Grassroots Tyranny

GEORGE F. WILL

July 15, 1993|By GEORGE F. WILL

Washington. -- Imagine living in your own house in close confinement with hostile strangers whom your state government prevents you from evicting. For seven years, Jerold and Ellen Ziman and their two children lived this nightmare. Theirs is a cautionary story of a growing phenomenon: grassroots tyranny.

In February 1984, the Zimans purchased a townhouse in Manhattan's Greenwich Village, planning to restore it as a single-family home. The house had been configured for seven rental units, three of which were occupied and covered by the state's rent-control law, an ''emergency'' and ''temporary'' program enacted during wartime, in 1943, and still on the books.

In June 1984, New York changed the rent-control rules, making it extremely difficult to evict anyone, and impossible to do so without years of expensive wandering in bureaucratic wastelands. So the Zimans camped for years in two rooms of ''their'' house, finding drug paraphernalia left by tenants or by those to whom the tenants gave keys to the house.

The government-dictated rent did not even cover the Zimans' maintenance expenses. They acquired full possession of their house only after rent control -- and $100,000 spent fighting it -- had reduced them to a ''hardship'' exemption from the restrictions on the right of owners to evict unwanted tenants.

Their case is an example of what is referred to in Clint Bolick's new book, ''Grassroots Tyranny.'' Mr. Bolick is a combative bTC litigator determined to convince fellow conservatives that ''conservative judicial activism'' is neither an oxymoron nor a bad idea.

Conservatism, defining itself in reaction to the federal government's aggrandizement under the New Deal and Great Society, has often endorsed virtually unbounded powers for state and local governments, to counter centralization of power in Washington. But Mr. Bolick notes that ''in today's society a zoning commissioner or a tax assessor can have far greater impact on personal liberty than the president.''

America has more than 82,000 units of government -- not even counting state and local regulatory boards -- below the federal level. The federal government has ''only'' 2 million civilian employees; lower government has 500,000 elected officials and 13 million employees.

State and local governments, subservient to strong local interests, commit myriad injustices, such as ludicrous licensing requirements that restrict entry into professions, for the benefit of those already in the professions.

For example, the Kansas Cosmetology Board recently decreed that Monique Landers, a 15-year-old African-American honored as one of the nation's five Outstanding High School Entrepreneurs, must close her $100-a-month business braiding and washing hair in Wichita. The board, acting at the behest of hair salons and cosmetology schools, says she must either go to cosmetology school and get a license, or go to jail.

The Framers of the Constitution would not be surprised about the many such outrages Mr. Bolick documents, or by the fact that today's gravest attacks on free speech occur in small communities susceptible to tyranny in a small sphere -- on college campuses. The Framers, acutely interested in the sociology of liberty, understood that small communities are particularly vulnerable to domination by overbearing majorities. They also understood that stable, tyrannical majorities can best be prevented by the multiplication of minority interests, so the majority at any moment will be just a transitory coalition of minorities.

Federalism expresses a constitutional preference for decentralized power. However, Mr. Bolick, whose book is subtitled ''The Limits of Federalism,'' argues that ''the Framers were not concerned primarily with favoring one type of government over another, but with limiting the power of government, regardless of its source.'' They had been appalled by the excesses of local majoritarianism, such as debt relief by the overturning of contracts, under the Articles of Confederation. They were sentimental about nothing.

Too many conservatives, Mr. Bolick argues, dogmatically celebrate ''states' rights'' and local autonomy as ends in themselves, rather than as instrumental to the protection of individual liberty. Mr. Bolick is eager for courts to use the Ninth Amendment (''The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people'') as a context for construing the entire Constitution, and particularly to block state and local acts of majoritarian tyranny.

Today the Zimans are suing New York, arguing that the years during which they were denied enjoyment of their house constituted a ''taking'' of property for which the Fifth Amendment ('' . . . nor shall private property be taken for public use without just compensation'') requires restitution. They have joined the counterrevolution against infringements of economic liberty and abridgment of property rights -- the crucial privacy rights -- by local government leviathans. Conservatives everywhere are rethinking the relative values of majoritarianism and individual liberty, federalism and judicial activism.

George F. Will is a syndicated columnist.

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