The Monster in Our Backyard

Friday, July 30, 2004

Phoenix has a rat problem. It’s the fault of fruit trees that attract the furry pests, which scurry across rooftops to access their treats in some of Phoenix’s nicest neighborhoods.

If you call the exterminators, they’ll tell you it’s tough to get rid of them. But you can keep them from getting inside your house by having mesh coverings installed over all its openings, such as chimneys and crawl-space ventilation holes, for a cost of about $300.

Christian Alf would do the job for $30. The enterprising high school student started covering openings into his neighbors’ homes as a favor. Before long, word got out and Christian was making some serious money for college, while saving homeowners 90 percent of the cost of having a professional exterminator protect their homes against rodent invaders.

That all came to a halt when the state pest-control agency contacted Christian and his parents and ordered the teen to stop. Even though Christian was not using pesticides or performing any dangerous or high-skilled activity, he was engaged in pest control without a license—and, of course, undercutting the prices of his competitors. Christian stopped.

This is no trivial matter: The likes of Bill Gates got started this way. Once the regulators get started, kids’ efforts to make money with lemonade stands could be classified as “food-service provision,” lawn mowing could become “professional landscaping,” and paper routes could be categorized as “supplying information technology”—all potentially subject to onerous licensing regulations.

Fortunately for Christian, the plight of this particular young entrepreneur became a local cause célèbre. Newspaper editorials and letters to the editors pounded the regulators. The Institute for Justice’s Arizona chapter threatened to sue the licensing agency. Finally the agency backed down and wrote Alf a letter apologizing and wishing him luck. But absent the public outcry, Christian’s business would have been needlessly stifled. All of which goes to show that the most obnoxious type of rats are not roof rats but bureaucrats.

Who were these bureaucrats, anyway? They’re among the hordes that to most of us are usually nameless and faceless. But in reality they’re also our neighbors. By long-standing tradition, Americans prefer their government to be close to home, where ostensibly we can control it. We’ve got half our wish: Most government is local, all right, but it’s totally out of control. Although many of us regularly cast an anxious eye on what’s going on in Washington, our friendly local government officials are picking our pockets, stealing our property, and suppressing our speech. And most of the time, we don’t even know who they are.

Former president Bill Clinton famously proclaimed that “the era of big government is over.” He was wrong: It just moved to the suburbs. Although it is a phenomenon rarely noticed or remarked upon, the enormous growth of local government in recent decades bodes serious real-world consequences for every American.

State and local governments, which were at one time collectively smaller than the national government, now dwarf it. Fully 86 percent of all civilian government employees work for state and local entities. Although the number of federal civilian employees actually shrank between 1980 and 1999, from 2.9 million to 2.7 million, the number of state and local government employees increased during the same period from 13.3 million to nearly 17.5 million. That translates into 46 million Americans who either work for state or local governments or are dependent on someone who does—a huge and powerful special-interest group.

As of 1999, state and local governments were expending $1.06 trillion annually, accounting for 11.5 percent of the nation’s gross domestic product, or about twice the federal budget (much of which comes back to the states). Measured in constant 1996 dollars, state and local spending has increased, from $638 per capita in 1961 to $2,983 in 2001, and is growing relative to the population by a rate of about 33 percent each decade.

Local governments themselves are multiplying like rabbits, at a rate of roughly one new entity added each day. None of us has the slightest idea of all the entities that govern us: The Chicago metropolitan area alone encompasses more than 1,200 different governmental jurisdictions.

Worse, the proliferation of local governments is greatest among “invisible” entities—particularly special districts and regional authorities—that wield enormous power but are rarely democratically accountable. Today there are more than 34,000 such entities across the United States. They outnumber cities by two to one and counties by ten to one, and they are growing at a rate of 9 percent every five years.

Special districts and regional authorities are usually created to fulfill a specific task—such as running transportation or highway systems—but they typically possess sweeping powers, such as the right of eminent domain and the authority to issue bonds. Often they are unaccountable to voters—who rarely turn out for elections affecting the districts even when they have the opportunity—or even to the governments that created them. But they are a favorite device of local politicians, who can take credit for big projects without raising their own taxes.

Local governments touch the intimate lives of every American every day. They operate the schools most of our children attend. They determine the permissible uses of our property. They regulate the terms and conditions of business and employment. They provide or control such essential services as water, electricity, policing, and firefighting. They tax us at a rate far higher than that imposed by the national government. They do so usually out of sight and out of mind, and as a result they are often out of control.

It wasn’t supposed to be this way. The founding fathers feared not just national government but all government. Indeed, a major reason for creating a stronger national government was the penchant of state governments toward grassroots tyranny. As Madison warned in The Federalist No. 10, “The smaller the society, the smaller the number of individuals composing a majority, and . . . the more easily they will concert and execute their plans of oppression.”

The founders crafted throughout the Constitution a system of federalism, whereby state governments were intended to check the powers of the national government. So the Tenth Amendment was written to reserve to the states (or to the people) all powers not expressly delegated to the national government.

The framers created federalism not to aggrandize state governments but to provide more effective protection of individual liberty. They presumed that government closer to the people could be trusted to protect their rights. That proved not to be the case, as tyrannical state leaders routinely violated liberty in the name of “states’ rights.” Those who coined that term, like many modern conservatives who invoke it, had it wrong: States do not have rights. People have rights. And the purpose of federalism is to protect those rights.

Following the Civil War, Congress enacted the Fourteenth Amendment, which was supposed to provide a reciprocal check on state and local governments against violations of basic civil rights. Although that provision has helped protect certain liberties, such as freedom of speech and religion and freedom from racial discrimination, too often courts have allowed local governments to violate rights with impunity.

That state of affairs is abetted by both liberals and conservatives. Since the era of the New Deal, liberals have advocated virtually limitless latitude for local governments to act as “social laboratories” for such enactments as business regulations, minimum-wage laws, and rent control. But they accord states little sway to do things of which the liberals do not approve, such as enacting school choice programs. Meanwhile, many conservatives nostalgically view local governments as “sovereign,” except when the states do things of which the conservatives do not approve, such as allowing gay marriage or the medicinal use of marijuana. The bottom line is that when it comes to judicial review of local government abuses of individual rights, the fox is too often left guarding the henhouse.

That all adds up to the depressing adage “You can’t fight city hall.” And for most people—decent, law-abiding folks who want nothing from government other than to be left alone—the adage is true. Examples abound of abuses of individual rights by state and local governments.

Years ago, liberal activists Tom Hayden and Jane Fonda discovered the efficacy of local governments in redistributing wealth. Forming a group called Citizens for Economic Democracy, they took over local governments in such California communities as Berkeley, Santa Monica, and Davis. There they went about their devilish deeds, implementing rent control, “anti-speculation” ordinances, and limits on campaign contributions. They demonstrated, as Madison presciently predicted, that the power of local government could be a potent tool for engineering a society in ways that sacrifice individual rights to the politically perceived greater good.

Today, avaricious business entities have discovered the same thing. In a perverse sort of reverse–Robin Hood fashion, they use the power of eminent domain not to build roads or schools, but to take private property from working people and transfer it to wealthier, politically powerful people. The federal courts rarely police abuses, having construed the “public use” restriction as amounting to whatever the local government thinks is a public use.

The Institute for Justice has documented more than 10,000 cases of eminent-domain abuse around the country. The city of New York may be the most flagrant abuser: Between 1998 and 2002, it condemned small businesses in order to benefit the New York Stock Exchange, the New York Times Company, Costco, and Stop & Shop. An inner-city church was taken for commercial development, while a family furniture-building business in East Harlem was taken for a Home Depot. Protections against eminent- domain abuse in New York are virtually nonexistent. All a condemning authority has to do is publish a small advertisement in the legal notices section of the local newspaper. It does not have to state the consequences of the owners’ failure to act. Yet if the owners happen not to see the notice or fail to act promptly, they will lose their right to challenge the taking on public-use grounds 30 days following publication.

Grassroots tyranny takes other forms as well, usually afflicting the proverbial little guy. In Mesa, Arizona, Edward Salib toils making mouthwatering donuts at his Winchell’s franchise. Like most franchisees, he posts the company’s standard signs in his store windows, advertising éclairs, cappuccinos, and other goodies.

But Mesa ordered him to cease the advertising, having enacted a sign ordinance to protect the city’s “aesthetics” (never mind that Salib’s store is at a busy commercial intersection). The city required that signs could cover only a certain percentage of a window. In terms of limiting visual blight or distraction, the ordinance made no sense: the bigger the window, the bigger the permissible signs. Salib couldn’t comply with the ordinance if he wanted to post any of Winchell’s advertising; the standard company signs covered more than the allowed space. Too bad, the city responded: The police need to be able to look inside the store (which was probably unnecessary in this case, given the frequency with which police officers are already inside donut shops). Salib asked if he could comply by leaving one window completely empty of signs. Sorry, not enough, the city responded, paying little heed to the fact that Salib might be forced out of business if he couldn’t advertise his products.

Salib turned to the judicial system for relief. Federal courts often strike down state and city laws when they violate freedom of speech, that is, except when the speech is commercial. Even though many ordinary people value commercial speech much more highly than other kinds of speech, the courts do not, relegating it to second-class status under the First Amendment. Salib’s challenge to Mesa’s ordinance failed in the trial court and is now on appeal.

There are literally thousands of such stories, and most of them have unhappy endings. The typical person lacks the resources, knowledge, and skills to take on the local leviathan that our local governments have become. The odds are further stacked by the ability of politicians to use their own citizens’ tax dollars against them. Except for the rare situation in which local media take an interest, individuals usually stand no chance against the very officials that in our federalist system are supposed to protect our rights. Even when people do have the determination and ability to stand up for themselves, they too often encounter state and federal court systems that indulge every presumption in favor of local government power.

So what can we do to fight the local leviathan? First, we should pay attention. The local school board member or zoning commissioner often has more real impact on the daily lives of ordinary people than does the president of the United States. We should know who those officials are and expend as much effort on local politics as we do on national politics. We need to fight affirmatively for those reforms—privatization and school choice, for example—that reduce the size and power of state and local government and increase individual sovereignty.

We also need to rediscover the original principles of federalism, and understand (as the framers did) that state and local governments are still governments. Federalism was never intended to operate as a protective shield for local politicians to abuse the rights of their own citizens. It was designed to keep our national government within the bounds of its authority. In that regard, federalism hasn’t held up well—though it has been enjoying something of a renaissance in recent years. We must remember that the object of American constitutional government is the preservation of individual liberty and that government at every level is a constant threat to that liberty, even if it is close to home.

In terms of weapons to fight grassroots tyranny, we should look not just to the national Constitution as a source of our rights but to state constitutions as well. Indeed, the framers viewed state constitutions as the primary bulwarks of liberty. Many state constitutions provide greater, more explicit protections of liberty than does their national counterpart. Arizona’s constitution, for instance, expressly provides that “private property shall not be taken for private use.” Too rarely do we turn to such provisions to protect ourselves against local government abuse.

Most important, we can fight back. Grassroots tyranny does not flourish when exposed to sunlight. Only by standing up against it can we hope to vindicate our own freedom. And only by standing up against it can we hope to cause government officials to act like the public servants they are meant to be, rather than succumbing to the temptation toward abuse of power that so entices too many politicians.

Washington, D.C., remains a perpetual object of concern for those who value freedom. It should be. But the more dangerous bully may live a lot closer than we think.