson, Missouri, and how community corruption there especially harms the poor. Some $5 million of Ferguson’s $20 budget comes from “fines and public safety” and fees.

McArdle explains:

The problem with using your police force as a stealth tax-collection agency is that this functions as a highly regressive tax on people who are already having a hard time of things. Financially marginal people who can’t afford to, say, renew their auto registration get caught up in a cascading nightmare of fees piled upon fees that often ends in bench warrants and nights spent in jail … not for posing a threat to the public order, but for lacking the ready funds to legally operate a motor vehicle in our car-dependent society.

For the NCFCA LD topic, I don’t know if a negative case could be made for restricting the “economic freedom” of government officials. At the local, state, and federal level, elected and unelected officials seem free to enact all manner of economic edicts. The U.S. and most state Constitutions were originally worded to restrict the power of legislators to intervene in the economy. Those restrictions have been mostly written out of the U.S. Constitution since New Deal and other Progressive Era policies were approved by Roosevelt’s reformed Supreme Court.

Randy Barnett looks at the unfairness of local economic regulations in his Washington Post Volokh Conspiricy post, “The majoritarian fable.” Barnett argues that it is a fable that wrongs are likely to be righted by the legislature. Special interests are too powerful, and those harmed to poor and disconnected. That is why courts should step in to question legislation protecting special interests rather than general interests. Barnett asks:

So tell me a story about how an individual denied the right to braid hair without an expensive and time consuming cosmetology licence can get her right vindicated in “the legislative process.” Tell me how some monks can get their right to sell a wooden box in which to bury the dead without being licensed funeral home directors can get their rights decided by “the rest of us.”

This post is part of an ongoing debate with the Law and Liberty Blog on finding the limits of judicial action to protect individual rights from legislation.