The libertarian’s jeremiads about creeping tyranny often seem the ravings of a paranoid. Then along comes Ferguson to confirm the dark warnings: Warrior cops stalk suburban streets, dressed in Desert Storm green and wielding automatic weapons aimed to fire. They detain journalists, hurl smoke bombs into unarmed crowds, and bury incriminating details.
And yet, even though libertarians were plenty prescient in warning about the militarization of the police, they still managed to get it wrong. As Rand Paul argued in an impassioned op-ed on the conflagration in Missouri: “Not surprisingly, big government has been at the heart of the problem.” But what Ferguson shows is that the heart of the problem is, in fact, small government—the cops, prosecutors, and their bosses with an inflated sense of their powers. The great and growing threat to liberty in this country comes from states and localities run amok.
These are boom times for provincial autocrats. In many chunks of the country, state and local politics were once a competitive affair; there was an opposing political party ready to pounce on its foe’s malfeasance. That sort of robust rivalry, however, hardly exists in an era in which blue and red states have become darker shades of themselves. Thirty-seven states now have unified governments, the most since the early ’50s. And in many of these places, there’s not even a remote chance that the ruling party will be deposed in the foreseeable future. The rise of one-party government has been accompanied by the evisceration of the local press and the near-extinction of metro-desk muckrakers (14,000 newsroom jobs have vanished in the last six years), crippling the other force most likely to call attention to official misdeeds.
The end of local media hasn’t just removed a watchdog; it has helped to complete a cultural reversal. Once upon a time, Jefferson and Tocqueville could wax lyrical about local government, which they viewed as perfectly in sync with the interests of its yeoman citizenry. Whether this arcadia ever truly existed is debatable. But it certainly hasn’t persisted into the age of mass media. Nowadays, most Americans care much more passionately about national politics than they do about the governments closer to their homes. They may harbor somewhat warmer feelings toward states and localities, but those sentiments are grounded in apathy. Most Americans can name their president. But according to a survey conducted by Georgetown University’s Dan Hopkins, only 35 percent can identify their mayor. The nostrum that local government is actually closer to the people is now just a hollow piece of antique rhetoric.
With so many instances of unobstructed one-party rule, conditions are ripe for what the political scientist Jessica Trounstine calls “political monopoly”—officials and organizations who have so effectively defeated any potential predators that they can lazily begin to gorge. She writes: “When politicians cease to worry about reelection, they become free to pursue government policy that does not reflect constituent preferences. They acquire the ability to enrich themselves and their supporters or pursue policies that would otherwise lead to their electoral defeat.”
This past year alone has provided some spectacular examples. Chris Christie rough-housing a political enemy in Fort Lee; Robert McDonnell stuffing his closet full of gifts from a dietary-supplement magnate; Ray Nagin sentenced to prison for swapping New Orleans’s city contracts for several truckloads of granite for his kids’ countertop company; two former attorneys general of Utah arrested for pocketing bribes and tampering with evidence to protect their pipeline of lucre. When the Center for Public Integrity commissioned a comprehensive study of state governments, 18 states received Ds, eight outright flunked, and not one got an A.
It’s not just egomaniacal politicians who have amassed power and riches for themselves. At times, it seems, the whole system has followed their lead, with entire branches of government falling into the hands of oligarchs. In West Virginia, the mining boss Don Blankenship spent more than $3 million electing a state Supreme Court judge. His beneficiary then provided the decisive vote in a favorable verdict that saved him $50 million. (Photographs also later showed Blankenship vacationing with the court’s chief justice on the French Riviera.) Or there was the especially grotesque example of the impoverished town of Bell, California, where nearly every public official extracted Wall Street–sized salaries for themselves. Even the city manager’s assistant pulled in $375,000 a year.
If there’s a signature policy of this age of unimpeded state and local government, it’s civil-asset forfeiture. The program sounds benign enough: Authorities can unilaterally confiscate cash or property that it considers illegally begotten; many states then place the proceeds straight into its own coffers to fund further crime-fighting. But the reality of the policy is aggressive and arbitrary. As Sarah Stillman graphically exposed in a magisterial New Yorker investigation last year, in many states law enforcement can seize a person’s assets without ever charging him with a crime. Her reporting chronicled one appalling story after another—cops who ran a $50 million forfeiture ring in Bal Harbour, which funded the purchase of luxe cars and first-class airplane tickets; a party at the Contemporary Art Institute of Detroit, where guests were knocked to the ground and forced to hand over their cars. Their offense: Dancing and drinking in a space that wasn’t properly permitted. Even if local governments wanted to roll back this legalized Boss Hoggism, they couldn’t. Police depend far too heavily on the revenue it generates. (Something similar seems to have happened in Ferguson, where police processed an average of three warrants for each household—milking millions in fines and court fees from the poorest residents to bankroll its operations.)
The greatest danger of untrammeled local power is that majorities will use their control of government to stampede the rights of minorities, both racial and political, in their midst. Since the 2010 election, more than 20 states—most of them under GOP control—have enacted new voting restrictions, thinly veiled efforts to suppress the minority vote. And Republicans have also ruthlessly redrawn the legislative map of the South, creating supermajorities that have started to roll back the gains of the civil rights era.
Immigrants, too, are especially vulnerable to the whims of local leaders. Surges of nativism in the last two decades haven’t produced draconian national reforms, due to the knotty national politics of the issue. But at the state and local levels, harsh feelings translate directly into cruel laws. In 2011, Alabama briefly gave police the authority to demand that immigrants show their papers at traffic stops and ordered schools to check the status of kids and their parents. A raft of towns have passed laws forbidding landlords from renting to undocumented immigrants.
The seer who predicted much of this was, of course, James Madison. In “Federalist #10,” he warned that smaller units of government were particularly susceptible to being coopted by its elites. He favored a larger republic that would draw from a greater population pool and therefore recruit a higher caliber of talent. And since successful electoral coalitions would require a substantial number of votes, a larger republic would limit the potential of a corrupt faction seizing power: “It will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.”
Madison wasn’t remotely opposed to empowering states, which have been at the vanguard of many movements to expand individual rights. And he worried obsessively about the potential for the federal abuse of powers. But he also helped design a central government equipped to curtail its own overreaching impulses, which are real and plentiful enough. The national government, after all, has a less than impeccable record, especially during wartime, when it produces the likes of the Patriot Act or worse. Yet its abuses, unlike those of its smaller counterparts, tend to quickly emerge into public view, as they did with the National Security Agency scandal. They are raked over by a feisty national press, interrogated by congressional committees, and reviewed by layers of courts. Federal abuses aren’t always corrected, but at least they get vigorously debated, which is itself a barricade against future encroachments.
Centuries ago, in the age of monarchs, the preservation of liberty required constraining the power of the central state. In our era, protecting rights requires the opposite. Only a strong federal government can curb the autocratic tendencies burbling across the country. Libertarians worry about the threat of local tyrants, too, but only abstractly. In practice, they remain so fixated on the perils of Washington that they rigidly insist on devolving power down to states, cities, and towns—the very places where their nightmares are springing to life.
Franklin Foer is editor of The New Republic.