Libertarianism, federalism, and Ferguson

August 19

Washington Post-affiliated blogger Paul Waldman previously claimed that libertarians have been silent about police abuses in Ferguson, an assertion that was wrong at the time he wrote it, and has become even more wrong since. In a more recent post, Waldman acknowledges that “a certain degree of left-right agreement has emerged, particularly between liberals and libertarians who both see the militarization of local police getting out of control” (though without admitting that his earlier post was wrong), but claims that libertarians and conservatives have misinterpreted the lessons of Ferguson in a different way:

[T]here’s another lesson emerging, one that isn’t going to make those libertarians pleased: sometimes, big government isn’t the problem, it’s the solution — to the problem of small government.

What I mean by “big” and “small” in this case isn’t government that does many things versus government that does few things, it’s government at a higher level versus government at a lower level. When government at one level fails, oftentimes the only solution can be found up the ladder, from local to state to ultimately the federal government….

the local government, the one that’s supposed to be in touch with the people, is not only out of touch, it’s making their lives miserable. The events in Ferguson have also shown us a case of inept local government that has made the situation worse at every turn. First the Ferguson police responded to protesting residents like they were retaking Fallujah. Then when state troopers succeeded in calming things down for a night — a higher level of government trying to correct the failures of a lower level — the Ferguson police released the surveillance video from that convenience store, as though trying to make the case that Michael Brown had it coming, which enraged local residents and started a new cycle of unrest.

Almost no one denies that local government performed poorly in Ferguson. And few libertarians disagree with the general proposition that there are cases where higher-level governments can and should intervene to curb the abuses of lower-level ones. I myself recently wrote a paper on “Libertarianism and Federalism” for the Cato Institute (the nation’s most prominent libertarian think tank) where, among other things, I discussed this very issue at some length.

But Waldman errs both in largely overlooking the federal role in creating the problem exemplified by events in Ferguson and in advocating increased federal and state power as a general cure for local misgovernment. Waldman does recognize that “over-militarization [of police] is something that the federal government and local governments cooperated to create.” But this greatly understates the the crucial federal role in the process. Without massive federal grants, far fewer local police forces would ever have adopted military-style equipment and tactics in the first place. The Ferguson and St. Louis County police are among the many recipients of such federal largesse. The federal government has also massively subsidized and promoted the War on Drugs, which is a major cause of violent interactions between the police and minority communities. Given this history, increased federal control over local law enforcement could well lead to more militarization and police abuses rather than less.

On the more general issue of local vs. federal and state control, Waldman is certainly right to point out that some local governments are corrupt and abusive. It is also true that the worst local governments are probably more corrupt, abusive, and incompetent than the federal government is. But increased federal and state control over localities carries important risks of its own. When a local government performs badly, residents can and often do “vote with their feet” against it by moving to a different jurisdiction. By contrast, this is usually more difficult to do in response to state government policies, and more difficult still in response to federal ones.

Moreover, harmful federal or state policies are often more dangerous than harmful local ones because the former affect far more people. For example, Waldman correctly points out that outright corruption is more common in many local governments than in the federal government. But the fiscal crises and economic distortions created by the federal government’s mismanaged entitlement programs and interest-group giveaways are far more dangerous than any local waste and corruption because of their sheer scale.

Regarding the specific problem of local government policies that abuse minorities, it is worth noting that today racial and ethnic minorities often have more leverage over local and state governments than over Washington. They also often have more influence at the local than at the state level. This was not the case in the Jim Crow-era South (though the history of the relationship between federalism and minority rights is more complicated than often supposed); but it is increasingly true today. Despite the abuses in Ferguson, more centralized control over law enforcement is unlikely to serve the interests of racial and ethnic minorities more generally. Today, as Charles Cobb notes, Ferguson is fairly unusual in being a majority-minority locality where minorities seem to have little political power.

Ideally, higher-level governments should intervene to curb abusive behavior by lower-level ones, but not impose one-size-fits-all policies that override good local decisions as well as bad ones. In practice, however, it is very difficult to empower the feds to curb bad local governments without empowering them to preempt local control more generally. This is a risk worth taking in a situation where state and local governments are engaging in truly massive oppression that the feds are eager to curb, as was the case with slavery in the 1860s or segregation in the 1960s. It may also be worth taking in situations where local authorities have systematic perverse incentives, as when they exploit owners of immobile assets who cannot vote with their feet.

But the modern problem of law enforcement abuses of the type we see in Ferguson is different. Local governments have often performed poorly. But state and federal governments have done much to make the situation worse, and it is unlikely that a general increase in state and federal control over law enforcement will make it better. In some extreme cases, state or federal intervention might be the only way to address an emergency situation, as perhaps with the recent deployment of the National Guard to Ferguson. But when it comes to the problem of law enforcement abuses more generally, federal and state governments can do the most good by cutting back on their own harmful policies, such as the War on Drugs and federal promotion of police militarization.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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