Grassroots Tyranny: The Limits of Federalism.

• Author: McClaughry, John

The essence of federalism, argues Clint Bolick, is the protection of individual liberty, the paramount constitutional value. Counterbalancing power between the states and the national government helps ensure that both exercise their prescribed powers efficiently and that neither exercises unrestrained power.

In Grassroots Tyranny Bolick, a civil rights lawyer with the Institute for Justice in Washington, laments the destruction of this true federalist ideal by two mutually opposed groups of villains. In its place, in addition to federal tyranny, we have now acquiesced in a grass-roots tyranny of state governments and their creatures, some 82,000 (!) city, town, township, county, and special-district entities, each demanding a piece of its hapless citizens. What appear to be the two opposing poles in the contemporary federalism debate are actually united in one crucial belief: that individual liberty is but a minor consideration in the distribution and exercise of governmental powers.

Most of those who pass for "conservatives" are proponents of "states' rights federalism," a hoary legacy of the days of human slavery. To this camp, whose archetypes are former Judge Robert Bork and former Attorney General Edwin Meese III, the 10th Amendment, which reserves powers to the states, is all important, and the Ninth Amendment, with its admittedly nebulous declaration of rights retained by the people, is a nullity. Meese, at least, opposes the idea that the Bill of Rights, written to restrain Congress, became with the 14th Amendment applicable to state and local governments as well.

These conservatives animadvert against federal mandates on the states and federal judges who interfere with stale law making, so long as those laws do not clearly contravene the Constitution and are adopted democratically by a majority. (One may wonder where Counselor Meese was when President Reagan signed the bill to make federal highway grants contingent upon the recipient state's raising its drinking age to 21.) This view is neatly summarized in a quotation from political scientist Stephen Macedo: "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are...rendered as islands surrounded by a sea of individual rights."

The other group of federalism wreckers are social-action liberals, typified at one time by Louis D...