When the Founding Fathers within Article 1 Section 8 of the newly signed Constitution granted to Congress the power to regulate commerce, these distinguished gentlemen naturally knew nothing of gasoline, electricity, or bacteria. At the time, workplace and product safety standards constituted for them nary an afterthought. In a nation built upon the backs of slaves this hardly seems surprising.
But after years watching the nation falter under the Articles of Confederation — years of state to state tariff wars, deep recession with dire inflation in state currencies, and both rising debt and unremitted taxes — simply wresting from these foundering states their power to erect tax barriers that impeded foreign and interstate trade was one of their most pressing goals.
Yet in modern America we taxpayers now spend over $2.5 trillion per year footing the bill for both government regulatory enforcement and for public and private compliance.
Possessed of today’s scientific knowledge, would our Founders have designed such an economic burden as a part of their “original intent?”
Must we yet speculate? They died.
We the People must today answer for ourselves which if any measures are necessary and which would best ensure the safety of honest, productive citizens in the free exchange of goods and services — in our daily commerce. No doubt every political ideology will have its own argument for the proper regulator — whether government agencies, private associations — or no regulators at all..
But within both the public and private sectors the one inescapable constant is human nature itself: the power corrupts us; favoritism takes hold; complacency grows; and money talks. Behold the current global financial crisis. Moody’s Corporation and Standard & Poor’s, two private rating services, were no more trustworthy or reliable than the SEC, a government regulatory agency, in warning Americans of our impending financial securities meltdown.
Fallible human beings man every organization, public and private.
Is the answer then no regulation at all? Ought we discover then only after a high-rise apartment collapsed that the foundation was laid with faulty concrete? Are compensatory lawsuits enough justice, or low rents enough inducement, for the harm visited upon honest, unwitting citizens and their surviving relatives?
Any regulator, public or private, might at any time prove derelict in its duties. But this cannot be reason enough to forsake reasonable public standards, particularly within industries where the public safety is at risk.
In the IT world we see competing models of innovation with widely divergent industry standards: the closed-source operating system and the open-source system. Public safety is nowhere here at risk; and innovation is thriving without such regulation. Let then the hand of the free market and the demand of the consumer determine the course of commerce.
Required is a common-sense rule of thumb, a rule with which to gauge the propriety of imposing a regulation: Does it directly, materially enhance public safety while minimizing costs of compliance — minimized to a degree that would still justify the enterprise in the first place?
But here we return to our human nature: Who shall write such regulations and for which industries? Who shall enforce them? And shall any citizens enjoy immunity from them? What will be the consequences for over-regulation, for under-regulation, and for non-compliance?
First and most importantly, no one must be immune from the law.
And it would be public employees not private interests or even associations of private interests who surely would make for the most impartial enforcers of public safety regulations. Private self-governance of public safety, where profit and market share would always be in play, more widely opens a backdoor to our darker human nature.
Industry experts, logically, ought to write the specific standards within their respective fields of mastery. And our own elected representatives, each subject to the recall vote, ought to select such experts as impartially as this our human nature allows.
Finally, we the People, as jurors within the courts of law, will decide both culpability and consequences for the misuse and violation of such regulations.
And the rule of thumb?
No administrative rule or regulation, except those indispensable to the protection of public safety, shall be enforceable where, regarding the regulated, a presumption of malice, neglect, or imbecility inheres to the requirements thereof: But any injury to person or to property, private or public, whose proximate cause is a business or governmental standard or procedure violative of due care and common sense shall nullify the limited liability or the official immunity of the authorizing and enforcing officers, respectively, both in civil and in criminal suits.
(from Amendment XIII)
Some might object here that revocation of the limited liability of CEOs and the official immunity of politicians opens wide the front door to endless litigation. But is this not what hurts us most today — their immunity from accountability?
The broader expansion of citizen accountability — of personal accountability — will serve as the foundation of our collective moral growth. No citizen, and particularly not those in positions of responsibility and power, ought enjoy immunity from our collective judgments and from their own accountability.
So, what then would constitute “due care and common sense?” That would be a definition in our own collective hands, as jurors at trial, to decide — a de facto form of common law for we the People. And this same critical judgment would be brought full circle against ourselves and our own frivolous lawsuits by a provision written as a revenue source into this new direct democracy constitution:
Misusage fees levied upon persons who assume unnecessary risks or file frivolous complaints that require emergency public services or courts of law;
(from Amendment X)