George Will: A nation of laws, and not of liberty

A dialectic of judicial deference and political arrogance is on display in St. Louis.

When excessively deferential courts permit governmental arrogance, additional arrogance results as government explores the limits of judicial deference.

As Jim Roos knows.

He formed a nonprofit housing and community development corporation that provides residences for low-income people.

Several times its properties have been seized by the city, using "blight" as an excuse for transferring property to developers who can pay more taxes to the seizing government.

The U.S. Supreme Court's 2005 Kelo decision legitimized this. It permits governments to cite "blight" -- an elastic concept -- to justify seizing property for the "public use" of enriching those governments.

Roos responded by painting on one of his buildings a large mural -- a slash through a red circle containing the words "End Eminent Domain Abuse."

The St. Louis sign code puts the burden on the citizen to justify his or her speech rather than on the government to justify limiting speech. And the code exempts certain kinds of signs from requiring permits.

These include works of art, flags and symbols of organizations.

And, of course, the government exempted political signs. So the exempted categories are defined by the signs' content.

The Institute for Justice, a libertarian public interest law firm defending Roos, notes that signs may be the oldest form of mass communication -- Gutenberg made advertising posters -- and they remain an inexpensive means of communicating with fellow citizens.

St. Louis says it regulates signs for "aesthetic" reasons and to promote traffic safety, but admits it has no guidelines for the bureaucrats exercising aesthetic discretion and no empirical evidence connecting signs with traffic risks.

St. Louis is not the problem; government is. Many people go into it because they enjoy bossing people around.

Surely this is why a court had to overturn a decision by the government of Glendale, Ohio, when it threatened a man with fines and jail because he put a "for sale" sign in his car parked in front of his house. The city said people might be distracted by the sign and walk into traffic.

St. Louis Alderman Phyllis Young is distressed that Roos' speech might escape government control: "If this sign is allowed to remain then anyone with property along any thoroughfare can paint signs ... to influence passersby with no control by any City agency. The precedent should not be allowed."

The alderman's horror of uncontrolled speech is an example of what Elizabeth Price Foley, law professor at Florida International University, calls "an ineluctable byproduct of disregarding the morality of American law."

In her book "Liberty for All," she says the growing exercise of legislative power "in the name of majoritarian whims" has eroded America's "twin foundational presumptions" -- limited government and residual individual sovereignty.

She thinks we have become a nation of laws, and not of liberty. We are, she notes, a nation with local laws prohibiting the wearing of hats in theaters or courtrooms, catching fish with bare hands, carrying a slingshot, teaching others about polygamy, having a garage sale for more than two days a year, serving alcohol within a mile of a religious camp meeting ...

The 8th U.S. Circuit Court of Appeals is considering the St. Louis case, which arises from unwise judicial deference to city governments wielding the power of eminent domain, which demonstrates that judicial deference often is dereliction of judicial duty.