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Tom Messina owns a restaurant. Or at least he thought he did.

For the past 20 years, Messina has operated Tom's Diner on Colfax Avenue in downtown Denver, Colorado. Running the popular 24-hour restaurant—located just a few blocks from the Colorado state capital—is demanding work that Messina is looking to move on from as he nears retirement age.

"I'm a restaurateur who's worked his life flipping pancakes and selling eggs," says Messina. "I have a beautiful family I want to spend time with. I just turned 60 and I want to do something else."

Messina's plan had always been to finance his retirement by selling his restaurant. That dream looked like it would become a reality earlier this year when Alberta Company offered him $4.8 million for his property, which the Colorado-based developer plans to turn into an 8-story apartment building complete with shops on the ground floor.

The price was right for Messina and Alberta's plans fit perfectly with Denver's 2010 rezoning of the property, which marked it as part of an urban center neighborhood fit for denser, mixed-use development.

Everything was going swimmingly until Denver's historic preservationists got wind of Messina's evil plan to sell his property and retire after two decades of serving Denver residents in order for new business owners and residents to work and live where his diner currently sits.

When Alberta Company applied for what is known as a Certificate of Non-Historic Status, which would allow the building to be demolished and redeveloped, five community members assisted by the local preservationist nonprofit Historic Denver filed an application to designate Messina's restaurant a historic landmark. If granted, this landmark status would prevent the building's redevelopment into apartments, drastically reducing the value of Messina's property.

In their 30-plus page application to the city, these activists argued that Messina's restaurant—first built in 1967 as part of the now-extinct White Spots restaurant chain—is a classic example of mid-century Googie architecture and thus worthy of protection.

The same application notes that seven White Spot restaurants were built in the Denver-area in the 1960s. Three of them are still standing, including another one on the same avenue as Messina's restaurant. Nevertheless, these preservationists argue that Messina's building is a particularly good example of Googie tilted roofs and expansive glass windows.

These same activists note that a 2008/2009 survey marked Tom's Diner as eligible for inclusion in the National Register of Historic Places, and the Historic Denver Guidebook includes an entry on the building.

In a July 16 report, city planning staff recommended that Messina's building be given landmark status. The following week, the city's Landmark Preservation Commission, at a public hearing where Messina pleaded with them to leave his property alone, voted unanimously to recommend landmarking the restaurant. The landmark application now goes to the city council, which will make a final determination.

Messina describes that decision as "kick in the gut." The value he might lose from a landmark designation, he says, would jeopardize the retirement he's worked so hard for.

"I'm sure people can imagine how it would feel," he tells Reason. "You plan for something and you think it's yours to do as you wish and then this pops up."

In the run-up to the city council's decision, preservation activists have said they want to work out a mutually beneficial arrangement that will allow Messina to sell his building while saving the building aesthetic they value so much.

"We met with Tom today to present him with some creative and viable solutions. We know this is a life-changing opportunity for him, which is why our focus is on a solution that meets his needs and protects the identity and history of the Colfax corridor," Jessica Caouette, one of the five people who signed onto the landmarking application, said in a statement posted to her Facebook page last week.

Messina says that he's had several meetings with activists where they've presented him with alternate designs for his property that would have apartments go on the vacant parts of his lot while leaving the current restaurant structure intact.

But building only on the 60 percent of his land unoccupied by the diner, says Messina, would still greatly reduce its value. And that's assuming he could even find a developer who'd be willing to build what activists are looking for.

In addition to the personal cost this would visit on Messina, it would also deprive Denver—which is rapidly becoming one of the country's most expensive cities—of additional housing.

The city council is scheduled to discuss the landmark application for Messina's property next week and will vote on whether to grant it later in the month.

Using historic landmark designations to prevent unwanted development is not uncommon, and is often done over the objections of the property owner in question. Similar cases include the Strand bookstore in New York City and the fight over the Showbox concert venue in Seattle.

For Messina, the issue boils down to the fact that this is his building, and he should get to decide what happens to it, not a city council or neighborhood activists. He tells Reason "that something I've worked for my entire life could be decided this way is very unsettling."

Last fall and winter, Jessica Barron and Kenny Wylie let one of their teenaged son's friends, who described himself as homeless, stay at their house in Granite City, Illinois. At first the teenager, Jason Lynch, slept at the house intermittently; later, as the weather got colder, he often was there several nights a week. Barron and Wylie's reward for that act of kindness, if the city has its way, will be government-ordered eviction from their home.

After Lynch broke into a local restaurant last May, the city invoked its "crime-free housing" ordinance, which demands eviction when "any member of lessee's household" commits a crime. In this case, the crime did not happen at the rental property, and Barron and Wylie did not participate in it, know about it ahead of time, or help Lynch evade the police afterward. In fact, Barron turned Lynch in after she found him hiding in her basement. But none of that matters under Granite City's ordinance, which holds tenants strictly liable for the crimes of household members, including temporary residents like Lynch.

"This effort to make an innocent family homeless violates the federal Constitution at a bedrock level," the Institute for Justice argues in a federal lawsuit it filed yesterday on behalf of Barron, Wylie, and their landlord, Bill Campbell, who does not want to evict them. The complaint says the crime-free housing ordinance violates their due process rights, the 14th Amendment's guarantee of equal protection, the Fifth Amendment's ban on taking property for "public use" without "just compensation," and freedom of association, which is protected by the First Amendment.

Barron and Wylie, who have three teenaged children, have been living in the house at 1632 Maple Street in Granite City for two years. They had planned to buy it eventually under a rent-to-own contract with Campbell. But the city is demanding that he abrogate that contract and threatening to revoke his rental license if he fails to do so. One police officer even threatened to arrest Campbell, although it's not clear what the charge would be.

If Barron and Wylie are evicted, they will lose their property interest in the home and will have to find somewhere else where they and their children can live, which may be difficult in light of the eviction. "They do not own or rent any other property," the complaint says. "If they are kicked out of their home, they are not sure where they would go. They do not have the resources to immediately rent another property. They would likely need to rely on charity from family to avoid rendering themselves and their children homeless."

Campbell, meanwhile, considers Barron and Wylie good tenants, is happy with their arrangement, and would like it to continue. If the city forces him to evict them, that process will cost money, as will the effort to find new tenants, and he will lose rental income in the meantime.

Given these costs, the Institute for Justice argues, Granite City is depriving Barron, Wylie, and Campbell of their property without due process or just compensation. The lawsuit also describes three equal protection violations: The city is arbitrarily treating residents who have rent-to-own contracts differently from residents who have mortgages or own their homes outright; arbitrarily treating Campbell differently from all the other landlords in Granite City, who unlike him are free to accept Barron and Wylie as tenants; and arbitrarily treating Barron and Wylie differently from "everyone else in the world (except for Jason Lynch)," who, like the couple, "have no responsibility for Jason Lynch's crime." These distinctions cannot survive "any level of scrutiny," the complaint says.

The attempted eviction also implicates freedom of association, I.J. argues. "The only reason that Granite City is trying to force Jessica and Kenny out of their home is that they allowed Jason Lynch to stay there," the complaint says. "Allowing a teenager to stay in your home to shelter him from the cold is a form of association. Punishing Jessica and Kenny for crimes committed by Jason Lynch is punishing them for their decision to associate with Jason Lynch."

In 2002 the Supreme Court upheld a "one strike" public housing policy under which  tenants were evicted based on drug-related activity involving a household member, even if the lessees were not involved in it and did not know about it. But that was a situation where the government was "acting as a landlord of property that it owns, invoking a clause in a lease to which respondents have agreed and which Congress has expressly required." Here the government is trying to force eviction over the objections of a private landlord.

"No one should be punished for a crime someone else committed," says I.J. senior attorney Robert McNamara. "That simple notion is at the heart of our criminal justice system—that we are all innocent until proven guilty. And yet Granite City is punishing an innocent family for a crime committed by someone they barely knew."

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… is from page 85 of Benjamin A. Rogge’s March 16th, 1956, speech titled “When to See Your Economist,” as this speech is reprinted in A Maverick’s Defense of Freedom, the 2010 collection of Ben Rogge’s essays that is edited by Dwight Lee:

Others deny that the economic problem need exist even today on the grounds that our production potential is so great that we have the ability to satisfy all the wants of everybody. This thesis is often stated thusly: We have now solved the problem of production; all that’s left is to solve the problem of distribution. Gentlemen, this is not only arrant nonsense, but productive of great mischief as well. I submit that the gap between what people want and what they’re able to get is little narrower today than it was three thousand years before the birth of Christ, and I predict that five thousand years from now it will be but little narrower than it is today.

My argument rests on man’s virtuosity and elasticity as a wanter. How many of you have wanted a television set twenty years ago, in 1936? How many of you now look on it as more or less essential to the good life? As Gandhi said, “Today man wants to visit England; tomorrow he will want to visit the moon.” This analysis led Gandhi to reject the goal of getting more, and to recommend the goal of wanting less. It leads me only to accept the existence and permanence of the economic problem. I may have fears about the future of the economist, but of one thing I’m certain: he’s not going to be made obsolete by an early disappearance of the economic problem.

DBx: The reality identified here by Ben Rogge is the reason why good economists pay no attention to so-called “happiness studies.” Human wants being unlimited, each and every person – apart from, perhaps, the rare Gandhi – always experiences a vast array of unsatisfied wants. This lack of satisfaction is felt, by many, as a kind of unhappiness – at least as a kind of unhappiness that will strike many people to report it as such on “happiness surveys.”

The good economist understands that ever-greater prosperity does not bring ever-greater felt happiness. But the good economist also understands that people are indeed better off, in a real sense, the higher is their material standard of living. Greater material prosperity brings opportunities to experience new wants, wants that people less prosperous never experience.  Inability to satisfy all of these new wants makes many people feel “unhappy.” But were these same people less materially prosperous, they would be at least equally “unhappy” for want of ability to satisfy needs that their current higher level of material prosperity enables them to satisfy.

Another piece of reality revealed by Rogge’s point is that worries about technology or trade destroying opportunities to work are misguided. As long as human beings have unmet desires and unfilled wants, human beings will have opportunities to work.

HONG KONG: It’s Now A Revolution. “In Hong Kong, revolution is in the air. What started out as an unexpectedly large demonstration in late April against a piece of legislation—an extradition bill—has become a call for democracy in the territory as well as independence from China and the end of communism on Chinese soil.”

Plus: “Some of the protest messages were impossible to miss. In Wanchai’s Golden Bauhinia Square, a magnet for tourists from other parts of China, kids spray-painted a statue with provocative statements such as ‘The Heavens will destroy the Communist Party’ and ‘Liberate Hong Kong.'”

WHO HIRES THESE REPORTERS? THIS IS REALLY INCOMPETENT: “Washington Post Glibly Dismisses Mental Illness as Cause of Mass Shootings.”

WHY IS GOOGLE SO EVIL? Google Memo Claims Discrimination, Retaliation Against Pregnant Women at Tech Giant.

CHARGING YOUR LAPTOP AT MCDONALD’S IS ONE THING: Florida Man Parks His Tesla Overnight on a Stranger’s Lawn to Steal Electricity: The owner of the Tesla Model 3 used an extension cord to plug in to a complete stranger’s outlet for 12 hours. “Driving an electric car can sometimes make a calm person slide into bouts of extreme desperation. That may be the kindest way to describe why a Florida man ditched his Tesla on another person’s lawn, stole electricity from that house, and walked off to party with friends in the middle of the night. . . . Please do not be this pathetic while driving an EV.”

I INVOKED MY CONSTITUTIONAL RIGHT TO DRINK A FIFTH:

NOPE. I’VE BEEN SHOWN NO REASON TO TRUST THE FEDS ON THIS, AND PLENTY OF REASONS NOT TO. AG Barr Says Consumers Should Accept Security Risks of Encryption Backdoors.

HEY, WE TOLD YOU THERE WERE BARGAINS GALORE: Amazon Accidentally Sold $13,000+ Camera Gear For $100 On Prime Day.

WHEN YOU SLAG THE U.S. SPACE PROGRAM FOR INSUFFICIENT DIVERSITY — AND YOU CAN’T EVEN GET THAT RIGHT:

Give the Soviet Union credit though — one place where it excelled was in getting good propaganda value from the New York Times. And that remains true even when it’s dead and gone.

BUT OF COURSE: Compassionate Christian Votes For Government To Steal Money From His Neighbor And Give It To The Poor.

A lot of Christians are criticized for not being very compassionate to the poor. But you can’t say that about Larry DeManson, a local believer who is so committed to charity for those less fortunate than himself that he always votes for government to steal money from his neighbor and give it to the impoverished.

“The Bible calls us to take care of the poor,” he told reporters, “but that’s tough because it costs money. But then I was looking over at my neighbors and realized they have more money than I do—why not just vote for the government to confiscate their wealth and give it to the poor? Problem solved.”

DeManson no longer has a guilty conscience whenever he sees people in need.

“I don’t personally have to do anything,” he said. “The government does it for me.”

It’s the Babylon Bee, so it’s satire. Sort of.

Sen. Joe Manchin (D-W.V.) has a bachelor's degree in business administration. Sen. Mike Braun (R-Ind.) has an MBA from Harvard. Yet the two senators seem to think they have the medical expertise to second-guess the judgment of physicians across the United States, not to mention the Food and Drug Administration. A bill they introduced last week, the FDA Opioid Labeling Accuracy Act, instructs the agency to tell prescribers that opioids are "not intended for the treatment of chronic pain."

Their reasoning is hard to follow. "In the United States," Manchin says, "we consume 80 percent of the world's opioid production and in 2017, one single year, over 70,000 people died due to drug overdoses."

The first figure largely reflects the fact that opioids remain appallingly unavailable in much of the world, even for purposes that Manchin and Braun would approve, such as "end-of-life care" and "treatment of pain related to cancer," both of which the bill mentions as exceptions. The second figure is highly misleading, since the category of opioids that includes the most commonly prescribed analgesics played a role in just one-fifth of those 70,000 drug-related deaths in 2017, according to the U.S. Centers for Disease Control and Prevention (CDC).

Furthermore, more than 90 percent of the cases that involved prescription analgesics such as hydrocodone and oxycodone also involved other drugs, most commonly illicit opioids such as heroin and fentanyl. Even if we focus on the relatively small share of drug-related deaths that involve opioid analgesics, blaming chronic pain treatment seems misplaced, since patients who depend upon these drugs to make their lives livable are not inclined to part with them, meaning that short-term prescriptions for acute pain are more likely sources of diverted pain pills.

Even while arguing that opioids are not appropriate for treatment of chronic pain in patients who do not have cancer and are not on the verge of death, Manchin and Braun concede that sometimes they are. Their bill makes an exception for cases where "a prescriber determin[es] that, with respect to a particular patient, other non-opioid pain management treatments are inadequate or inappropriate." Since that is the judgment doctors are already supposed to be making, the only point of this bill seems to be further discouraging such prescriptions by making physicians worry, even more than they already do, that their good-faith assessments of patients' needs will expose them to scrutiny that could deprive them of their licenses, livelihoods, and maybe even their liberty.

The government's crackdown on pain pills already has led to medically reckless dose reductions and patient abandonment across the country. The problem became so severe that the CDC recently warned that its 2016 opioid prescribing guidelines should not be interpreted as endorsing, let alone requiring, involuntary tapering or discontinuation, which may lead to "adverse psychological and physical outcomes" (including suicide), "could represent patient abandonment," and "can result in missed opportunities to provide potentially lifesaving information and treatment." A bill like Manchin and Braun's can only aggravate this problem, while making doctors less inclined to treat chronic pain to begin with.

"Most pain specialists agree that, in some cases, long-term opioid therapy is all that works for some chronic pain patients," notes Phoenix surgeon Jeffrey Singer, a senior fellow at the Cato Institute. "What the senators fail to recognize is that patients are not one-size-fits-all. Different patients respond to pain and to pain management differently. Their proposed legislation, if passed, will only serve to exacerbate the unnecessary suffering of patients in pain that the CDC is trying to undo with its guideline clarification."

YOUR SCIENTISTS WERE SO PREOCCUPIED WITH WHETHER OR NOT THEY COULD, THEY DIDN’T STOP TO THINK IF THEY SHOULD: Arby’s has flipped the vegan ‘meat’ trend on its head with the ‘megetable,’ a carrot made out of turkey that looks and tastes almost exactly like the vegetable.

THE SCIENCE OF HEALTHY EATING:

Topol said he was so interested in how the gut microbiome—the ecosystem of microorganisms that live in the human digestive system—impacts health that he signed up for a study with the Weizmann Institute of Science to spend a week measuring his own body’s response to food. What he found shocked him: Oatmeal was spiking his glucose to potentially dangerous levels, but bratwurst was rated as an A-plus food for him.

But note that after this, he’s still a science-denier. “‘Is it gonna change my whole nutritional plan? No,’ said Topol, who, as a cardiologist, indicated a reticence to eat a bunch of sausage.”

I THOUGHT THE SCIENCE WAS SETTLED: Shocking evidence shows people in vegetative states may be conscious: 1 in 10 people thought to be permanently unconscious as a result of brain trauma may actually be aware.

GOVERNMENT: Humboldt County threatened cannabis fines. They were growing peaches and tomatoes.

The Neukoms themselves had to think fast. Their daily farming grind went on the back burner as they spent time providing proof to the county that the property in question carries no cannabis plants.

At night, the couple worried aloud to each other, not about the peaches and tomatoes they grow, but whether the county would accept their proof over the false accusation.

“I told the county, ‘I think we’ve been caught up in a dragnet when we weren’t supposed to be,’” Jacques Neukom said. “Just because you have a driver’s license doesn’t mean you get a speeding ticket. And just because I have a greenhouse in my backyard doesn’t mean I’m growing cannabis in it.”

He added that the county staff were “very professional” in handling the process. But the implications of being flagged for illegal cannabis stretch past the burden of proving innocence.

What a mess.

I know that for many folks today, history seems increasingly irrelevant.  Millenials will say that anything a bunch of old white guys were doing 500 years ago has no bearing on their lives.  Or perhaps more accurately, they don't want it to have any bearing on their life.

I love history in and of itself, but studying it has real value in understanding public policy choices. The problem in public policy is that we can seldom run good controlled studies (e.g. half of you will live under socialism and half capitalism and we will see who does better).  And even when we do inadvertently run A/B tests (e.g. blue state fiscal and regulatory model vs red state) we seldom pay attention to the results in part because we are just too close to them and too invested in them in one way or another.

But if you look back through enough time and across enough different civilizations, humans have already run millions of experiments and we can read the results.  I find it impossible, for example, to look at our government today without thinking of Rome and the Gracchi brothers in the 2nd century BC.  People today are trying to throw out institutional checks and balances, rules of decorum, traditions of collegiality, and limitations on power because they feel these are standing in the way of (mostly) well-meaning improvement programs ( in areas such as climate, income inequality, racism, etc).  But history teaches that such efforts always end the same way.  As in Rome in 133BC or Russian in 1917 or Cuba in 1957 or in many other historical cases, the inroads made by well-meaning idealists in weakening limits on individual power just open the door for real iron-fisted authoritarians to take the helm.

FLORIDA CITY GIVES IN TO $600,000 BITCOIN RANSOMWARE DEMAND. But there’s no guarantee hackers will actually restore Riviera Beach’s systems.

Silly hackers — don’t they know that the really big bucks are to be made in environmental impact studies of removing high school George Washington murals?

SATIRE… OR IS IT? Ocasio-Cortez Gets Head Stuck In Bucket, Journalists Rush To Explain Why It Was Actually A Genius Move. “Most people don’t have her scientific curiosity and intelligence,” said MSNBC pundit Chris Hayes. “Someone incurious like Trump would never look at a bucket and ask ‘Could my head fit inside that?’ But Ocasio-Cortez dives into such questions head first.”

You probably saw the headlines, like this one from CNN: white meat raises your bad cholesterol just as much as red meat!  It’s complete nonsense.  Here’s why.  Transcript is below.

Hello, I’m Tom Naughton and this is the Fat Head Report.

Believe it or not, it’s already time for another edition of Meat Will Kill You.

For more than 40 years, the experts have been telling us that to avoid heart disease, we should eat less beef and more chicken. And we did.

Well, now that they’ve decided we should all be vegetarians — to save the planet you know — it was only a matter of time before they started going after chicken.

Take a look at this headline. White meat is just as bad for you as red beef when it comes to your cholesterol level, study says.

The article is about a study where researchers put people on a diet that was either high or low in saturated fat, then had them take turns eating a diet where the proteins came from plants, or chicken, or beef.

And here’s what they found.

Plant proteins had the healthiest impact on blood cholesterol, while the effects of white and red meats on participants’ cholesterol levels were identical when saturated fat levels were equivalent.

Now wait a second. Beef is much higher in saturated fat than chicken. So how do you get people eating chicken to consume as much saturated fat as people eating beef?

Well, it turns out the researchers kept the saturated fat and the same by adding butter. It’s right there in the study. The diet based on chicken included more butter.

Which means this study doesn’t tell us anything about chicken. It simply tells us that saturated fat raises LDL. Doesn’t matter if the saturated fat comes from beef or butter.

Ahh, yes, it’s scary stuff. So the real message is to avoid beef and butter, right? Wrong.

You don’t develop heart disease because your body makes too much LDL. You develop heart disease because your body makes the wrong kind of LDL.

When your coronary arteries become damaged or inflamed, LDL shows up to repair the damage. But if your body is producing LDL that’s small and dense, then those particles can become embedded in your arteries and trigger the formation of a plaque.

Here are a couple of quotes from studies on LDL particle size and heart disease:

LDL particles showed the strongest association with cardiovascular events when the particle composition, rather than the total concentration, was investigated.

The LDL subclass pattern characterized by a preponderance of small, dense LDL particles was significantly associated with a threefold increased risk of myocardial infarction.

Large, fluffy LDL isn’t the kind that becomes embedded in your arteries. In fact, large LDL not only won’t kill you, it appears to be protective.

People who produce a lot of large LDL are less likely to develop cancer. They’re less likely to become depressed. They’re less likely to come down with nasty infections.

And that’s why a number of studies have shown that older people with high LDL Live longer than older people with low LDL.

So with that in mind, let’s go back to that study telling us that white meat is just as bad as red meat.

Yes, when people ate beef, or chicken with butter, their LDL went up. But that’s because they produced more large LDL. They did not produce more small LDL. It’s right there in the study.

So for me, the real take away message from the latest Meat Will Kill You study is this. If you like beef, go ahead and eat it. And if you’d rather have chicken, add some butter.

NEWS YOU CAN USE (CLIMATE ALARMISM EDITION): “Statements like the following are increasingly common in popular media, academic journals, and political discourse: “The evidence that anthropogenic climate change is an existential threat to our way of life is incontrovertible.” Not so—not even close.” Marlo Lewis explain why here.

WOW: ‘Pumping heart patch’ ready for human use.

Sewn on to the heart, the 3cm (1in) by 2cm patch, grown in a lab from a sample of the patient’s own cells, then turns itself into healthy working muscle.

It also releases chemicals that repair and regenerate existing heart cells.

Tests in rabbits show it appears safe, Imperial College London experts told a leading heart conference in Manchester.

Patient trials should start in the next two years, the British Cardiovascular Society meeting heard.

Researcher Dr Richard Jabbour said: “One day, we hope to add heart patches to the treatments that doctors can routinely offer people after a heart attack.

“We could prescribe one of these patches alongside medicines for someone with heart failure, which you could take from a shelf and implant straight in to a person.”

Two years is a long time to wait for anyone who’s suffered a heart attack, so… faster, please.

COLLUDING WITH THE ENEMY: Twitter Takes Down Accounts of China Dissidents Ahead of Tiananmen Anniversary.

I’M SURE IT’S PURELY A COINCIDENCE: Twitter takes down ‘a large number’ of Chinese-language accounts ahead of Tiananmen Square anniversary.

In a recent dissenting opinion, Supreme Court Justice Neil Gorsuch warns of the dangers of the modern expansion of criminal law to the point where "almost anyone can be arrested for anything":

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak with-out risking arrest is "one of the principal characteristics by which we distinguish a free nation." Houston v. Hill, 482 U. S. 451, 463 (1987).

The immediate point of Gorsuch's argument is to criticize the idea that having "probable cause" for an arrest should automatically invalidate a claim that the arrest violated the First Amendment because it was being used as a tool to punish dissenting speech. He is absolutely right on that point.  For reasons I discussed here, the vast modern expansion of both criminal and civil liability poses a more general threat to the rule of law:

Lavrenti Beria, the infamous head of the Soviet secret police under Joseph Stalin, supposedly once said, "Show me the man and I'll show you the crime." In the Soviet Union, the regime could always find some crime to pin on anyone it chose to target.

As a general rule, it would be silly to equate the modern United States with a mass-murdering totalitarian state. But in this one respect, the two regimes are more similar than we would like them to be….

This sad state of affairs is deeply at odds with the rule of law. Whatever else that concept means, it surely requires that ordinary people be able to readily determine what laws they are required to obey, and that whether or not you get charged by authorities depends more on objective legal rules than the exercise of official discretion. Unfortunately, neither holds true in the United States today….

Scholars estimate that the vast majority of adult Americans have violated criminal law at some point in their lives. Indeed, a recent survey finds that some 52 percent admit to violating the federal law banning possession of marijuana, to say nothing of the myriad other federal criminal laws. If you also include civil laws (which, though theoretically less severe than criminal laws, often carry heavy fines and other substantial penalties), even more Americans are lawbreakers…

Most Americans, of course, never face punishment for their lawbreaking. But that is true only because the authorities lack the resources to pursue most violators and routinely exercise discretion in determining which ones are worth the effort….

In this way, the rule of law has largely been supplanted by the rule of chance and the rule of executive discretion. Inevitably, political ideology and partisanship have a major impact on the latter. For example, federal law enforcement priorities are very different under Trump than they were under Obama.

Even the law itself is often interpreted differently, depending on who is in power…. As Supreme Court Justice Neil M. Gorsuch puts it, an agency can "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." The enormous scope of federal regulatory law enables agencies to exercise extensive discretionary authority over many aspects of the economy and society.

In my earlier post on this subject, I consider a number of strategies for alleviating this problem, such as trying to enforce all laws to the hilt (thereby eliminating executive discretion), and curtailing judicial deference to administrative agencies (thereby reducing the extent to which the same laws are interpreted differently based on which party is in power). I am skeptical that either will do the trick (and the former is likely impossible). Ultimately, the best solution is to cut back on the scope and complexity of law, though I  fear we may not have the political will to do it:

The only way to make major progress toward establishing the rule of law would be to greatly reduce the scope and complexity of legal rules. In a world where the scope of law is strictly limited, officials might have sufficient resources to go after a much larger percentage of lawbreakers. And if the law were limited to those areas where there was a broad consensus that the conduct in question should be illegal, there would be less incentive for officials to engage in selective enforcement based on the priorities of the party in power. If federal or state authorities engaged in such shenanigans with respect to laws that enjoyed widespread bipartisan support, they would risk provoking a major political backlash.

There is no way to completely eliminate executive discretion over law enforcement or to make the law completely transparent to laypeople. But cutting back on the amount and complexity of law can help us make progress toward those goals.

Of course, it may be we do not value the rule of law enough to sacrifice any other objectives to strengthen it.  The laws on the books are not there by accident. Most were enacted because they were supported by majority public  opinion, influential interest groups or some combination of both.

Perhaps we just do not care about the rule of law enough to eliminate any substantial number of current laws and regulations — especially those supported by our side of the political spectrum. The rule of law may be less important to us than the rule of  men whose agenda we like. If so, we might have more in common with Lavrenti Beria than we like to think.

UPDATE: I accidentally failed to include a link to my earlier post on this subject in the first place where it is mentioned above. I apologize for any confusion, and have now corrected that error.