Municipalities to Be Constrained by Due Process?

George Will tells of an interesting case that the Institute for Justice has taken up. A town in Missouri, stopped from using traffic tickets as an easy way to steal from passing motorists, has taken to issuing tickets for ridiculous offenses instead.

Pagedale residents are subject to fines if they walk on the left side of a crosswalk; if they have a hedge more than three feet high, a weed more than seven inches high, or any dead vegetation on their property; or if they park a car at night more than 500 feet from a street lamp or other source of illumination; or if windows facing a street do not have drapes or blinds that are "neatly hung, in a presentable appearance, properly maintained and in a state of good repair"; or if their houses have unpainted foundations or chipped or aging layers of paint (even on gutters); or if there are cracks in their driveways; or if on a national holiday -- the only time a barbeque may be conducted in a front yard -- more than two people are gathered at the grill or there are alcoholic beverages visible within 150 feet of the grill.

With so many normal or innocuous things subject to ticketing, should an official happen by and look, it is plain that such laws are impossible to enforce uniformly or predictably. Thus the Institute for Justice is suing on the principle of substantive due process.

... The entire nation should hope that this small city's pettiness will be stopped by a court that says this: The Due Process Clause, properly construed, prohibits arbitrary government action, particularly that which unjustifiably restricts individuals' liberties.

That is, the Due Process Clause is not purely about process. As Timothy Sandefur of the Pacific Legal Foundation writes, what distinguishes due process is an outcome that is not arbitrary. Granted, the Constitution's text does not explicitly infuse the concept of due process with substance. But there are implicit limits on government power, limits inherent in the idea of law. As Sandefur says, a legislative act that fails the tests of generality, regularity, fairness and rationality (being a cost-efficient means to a legitimate end) is not a law, so enforcing it cannot be due process of law. [bold added]

Although this lawsuit does not address whether a city has any business telling people how to maintain their lawns or care for their property, it at least would severely curtail many governments from acting capriciously. As Ayn Rand once put it:

All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.

I gather that a favorable ruling would at least cause municipalities like Pagedale to have fewer and more sensible bad laws, rather than too many to know about or be able to follow (at least while living a normal life). So there might still be improper law, but at least one could manage, without much difficulty, not to be harassed by law enforcement. A favorable ruling would thus definitely be a step in the right direction.

-- CAV

P.S. Let me note in passing that this effort represents a step towards the kind of municipal government reform the federal investigation of the police department in nearby Ferguson revealed is needed.