November 21, 2004
By E.J. McMahon
LEVIATHAN: THE GROWTH OF LOCAL GOVERNMENT AND THE EROSION OF LIBERTY
BY CLINT BOLICK
HOOVER INSTITUTION PRESS, 208 PAGES, $15
WHEN independent "dollar van" operators began to proliferate in Queens and Brooklyn in the wake of the 1980 transit strike, local politicians moved quickly to protect New York's inefficient public (and union) transit monopoly. The power to license vans was taken over by the City Council, which proceeded to do everything in its power to strangle the industry in its cradle, even though the vans were popular with riders and clearly serving a public need.
But the council didn't reckon with the persistence and determination of the van operators, who ultimately won a lawsuit forcing the city to ease up on some of its restrictions. They were represented in court by the Washington, D.C.-based Institute for Justice, a libertarian public-interest law firm co-founded by Clint Bolick.
In Bolick's latest book, the case of New York's dollar vans is cited as just one of many examples of the myriad ways in which state and local governments throughout the country are trampling on the economic, property and individual rights of Americans.
Even as President Clinton was declaring in the late 1990s that "the era of big government is over," Bolick notes, the state and local sector was growing larger than the entire federal government establishment, including the military.
Bolick says the threat to liberty posed by the growth of state and local governments is made worse by judges who can't or won't understand the true nature of federalism. He criticizes liberals such as the late Supreme Court Justice William Brennan for using "situational federalism" to expand state prerogatives on a selective basis. But he also chides "states' rights conservatives" such as Chief Justice William Rehnquist for too often disregarding constitutional limits on government power at both the national and state level.
For Bolick, standing up to local government has usually meant siding with the little guy, whether it's the mostly immigrant outer-borough van drivers, or the African-American hair braiding entrepreneurs whose livelihoods have been threatened by absurdly exclusionary hairdressing license requirements in several states.
In Atlantic City, Bolick's organization represented an elderly homeowner and a pair of tiny businesses whose property had been targeted for condemnation to make way for a parking lot for Donald Trump's casino.
As The New York Times later reported, Trump lost and "the little guys won." But as Bolick elsewhere notes, the Times itself has been the beneficiary of a classic land grab by New York state, which condemned a block of Midtown properties for the newspaper's new headquarters. In fact, says Bolick, New York "is among the most flagrant abusers of eminent domain power."
Bolick is perhaps best known for his pioneering legal work in defense of school choice, including the landmark 2002 Supreme Court decision that upheld the constitutionality of Cleveland's voucher program. The Arizona-based lawyer left the Institute for Justice to become president and general counsel of the Alliance for School Choice.
In this valuable book, Bolick clearly and convincingly makes the case that state and local governments are abusing their powers and imperiling the rights of many Americans. Unfortunately, his solution is one-dimensional. Disdaining the possibility of bringing about reform through the ballot box, he concludes "the main recourse is the courts."
In other words, you can fight city hall — but only if you've got the right lawyer. Not surprising advice, considering the source. But Bolick's simplistic putdown of elective politics (which is understandable, when you consider he spent his formative years in machine-ridden Linden, N.J.) is ultimately something of a letdown, as well. After all, if there's no hope of getting politicians to restrain government, than how long can we expect our rights to be protected by the judges who politicians appoint?
In the meantime, at least, it is reassuring to know that when local officials try to erode our liberties, lawyers like Bolick will be on the case.
E.J. McMahon is a Manhattan Institute senior fellow.
©2004 New York Post
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