Distrust: Root of all Regulations

The presumption of innocence is one of the great bulwarks for civil liberty. Regulations turn that onto its head: You are presumed guilty until you prove your own innocence in the form of compliance.

The premise of typical statutory laws in the United States, such as criminal and tort laws, is individual freedom rooted in mutual civic trust: A citizen is free to do whatever he pleases unless and until he violates the rights of others, causes some kind of noncriminal damage to someone else, or does something (such as violates a contractual agreement) for which he can be civilly sued.

After a citizen has criminally or civilly injured someone else, criminal laws offer punishments and civil laws offer remedies.

Regulations, however, are strikingly different from traditional statutory laws. The premise of regulations is not individual freedom because there is no mutual civic trust. The premise of regulations is suspicion, distrust, and government supervision over individuals.

The foundational assumption for all regulations is that each citizen will do something deceitful, purposefully harmful, or irresponsibly damaging, sooner or later, so rather than wait for a wrongful action, regulations control citizens before they have an opportunity to harm to anyone.

In many different industries, there are staggering, often insuperable costs and burdens of complying with regulations before the doors of a new business are even opened. A business owner literally has had no opportunity to hurt anyone with her business because she has yet to open her business, but that does not stop government bureaucrats from regulating what she does.

Regulations, therefore, make everything more expensive, which is bad for everyone, especially the poor. For example, according to the National Association of Home Builders:

Regulations imposed by all levels of government account for $93,870, or 23.8 percent of the current average sales price ($397,300) of a new single-family home in 2021. Of the $93,870 figure, $41,330 is attributable to regulation during development, and $52,540 is due to regulation during construction.

Regulations are unworthy of free, self-governing citizens. Further, a regulation is not a law and therefore should not have the power of law.

Laws v. Regulations: Elected Legislators v. Unelected Bureaucrats

Everyone who remembers the old Schoolhouse Rock video knows how a bill becomes a law: A majority of the elected members of the House of Representatives and a majority of elected Senators vote in favor of a bill, which is then typically signed by the elected President of the United States, and the bill becomes a law.

The process of making laws is similar within state governments: Elected legislators vote for a bill, which is then usually signed by an elected governor.

At both federal and state levels, those empowered to create laws are elected by those to whom the laws apply. This is an important check on government power. If elected legislators and government executives (like the President or state governors) create laws that are unwise, unjust, or unconstitutional, citizens have an effective recourse at the next election: They can vote others into office, thereby removing from office those elected officials who were responsible for the bad laws.

Moreover, laws are passed, enforced, and judged by three separate branches of government. This, too, is a check on government power. If a legislature, for example, passes a law that provides some illegitimate advantage for legislators, it will be enforced by the executive branch and judged by the judiciary, both of which are independent from the legislative branch of government.

Regulations, however, are not passed by any elected representatives or officials. Regulations are issued by unelected (usually unionized) bureaucrats who cannot be removed from positions of government power in the next election.

This is deeply problematic because while regulations are not, technically, laws—they’re neither voted on by elected legislators nor signed by an elected executive—regulations have the power of law when enforced by government agents and adjudged in courts (or quasi-judicial administrative hearings). Regulations are binding on citizens—regulations prohibit citizens from doing certain things, and command citizens to do other things—as if they were laws.

Yet, regulations are not laws!

To boot, regulations are issued, enforced, and judged by the same regulatory agency. There is no separation in the realm of regulatory power.

For ordinary citizens, in the course of ordinary civic life, violating a regulation is no different than violating a law. A citizen can be fined, punished, even imprisoned, for both. The authors of a bad law, however, be held accountable by voting citizens. Bureaucrats who issue bad regulations—or selectively enforce regulations to target select people—are outside the scope of elections, usually enjoying something close to life-tenure (it is very difficult to fire unelected bureaucrats).

Laws v. Regulations: Presumed Innocent or Guilty?

The premise of typical, statutory laws—both civil and criminal—is that a citizen is presumed to be innocent until someone else proves that he is guilty of some illegal act or causing some kind of harm or injury.

Whether it is a case involving civil or criminal laws, the laws command action only after it has been proven that someone has acted criminally or has acted in ways that make them accountable to civil laws.

The premise of regulations, however, is that a citizen is presumed to be guilty unless and until he proves that he is not guilty. The process of proving one’s own guiltlessness is called: compliance.

Failure to be in compliance, just once, will likely result in the government punishing you, perhaps harshly, as if you had been convicted for some criminal offense or found by a civil court to have caused great harm to someone. You might be fined by the government, or your business might be shut down, or worse—not because you violated anyone’s rights, but simply because you did not prove to the satisfaction of government bureaucrats that you are obedient and compliant.

The entire premise of regulations is that you, the citizen, are presumed to be guilty until you prove that you are not guilty.

Laws v. Regulations: Burden of Proof

In the case of civil and tort laws, the burden of proof is on the person accusing someone else of causing damage or violating a contractual agreement. The accuser must prove in civil court that the other person actually did what he is accused of doing.

If you, for example, sue someone for failing to do some work they contractually agreed to do, the burden will be on you to demonstrate what the contractual agreement was and that the work was not done in the way it was agreed to be done.

In the case of criminal laws, the burden of proof is on the government. The government must prove—beyond a reasonable doubt—usually in front of a jury—that the citizen accused of violating criminal laws actually did violate criminal laws.

Whether a person accused of crimes actually committed those crimes or not, he walks free if the government cannot prove that he committed those crimes. That is why the verdicts are either “guilty” or “not guilty” in criminal cases. There is no verdict of “innocent.” The government either proves that a person is guilty of a crime, or the government fails to prove that a person is guilty of a crime.

With regulations, however, the burden of proof is upon you, the individual citizen. You must prove your own guiltlessness by demonstrating that you are compliant. Further, you do not demonstrate that you are compliant once, or twice, or three times. The process of proving one’s own guiltlessness to unelected bureaucrats and regulators—the process of compliance—is an endless process.

As every business owner knows, being in compliance last reporting period means nothing for the next reporting period. You must prove your guiltlessness by being in compliance over and over, without end.

Trusting Fellow Citizens, Distrusting Government

It should be apparent by now that regulations are rooted in civic distrust and suspicion. Regulations are proper for citizens who believe their fellow citizens are malevolent and out to get them, or are incompetent, stupid, and unable to make their own decisions responsibly.

Regulations have no place in a regime of liberty.

Freedom, after all, requires that citizens trust one another enough to recognize and respect the natural rights of each to govern himself, that each is and should be free to make his own choices in life, including how to use one’s own property, run one’s own business, and raise and educate one’s own children.

Mutual civic trust emerges naturally when free citizens are virtuous, responsible, and trustworthy. That trust is the foundation for just civil and criminal laws, the premise of which is individual freedom. Freedom is inseparable from mutual civic trust.

Wise and free citizens trust each other while, at the same time, they’re highly suspicious and distrusting of those in government.The reason is simple: Ordinary citizens have no legal power to take liberty or property from other citizens. Those in government, do.

This is our challenge today. We are upside down, turned around, regarding who we should trust and distrust. We now have tens of millions of citizens who are highly suspicious and distrusting of each other while they place all their trust in government. Nowhere is the distrust in fellow citizens and trust in government more apparent than in the millions of pages of regulations now enforced by the federal and state bureaucrats.

Think of it—and talk about it with others—in terms of personal relationships. Everyone knows that trust is indispensable for any kind of relationship, be it personal, professional, or romantic. No one wants to be in a relationship that revolves around suspicion and distrust.

Yet, that is now the relationship we citizens have with our own government.

It is time we reclaim the mantle of trust—trust in fellow citizens and trust in freedom. Let us encourage one another to be virtuous, responsible, and worthy of each other’s trust. Let us ignore progressive fearmongers who sow division, distrust, and suspicion among us.

Let us reject the idea of regulations as unworthy of virtuous, productive, free people. Let us not be a nation of regulations. Let us become a nation of laws premised upon the natural freedom of virtuous citizens who live responsibly under the laws.

Change the Conversation

When a progressive politician (whether a progressive Democrat or a progressive Republican) proposes more regulations, ask him questions: “Why do you distrust the American people so much? Why are you so suspicious of fellow citizens?”

Practice being zetetic: “Why are you so arrogant and condescending to assume that your fellow citizens cannot run their own businesses, or raise their own families, or make their own choices, without regulations from you?”

Don’t let politicians divert to other subjects and chatter on and on about their “plans” for more social engineering, more spending of other people’s money, more restrictions on the American people. Rather, keep the discussion focused on why progressive political elites are driven by fear to control and regulate those who are not part of the political elite class.

Watch and see for yourself how that changes the conversation.