RE: [lpsf-discuss] 701 Lombard Street Eminent Domain Update

Here's an interesting article on the IJ.


Flower Power

Robert P. Murphy

[February 9, 2004]

Did you ever notice that Louisiana is the only state of the Union where you can get a decent floral arrangement? No? Then it may surprise you to learn that Louisiana is the only state to license would-be florists.

That's right: If you want to (legally) arrange and sell flowers in Louisiana, you must first pass a two-part exam. The first part is a written exam that, by all accounts, is easy enough. But the second part is a practical test in which a hopeful candidate must create four different arrangements within a time limit. The arrangements are then sent for judging to current florists, whose standards for excellence are so high that well under 50 percent of applicants can pass the test.

The Institute for Justice wants to change all this. On December 18, 2003, the Institute filed a civil rights lawsuit against the Louisiana Horticulture Commission, on behalf of three plaintiffs who had repeatedly failed the licensing exam. The Institute wants a U.S. District Court to declare the licensing law unconstitutional, and to uphold the plaintiffs' "right to economic liberty-the right to earn an honest living free from excessive government regulation."

The Institute for Justice has conducted a smart media campaign to bolster sympathy for the plaintiffs. Recognizing that most Americans won't respond to abstract arguments from principle or economic liberty, senior attorney Clark Neily has pointed out the convenient beneficiaries of the licensing law:

Many elements of the design phase [of the licensing exam] are highly subjective, with examinees being graded on such points as whether their design has the "proper" focal point, whether flowers are spaced "effectively," and whether the arrangement is an "appropriate size." State-licensed florists-the very same people against whom the test-takers hope to compete-decide whether those subjective requirements have been met. It is no wonder the pass rate for the floral exam has been well below 50 percent.

Later in his piece, Neily addresses the position of Agriculture Commissioner Bob Odom, who said he would back legislation to repeal the licensure scheme if the current members of the floral industry voted to do so. Wrote Neily: "Of course, asking licensed florists whether they wish to throw open the industry to all comers is like asking the fox if it wants to stop guarding the henhouse."

Not Far Enough
All libertarians-indeed, all reasonable people-can agree that the state licensure of floral designers is absurd, and anyone but the most naïve will recognize this exam as nothing but a state-enforced cartel. Certain libertarians might object to the Institute for Justice's strategy-i.e. filing a lawsuit within the very same government apparatus that is so grossly hypocritical in other areas-but they can all agree that the plaintiffs have indeed been wronged by the State of Louisiana.

Unfortunately, one wonders whether people like Clark Neily have the stomach to push their arguments to their logical conclusion. Did Neily really believe what he wrote, namely that, "One of our most basic freedoms as American citizens is the right to earn an honest living free from arbitrary or excessive government regulations"? If so, it seems that the Institute for Justice should be filing lawsuits on behalf of all those who work or own a business. Can someone name for me a single industry that is free from arbitrary and excessive government regulations?

For a different example, Neily wrote that "the government really has no business dictating who is and who is not qualified to be a florist." Although he is certainly correct in this assessment, I suspect that Neily feels the government does have business dictating who is and who is not qualified to be, say, an airline pilot or a brain surgeon.[i] The implicit assumption seems to be that consumers are qualified to buy flowers from whomever they want, but that they are helpless in spotting a quack.

A glance at the list of similar cases handled by the Institute for Justice confirms this. For example, Wexler v. City of New Orleans overturned a city ban on selling books in the street, Craigmiles v. Giles concerned licensing of casket sales, Cornwell v. California Board of Barbering and Cosmetology involved African hairbraiders, and Jones v. Temmer helped break up Colorado's taxicab cartel.

Again, from a libertarian perspective, each of these licensing laws was odious, and it did represent a gain for liberty when they were repealed. However, insofar as they may have been repealed only by command of a higher unit of government power, even these apparent successes are dubious, if one's ultimate goal is the elimination of all government violation of rights.

School "Choice"?
Lest I be accused of mere nitpicking, let me give a clear example of an issue in which the Institute for Justice is clearly not living up to its stated goal of "preserving freedom of opportunity and challenging government's control over individuals' lives." I refer to school vouchers, or what its proponents call "school choice."

If you look at the IJ's own summary of one of its cases, you will see the Institute championing the use of State power to force local schools (and taxpayers) to educate poor children:

[Colorado] Governor Bill Owens signed into law Opportunity Contracts, a voucher program to enable low-income families in the state's poorest-performing school districts to send their children to private schools.

Almost immediately, lawyers for the Colorado Education Association, the National Education Association and other special interest groups filed a lawsuit attempting to block parental choice in Colorado.

IJ intervened in the case to defend the program on behalf of 12 Colorado families who wish to participate in the Opportunity Contract program. Six families are from Colorado Springs and six are from Denver; all hope for a better life for their children through quality education.

In December 2003, a Denver District judge struck down the program under an arcane "local control" provision, found in the constitutions of Colorado and only five other states. The judge also enjoined the program, halting all implementation efforts by the State and school districts and threatening the scheduled start of the program in fall 2004.

The Institute for Justice and the Colorado Attorney General immediately asked the state Supreme Court for expedited review, which was granted.

For someone who endorses Murray Rothbard's prescription of "universal rights, locally enforced," the above quotation-with its haughty dismissal of "arcane" constitutional provisions of federalism-is ominous indeed.

What is more troubling is the framing of the issue. The IJ summary certainly does not make the (understandable) argument, "Look, this money was going to be taxed and spent anyway, so we might as well introduce some competition into the picture." Instead, the IJ site (linked above) frames the issue as merely one of "choice," and of providing an education to poor children. (A glance at the billboards featured at the IJ link certainly does not paint the protestors as readers of Ludwig von Mises.) If poor children have a right to be educated at taxpayer expense in private schools, then why don't poor children have a right to be clothed at taxpayer expense in private malls?

Making the Perfect the Enemy of the Good?
At this point, I can just see dozens of "realists" typing up angry emails. "That's the problem with you radicals!" they will write. "You're just like the communists who save their vitriol for their Menshevik (or Bolshevik) peers, rather than focusing on the common enemy. Rather than wasting your time attacking fellow libertarians who are actually out there advancing the cause, why don't you write a column criticizing the Democratic proposals?"

There are two responses I'll give to this (typical) objection. First, the flippant one: Even if it's true that I'm not really advancing liberty by attacking a relatively innocuous target like the Institute for Justice, then a fortiori the IJ should be criticized. After all, all I'm wasting is an hour of my spare time (and the space of a column). But the IJ is wasting millions of dollars defending would-be florists, African hairbraiders, taxicab drivers, etc. Are these people really the biggest victims of government?[ii] Why not rush to the defense of people like Jose Padilla?[iii] In short, if you write me an angry email, then make sure you write at least two to the Institute for Justice.

Now for my more serious response: Yes, there is a definite place for "soft-core" libertarians, who make arguments and take stands that will resonate with the common man. But at the same time, there is a definite place for the theoretical purists, who will speak up when they feel the people out there "getting their hands dirty" are in fact hurting the cause of liberty (if only in the long-run).

The legacy of Ronald Reagan was arguably worse than Bill Clinton's precisely because Reagan (allegedly) stood for small government. So when deficits and the number of crack addicts went through the roof during the '80s, liberal Democrats could plausibly blame "tax and budget cuts," even though the latter were nonexistent and the former were mostly shell games of fancy terminology (like "closing loopholes" and "revenue enhancement"). By the very same token, libertarian groups that use the government to push through their (often dubious) agendas may be shooting themselves in the foot. If so, it is the responsibility of purists to speak up; Rush Limbaugh can adequately mock the Democrats.

The message of "mainstream" libertarian agencies such as the Institute for Justice is the familiar, "Although well-intentioned, sometimes government regulation goes too far." This message, though palatable to the average American, is not an effective long-run strategy. Unless Americans realize that all government regulations are violations of liberty, which represent nothing but a dishonest means of gouging consumers, piecemeal lawsuits will never bring justice.