Dangerously Unbalanced

Grassroots Tyranny: The Limits of Federalism, by Clint Bolick, Washington: Cato Institute, 189 pages, $12.95 paper

The essence of federalism, argues Clint Bolick, is the protection of individual liberty, the paramount constitutional value. Counterbalancing power between the states and the national government helps ensure that both exercise their prescribed powers efficiently and that neither exercises unrestrained power.

In Grassroots Tyranny Bolick, a civil rights lawyer with the Institute for Justice in Washington, laments the destruction of this true federalist ideal by two mutually opposed groups of villains. In its place, in addition to federal tyranny, we have now acquiesced in a grass-roots tyranny of state governments and their creatures, some 82,000 (!) city, town, township, county, and special-district entities, each demanding a piece of its hapless citizens. What appear to be the two opposing poles in the contemporary federalism debate are actually united in one crucial belief: that individual liberty is but a minor consideration in the distribution and exercise of governmental powers.

Most of those who pass for "conservatives" are proponents of "states' rights federalism," a hoary legacy of the days of human slavery. To this camp, whose archetypes are former Judge Robert Bork and former Attorney General Edwin Meese III, the 10th Amendment, which reserves powers to the states, is all important, and the Ninth Amendment, with its admittedly nebulous declaration of rights retained by the people, is a nullity. Meese, at least opposes the idea that the Bill of Rights, written to restrain Congress, became with the 14th Amendment applicable to state and local governments as well.

These conservatives animadvert against federal mandates on the states and federal judges who interfere with state law making, so long as those laws do not clearly contravene the Constitution and are adopted democratically by a majority. (One may wonder where Counselor Meese was when President Reagan signed the bill to make federal highway grants contingent upon the recipient state's raising its drinking age to 21.) This view is neatly summarized in a quotation from political scientist Stephen Macedo: "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are…rendered as islands surrounded by a sea of individual rights."

The other group of federalism wreckers are social-action liberals, typified at one time by Louis D. Brandeis and in our time by William Brennan. They have a habit of shifting constitutional ground whenever a more attractive way of achieving their liberal ends can be devised. Sixty years ago, when a conservative Supreme Court struck down state invasions of liberty and contract on the grounds that "there are certain essentials of liberty with which the state is not entitled to dispense in the interest of experiments," liberals demanded that state governments be allowed maximum latitude to experiment (with government-organized cartels, "managed competition," price fixing, confiscation of property, etc.). In the expansive years of the Warren and Burger Courts, the same liberals demanded federal judicial action to eradicate local anti-liberal practices, notably by mandating racial quotas and balance, expanding entitlements for the poor, and creating new rights for criminal defendants and prisoners.

Bolick argues that both of these groups miss the real point: Federalism was consciously designed to limit governmental power and thus to protect liberty. State governments should respect the liberties of their citizens and protect them against federal intrusion. The national government should protect the liberties of the same citizens against state intrusion. Bolick rightly laments the infamous 5-4 Supreme Court decision in the Slaughter House cases (1873), which emasculated the 14th Amendment's Privileges and Immunities Clause, clearly intended to make the national government the protector of individual liberty of all citizens.

Bolick's catalog of current grass-roots tyranny is depressing, though far from encyclopedic. Examples: the federally aided obliteration of Detroit's Poletown to make way for a Cadillac assembly plant that was never built; New York City's refusal to let a homeowner occupy his own home; California's extortion of beachfront property owners; Cincinnati's attempted suppression of a Robert Mapplethorpe art exhibit; the decade-long battle of two black entrepreneurs to preserve their cornrow-braiding salon against the fierce opposition of the District of Columbia; the mandated insolvency of auto insurers under New Jersey's Joint Underwriting Act; the criminal conviction of a Georgia man for having the wrong thing in his mouth (a male friend) when the police broke in looking for drugs; the California parents whose children cannot be given IQ tests because of their race (black and Hispanic).

After this litany of truly egregious crimes by governments, the reader eagerly awaits the remedy. Surprisingly, it is the same remedy as for tuberculosis: "Sunshine is the only antidote to grassroots tyranny." Once revealed in all their ugliness, Bolick believes, these practices will be overthrown by citizen action, the electoral process, and determined litigation. As a state senator who incredulously watched his mostly normal-appearing colleagues serenely (in the face of his vigorous remonstrances, e.g., "Folks, this is WACKO") vote 25-4 to put the state public service department in charge of policing politically incorrect fluorescent bulbs, this reviewer can perhaps be excused for some cynicism about the curative powers of sunlight.

But sunlight is not the only remedy Bolick offers. He also has an idea he calls community rule adoption. He believes that when "communities," whatever they are (Baptists? Gays? Drug dealers? Tax resisters?), "adopt rules or values that are contrary to government regulation, a constitutional presumption in favor of liberty would force government to justify such restrictions, thereby protecting communities against government." This is a disconcerting concept. Are there self-defined "communities," as opposed to individuals, that have rights against the government?

Bolick also is occasionally silent on a crucial question that he himself considers important: the rights of property owners. Was the Cincinnati Contemporary Arts Center government owned? If so, can the owner not decide which works of art shall be displayed and which removed? Why should a columnist at a California State University student newspaper have the right to demand that his writings be published therein? Whose newspaper was it? His?

The key question in reviving Bolick's federalism and defeating grass-roots tyranny is the method by which the courts, state and federal, will act to protect liberty. Each court, he argues, should begin with the presumption of liberty imputed to those who authored the constitutions and amendments over the years. (How these authors tolerated governmental invasions of liberty that would appall us today, a necessary ingredient in the argument from original intent, is not addressed.) In litigation, the courts must require the challenged government to "demonstrate that the laws are necessary to achieve a legitimate government objective….If the government is unable to justify the regulations, the laws should be struck down. Government must accept the burden of demonstrating that its regulation of individuals is a reasonable exercise of a delegated power."

Unfortunately, courts have too often, for instance, found that government regulation of the human right to own property in land may proceed unhindered so long as some discernible sliver of value remains to the landowner. Hence, in Lucas v. South Carolina Coastal Council, Justice Harry Blackmun, dissenting, observed that the plaintiff could under the regulation continue to use his $975,000 beachfront lot for "picknicking," so no regulatory taking had occurred. Legitimate objective and reasonable exercise are weasel words that the courts at all levels, with only rare exceptions, have stretched beyond recognition in support of the insatiable meddlesome and confiscatory demands of Leviathan.

Sunshine will doubtless help, but in the last analysis there are only three nonviolent methods for the people to protect their dwindling liberties against governmental encroachment: 1) They can elect legislators who will vote for, not against, liberty and executives who will appoint judges who will interpret the laws with a presumption for liberty. 2) They can persuade the required majorities of Congress and state legislatures to make constitutionally explicit the privileges and immunities and Ninth Amendment rights retained by the people, along the lines set forth in Justice Bushrod Washington's dictum in Corfield v. Coryell (1823). 3) They can accept Bork's Prescription (move). To carry the discussion of remedies further requires reflection on the purpose of the Second Amendment, now under full assault by President Clinton, Attorney General Reno, and like-minded members of Congress.

Clint Bolick practices what he preaches. He has been at the forefront of numerous cases to protect and expand liberty, and his writings have given renewed vigor to the concept of economic rights as true civil rights—a concept that every freed slave of 1864 must have well understood. His book is well organized, well written, and supremely topical. His guiding principle—federalism as a means for protecting people's liberties from governments, while allowing the "legitimate" and "reasonable" objectives of government to be carried out—is sound and vital. Friends of liberty will profit by reading it and by advancing under its banner.

John McClaughry, a former state senator, heads the Ethan Allen Institute in Concord, Vermont.