The Power to Destroy

December 30, 1993|By PETER A. JAY

Havre de Grace. -- More of us than usual seem to be irritated at government these days. Whether they're based in Washington, Annapolis, the county seat or the city hall, governments are widely perceived as creating more problems than they resolve.

The list of complaints is familiar. There are taxes, of course. There are failures to deliver promised services, whether it's police protection, a welfare check or a subsidy payment for not growing kumquats. There are so-called civil servants who aren't either. And then there are the unseemly capers of elected officials, who are always being caught with their heads in the trough, their hands in the till or their -- but never mind that, you get the idea.

These outrages and annoyances are compounded by government's tendency to pop up, often stupidly or arrogantly, right in our face. It often appears when we least expect it. People who willingly pay their taxes and obey the law, and want nothing more in return than the opportunity to live their own quiet lives and be left alone, are constantly finding someone on the public payroll standing across their path.

This is often a result of the licensing process. Licensing is a more subtle encroachment on individual liberty than taxation, and like taxation it can be easily justified if imposed in moderation. But where does moderation end and strangulation begin?

Almost 175 years ago, Chief Justice John Marshall observed in McCulloch v. Maryland that the power to tax involves the power to destroy. Licensing authority involves the same power, but Mr. Justice Marshall didn't say that, living and writing as he did in a day before American lives and institutions had become overgrown with regulatory kudzu.

Maryland has the licensing disease pretty seriously. It began licensing barbers in 1904, and has been hard at it ever since. The state Department of Licensing and Regulation -- an old-fashioned title in its explicitness; look for it to be imaginatively renamed before long, perhaps something like the Department of Safer Living -- oversees almost every conceivable activity.

A lot of this supervision has nothing whatever to do with protecting the public, and quite a lot to do with keeping new competitors out of certain trades. Who benefits from the licensing of barbers or plumbers? Licensed barbers and plumbers, of course.

But what about the danger, cited in such apocalyptic terms by trade associations whenever deregulation rears its head, that the public will end up with uneven sideburns, leaky pipes and other such dire consequences?

In fact, no consumer-protection bureaucracy is as effective as the ancient doctrine of caveat emptor -- buyer beware. No list of artisans approved by government is as reliable as word of mouth. And, where some form of certification is desirable, trade and professional associations can provide it better than government can, especially if the existence of non-certified competitors forces them to be sure that their certification really means something.

A modest amount of governmental supervision of some things we do makes sense, which is why it's so difficult to get rid of supervision that makes no sense at all. It's certainly reasonable to insist that those who drive on the public highways demonstrate familiarity with the traffic laws and a basic competence in operating a motor vehicle. (Many Maryland drivers exhibit neither, especially in bad weather, but that's another subject.)

The issuance of fishing licenses, a fairly new practice in tidewater Maryland, is equally warranted, for it helps the state keep some control on the depletion of an important natural re- source. The same is true of hunting licenses, which also address public-safety concerns by requiring certain standards of education or experience.

Among the licenses I hold is one issued by the U.S. Coast Guard authorizing me to operate a boat of modest size and carry passengers for hire. I qualified for it about 10 years ago, partly for the intellectual challenge of passing what's considered to be a difficult exam, and have kept it up since.

Whether I'm a safer or more competent boat operator because I hold this license is arguable, however. As the recent sinking of the charter boat El Toro so vividly demonstrated, licensed captains aren't immune from operating unsafe vessels or making questionable decisions. Many states are now considering licensing pleasure boaters. My guess is that any gains in safety ++ will be more than offset by the cost, financial and psychological, of this large new layer of regulation.

The hottest licensing issue right now concerns guns, primarily handguns. There will be plenty to say about that in the months to come, but it's worth remembering that as a rule the tougher the gun laws in an American city or state, the greater the rate of violent crime.

Meanwhile, regardless of the permits you hold or have been arbitrarily denied, an unlicensed but sincere Happy New Year.

Peter A. Jay is a writer and farmer. His column appears Sundays and Thursdays.

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