Local Leviathan

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In designing the American Constitution, the Founding Fathers were careful to establish a balance of powers — not only among co-equal branches of federal government, but also among states, federal government, and the people themselves.

If the United States were a computer, then federalism would be its operating system. Extending the analogy, the most basic functions are performed by a “Central Governing Unit” (CGU) and strictly enumerated by Article I, Section VIII. The states were delegated the task of “programming” in the gaps — specialized “apps” to handle more localized issues. This design was supposed to serve as a bulwark against federal tyranny, although we’ve seen how the principles of federalism have been eroded by the commerce clause, and other broad powers usurped by the Federal government from the states.

On the flip side, states and local governments are not immune from the temptation to seize powers beyond their designated scope. The 10th amendment specifies that the powers not delegated to the Federal government are reserved to the states and to the people. The founders were clear in their writings that the ultimate authority rests in individuals. Both conservatives and liberals have ignored individual sovereignty in promoting a bastardized version of federalism. Conservatives have often championed discriminatory legislation based on “states rights,” while contemporary liberals support the power of state and local governments to regulate the economy and redistribute wealth.

Standing firm against this “local leviathan” are libertarians. The smallest minority on earth, Ayn Rand noted, is the individual. Sometimes the individual has to fight city hall all by himself, and the odds are stacked against him. Other times, however, groups like the Institute for Justice can take the government to court to defend their constitutional rights to “life, liberty and the pursuit of happiness.”

Before becoming an Arizona Supreme Court Justice, Hon. Clint Bolick co-founded the IJ, which has been featured many times on this show. Shortly after founding the IJ, Bolick authored a book titled Grassroots Tyranny: The Limits of Federalism (Cato Institute Press, available for free on Google Books). In it, he cautioned proponents of decentralization that localizing power is no guarantee that it won’t be abused. It’s not all about empowering states, Bolick says — both states and federal government are merely devices that ultimately derive their powers from their protection of individual liberty.

While states and local governments can still serve as “laboratories of democracy,” these laboratories must never be allowed to violate inalienable rights, lest federalism — the “bulwark” of liberty — turn loose a thousand experiments in governance gone wrong.

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Tune in for the full discussion between Bob and Clint on Grassroots Tyranny: The Limits of Federalism, or read the transcript below:


The Idea of Federalism: A Cautionary Tale

Bob Zadek: This morning’s guest is a gentleman who has been so important to me in my intellectual life and in my political life as somebody who hosts a radio show and reads and writes, that I have to be careful to not let the emotional part of my being come out too much.

Justice Clint Bolick, is a judge on the Arizona Supreme Court. He is a co-founder of the Institute for Justice, an organization which I have featured in countless shows, which I wish I had a chance to discuss more. They are warriors in the battle for economic freedom and freedom in general. They have been successful at state and federal courts, including often in the U.S Supreme Court.

Clint Bolick has written a fascinating book called Grassroots Tyranny: The Limits of Federalism. As my friends out there know, federalism is a concept that was so important to the founders, that it was one of the cornerstones of the Constitution. It is more important today than ever before. Grassroots Tyranny: The Limits of Federalism explains to all of us what federalism is, and why it is both a savior as well as a cautionary tale. It is all about liberty and the importance of the power of the individual over the collective. What could be more important to each of us than dominion over our own lives? Clint, welcome to the show this morning.

Clint Bolick: It is great to be with you.

Bob Zadek: To set the stage for our friends out there, most of whom have a general understanding of federalism, explain the principle of federalism and how it fits into the blueprint for our country the founders gave us.

Clint Bolick: Federalism is one of the most important innovations of the American system of government. It is one of the important safeguards of our freedom. The idea of federalism is to devolve authority to the very lowest level that you possibly can. Obviously, that begins with the individual and extends to the family and the community, to the local government and state government, and then finally to the national government, which is a government of very limited powers — it can only do those things that cannot be done locally. The theme of the book is that as we devolve power to the lower levels of government, that does not remove the prospect for tyranny.

Local governments, of course, have a greater impact on our day to day lives than the national government does. Even the framers recognized that the more you devolve power, the more it is susceptible to influence by special interest groups. The book embraces federalism very strongly, but at the same time warns that we have to be very mindful that government at any level is capable of violating our rights. We have to keep a very watchful eye on government that is closest to home.

Bob Zadek: You mentioned that federalism is the concept involves the devolution of power down from the Feds to the state, to the county, to the towns, and to the individual. That starts the story of power in the middle. By that I mean that power starts with the individual. I think most people subscribe to the theory of natural rights, whether they know it or not, because they believe they have dominion over their own lives. If you believe that, then power — in this round trip that it makes — moves from the individual to the family, and then to the town or city, upstream again to the state, and upstream to Washington.

The reason power moves “up” is only for a matter of practicality. There are certain things as a practical matter in the enjoyment of liberty that you cannot do by yourself. Citizens and groups conclude that we had better get together and do it collectively. That is just nature.

Our system of government started off assuming that power was at the local level, but because of the operation of the political process we ended up with power moving upstream to the Feds. In Federalism we remind people that we need to get power back down where it belongs — ultimately, back to the individual.

Clint Bolick: I think you’re right. In our system, all power resides in the people. National defense, the regulation of interstate commerce, and all of the things that gave rise to the creation of a national government were absolutely practical. We, and the states that we lived in, ceded only a very limited amount of power to the national government. hat was the system that was intended.

Of course, if we look at things from the standpoint of of 2018 rather than 1787, that is obviously a far-off description from where things are today. I actually see some very encouraging signs that we are returning to the idea of Federalism that the framers brilliantly gave us. While there has been a steady accretion of power at the national level, I am very optimistic that we are beginning the long process of slowly reversing that.

Ninth and Tenth Amendments: Safeguards of Unenumerated Rights

Bob Zadek: We have all heard the phrase “enumerated powers.” The founders of our country — those 65 men who met in Philadelphia for four and a half months in 1787 to draft the Constitution — assumed that almost all power resided in the states and localities. This was beyond question, because it was so obvious to them. Nobody discussed it. Then, in this grudging fashion, they began ceding power to Washington.

It was like they said, “Okay, if we are to form a nation and prosper and live free, certain stuff is just not practical or sensible to do at the colony or state level.” As a matter of practicality, they assigned these tasks to Washington. As a reminder of that, after the Constitution was ratified, Congress drafted the Bill of Rights and the Ninth and Tenth Amendments in its first session.

These are called “amendments,” but most of them aren’t amendments in that they don’t amend anything. They state principles, but because they are somewhat of an afterthought, the appropriate noun is “amendment.” The first ten amendments were basically reminders. Tell us about these amendments.

Clint Bolick: That is a really good insight. The argument Madison initially made against having a Bill of Rights at all was precisely what you mentioned — that we don’t need a “bill” of rights because we already have them. We had not delegated those powers to the national government, and therefore, we retained those rights. Nonetheless, a number of states were saying that they might not ratify the Constitution without a Bill of Rights, so we ended up with them.

The Ninth and Tenth Amendments remind us that the power resides in the individuals and that any rights that were not necessarily articulated in the first eight amendments or elsewhere in the constitution, if these are not explicitly enumerated, that does not mean that they do not exist.

Basically, more rights exist in the individual, whether they are articulated or not. It was a reminder that if a right was not enumerated, that should not be construed to mean that individuals do not possess it.

The Tenth Amendment is also a reminder that only those powers that are expressly delegated to the national government belong to the national government. There is no inherent power in the national government that is not expressly delegated elsewhere in the Constitution. Also, all proper powers of government that were not delegated to the national government remain in the states and in the people. These are two very important provisions of the Bill of Rights that are sometimes forgotten.

The Ninth Amendment was dismissed by the U.S. Supreme Court as a truism in the 1940s. Basically, they said it doesn’t really mean anything. Nonetheless they were extremely important in understanding the framework of our government

Bob Zadek: One of the most important phrases you mentioned in describing the Tenth Amendment was “or to the people.” In other words, there is a large swath of rights that the Constitution keeps for the individual. It says that under this document the people have not lost very many of their rights, but rather retain them. Therefore, the document reminds us that Congress does not have the power to take rights from the people except for the stingey list of powers that are given to Washington.

This phrase, “or to the people,” should be cited every morning as a reminder to the government that they do not have the power to take away our rights.

The Supreme Court has eroded this phrase over 200 years or so.

Congress has also eroded it.

However, this was the starting point. Power has not been taken away. It sits where it always has been — with the people. When you described federalism, you said that it devolves power back down to the states and to the cities and to the people. That is true. But why did the power leave to begin with?

Clint Bolick: That is absolutely right. Just to give you one example to show how this would work in practical effect. There are some powers that no government rightfully possesses. This is important both in the context of the Ninth Amendment and the language that you’re citing in the Tenth Amendment, this phrase “or to the people,” which ends the amendment.

We would look for these rights back in the English common law. The rights of English people, which we brought over to the United States when our country was initially settled as English colonies. For example, under common law, the government has no power to create monopolies. That right is not mentioned anywhere in the United States Constitution, but I would argue that because the power to create monopolies was never delegated to any government, especially the national government, that that power does not exist. That is the kind of power that is being referred to in the Ninth and Tenth Amendment.

Basically, these are powers that were never ceded to government, and which were were not thought to be necessary to include in the Bill of Rights because it was so well understood that certain rights were so obvious that they didn’t need to be listed. Certain powers, equally obviously, were not delegated to the government.

Bob Zadek: Do our listeners feel they have, for example, a right to travel from state to state? Well, of course they do. No one would question that for a moment. You have a right to travel from New York to New Jersey. However, nowhere in the Bill of Rights is there the right to travel. You have the freedom of association, religion, free speech, etc., but you don’t have the right to travel? Nobody would argue that because the Constitution does not grant government the power to deny you the right to travel that it is not an inherent right that you have. Or, for example, the right to raise your children the way you wish — nothing in the Bill of Rights mentioned that, but everybody of course has the right to raise their children as they wish, subject to safety and other issues like that.

Therefore, there are an infinite number of rights that exist, although they are not “enumerated.” The Ninth Amendment reminds us that this list of rights are not an exclusive list. So, it is beyond question — it is too obvious to discuss — that there are countless unenumerated rights. You don’t have to find a right in the Constitution. We all know they exist.

Clint Bolick: The U.S. Supreme Court has subsequently recognized those rights even though they don’t explicitly appear in the constitution. There are many conservative theorists — Robert Bork is probably most prominent among them — who have basically said that if a right is not explicitly listed in the Constitution, then the subject matter is completely subject to democratic decision-making. I think that view turns the Constitution entirely on its head.

When we look at the Constitution, we are not looking for whether a right exists. We are looking to see whether a power exists. That is, a government power. If we do not find that power, then it doesn’t exist, since the Constitution is all about conferring a limited number of powers on the national government and reserving all of the rest of the legitimate government powers to the states, and all rights to the people.

Grassroots Tyranny: A Tyranny at the State Level

Bob Zadek: In your book, which explains federalism and warns us that federalism — while very important as this principle to move power back down to the individual — does not end the battle. Then we get to this idea of “grassroots tyranny.” Once we succeed — bloodied and battered, having won the battle to get the power back down where it belongs from the feds to the local government (maybe you haven’t gotten it to the individual) — the battle continues.

Judge Bork believed that the majority ruled, as you explained, which is why he is labeled as a “majoritarian.” Essentially, 51% controls everything and there is no other guiding principle. He basically would tear up the Constitution in saying that everything on earth is subject to a majority vote. But of course, that doesn’t work. Madison and the other founders warned us and desperately feared the tyranny of the majority. It was observed that if you are going to be dominated and cruelly ruled, it does not feel any better if the cruelty is dispensed by a majority rather than by a despotic king, since it is still tyranny either way. The evils of majority rule still exist at the local level.

Democracy, which is often taken to mean “majority rule,” has its shortcomings. Just because we can move power back down to the county, or the town, or the locality does not mean we have won the fight. There can be as much tyranny at the local level as at the federal level because, after all, once you cede power to any group power — and by power, I mean power over you — that power is the ultimate intoxicant. It is hard to control oneself when you are given power.

Clint, you have spent your life fighting the misuse of that power. Give us some examples of how power over the individual has been abused by the collective at the local level, and the battles that had to be fought to bring it back to the individual.

Clint Bolick: The insight about the potential abuse of government power at the local level goes all the way back to Madison. He argued that one of the benefits of having a national government is that it is more difficult for special interest groups, which he referred to as “factions,” to execute their “schemes of oppression.” At the local level, unfortunately, small groups with outsized influence can often operate the machinery of government and essentially turn the power of government toward their own ends rather than toward the ends of good government and equal opportunity.

You see this in the area of occupational licensing and government monopolies. I mentioned that no government was intended to have the power of monopoly. But when you look at taxi-cab monopolies, they exist at the local level and they prohibit local entrepreneurs from opening competing cab companies.

We have seen the power of occupational licensing — where the government’s regulatory powers go beyond protecting public health and safety to focusing on protecting the people who are already in the profession against those who might wish to enter it. For example, in the area of cosmetology we have seen all sorts of restrictions on people entering the profession, from hair stylists who braid African hair, to fish spas. There was actually a case I litigated here in Arizona a few years ago where a cosmetologist brought fish into her salon to nibble on people’s feet. This is something that happens in a lot of Asian and European countries. And the board of cosmetology said, “nope, we are not going to allow that to happen.”

Bob Zadek: I should mention that the fish were not piranhas. They were just little fish that make the skin healthier. There was no danger involved. This was simply a case in which the people with the license didn’t want the competition.

Clint Bolick: That is absolutely right. There are millions of people who have these procedures around the world. Unfortunately, when I took on the case the fish had already been banned. So I have never been able to have that procedure. I understand that it is quite a fun experience. Unfortunately Arizonans will now have to leave the country, or at least leave the state, in order to have that kind of experience.

You also have government subsidies of businesses and of labor unions. For example, another issue that I had litigated here in Arizona was the issue of union release-time. People in the police and fire departments and other areas of local government are paid by the taxpayers to do a particular job like being a police officer, but they show up for work every day at union headquarters and report to the union even though they are paid a pension by taxpayers.

The list goes on and on of these sorts of abuses of individual rights. There are violations of people’s free speech, of private property rights, the abuse of eminent domain power, etc. It would take longer than a show to document all of them. This underscores another insight of our Constitution — the purpose of federalism is to protect freedom and it always has been. The idea in our original Constitution was that local and state governments were more reliable in protecting individual freedoms. Sometimes that is true. In fact, oftentimes that is true. But it is not always true.

We discovered that in the early years of our republic, with the institution of human slavery and the many abuses of individual rights that were necessary to sustain slavery. When the Civil War was over, we enacted the Civil War amendments, including the 14th Amendment, which forbids state (and local) governments, from violating the civil rights of the people. So, we now have a double security against the abuse of rights. We have the Bill of Rights, which protects us against abuses of individual rights by the national government, and the 14th Amendment, which gives us protection against the violation of our individual rights by state and local governments.

In my opinion, the 14th Amendment completed the tapestry of federalism, and that is the framework that we have now, where we have protections of our rights both against the national government and the state and local governments.

State Tyranny: The Need For the 14th Amendment

Bob Zadek: The the need for the 14th amendment shows the profound bias the founders had. The founders naturally assumed that the states will treat their citizens fairly. The states are not the problem. The founders had colonies for more than 100 years and they worked just fine. Therefore, they thought that what they had to fear was what we do not know about. Since they were creating a new governmental organism in the Federal Government, and didn’t know how this was going to behave, they created it with a very tight rein. So, the Constitution was drafted to create this new Leviathan — the Federal Government. They created it with a tight leash in the form of the enumerated powers doctrine. But nobody felt the need to control the states.

They thought that the states could take care of themselves and that the voters would look after them. Slavery, however, showed that they gave the states too much latitude. When we achieved a national identity and wanted to present ourselves to the world, we felt the obvious need of at least subjecting the states to the constraints set forth in the Bill of Rights, via the 14th Amendment. The founders assumption was, therefore, a bit naive.

Speaking of local tyranny, I should mention I speak to all my friends out there from California, the very citadel of local tyranny. We invented the product here in California, and should copyright it — and yet other states want to emulate us.

The rights you have so passionately and effectively defended are economic rights. Many of our listeners may not understand the subset of what we mean by “economic rights,” why they are so important, and how they have often been in Supreme Court jurisprudence a kind of rights-stepchild. Explain to us the subset of economic rights because that has been so important to the Institute of Justice.

Clint Bolick: These rights can be traced back to a time before we were a nation. We brought these rights to the United States from England. There are essentially two rights. First, there is the right to contract, or free labor, which is your right to contract with another person to perform work at an agreed upon salary without the government interfering or intruding into that relationship. Second is freedom of enterprise, which is the right to establish a non-harmful business without extensive government interference.

These are bedrock American rights and yet they are among the rights that do not explicitly appear in the United States Constitution. They were so widely accepted and taken for granted that no one thought it necessary to explicitly enumerate those rights.

It turned out that states over time became great violators of these rights, particularly after the Civil War when blacks were emancipated and began using their labor and the skills that they had acquired for themselves. They went into business for themselves, and would offer their labor at competitive wages and so forth. This was very annoying to the white gentry in the southern states who no longer had a labor supply, so southern states enacted “black codes,” which were aimed at suppressing black labor by suppressing their freedom of contract to negotiate wages.

They also imposed occupational licensing laws and other restrictions, such as restrictions on private property rights. These laws — these black codes — were outlawed by the Civil Rights Act of 1866, which was then incorporated into the 14th Amendment through the very first provision of the 14th Amendment — “the privileges or immunities clause.” Sadly, that clause was more or less erased from the Constitution in the Slaughterhouse Cases.

Since that time the courts have relegated economic liberty to not second-class status, but to third or fourth-class status. They have virtually given no protection to economic enterprise and liberty even though these rights were intended to be very robustly protected against governmental abuse. As a result, these laws have become particularly harmful to people with very little education and very little capital. They often prevent these individuals from creating enterprises and from working in occupations where they could earn an honest living.

Bob Zadek: Economic rights are so clear. It is all summed up in a very simple phrase. Two adults ought to have the right to agree on a transaction that only affects those two people, and the transaction is voluntary and mutually beneficial. I agree to do something for you if you do something for me. I will build you something and you will pay me this price. There is no coercion. It is a voluntary exchange and it is mutually beneficial.

Yet we have countless statutes that Clint has fought against in his career, that say, “No, two consenting adults who are competent to contract and want to enter into a beneficial transaction are prohibited for reasons of policy.” If ever there was a case of government substituting our judgment for its judgment about what is best for you and me, that is the example.

Our government says that until the seller of labor passes certain standards that we have created, you cannot sell your services as an electrician or a cosmetologist or a doctor. You cannot sell your services unless you are given a license.

I find “license” to be the one of the most hateful words in politics. Permission to do something. Oh, how I dislike it!

Situational Federalism: A Federalism of Convenience

Federalism, or the devolution of power from Washington to states and localities, is often seen as a conservative issue. Republicans, if they are in fact conservative (and I question that), historically conservatives have embraced the idea. Now, federalism has become simply a rationalization to support any policy you wish. There are some instances when conservatives embrace federalism in that they want to take power away from Washington. However, in many instances conservatives want the power to move towards Washington. Federalism has become a convenient justification for any principle you favor.

To give you one example, take the minimum wage. We have a federal minimum wage. First of all, there should be no minimum wage. It violates the principle that Clint has explained to us regarding economic liberty. However, if you grudgingly admit that a minimum wage is constitutional (which I don’t), why in the world do we need a national minimum wage? Well, those who oppose the minimum wage say “no federal minimum wage under principles of federalism.”

Then you have social issues, for example, like abortion, where the conservatives want to criminalize abortion on a national level, which is the opposite of federalism. So Clint, is it not the case that federalism has become “cheapened”? It is not an end in itself, but merely the rationalization for supporting any principle that a politician favors?

Clint Bolick: I refer to this as “situational federalism.” That is, you support federalism when it supports your views, but not when it supports someone else’s. So long as federalism is used to expand freedom, I think that we all need to support it. We need to support “blue state” federalism when it expands freedom and we need to support “red state” federalism when it expands freedom.

Federalism is not going to be with us forever if we don’t agree that there are certain things that states ought to be able to do, free from the interference of the national government.

Bob Zadek: Clint, how can our friends and listeners out there follow your thoughts?

Clint Bolick: Yes. I just started a website called AZjustice44.com. I am the 44th justice of the Supreme Court of Arizona. There is is a collection of my opinions and my articles since I have been a member of the State Supreme Court, and it also provides a contact area where folks can contact me as well.





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