You may have thought this country’s problems stemmed from runaway central government, but Clint Bolick is here to tell you that the real threat is down the street. “Local government in its various forms is today probably more destructive of individual liberty than even the national government,” says Bolick, chief lawyer of the Institute for Justice, a litigation group in Washington, D.C. In Grassroots Tyranny, he argues that decentralism is fine so long as no community violates “individual liberty.” But because every conceivable action involves such liberty, old-fashioned federalism should be thrown out as “an impediment to freedom” and replaced by centralized power that would manage the political affairs of every state and locality in America.

Such views are nothing new, of course. Modern liberals—like New Dealers, Progressives, and Radical Republicans before them—have long made the same argument (centralize state power) on the same grounds (to make people free). It’s no surprise that Nadine Strossen, president of the ACLU, endorses the Bolick thesis; it is her own as well. What is both surprising and maddening is that Bolick writes as a libertarian, a defender of private property and the free market. Centralized government power, he argues, is the only way to protect them. We’ve witnessed the ascendancy of “big government conservatives” in Washington. Clint Bolick and friends are joining them as big-government libertarians.

A former top aide to Clarence Thomas at the Equal Employment Opportunity Commission, Bolick is credited with destroying Lani Guinier, Clinton’s pick to head civil rights enforcement. That event catapulted him and his organization to national fame. Only a few years before, he was prosecuting cases for the Department of Justice, the most famous of which was against the city of Yonkers, New York. Fearing crime and lower property values, Yonkers refused to erect public housing units in high-income areas and impose school busing. This was “Grassroots Tyranny,” Bolick writes, but fortunately the feds “blew the whistle” on the city’s “recalcitrance.” “The brazen actions of the Yonkers city government to perpetuate segregation would have made the Southern white supremacists of yesteryear proud,” he writes. As lead Justice Department attorney, he persuaded a federal judge to force the city to accept 200 units of subsidized housing over the objections of elected local officials.

Bolick’s appeal to abstract liberty often overrides concern for concrete liberty, as his treatment of the Robert Mapplethorpe affair clearly demonstrates. Cincinnati’s Contemporary Arts Center signed up for the exhibit, even though it knew the photos probably violated local laws. As the gallery opened to the public, the sheriff’s department, in cooperation with a grand jury, ordered that seven of the 175 photos be taken down, two of them on grounds that they constituted child pornography. This local action, says Bolick, is a prime example of “Grassroots Tyranny” and a violation of the freedom of speech. After all, the photos were of “flowers and nude people,” including “homoerotic photos and portraits of children taken with their parents’ permission. Most of the people in attendance were merely enjoying the exhibition.” As Bolick tells the story, the Contemporary Arts Center’s lawyers “countered with an action against the local authorities. Within a few days. Judge Carl Rubin granted an injunction against the city officials. ‘You may not remove any photographs,’ Rubin instructed the authorities. ‘You may not close the exhibit to the public.'” Rubin is, of course, a federal judge.

A local community tries to prevent the public exhibition of child pornography and is overruled by a federal judge: this is liberty battling “Grassroots Tyranny“? Surely not, or else the entire libertarian tradition of decentralism is wrong. Rubin, moreover, seems an unlikely libertarian. Just recently, Rubin forced DuPont to junk its seniority system on the grounds that it kept blacks from professional advancement and to pay a $14 million fine. Is this another example of the federal judiciary promoting freedom? One year before his Mapplethorpe ruling, Rubin went on a slowdown strike to protest Congress’s failure to grant him an immediate $45,000 raise. “I’m not willing to take this lying down,” he told the Cincinnati Enquirer. So we have a federal judge who overrules local obscenity laws and doesn’t hesitate to control the affairs of private companies or to demand a taxpayer-funded pay raise. These actions have in common a reliance upon a simple arrogation of power. These days, federal judges intervene regularly to violate community norms, raise local property taxes, hamper local police, subvert local schools, and crush private decision-making in business. Isn’t there something odd about a self-described libertarian cheering this?

Bolick’s bias toward federal power includes not just the creation of law but also its execution. For example, he denounces the officers who “brutally beat” Rodney King and justifies the L.A. riots on grounds of the “pent-up outrage that exists over police brutality in the inner city.” Thank goodness, then, that the feds could overrule the local verdict, retry the policemen, and appeal their jail sentences when the new judge didn’t put them away for good.

Bolick, astoundingly, is concerned that “the national government pales in comparison to the size and scope of local governments. . . . State and local governments comprise 500,000 elected officials and 13 million appointed officials, compared with 2 million civilian employees at the federal level.” It doesn’t matter that the two million control the other 13, plus the rest of the citizenry, or that some of the 13 million are genuinely public-spirited Americans serving part-time in county and other local governments. Bolick says there are 80,000 local governments and only one federal government, as if Uncle Sam is outcompeted. Under the sort of constitutional republic the Founders established, we would be glad to hear that there were not 80,000 but 160,000 or 240,000. More local governments would suggest decentralization and a decline in overall government power, just as secessionist sentiment in Europe is a good sign for liberty. If fewer and more centralized governments are to be preferred to many decentralized ones, the next logical step would favor the transfer of federal power to the United Nations, providing it promised to enforce “individual rights.” It is then a small step to fullblown global war to secure democracy and rights in all corners of the globe.

Bolick claims that Federalist No. 10 warns against local tyranny. As any honest reading shows, however, Madison penned this eloquent letter as a warning against local democracy (mostly a pejorative term until this century). Democracies, Madison said, “have in general been as short in their lives as they have been violent in their deaths.” (Also in Number 10, Madison denounces egalitarianism, a theory which “erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would at the same time be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”) This essay is an argument for a federal republic, not for overriding state and local jurisdiction.

In any case, the Madisonian Republic was systematically undermined through judicial imperialism, further amendments to the Constitution, “incorporation,” and wars, so that we now confront the worst of both worlds: mass democracy and federal tyranny to prevent any local republics from emerging. For example, the federal government has made a particular practice of overriding state and local elections it deems unfair. What would the federal government do to a small town that attempted to establish a Madisonian republic by restricting the vote to, say, literate property-owning heads of families? The Institute for Justice would bring the first suit against this “infraction of individual liberty.”

“The states’ rights conservatives,” claims Bolick, “assume that state power and individual sovereignty are necessarily coincidental.” That would indeed be stupid. Traditional conservatives and classical liberals argue that one aspect of liberty is decentralized government; the claim sums up the older view of what constituted political liberty or “free government,” government closer to the people. You can sometimes beat city hall, but hardly ever the executive department of the federal government. In the American context, centralization and tyranny are linked, both historically and culturally.

Bolick ridicules Robert Bork’s argument that decentralism sets up competition among governments, as if Bork were the only person who ever made the argument. Nonetheless, the point stands: under decentralization people can vote (or threaten to vote) with their feet. Every town in America has a ruling elite, no doubt, and even petty degrees of power tend to corrupt; yet no good end is served by appointing a larger oppressor to rule over a smaller one. “Experience has demonstrated over and over again,” wrote John Taylor of Caroline, “that a free government cannot subsist in union with extravagance, heavy taxation, exclusive privileges, or with any established process by which a great amount of property is annually transferred to unproductive employments. Such a system is tyranny.”

Grassroots Tyranny is false advertising for individual liberty, a concept that was once set against collectivist claims for centralized power. But one doesn’t need to follow Bolick’s argument very far to realize that he uses the terms “individual liberty” and “individual rights” in a deceptive way. He does not mean the rights and liberty of people to be free from federal tyranny: he means the right of the federal government to use liberty as an excuse to trample on all lower orders of government, the community, and the family. As for states’ rights, he tells us in the old bromide that “states don’t have rights. States have powers. People have rights.” Frank Chodorov—individualist, anarchist, and champion of capitalism—had a more sophisticated view. In the context of a defense of the South against the encroachment of civil rights laws, he said: “As long as anything is left of our tradition of States’ Rights, the danger of absolutism in this country can be avoided.” Bolick doesn’t seem to have the slightest understanding of why Chodorov—and multitudes of serious thinkers before him—thought federalism was important.

Bolick’s current preoccupation is litigating for “school choice,” including taxpayer-funded vouchers for private education. His Institute for Justice has filed lawsuits all over the country demanding tax dollars for low-income students so they can go to private school. Cut through the rhetoric, and you find that these voucher plans would erase school district lines and subject voucher-taking private schools to “national standards.” Would they do to every community in the country what Bolick did to poor Yonkers? If nothing else, this book should help alert people to what “school choice” might really mean.


[Grassroots Tyranny, by Clint Bolick (Washington: The Cato Institute) 194 pp., $12.95]