The rule on space means cut to the chase-with thanks for the attention of so distinguished a group of critics and apologies for having to bypass so many worthwhile points. My purpose here is to make a few important issues clearer, not to settle them.
My sins of extravagant argument have been met by the game of "gotcha." Each of my critics has come forward with one or more horrible or virtuous examples to undermine my thesis that globalization produces right-wing ideological tendencies and that the rightward tendency of the local level is the most severe and most dangerous. My purpose was to provide an antidote to the tendency among intellectuals today-especially economists and economically-trained or -influenced lawyers and social scientists-to miss the threats of market globalization, whether through ideological bias, ignorance, innocence, or force of habit.
Gerald Frug provides the most instructive case of gotcha. He charges me with inordinate fear of devolution and supports his charge with the national government's Standard State Zoning Enabling Act of 1923, which to Frug shows that it was the federal government who's "to blame" for making local zoning a major instrument for excluding the poor and the people of color. The truth is that this Act was not an Act at all but a recommendation by an Advisory Committee to then-Secretary of Commerce Herbert Hoover (whose corporatist liberalism anticipated FDR's by over a decade) to provide a model zoning law for states. It did, and at least 15 states had adopted a version of it within two years. But the federal government had no power and gave no direction. The states had the power, and state laws devolved state zoning power to local governments. It was only then that teeth were added to the bare bones of the model. And it was also then that we got the class, race, ethnic, and status biases in zoning regulations. The constitutionality of zoning was immediately struck down in Federal District Court on grounds that the police power could not justify "the purpose [or] the result to be accomplished [which] is to classify the population and segregate them according to their income or situation in life."1 This decision was reversed two years later, validating zoning as a proper exercise of police power, by the most conservative Court in our history, written by George Sutherland, one of the most conservative Justices ever to serve on the Court.2
This is what I mean by blindness, or at least myopia, borne of ideology, ignorance, or just plain old habit. Where did we get the idea that local government is better and that state government is more virtuous? Because they are closer to the people? Ask your friends to name their city council member, their city zoning board members (or even the formal name of the zoning authority), their state assembly representative, or the main features of the provisions for zoning power. But don't get me wrong. Zoning is no inherent evil, though I do consider its uses patently unconstitutional. Zoning's accomplishments are gnawing reminders of the "inherent conservatism of cities," operating under the police power and the public-order responsibilities of the states.
My critics have provided me with a bushel of blind spots like Frug's. I have
space only to sample a few from the basket. Joel Handler agrees with me that
the national government has become increasingly conservative, but he embraces
local government because he likes local improvement and hopes devolution may
provide "more space for subordinated
All of these sound to me like the desperate prayers of the damned. Social movements reflect empowerment but are always treated by local authorities as threats to public order. The movements don't cause violence; their existence brings on violence by the local authorities. Labor movements were particularly defined as enemies of social order. Most of those Granger laws were declared unconstitutional during the first globalization; and the common-law power of the injunction, especially effective against labor movements, was not even addressed by those Granger laws. Moreover, although "space for individuals" sounds good, the next devolution without some constitutional restraints and standards could produce catechisms in the classroom. And who can stop "grassroots environmentalism" majorities from dumping their effluvium on their neighbors? The environmental movement was a reaction precisely against such conduct.
My critics, if not desperate, are at least low-grade sentimentalists. Susan Rose-Ackerman accuses me of being too pessimistic about local governments becoming "increasingly engaged" in right-wing stuff, and she objects to my saying that redistribution can't happen, citing south-to-north migration as a virtuous example of the way it can. As for the first, my point was not that local governments are increasingly right-wing but that they always were. As for redistribution, anything is possible, but why bank on low probabilities? Northern cities became more segregated than southern cities. And, contrary to the view both she and Mashaw hold, devolution of welfare from the 1930s onward had a distinctly rightward tilt. Moreover, the welfare that did reach the poor-the so-called entitlements programs-had a very short duration.
That leads me finally to my biggest disappointment-the comments of Don Kettl. He has been one of my mentors on recent developments in federalism. He's the guy who warned us that devolution can be dangerous because the capacity of states and cities varies enormously across the country. He is the guy who had the courage to ask for criteria for deciding what policies should be allowed to vary from state to state and city to city, and by how much. He's the guy who asked us to question what privatization really is, and what ought to be privatized. But now he seems to have joined the ideologues who seek to stigmatize the national government in order to drive us rightward toward the virtues of localism. He carries along his protective shield of pragmatism when he tells us that ending "welfare as we know it" meant we had to give it to the states, along with a hundred thousand new cops for "the tough job."
Kettl offers hope for good local solutions with the virtuous example of privatized welfare reform in Milwaukee. Pragmatists have always argued that there's no Democratic or Republican way to clean the streets; it follows that there's no Democratic or Republican way to implement welfare reform. Correct. But there are right-wing and non-right-wing ways of doing things, and Wisconsin is a great case in point, because the flip side of its famous reputation for progressivism is McCarthyism. We can't know which of its personalities Wisconsin will reveal on welfare until we get a meltdown-but even now we know that Wisconsin is not even one of the ten states that chose to provide state-funded Temporary Assistance to Needy Families to at least some of the aliens no longer eligible for federal TANF; nor is it one of the eleven states continuing to provide food stamps to those aliens who lost federal food stamp eligibility.
Pragmatism may be one of humanity's virtues, but let us not forget what Jonathan Swift said of virtue: it is "like a pair of breeches, which, though a cover for lewdness as well as nastiness, can easily be slipped down for the service of both." My greatest fear in all of this is not Keynes's warning that pragmatists tend to live under the influence of some defunct economist-although that is worthy of concern. The still-larger threat is the mistakes borne of ignorance of institutions and the ideologies that form around them. Many of the things we call "unanticipated consequences" can be completely anticipated.
I wanted my piece to serve as a warning that devolution can be hazardous to our health. Devolution without standards from the legislature to the executive (usually called delegation) is hazardous. (Jerry Mashaw: Are you actually willing to deny that such broad delegation is at least a calculated risk?) Devolution from national to local government is still more hazardous. Who among you are willing to cast your own lot with your local government? Awareness of hazard is in the nature of a solution itself: No devolution without full evaluation of the consequences. No privatization or deregulation for the same reason.
There are some other solutions worthy of consideration. If you want some real deregulation, eliminate those national regulatory programs altogether. But don't stop there. Eliminate local and state regulatory programs too. We can cut maybe half the crime (and more than half the expense of crime) by terminating all laws regarding crimes-without-victims. That would also solve the police corruption problem, while giving Americans the freer society they always wanted. Eliminate the zoning laws. Houston lives better and freer without them. Cut welfare too? Yes, if you can get the genuine negative income tax envisioned by Friedman over a generation ago. The trouble with all the freedom guys is that freedom is not really what they want.
What I don't see as a solution is return to big New Deal national government or to the advance toward Bonapartism, as I have been accused by Sabel. I wrote a whole book 12 years ago denouncing the Bonapartist tendency in our presidency; and I wrote a whole book 30 years ago denouncing the big New Deal national state. Actually, a genuinely downsized national state is part of the solution. But it should not be downsizing through stigmatization of the national government and knee-jerk devolution to the local governments. It should be downsizing the way private companies downsize: by retreating to a leaner, stronger, more purposive organization. It's called rule of law, folks, and I am now ready to receive from you the horse-laugh I have been receiving about this proposal for the last 30 years. At least I can conclude with an old and better formulation of it that comes out of the first globalization era. It's from the Wisconsin Union Labor Party plank of 1888: "All law should be simplified so that there is but one law on one subject, and that worded in plain language, which will enable the people to understand the law without paying enormous fees to lawyers."3
1 297 Fed. 316, 1924.
2 Village of Euclid v. Ambler Realty Co., 272 US 365, 1926.
3 My thanks to Professor Elizabeth Sanders
for providing the quote.