Leviathan: The Growth of Local Government and the Erosion of Liberty
Hoover Institution Press, 209 pages, $15.
Those who pay attention to local government know that bureaucracy and arbitrariness predominate. No one has done more to challenge this grassroots tyranny than libertarian
attorney Clint Bolick. I have known and admired his work and committed character since the days we worked together at the Clarence Thomas-chaired Equal Employment
Bolick's latest book, Leviathan: The Growth of Local Government and the Erosion of Liberty (Hoover Institution Press), continues the expose of Grassroots Tyranny (Cato, 1993). In total budgets and personnel and in anonymity local governments exceed the federal. Against this hydra, Bolick advocates removal of arbitrary barriers to employment, protection of private property from eminent domain, freedom of commercial and political speech, school choice, and colorblindness in government endeavors including school admissions and adoption. On all these subjects he is invariably on-target, making his book an essential guide.
Consider his indictment of local government property-rights
policies. "[C]ities view all property as up for grabs." Eminent domain, he points out, is now being used by local governments to transfer property "from the current owner and give it to someone they like better"—who turns out to be someone who claims to produce more tax revenue or produce more jobs than the current property holders. This is "Robin Hood in reverse," as the poor and powerless lose out to the politically connected and corporations. "In
most instances, it's corporate welfare of the most naked kind."
More to the point, Bolick's open-ended definition of liberty, which culminates in "the right to be left alone," threatens to undermine the conditions of that liberty. To exemplify what he takes to be a principled stand, he defends the right to sodomy proclaimed in Lawrence v.Texas (2003) as well as a right for the Boy Scouts not to suffer discrimination for their rejection of membership to open homosexuals. Americans, Bolick admonishes, need to stop "indulging their own moral preferences rather than supporting consistently the right to be left alone that most Americans cherish." (Here he eschews defending drug legalization, which he had advocated in Grassroots Tyranny.) Local government's power "to safeguard the safety and well-being of the community" must not be allowed to subvert "personal autonomy."
While the Bolick solution may appear to solve many a problem, and regain constitutional principles of liberty and justice, in fact it drives us away from those principles. For Bolick, as do libertarians generally, adopts the main principle that gives us the bureaucratic state to begin with—personal autonomy. In Democracy in America Tocqueville called it individualism—of the selfish and self-effacing sort, not the rugged sort—and saw it led to centralized administration, the kinder, gentler despotism. Even if Bolick would not extend his defense of sodomy rights to same-sex marriage—and it's hard to see how he could prevent that—this one example shows the massive limitations of his approach to local government.
After all, what does it mean to deny legislative power to enforce morals? Bolick would distinguish the enlightened
judge who would read the Constitution his way from the blockheaded bureaucrats who stifle freedom. But why would he object to an enlightened bureaucrat? How could he? Taking inherently controversial issues such as same-sex marriage off the table by declaring it part of one's
"personal autonomy" means the abolition of politics and the concomitant permanency of bureaucracy. The logic of the bureaucratic state is to make moral decisions private, beyond the realm of political struggle. Politics would be
devoid of the requisite spiritedness required for robust debate and mobilization of majority sentiment. Eventually, subordinating all struggles means repressing freedom as well. Government based on consent withers. While denouncing "leviathan," Bolick's logic justifies it. How does he get from autonomous individual to legitimate government?
Can a self-governing people lack well-governed souls? The libertarian view of liberty suffers from arbitrariness in its definition of liberty.
Natural rights theory, a version of which is embraced by Bolick, should instead be the basis for the rule of law and self-government, not litigation for the defense of particular freedoms. Pinning exaggerated hopes on the judiciary and hence on lawyers can distract us from the task at hand of reshaping local governments, an endeavor that must necessarily uproot and not just trim grassroots tyranny.
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