by Jon Sanders
Director of the Center for Food, Power, and Life, Research Editor, John Locke Foundation
"‘It was a nightmare‘: Man warns NC homeowners about little-known land rule," blared a headline from WRAL this week. Here is a snippet from the story (emphasis added):
A Raleigh homeowner says he was forced to spend thousands of dollars to rip out a patio, walkway and concrete platform in order to sell his house — all due to a little-known housing rule designed to protect drinking water.
Pat Pannese said he was blindsided when the mortgage surveyor informed him his .21-acre property in the Bedford Falls neighborhood exceeded the city’s impervious surface ordinance.
"We were devastated," he said. "That’s the first we had ever heard of the rule." …
Tim Maloney is Wake County’s planning, development, and inspections director and oversees the unincorporated areas. Every home under his jurisdiction that’s not in a watershed has an impervious surface limit of 30 percent, meaning only a third of the property can be covered by a hard surface.
Since Raleigh, Cary and other municipalities have their own regulations, Maloney admits most people probably have no idea about their impervious surface rules.
"I think there’s room for improvement in any way that we communicate with the public," he said. …
Pannese said he never changed anything after moving into the house in 2006. The issue apparently fell through the cracks when the house transferred from the developer.
"Why would we have a problem today when we didn’t have one when we bought the house?" Pannese said.
The article concludes with an admonition to homeowners to "contact their county or town planning department to find out what their impervious surface limits are" — especially because the limit "varies by county, town and even neighborhood, so there’s no simple chart to see if you’re in compliance."
The article is penned as a cautionary tale to homeowners, but it ought to be a cautionary tale to state leaders about overregulation. When the thicket of rules has grown so dense that everyday citizens just trying to live their lives are at great financial risk or worse by running afoul of regulations they’ve never heard of — in this case, a regulation that changes from neighborhood to neighborhood, even — then "the land of the free" is just an empty phrase.
The issue in this story is a local regulation, the total number of which varies by jurisdiction and is practically unknowable. The total number of regulations for the State of North Carolina is about 25,000.
According to the Mercatus Center’s RegData database, there are (as of this writing) 1,040,940 restrictions in the Code of Federal Regulations.
Who could keep them all straight?
It was for this reason that English common law developed the concept of mens rea:
A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element.
The concept of mens rea developed in England during the latter part of the common-law era (about the year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind.
In recent years, especially with respect to regulation by government agencies as opposed to legislation, mens rea requirements have fallen by the wayside. In those situations, strict liability (where the rule- or law-breaking is taken to consist only of the act itself) is assumed. Unwitting, unintentional lawbreaking and rulebreaking have skyrocketed. Law-abiding people’s lives have been turned on end by government enforcers for no good reason.
The teaser to Harvey Silverglate’s 2009 book Three Felonies a Day: How the Feds Target the Innocent puts the situation starkly:
The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to "white collar criminals," state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.
Clearly the unfortunate Pannese had no awareness of the fact that his property was in violation of this particular regulation and had no intent of being in violation. To believe otherwise would require the belief that Pannese, armed with the arcanum of impervious surface regulation, deliberately sought a property out of compliance and a combination of seller, real-estate agents, and inspectors who all lacked awareness of the rule.
And his is a comparably mild example. There are well over a million other rules he, or we, could be afoul of without knowing it — despite having no desire to break any laws or commit any crime.
The reform: default mens rea
For that reason, any serious effort to correct for overregulation — or more accurately, for overcriminalization that results — must include a legislative effort to create a default mens rea structure. Where hasty regulators or legislators have neglected to include mens rea in their rules or laws, a default mens rea statute would assume mens rea was intact.
Under default mens rea, silence over mens rea would no longer mean lack of mens rea. It would mean presence of it. If the regulators or lawmakers wished to enforce strict liability, they would have to do so directly, not indirectly.
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