All Commentary
Monday, July 12, 2010

Leviathan: The Growth of Local Government and the Erosion of Liberty

An Extremely Useful Book

Does government have too much power? Certainly—just think of all the freedom Americans have lost on account of the income tax, Social Security, Department of Labor regulations, the threat of antitrust prosecution, and so on.

Note that in my short list of examples, each one is due to action by the federal government. In Leviathan, Clint Bolick reminds us that Americans have every bit as much to fear from authoritarian laws, regulations, and confiscations at the hands of local government officials as they do from the great circus of government camped in Washington. In fact, he argues that we actually have more to fear from our local Pooh-Bahs, writing, “If the president starts an unpopular war or raises taxes, people know who to blame and they direct their energy accordingly. But if your kid gets a lousy education in public school, or your local government decides to exercise eminent domain to take your home or business, it is often impossible even to find out who is responsible, much less to fight it.”

Bolick, an attorney who has fought many legal battles against intrusive and authoritarian local government actions, gives us a depressing catalogue of the rights infringements that are becoming commonplace—violations of freedom of speech, freedom to engage in commerce, freedom to use and enjoy one’s property, and more. He first disabuses his reader of the notion that the Constitution protects people against such infringements, noting that most judges—and crucially, the justices of the Supreme Court—don’t take seriously the idea of individual rights. They choose only a few rights they like (for example, free speech, some of the time) and defend them against legislative or regulatory incursion, but adopt a posture of “deference” to the supposed expertise of politicians and their appointed agents on most other questions.

Consider the case of Garland Allen. Allen, a rather elderly black barber, had been practicing his trade for many years in a small town in rural Tennessee. In 1996 he was arrested in his barber shop for the crime of “impersonating a professional.” No customer had complained about Allen’s competence, but a competing barber had notified the august Tennessee Board of Barbering Examiners that Allen didn’t have a license to work as a barber. When he was young, no barbering schools in Tennessee admitted blacks, and now Allen couldn’t afford the nine months and $5,000 it would cost for him to go to school to be taught what he already knew. He was in danger of being put out of business and into poverty because of a completely needless regulation, the sole purpose of which was to restrict competition.

Fortunately for Allen, the Institute for Justice, for which Bolick works, threatened to sue to block the Board of Barbering Examiners from taking away his livelihood. The threat of action succeeded. Unfortunately, thousands of others are caught up in such occupational licensing snares each year. Freedom to engage in simple commerce is blocked by innumerable laws and regulations put in place by friendly state and local politicians—friendly, that is, to interest groups that want barriers to entry into their fields.

Bolick also details the vicious abuse of eminent domain, which under the Supreme Court’s current reading of the Fifth Amendment (hostile both to the document’s intent and to the rights of property owners) allows government to seize land from people whenever politicians decide that transferring it to someone else serves “the public interest.” Again, he shows that the government that’s supposedly the closest to the people can be the most callous.

Perhaps even more disturbing are the many civil asset-forfeiture laws enforced by state and local officials. Those laws permit officials to seize property without any compensation if they can convince a judge—and there are plenty of judges who don’t give a hoot about private property except their own—that it was used in connection with a crime. In one case Bolick relates, a woman whose teenage son had been driving her car when caught selling drugs had to suffer the loss of the vehicle. Never mind that she had no knowledge of her son’s activities. She was eventually able to show that local officials were living high on the proceeds of confiscated property. That particular statute was struck down by an appellate court on due-process grounds, but many others like it remain.

Bolick concludes with a helpful and hopeful chapter, “Fighting Big Government at the Local Level,” which shows that people don’t have to meekly tolerate these assaults on their rights.

If the most useful books are those that make people justifiably angry, Clint Bolick has written an extremely useful one.

  • George Leef is the former book review editor of The Freeman. He is director of research at the John W. Pope Center for Higher Education Policy.

  • Appointed in January 2016, Clint Bolick is a Justice on the Supreme Court of Arizona. Previously, he served as Vice President for Litigation at the Goldwater Institute, President of the Alliance for School Choice, and co-founder of the Institute for Justice. Clint is a 2006 recipient of the Bradley Prize, author of multiple books on topics from immigration to school choice, and regularly appears in and on nationally syndicated television shows, newspapers, and magazines.