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 becomingbusiness 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 otherlocal 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.
Clint Bolick is a leading pioneer in restoring judicial protection of economic liberty, private property, and freedom of speech. A co-founder of the Institute for Justice, he helped lead the effort to increase judicial scrutiny of affirmative action in employment, education, interracial adoptions, and other critical areas. The legal strategy that he developed has produced several landmark rulings invalidating regulatory barriers to enterprise.
A passionate speaker, Bolick is the author of numerous articles and several books, including Leviathan: The Growth of Local Government and the Erosion of Liberty. In 2003 he was honored by American Lawyer as one of three American lawyers of the year.
Mr. Bolick received his law degree from the University of California at Davis. He is a research fellow at the Hoover Institution and the president of the Phoenix-based Alliance for School Choice.