Local Leviathan: Clint Bolick on Grassroots Tyranny
2018-09-22 · Guest: Clint Bolick (Arizona Supreme Court Justice) · 52:02
Grassroots Tyranny and the Limits of Federalism
Bob Zadek interviews Arizona Supreme Court Justice Clint Bolick about his book, Grassroots Tyranny: The Limits of Federalism. They discuss how power should ideally reside with the individual and the dangers of local governments infringing on economic liberties through occupational licensing and other majoritarian schemes.
Topics: Federalism, Grassroots Tyranny, 9th Amendment, 10th Amendment, 14th Amendment, Economic Liberty, Occupational Licensing, Majoritarianism, Individual Rights
Speakers: Bob Zadek, Clint Bolick, Caller (Jacob)
Introduction [00:00]
Voiceover: You’re listening to the Bob Zadek Show, a full hour of libertarian discussion with the smartest guests on radio. Live, spontaneous, and thoughtful. It’s the show of ideas, not attitude, and your calls are welcome at 424-BOB-SHOW. Now, your host, Bob Zadek.
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. The show of ideas, never the show of attitude. Thanks so much for listening this Sunday morning.
This morning’s guest is a gentleman that has been so important to me in my intellectual life, in my political life, such as it is, as somebody who hosts a radio show and reads and writes. I have to be careful to not let the emotional part of my being come out too much. Clint Bolick, Judge Clint Bolick, is a justice, a judge on the Arizona Supreme Court. He is important to me, the founder of the Institute for Justice, an organization which I have mentioned countless weeks and notwithstanding that I wish I had the chance to mention it more. The IJ, the Institute for Justice, is the premier warrior in the battle for economic freedom and freedom in general. They have been successful at state and federal courts, including often the US Supreme Court. Clint Bolick has written a fascinating book available on Amazon called Grassroots Tyranny: The Limits of Federalism.
And as my friends out there know, federalism is a concept which was very important to the founders. It was one of the cornerstones which formed the blueprint of the Constitution. It is more important today than ever before. But federalism itself creates its own problems with liberty. And Clint, in his book, Grassroots Tyranny: The Limits of Federalism, explains to all of us what federalism is, why it is both a savior and a cautionary tale. It is all about liberty, the power and the importance of the power of the individual over the collective. And what could be more important to each of us than dominion over our own lives? Clint, welcome to the show this morning.
Clint Bolick: Bob, it’s great to be with you. The music got my blood flowing and it’s great to be able to discuss this topic with you this morning.
The Principle of Federalism [03:10]
Bob Zadek: Now, your book is entitled Grassroots Tyranny: The Limits of Federalism. Just to set the stage for our friends out there, all of whom, of course, have a general understanding of federalism, explain if you will the principle of federalism and how it fits into the blueprint for our country which the founders gave us.
Clint Bolick: Well, federalism is one of the most important innovations of the American system of government. And it’s also one of the important safeguards of our freedom. The idea of federalism is to devolve authority to the very lowest level that you possibly can. And obviously, that begins with the individual and then extends to the family and the community, local government, state government, and the national government being a government of very, very limited powers to do only those things that cannot be done locally.
The theme of the book is that as we devolve power to the lower levels of government, that does not end the prospect for tyranny. Local governments, of course, have greater impact on our day-to-day lives than the national government does. Even the framers recognized that the more you devolve power, the more it’s susceptible to influence by special interest groups. And so, really, the book embraces federalism very strongly, but at the same time warns that we have to be very, very mindful that government at any level is capable of violating our rights and we’ve got to keep a very watchful eye on government that’s closest to home.
Bob Zadek: Now, I would just offer one observation, Clint, if I may. You mentioned that federalism is the concept—involved the devolution of power down from the feds to the state, to the county, to the towns, to the individual. I would just offer an observation that actually that starts the story of power in the middle. And by that, I mean power starts with the individual. So in the first instance, individuals are, if you subscribe to the theory of natural rights, as I think most people do whether they know it or not, people have dominion over their own lives, we’re in control. If we start there, then power in this round trip that it makes moves from the individual, of course, to the family, and then what the family can’t accomplish simply as a family, it’s ceded upstream to the city perhaps or the town, upstream again to the state, and then upstream to Washington. And the reason power moves up is only for a matter of practicality. There are certain things as a practical matter in the enjoyment of liberty you can’t do by yourself. So citizens and groups conclude we better get together and do it collectively. That’s just nature, whether we’re talking about animals living in a state of nature or humans, you naturally conclude we better act collectively because we can’t operate alone. It doesn’t work. And then once you’ve ceded—now power is moving upstream. And now what’s happened is, I think, Clint, our system of government started with power—that was assumed power was at the local level. And because of the operation of the political process, we end up with power moving upstream to the feds. And in federalism, we remind people, let’s get it back down where it belongs, ultimately back down to the individual.
Clint Bolick: No, I think you’re absolutely right. That, you know, in our system, all power resides in the people. And it is a practical matter. National defense, the regulation of interstate commerce, all of the things that gave rise to the creation of a national government were absolutely practical. And so we and the states that we lived in and that had the basic power in our government ceded only a very limited amount of power to the national government. And of course, you know, if we look at things from the standpoint of 2018 rather than 1787, that obviously is a far-off description from where things are today. But that was the system that was intended. I actually see some very, very encouraging signs that we’re returning to the idea of federalism that the framers brilliantly gave us. And so while there has been a steady accretion of power at the national level, I’m very optimistic that we’re beginning the long process of slowly reversing that.
The 9th and 10th Amendments [09:05]
Bob Zadek: Now, in helping our friends, our listeners, understand the big picture, we all have heard the phrase enumerated powers. And the founders of our country, the drafters of the Constitution, the 55 men who met in Philadelphia for four and a half months in 1787, they assumed, just assumed because it was so obvious to them, that almost all power resided in states and localities. That was beyond question, nobody discussed it. And then in this grudging seeding of power to Washington, it was, as I said earlier, okay, if we are to form a nation and prosper and live free, certain stuff is just not practical or sensible to do at the colony, soon to be state level. And so as a matter of practicality, let’s assign these tasks to Washington. And as a reminder of that, after the Constitution was ratified, Congress in its first session drafted, of course, the Bill of Rights. And Clint, the 9th and 10th Amendments come into play. And what’s interesting is they’re called amendments, but most of them aren’t amendments. They don’t amend anything, they state principles. But because they are somewhat of an afterthought, the appropriate noun is amendment. But an interesting sidelight is the first 10 amendments basically didn’t amend very much, they reminded us of stuff. But tell us about the 9th and 10th “amendments.”
Clint Bolick: Well, first of all, Bob, that’s a really, really good insight. The argument against having a Bill of Rights at all, which Madison initially made, was precisely that—that we don’t need a Bill of Rights because we already have those rights. We have not delegated those powers to the national government, therefore we retain those rights and we don’t need a Bill of Rights. But nonetheless, a number of states were saying that they might not ratify the Constitution without a Bill of Rights, and so we ended up with them.
And the 9th and 10th Amendments—first of all, the 9th Amendment reminds us, to use your apt phrase, that the power resides in the individuals and that any rights that were not necessarily articulated in the first eight amendments or elsewhere in the Constitution—if they’re not explicitly enumerated, that doesn’t mean that they don’t exist. Basically, all rights exist in the individual whether they’re articulated elsewhere in the Constitution or not. So basically, it was a reminder that if a right is not enumerated, that should not be construed to mean that individuals don’t possess it.
The 10th Amendment is also a reminder, and that is that only those powers that are expressly delegated to the national government belong to the national government. There’s no inherent power in the national government that is not expressly delegated elsewhere in the Constitution. And all proper powers of government that were not delegated to the national government remain in the states and in the people. So these are two very, very important provisions of the Bill of Rights. They are sometimes forgotten. The 10th Amendment in the 1940s was dismissed by the US Supreme Court as a truism, meaning that, well, yeah, it’s true, but it doesn’t really mean anything. But nonetheless, they were extremely important in understanding the framework of our government.
Unenumerated Rights and Government Power [13:29]
Bob Zadek: And the most—to me, one of the most important phrases you mentioned in describing the 10th Amendment is “or”—I think it was “and”—“and to the people.” In other words, there is a large swath of rights that the Constitution keeps at the individual. It says in effect “or to the people” says, okay, under this document, the people have not lost very much of their rights. They still retain them. Therefore, the document reminds us Congress doesn’t have the power—they don’t have the power, they simply cannot take power from the people except for this stingy list of powers that are given to Washington. And the phrase “or to the people” should be recited every morning as a reminder. Hold it, government, you haven’t got the power to do this. Now, the Supreme Court, as we all know, has diluted and eroded the “or to the people” phrase regretfully in 200 and something years of Supreme Court decisions. There has been an erosion. Congress has also eroded. But that’s the starting point. The power remains that’s not been specifically taken away, it sits where it always was, with the people. And that “or to the people”—
Clint Bolick: That’s absolutely right.
Bob Zadek: I’m sorry. So “or to the people” just has been forgotten about. And Clint, when you described federalism, you said devolve power back down to the states and to the cities and to the people. That’s true, but the question is the power never should have left to begin with. And we are just trying to get back to even, not to change things.
Clint Bolick: No, that’s absolutely right. Just to give you one example of just to show how this would work in practical effect. There are some powers that no government possesses, rightfully possesses, which I think is important both in the context of the 9th Amendment and the language that you’re citing in the 10th Amendment, “or to the people,” which is how that amendment ends. And just to give you one example—and basically, we would look for these rights back to the English common law, basically the rights of English people which we brought over to the United States when our country was initially settled as English colonies. But for example, under common law, the government has no power to create monopolies. And that right is not mentioned anywhere in the United States Constitution. But I would argue that because the power to create monopolies was never delegated to any government, especially the national government, that that power doesn’t exist. And that’s the kind of power that is being referred to in the 9th Amendment and the 10th Amendment. Basically, these are powers that were never ceded to government and yet they were not thought to be necessary to include in the Bill of Rights because it was so well understood that certain rights were so obvious that they didn’t need to be listed and certain powers equally obviously were not delegated to the government.
The Tyranny of the Majority [17:47]
Bob Zadek: Just to help our friends understand what this means by the powers that are not enumerated but they exist, powers the people have. Just imagine, do you have—do our listeners feel they have, for example, a right to travel from state to state? Well, of course they do. No one would question that for a moment. You have a right to travel from New York to New Jersey. But nowhere in the Bill of Rights is the right to travel. You have freedom of association, religion, free speech, etc., but you don’t have the right to travel. Nobody would argue that the Constitution does not grant government the power to deny you the right to travel. It’s an inherent right that you have. Or the right to raise your children the way you wish. Nothing in the Bill of Rights mentions that, but everybody of course has the right to raise their children as they wish, subject to safety and other issues like that, of course. So there are countless—there are an infinite number of rights that exist although not “enumerated.” And that’s the power of the 9th Amendment. It reminds us this is not an exclusive list, the limited rights listed in the first eight amendments of the Bill of Rights, but there are many others. And now those are the enumerated rights. So it is beyond question, it is too obvious to discuss that there are countless unenumerated rights. You don’t have to find a right in the Constitution, we all know they exist.
Clint Bolick: Now, that’s a very, very fine articulation and I think that you’re absolutely right. And the US Supreme Court has subsequently recognized those rights even though they don’t explicitly appear in the Constitution. And there are many conservative theorists—Robert Bork was probably most prominent among them—who basically have said that if a right is not explicitly listed in the Constitution, then the subject matter is completely subject to democratic decision-making. And I think that that view turns the Constitution entirely on its head. Basically, when we look at the Constitution, we’re not looking for whether a right exists, we’re looking to see whether a power exists that is a government power. And if we don’t find that power, then it doesn’t exist because the Constitution is all about conferring a limited number of powers on the national government and reserving all of the rest of the legitimate government powers to the states and all rights to the people.
Bob Zadek: Now, in your book, in your book on which explains federalism and then warns us that federalism, while very important as the principle to move power back down, all the way down hopefully, but as far down as we can get it, as close to the individual as we can get it, that does not end the battle. Then we get to the grassroots tyranny which you give us numerous examples of. So you warn us in the book that once you succeed, bloodied and battered and you’ve won the battle and you’ve gotten power back down where it belongs from the feds to more local, you haven’t gotten it all the way down to the individual, but you’ve worked it down a bit back to the local government. The battle still is there because in discussing Bork and when he didn’t get his elevation to the Supreme Court, Judge Bork felt that majority rules, as you explained. And he was, the label is not surprisingly, a majoritarian. That is, 51% control and there’s no other guiding principle except majority rule. And he basically would tear up the Constitution and saying, okay, everything on earth is subject to a majority vote. But of course, that doesn’t work. Madison and the other founders warned us and they desperately feared the tyranny of the majority. And it was observed that if you are going to be dominated and cruelly ruled, it doesn’t feel any better if the cruelty is dispensed by a majority rather than by a despotic king. It’s still tyranny and it doesn’t feel any better for you if it’s done by a majority. So the evils of majority rule still exist at the local level. And when we come back from our very short break, Clint will help us understand how at the local level we must be ever vigilant to majority rule because bad stuff happens. We’ll be back in 30 short, short seconds and Clint will explain many examples of how majority rule doesn’t work. Please stay tuned.
Local Factions and Schemes of Oppression [24:44]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. The show of ideas, never the show of attitude. Thanks so much for listening this Sunday morning with my very, very special guest, Judge Clint Bolick. Judge Bolick is a judge on the Arizona State Supreme Court. He was appointed in 2016 by Governor Doug Ducey. Clint is a founder of the Institute for Justice. He has been a warrior for economic freedom for many decades. He has argued and won cases in the US Supreme Court, Arizona Supreme Court, and many, many state and federal courts around the country. He has written Grassroots Tyranny where he discusses the limits of federalism. We are about to learn how, if you will, Clint, and these are my words, not yours, democracy, which often is taken to mean majority rule—democracy has its shortcomings. And just because we can move power back down to the county or the town or the locality doesn’t mean we have won the fight. And there can be as much tyranny at the local level as, of course, at the federal level because after all, once you cede power to any group, power—and by power, I mean power over you—once you give somebody else power over you, that power is the ultimate intoxicant and it’s hard to control oneself when you’re given power. And Clint has spent his life fighting the misuse of that power. So Clint, give us some examples, if you will, of how the power at the local level, power over the individual by the collective, has been abused and the battles that had to be fought to get it back to the individual.
Clint Bolick: Well, there’s, Bob, as you know, there’s a lot to recount there. And you know, the insight about the potential abuse of government power at the local level goes all the way back to Madison. He argued that one of the benefits of having a national government is it’s more difficult for special interest groups, which he referred to as factions in those days, to execute their—what he referred to as schemes of oppression. But at the local level, unfortunately, small groups with outsized influence often can operate the machinery of government and essentially turn the power of government toward their own ends rather than toward the ends of good government and equal opportunity.
Occupational Licensing and Economic Liberty [27:07]
Clint Bolick: You certainly see this, for example, in the area of occupational licensing and government monopolies. I mentioned a few minutes ago that no government was intended to have the power of monopoly, but of course, when you look at, for example, taxi cab monopolies, they existed at the local government, they prohibit local entrepreneurs from opening competing cab companies. This is one of the areas that has prevented economic opportunity. We’ve seen the power of occupational licensing where the government’s regulatory powers go beyond protecting public health and safety and focus on protecting the people who are already in the profession against those who might wish to enter. And so, for example, in the area of cosmetology, we’ve seen all sorts of restrictions on people entering the profession, from African hair stylists who braid African hair to fish spas, which was a case I litigated here in Arizona a few years ago where a cosmetologist brought fish into her salon to nibble on people’s feet. This is actually something that happens in a lot of Asian and European countries. And the Board of Cosmetology said, “Nope, nope, we’re not going to allow that to happen.” You see government subsidies of businesses—
Bob Zadek: I should mention, I should mention just in the fish case, I wanted to just mention to our audience, the fish were not piranhas. They did not eat human beings. They were little fish that just made the skin healthier, so there was no danger involved. And it was simply a case of the people who had the license didn’t want the competition.
Clint Bolick: That’s absolutely right. And you know, there’s millions of people who have these procedures around the world. Unfortunately, when I took on the case, the fish had already been banned, and so I’ve never been able to have that procedure. I understand it’s quite a fun experience, but one that unfortunately Arizonans will not—they’ll have to leave the country or at least leave the state in order to have that kind of experience.
You have government subsidies of businesses and of labor unions where, for example, another issue that I litigated here in Arizona was the issue of union release time, where people in the police department and the fire department and other areas of local government, they’re paid by the taxpayers to do a particular job like being a police officer, but they show up for work every day at union headquarters and they report to the union even though they are paid and pensioned by the taxpayers. You know, I mean, the list can go on and on of the sorts of abuses of individual rights. Obviously, we see violations of people’s free speech, private property rights, the abuse of the eminent domain power. You know, it would take longer than a show to document all of them.
The 14th Amendment and the Double Security of Rights [31:46]
Clint Bolick: But what this underscores is another insight that our Constitution has. The purpose of federalism is to protect freedom. And it always has been. And the original notion in our original Constitution was that local government and state government was more reliable in protecting individual freedom. And sometimes that’s true, oftentimes that’s true. But it’s not always true. And we discovered that in the early years of our republic because of the institution of human slavery and the many, many abuses of individual rights that were necessary to sustain slavery. So when the Civil War was over, we enacted the Civil War amendments, including the 14th Amendment, which forbids states and local government by extension from violating the civil rights of the people. So we now have a double security against the abuse of rights. We have the Bill of Rights, which protects us against abuses of individual rights by the national government, and the 14th Amendment, which gives us protection against the violation of our individual rights by state and local government. And that, in my opinion, completed the tapestry of federalism. And that is the framework that we have now, where we have protections of our rights both against the national government and state and local government.
Bob Zadek: And what’s so interesting, the 14th Amendment and the need for the 14th Amendment shows the profound bias the founders had. The founders just naturally assumed that of course the states will treat their citizens fairly. The states are not the problem. We have had colonies, we being the founders, for more than a hundred years and it’s worked just fine. And therefore, what we have to fear is what we don’t know about. We’re creating a new federal, a new governmental organism, the federal government. We don’t know how this is going to behave. So we better create it with a very tight rein. We’re not worried about the states, we know they work fine. And therefore, that was the assumption. So the Constitution was drafted to create this new Leviathan, the federal government, that was pretty scary at the time. So you create it, but you put it on a tight leash. And the tight leash is the enumerated powers because it’s new and no one was going to trust it, I’ll add with good cause. And therefore, nobody felt a need to control the states. They could take care of themselves and the voters would look after that. And slavery showed that that was kind of giving the states too much latitude. And when we had achieved a national identity and wanted to present ourselves to the world, we felt the obvious need of at least subjecting the states to the constraints set forth in the Bill of Rights. And that shows the bias of the founders where they assumed the states would behave and localities. But as Clint has pointed out, that assumption was kind of a bit naive. It may have been true historically, it didn’t work out that way.
The History of Economic Rights and Black Codes [36:31]
Bob Zadek: Now, Clint, when you—in describing the abuses, if you will, the ways in which we suffer local tyranny—and I should mention, I speak to my friends out there from California, the very citadel of local tyranny. We invented the product here in California, we should copyright it, and many states seek to emulate us like the other blue states, but that’s for another show. However, the rights you are talking about, Clint, and the rights that you have so passionately and effectively defended are economic rights. Now, many of our listeners may not understand the subset of what we mean by economic rights and why they are so important and how they have often been in Supreme Court jurisprudence kind of a rights stepchild. So explain to us the subset of economic rights because that has been so important to IJ.
Clint Bolick: Well, again, these rights trace back to the time before we were a nation and we brought those rights to the United States from England. And basically, they’re essentially two rights. They are the right to free labor and that is your right to contract with another person to perform work at an agreed-upon salary and so on and so forth without the government interfering, intruding into that relationship. And freedom of enterprise, that is the right to establish a non-harmful business without, again, extensive government interference. And these are bedrock American rights and yet they are among the rights that do not explicitly appear in the United States Constitution. They were so widely accepted and widely taken for granted that no one thought it necessary to explicitly enumerate those rights.
It turned out that states over time became great violators of these rights, particularly after the Civil War when blacks were emancipated and began using their labor and the skills that they had acquired for themselves. They went into businesses for themselves, they would offer their labor at competitive wages and so forth. And this, of course, was very annoying to the white gentry in the southern states who no longer had a servile labor supply. And so what the southern states did was to enact Black Codes, which were aimed at suppressing black labor by suppressing their freedom of contract to negotiate wages. They imposed occupational licensing laws and other restrictions, they restricted private property rights. And these laws, these Black Codes, were outlawed by the Civil Rights Act of 1866 and then incorporated into the 14th Amendment through the very first provision of the 14th Amendment, the Privileges or Immunities Clause.
Sadly, that clause was erased from the Constitution within a very short time in a case called the Slaughter-House Cases in Louisiana. And since that time, the courts have relegated economic liberty to—I wouldn’t say second-class status, if there’s a third or fourth-class status, that would be more accurate. Basically, they have given virtually no protection to freedom of enterprise and economic liberty even though those rights were intended to be very robustly protected against government abuse. And as a result, these laws are particularly harmful to people with little education and little capital and they often prevent such individuals from creating enterprises or from working in occupations where they could earn an honest living.
Voluntary Transactions and the Prohibition of Labor [40:53]
Bob Zadek: And the reason—economic rights are so core, are so clearly an unenumerated but clear right is this: it’s all summed up in a very simple phrase. People, consenting adults, two adults ought to have the right to agree on a transaction that only affects those two people if the transaction is voluntary and mutually beneficial. I agree to do something for you if you do something for me. I will build you something and you will pay me this price. Both parties, there’s no coercion, it is a voluntary exchange and it is mutually beneficial. And yet we have countless statutes that Clint in his prior career has vigorously fought and almost always successfully that say no, two consenting adults competent to contract who want to enter into a transaction that both will benefit from, for reasons of policy, government says we prohibit it. If ever there was a case of government substituting its judgment about what’s best for you and I, that is the example. And Clint’s reference to occupational licensing is exactly that, where a government says no, until you, the seller of labor, pass certain standards that we have created, you cannot sell your services as an electrician or a cosmetologist or a doctor. You cannot sell your services unless we give you a license. I find license to be one of the most hateful words in politics—permission to do something. Oh, how I dislike it.
General Warrants and Privacy [44:11]
Bob Zadek: Now Clint, we have a caller on hold. Jacob, welcome to the show this morning. Please make your question brief if you will and Clint would love to answer it.
Caller (Jacob): Yes, good morning, Clint. I wanted to know your opinion on the so-called early issue, the general warrant issue, and then the constitutional principle of how warrants should be treated, how they should issue. The warrants that I’m calling about today seem to be still repugnant just as they were to the early founders when they’re issued. Sometimes the case goes away, the case gets dismissed, and yet the warrant still is in effect, sometimes for years, finally eventuating in someone’s being arrested, sometimes even brutalized, when the underlying case has been resolved years and years ago. Why don’t they deactivate the warrant when they dismiss the case?
Bob Zadek: Clint, of course, that’s a complex question involving general warrants, which generally are unconstitutional. So if you could just explain to the audience real brief the concept of a general warrant.
Clint Bolick: So, obviously, warrants can be issued for a variety of purposes. But generally speaking, this is actually an issue that I have not encountered in either my legal practice or in my time as a justice on the Arizona Supreme Court. So the question raises a very good question that, frankly, I don’t know the answer to. Intuitively, it strikes me that when a case ends, any type of warrant would end with it because the jurisdiction of a court is based on the existence of a case or controversy. And once that case or controversy ends, then the jurisdiction of the court ends as well. But you know, I have not seen that in the context of a particular case. I would say, however, going beyond that, that the warrant power of police and local governments and national—and the national government, for example, as well—this is a protection, the requirement of a warrant for invading people’s privacy, that is very, very significant. And I have in a number of cases as a justice voted to require warrants, for example, for the police use of GPS devices on commercial vehicles and for obtaining information from people’s cell phones. So I think that the power itself certainly is subject to abuse, but by and large, it’s intended to be a safeguard of our liberties. And I think in many instances, warrants have not been required where they should be required.
Situational Federalism [46:41]
Bob Zadek: On the subject of federalism, federalism generally taken in public discourse to be a principle that power should devolve back down from Washington to states and localities. That’s generally looked upon as being a conservative issue. Republicans, if they are in fact conservative—I question that, but different show—that seems to be more of an issue historically that conservatives have embraced. But what’s interesting is federalism has now become simply a rationalization to support a policy you wish. And there are some instances when conservatives embrace federalism—take power away from Washington—and many instances where conservatives want power to move to Washington. So federalism as a concept, there is nobody who says my core principle is federalism. Federalism is a convenient justification for a principle you favor. To give just one example, a minimum wage. We have a federal minimum wage. Now, many states have a higher minimum wage—different issue. So we have a federal minimum wage. If ever there was a principle—first of all, there should be no minimum wage, it violates the principle that Clint has explained of economic liberty. But if you grudgingly say, okay, a minimum wage is constitutional—I reject it, but if you did—then why in the world do we need, since we have 50 states each with its own complex economic system and realities, why do you need a national minimum wage? Well, those who oppose a minimum wage say no federal minimum wage under principles of federalism. But then you have social issues like, for example, abortion. And now the conservatives want to criminalize abortion on a national level—the opposite of federalism. So Clint, isn’t it the case that federalism has become—and I guess I’ll use the phrase—cheapened as not being an end in itself, but merely the rationalization to support a principle you favor?
Clint Bolick: Well, I think that there’s very strong evidence that—I refer to this as situational federalism, that is you support federalism when it supports your views but not when it supports someone else’s. You know, so long as federalism is used to expand freedom, I think that we all need to support it. We need to support blue-state federalism when it expands freedom, we need to support red-state federalism when it expands freedom. And federalism is not going to be with us forever if we don’t agree that there are certain things that states ought to be able to do free from the interference of the national government.
Conclusion [50:38]
Bob Zadek: Clint, we’re regrettably—I was fearing this moment—we’re starting to run out of time. How can our friends and listeners out there—do you have a public presence where our friends can follow your thoughts?
Clint Bolick: Absolutely. I just started a website called AZJustice44.com. That’s AZJustice44.com. The meaning of that is I am the 44th justice of the Supreme Court of Arizona. That is a collection of my opinions and my articles since I’ve been a member of the state Supreme Court and it also provides an area where folks can contact me as well.
Bob Zadek: And any website with your opinions is very important to us all because they are much more than just opinions. Clint, in my opinion, they are gospel or doctrine. So calling them opinions does not give them the credit they deserve. Clint, thank you so much for joining us for this hour. I hope you enjoy the rest of your weekend and we sure appreciate having you share your thoughts with us.
Clint Bolick: Thank you, Bob.