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Leviathan: The
Growth of Local Government and the Erosion of Liberty By Clint Bolick
The following is abridged from a
speech delivered at "Evenings at FEE" in April 2006.
The Framers of our Constitution had
a remarkable vision: American government would be limited and
decentralized. They cautioned us to keep a watchful eye on all
levels of government. Indeed James Madison warned us in the Federalist
Papers that local government was especially prone to tyranny.
He noted that "the smaller the society, the smaller the number
of individuals composing a majority, and the more easily will
they concert and execute their plans of oppression."
His concerns proved true. Today local
government has grown so big and so unwieldy that it is impossible
for us to know who our local governments really are. The image
of the town hall where people gather in spirited public debate
to argue the issues of the day simply does not exist. Ironically,
both conservatives and libertarians who lament the expansion of
federal government largely ignore the explosive growth of local
government in recent years.
State and local governments spend
$1.06 trillion annually, which constitutes 11.5% of GDP. In constant
dollars this spending quadrupled from $638 per capita in 1961
to $2,983 per capita today. While the Federal civilian workforce
decreased between 1980 and 2000 from 2.9 million workers to 2.7
million, state and local employees increased from 13.3 million
to 17.5 million. This means that almost one in five of all Americans
is either directly employed by state or local government or completely
dependent on someone who is. That makes for a very potent special
interest.
A new local government entity is
created every single day. This explosive growth is taking place
primarily in what I call the "invisible government":
the special districts or the regional authorities that have government-like
powers. Among those powers are eminent domain, issuing bonds,
regulating the use of property (zoning, etc.), all without any
democratic constraints whatsoever. Such entities have now grown
more numerous than cities, towns, or school districts.
The result is a dizzying array of
pervasive local governments that regulate every instance of our
lives. For example, metropolitan Chicago is governed by 1,200
separate and overlapping governmental entities. You can't fight
city hall if you can't even identify all of the people you need
to fight.
Grassroots Tyranny
The power of the local leviathan,
which I call grassroots tyranny, is especially destructive in
two areas: economic liberty and private property rights. To demonstrate
the encroachment on our liberties I will use cases that I have
litigated over the course of my legal career.
Economic liberty is the right to
pursue an honest business or profession free from arbitrary government
regulation. Most Americans think we have such a right. However
entry into professions or businesses is increasingly and heavily
regulated by government. The most vulnerable here are those who
lack the resources and educational skills while trying to gain
a toehold in the economy and earn their share of the American
dream.
Let me tell you a story about an
African American named Leroy Jones and his fight with bureaucrats
in Denver , Colorado . Leroy and three of his fellow taxicab drivers
(immigrants from Africa ) at Yellow Cab decided to make the transition
from being employees to becoming business owners. The four aspiring
entrepreneurs formed their own taxicab company, Quick Pick Cabs,
and discovered a market that was not being served: a low-income
section of Denver . They got the paperwork together, including
a petition demonstrating that people wanted their services. It
seemed they had everything they needed: the knowhow, the capital,
the insurance, and the cars. They were missing only one little
thing: a piece of paper called a certificate of public convenience
and necessity from the Public Utilities Commission (PUC).
To obtain such a certificate, an
applicant must surmount the almost impossible hurdle of demonstrating
both that adequate service is not being provided and that the
existing companies are unable to provide it-with no objective
criteria of how to demonstrate such inadequacy. Quick Pick Cabs
applied to the PUC for the certificate and got the same response
as every applicant for a taxicab license in Denver since World
War II: application denied. Needless to say, Yellow Cab and other
local transportation companies had all protested their application.
By this time Leroy Jones had been
fired from his job at Yellow Cab for having the temerity to try
to launch a competing company and was selling sodas at Mile High
Stadium. He and the other three drivers experienced financial
hardship.
Well, we took on this law in court,
and we lost. Fortunately lawyers have two courtrooms in which
they litigate: the court of law and the court of public opinion.
CBS's "Eye on America " followed Leroy Jones for a day
as he toiled selling sodas at a ballgame at Mile High Stadium
in the hot sun. As "The Star-Spangled Banner" began
he paused, took off his hat, and put it over his heart while a
tear welled in his eye. It made the point this man was not asking
for a handout, he was merely asking for a share of the American
dream that he wanted to earn. It is amazing that in modern America
the right to receive a welfare check has much greater judicial
protection than the right to earn an honest living.
We did win Leroy Jones's case in
the court of public opinion. The bureaucracy backed down and the
state of Colorado deregulated entry into the taxicab market in
Denver . Along the way Leroy Jones had an epiphany. "You
know," he said, "this is much bigger than just me. This
is a huge struggle that we're engaged in." And he and his
friends renamed their company Freedom Cabs. I am happy to say
that today Denver has a fleet of 75 cabs bearing the Freedom insignia.
The next time you are in Denver , take a freedom ride in Freedom
Cabs!
After this case we filed a number
of lawsuits taking on similar regulations and we began to win.
We struck down a cosmetology law in California . We struck down
a casket-selling cartel in Tennessee and a law against street-corner
shoeshine stands in the District of Columbia . Slowly but surely
we are building a jurisprudence of economic liberty.
Abuse of Eminent Domain
The law is ten times worse in the
area of eminent domain. The U.S. Constitution stipulates that
the government may take private property but only for public use.
However, in a series of decisions tracing back to the 1930s and
1940s the Supreme Court has rewritten the Constitution and changed
"public use" to "public benefit." As you understand,
almost anything can be classified as public benefit depending
on how the government articulates it.
Modern abuse of eminent domain is
like Robin Hood in reverse: it takes property from the poor and
gives it to wealthy developers. When we began the battle to restore
protection for property rights against such abuse, we knew we
had a titanic struggle on our hands. We had to find the perfect
case to start this battle with. We needed a villain so heinous,
so reprehensible, that a court might actually be induced to rule
in favor of the private property owner. We found him: Donald Trump!
Donald Trump wanted to build a parking
lot for his limousines next to the Trump Towers Casino in Atlantic
City , New Jersey . In his way were a little gold and silver shop,
an Italian restaurant called Sabatini's, and the home of Vera
Coking, a fiery elderly lady who had lived in the house for 50
years. None of them wanted to sell their property to Donald Trump.
Trump said in effect, "That's fine, you don't have to sell
to me. The city will take your property and give it to me."
And that is exactly what Atlantic
City did, using the power of eminent domain. What was the "public
use" justification? It benefited the casinos, and what is
good for the casinos is obviously good for Atlantic City . As
a back-up, Trump actually had people drop debris from the top
of his casino on Mrs. Coking's house to damage her roof and then
report to city authorities an unsafe house next door.
Once again the case went to the court
of public opinion. TV journalist John Stossel got Trump on his
show and challenged him. Trump explained that his only purpose
was to clear Atlantic City of blight. Stossel replied in effect,
"You know in the old days if someone like you wanted this
property he would just hire a hit man and knock off Mrs. Coking.
What's the difference between that and what you're doing now?"
Trump then got up and walked off the show.
After that the court of law also
ruled against Donald Trump, and Atlantic City chose not to go
any further. This case became the first building block in restoring
legal protection for private property rights.
The Kelo Backlash
As you know, in the 2005 Kelo case,
the United States Supreme Court in a shameful five-to-four decision
upheld the taking of land in New London , Connecticut , for development
purposes at the expense of a lovely working-class neighborhood.
Although the decision was very frustrating, the public reaction
to it was unprecedented.
There have been Supreme Court decisions
that have outraged conservatives, there have been Supreme Court
decisions that have outraged liberals, but Kelo was the first
one to outrage both. Conservatives view it as a violation of private
property rights, while liberals see it as corporate welfare, and
libertarians understand that both of them are right. We are witnessing
a real awakening of passion for private property rights because
people have suddenly realized: if it can happen to Susette Kelo,
if it can happen to Vera Coking, it can happen to me. Under public
pressure legislators in many states are beginning to restore private
property rights.
These are a few examples of the battles
that take place over grassroots tyranny. Allow me to suggest some
solutions.
Become an activist. Join organizations
like the Foundation for Economic Education whose job is to examine
such issues and to draw public attention to the tyranny that exists
in what is supposed to be the freest nation on earth. And FEE
does an awesome job in that regard.
Look into state constitutions. People
on our side of the fence talk a lot about states' rights but every
time they file a lawsuit it is a federal one. State constitutions
are amazing sources of individual and economic liberty and their
protection. For example the Arizona constitution has an explicit
protection against taking private property, as well as provisions
to prevent local subsidies and other such things.
And finally, pay attention to what
is going on in your own backyard. Local governments are like vampires:
they suck taxpayer blood, but they are especially susceptible
to daylight. It is amazing what a letter to the editor, a call
to a TV station or to a city councilman's office, or an e-mail
to FEE or IJ can do to bring these bureaucrats into the daylight
where their tyranny is not going to be allowed to continue.
I want to conclude with one last
example. In this instance we were able to expose grassroots tyranny
without going to court. I was involved in research on barriers
to entrepreneurship in different cities around the country. I
came across a story from in Charlotte , North Carolina .
Two elderly ladies, Mrs. Kohler and
Mrs. Connell, were informed by a local zoning official that it
was illegal for them to knit and crochet blankets or to can fruit
in their home and then sell it at the local market. Why? Because
their homes were not zoned for "business purposes."
I visited with Mrs. Kohler
and Mrs. Connell and decided to try to help them. I wrote to the
local zoning official and asked for reassurance that this law
would not be enforced against these ladies. I got no response.
Then I wrote him a sterner letter explaining that he was violating
their constitutional rights which can result in legal action.
Still no response. I finally sent a third letter, this time stating,
on such and such a day we are filing the enclosed lawsuit against
him seeking attorney fees and an injunction against this ridiculous
law. I copied the letter to the city attorney. The city attorney
called me immediately. "Don't worry," he said, "the
zoning official will be calling and telling you there is no problem.
Mrs. Connell and Mrs. Kohler can go on with their handiwork."
And indeed the ladies were able to ply their trade without the
local leviathan breathing down their necks.
