Politics & Policy

Taming The Beast

From the October 11, 2004, issue of National Review.

Leviathan: The Growth of Local Government and the Erosion of Liberty by Clint Bolick (Hoover, 208 pp., $15)

In 1651, Thomas Hobbes presented his vision of the social contract, and of the authoritarianism that he believed would be its natural result. The frontispiece of Leviathan featured a giant king, sword in one hand and scepter in the other, quite literally lording over the city and countryside. The word “Leviathan,” in its original Semitic form, referred to a massive, terrifying sea monster, and appears to have been derived from an adjective meaning “twisted” or “coiled,” suggesting some kind of dragon or sea snake.

Clint Bolick has therefore made a very thoughtful choice in titling his new book Leviathan. In his telling–which effectively mixes general statistics about state and local governance with compelling cases of political heavy-handedness–individual freedom is menaced by powerful states and localities, coiled around its choke points and ready to strike, as well as by much of the nation’s judiciary, which has twisted the original meaning of federalism to subvert liberty rather than protect it.

If the reader picks up this volume expecting a handbook on how to advocate limited government within state and local politics, he will be disappointed. Perhaps someone should write such a book, but Bolick did not. He argues that electoral politics will not likely prove to be the most successful response to state and local tyranny. The political system generates rent-seekers, perfidious politicians, and voters suffering cognitive dissonance. Americans say in general that government is too big and tries to do too much, but then demand in specific instances precisely the transfers and intrusions they oppose in the abstract. “Such is human nature, whose excesses our republican form of government is supposed to curb,” Bolick writes. “If the elected branches of government are unlikely to adequately safeguard liberty, where can we turn? For better or worse, the main recourse is the courts.”

Conservative advocates of judicial restraint and deference to majority rule will bridle at the suggestion. But Bolick persuasively responds that principled activist courts, assertively defending federal and state constitutional safeguards, would be entirely different from the modern-day judicial activists who invent new “rights” that are little more than unjustified grabs of power or wealth from others. He argues that judges who take seriously the doctrine of enumerated powers, the Ninth and Tenth Amendments, the “privileges and immunities” clause of the Fourteenth Amendment, and the natural-rights philosophy enshrined in the Declaration of Independence play an “essential part of the democratic process, for they act to constrain the inherent democratic impulse toward larger government and the invasion of individual rights.”

Bolick’s Leviathan provides a solid introduction to such ongoing controversies as commercial regulation, racial preferences, property rights, freedom of association, asset forfeiture, and parental choice in education. Particularly instructive is his discussion of how federalism curiously and disastrously evolved from a critical element in the checks and balances of governmental restraint to a doctrine misused by both social democrats and segregationists to defend governmental tyranny.

The core of the book, however, is the author’s account of a series of cases that he and his colleagues at the libertarian public-interest law firm Institute of Justice have worked on to challenge the power of state and local governments to inhibit free enterprise, erode equality under the law, and encroach on personal liberty. Bolick was a cofounder of IJ in 1991 and most recently headed up its efforts to start state chapters around the country (he has since became president of School Choice Alliance, retaining an IJ affiliation as counsel for strategic litigation). The group has been at the forefront of (in the words of its motto) “litigating for liberty” in many high-profile cases, including the successful defenses of school-voucher programs in Milwaukee and Cleveland, lawsuits to keep municipalities from enforcing Jim Crow-era regulations restricting competition in such services as hair styling and taxicabs, and local misuses of the power of eminent domain to dispossess landowners of their property for the benefit of private developers.

One of my favorite examples of IJ’s work is its victorious effort to keep three pieces of Atlantic City property–an Italian restaurant, a gold shop, and a private home–from the greedy clutches of The Donald. Desiring a lot next to his casino to park his limousines, Trump convinced Atlantic City officials to exercise the power of eminent domain to condemn the properties. But he didn’t count on IJ’s legal or media acumen. Now a reality-TV star on NBC, Trump fared less well on ABC when he stormed out of a John Stossel interview about the Atlantic City dispute. Even Garry Trudeau’s Doonesbury picked up on the story, with a strip that had Trump trying to hire a hit man to knock off the owners of the Italian restaurant in question. Eventually a New Jersey court told Trump and city leaders to knock it off. One can only guess what two choice words Trump may have had for his hapless attorneys.

The Atlantic City case points to an important truth about Bolick’s strategy for constraining the size and scope of state and local government: His approach is to use not just the sharp point of the legal sword–filing cases in court, and winning them with formal argumentation–but also the cutting edge of publicity. There’s nothing new, Bolick writes, in advocates’ taking their cases to the court of public opinion: “The image of James Meredith walking with federal escorts into the University of Mississippi . . . was probably more significant in expanding freedom than the underlying lawsuit that won him that right.” One might say the same about images of young black children striding confidently into schools of choice–or Donald Trump stomping angrily away from the scene of his failed land-grab.

Mr. Hood is president of the John Locke Foundation, a state policy think tank in Raleigh, N.C., and author of the forthcoming Selling the Dream: Why Advertising Is Good Business (Praeger).

John Hood is a syndicated columnist and the president of the John William Pope Foundation, a North Carolina–based grantmaker.

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