The Future Of The GOP: Cities And Judicial Engagement

Republicans have long ignored cities. The reasons why are mainly false premises.

What unites the GOP in principle includes free markets, the Constitution, and the promise of opportunity. These are principles too often absent from the leadership of city governments.

It’s no wonder — few Republicans hold elected office in cities. Only 13 of America’s 50 biggest cities have Republican mayors, and only 3 of the biggest 25.

It’s not because city governments have been perfected by Democrats — they haven’t. Or because people don’t want competitive leadership — they do.

To understand why, I’ll note a personal experience to which many other Republicans can relate.

I got involved in local politics when I was 14, and I did a lot of campaigning. Through my involvement, I learned that campaigning in cities was not worth the effort. Common wisdom stated that people in cities won’t vote for Republicans and don’t want conservative solutions. That was the norm and I never thought to question it. It was also a false premise.

A few years ago, and the first time I really thought about this objectively, a friend came to me with the idea of working to change the way Republicans see cities. It began with a lot of research, and became a side project that we call CityGOP.

Over time, we found that Republicans hadn’t really been trying to win cities nor had they been making their cases effectively to people in cities. Every place is different, and candidates have to address people’s local concerns. That hasn’t been happening for Republicans in cities.

Republicans’ distance from cities stems in part from an irrationally negative view of cities — a false premise. A prescient article in 2014 from Matt Lewis considers how conservatives often refer to places of low population density as “real America.” He notes this “contradiction within conservatism.”

“Much of conservatism — free markets, for instance — is premised on the notion that more people equals more ideas. (This, of course, is inconsistent with a more traditional, populist strain of conservatism.)”

Unfortunately, the populist, traditionalist strain took hold of the party in 2016. But the first strain ought to be embraced.

Cities are beautiful places with lots of people, creativity, and innovation — things that work perfectly with a free-market view. However, many hold the view that cities are centers of immorality and elitism, and that they are inferior to rural areas. Lewis explains that much of the belief in “rural superiority” has roots in misunderstandings of religion, philosophy, and America’s founding.

So, even though a big chunk of the romanticization of the rural and the distrust of the urban is not based on facts and logic, it has had an enormous impact.

Another false premise is that cities don’t want competitive or conservative leadership. It is important to understand the key role population density plays in Republicans’ difficulty in cities. Republicans ignoring cities is such a big problem that, well before this election, red-blue maps of America looked almost identical to population density maps. Take a look at 2016’s red-blue and population density maps. They’re very similar. In my research for CityGOP, I repeatedly found this to be the case, with rare exceptions.

We found a study that showed Republicans perform well in areas containing fewer than 800 people per square mile. In any area with a higher population density, Democrats perform better. The further from 800, the better each respective party performed. Needless to say, cities are growing and will continue to grow. As the author of the same study puts it, “red states are just underdeveloped blue states.” If for no other reason than basic math, Republicans cannot afford to ignore cities — and ought not to have been ignoring them for so long.

One of the best examples of a statewide Republican who bucked the trend was Governor Chris Christie. 2016 definitely put him in a different light. But in 2013, Christie won some of the most densely populated counties in New Jersey. There are plenty of articles written about Christie campaigning in urban areas.

For instance, one quote from an article in RealClearPolitics hit me. A Democratic voter said of Christie, “How many Republicans are you going to see walking up and down these streets like this? … He’s approachable. I really like that. And I think the people in Orange are really thrilled, whether they’re Democrat or Republican, that he’s here.”

Christie showed up and showed he cared. That made all the difference. You’ll find quotes like that about other Republicans who performed better in cities, such as Illinois Governor Bruce Rauner and Maryland Governor Larry Hogan.

Massachusetts Governor Charlie Baker spent a lot of time campaigning in cities and rolled out a conservative urban agenda during his campaign. At the time, Baker said his plan was about “closing the opportunity gap. …These are not Republican, Democrat or independent ideas.” Of Baker, one man said, “Charlie shows up… He’s there, in the batting cages, on the fields, walking the streets.” Baker understands the importance of campaigning in cities. The governor himself said, “You have to make the sale. But you can’t make the sale if you don’t show up.” The state GOP has also done a lot of work in cities.

Republican San Diego Mayor Kevin Faulconer recently won reelection with 58% of the vote. He was first elected with 53% of the vote after his Democratic predecessor was immersed in scandal. City Journal notes that he “campaigned for market-based policies — such as competitively bidding out public services — and against union-backed efforts to force contractors to pay prevailing wages on government-funded construction projects.” He focused on conservative solutions to local issues. It worked.

Conservative advocacy group The LIBRE Initiative focuses on the Hispanic community. In 2014, LIBRE’s Daniel Garza told a Tea Party group, “For decades now, while we’ve been absent, while we haven’t engaged with the community, the left has… It’s important that we gain the trust of the community so they know that we’re partners in helping them develop, prosper, to assimilate, to contribute to the American economy.” LIBRE’s Brian Faughnan told me that the group’s staff and volunteers are “dedicated to the prosperity of the community, and to sharing our ideas about limited constitutional government and free markets. And as an organization that is going to be there for the long-term, we have developed the trust of the community that we will do our best to work for their best interest.”

When Republicans — or any politicians or leaders in general — show up to listen, talk about solutions, and work with communities, it makes all the difference.

Another myth that I’d long been told is that, in order to lead in cities, conservatives would have to compromise their values. From my research at CityGOP, that’s just not true, but it’s a refrain I’ve heard many times.

Cities, like states and other localities, serve well as laboratories of freedom where innovative solutions can be tested. And some of the best and most successful solutions — ranging from charter schools to occupational licensing reform to housing policy — are conservative and free market in nature. They are based on the ideas of small government, freedom, and competition — all values conservatism embraces. But it is also important to keep in mind that not every solution is right for each city. Different places face different problems. That’s why it’s so important for Republicans to focus on the concerns of the people in each area, what issues exist, and what solutions could fit.

Additionally, single-party rule in any area is never good. When politicians know they’re going to win without much competition, they take votes for granted. Republicans need to compete in cities and show they value voters. Even if they don’t win, at least it will make politicians actually compete for votes, which benefits the people.

Basic math and reason ought to compel Republicans to work towards winning cities. The reasons Republicans have avoided cities do not make sense. Cities need competitive and conservative leadership. And cities are growing.

Republicans must listen and engage in cities. A part of that must include telling people’s stories and relating them to policy solutions. One group has already made itself the model for this.

The storytellers and the litigators: IJ.

The Institute for Justice, or “IJ,” has long been doing what Republicans should have been doing: Bringing freedom-oriented solutions to cities and doing it with principle and heart.

IJ is a non-partisan group. They regularly work with organizations on the left and the right, such as the ACLU and Americans for Prosperity. They’re brilliant nerds who litigate on behalf of the little guy when he’s hurt by government, but the way they tell the stories will break your heart.

IJ famously litigated against Trump when he tried to take an elderly widow’s home by abusing eminent domain to build a limousine parking lot for his casino. Eminent domain, when government takes a person’s land and fairly compensates her for it, is supposed to be used only for public purposes. Not limo parking lots. IJ won the case for her.

Among the most important examples of IJ’s stories is that of Sandy Meadows. I would like to read you her story, and I hope it impacts you the way it impacted me. This is an excerpt from an article by her lawyer, Clark Neily, who now serves as the Director for IJ’s Center for Judicial Engagement.

“Sandy Meadows was a widow who lived by herself in Baton Rouge and loved working with flowers. She had little education and nothing in the bank when her husband died. She’d never had to support herself before, and her only vocational skill was making floral arrangements. Unfortunately, Louisiana is the one state in the country that licenses florists, just like doctors or lawyers.

Sandy tried five times to pass the licensing exam, but it was too subjective. Besides taking a written test, applicants had to make four floral arrangements in four hours. A panel of working florists would grade the arrangements and decide whether the applicant was good enough to set up shop and compete with them. Usually they said no.

When agents of the Louisiana Horticulture Commission found out that Sandy was managing the floral department of an Albertsons grocery store without a license, they threatened to shut it down. The store had no choice but to let her go and hire a state-licensed florist instead. Prevented by government from doing the only work she knew, Sandy had no way to make a living. She had no car, no phone, and, on the last day I saw her alive, no electricity because she couldn’t afford to pay her utility bill. In October 2004, Sandy Meadows died alone and in poverty because the State of Louisiana wouldn’t allow her to work in a perfectly harmless occupation — and I couldn’t persuade a federal judge to protect her right to do so.

This is outrageous, unjust, and unconstitutional.”

This kind of thing should never happen, but it is far too common. And thankfully, IJ is there to litigate on behalf of the little guy when he’s hurt by absurd regulations like this. The GOP should be among his most vocal champions — and not on the wrong side of IJ’s litigation.

Many are unfamiliar with the corruption too often present in occupational licensing — a type of regulation that usually purports to protect public safety but is regularly all about protecting monopolies. Of course we want doctors and other people employed in life or death professions to have licenses. But florists? Neily explained in an interview what was really going on in Louisiana. He says:

“That law was obviously enacted for the purpose of suppressing competition and enabling industry insiders to keep out newcomers. But given that it’s a rational-basis case, of course the true reason for its enactment is irrelevant in court. And so the government lawyers got to just make up any explanations they could think of. And as the government typically does in a rational-basis case, they tried to come up with a health and safety argument; in other words, that the law was perhaps enacted to protect the citizens of Louisiana from the dangers of unlicensed floristry.

This is preposterous, of course, but it’s a rational-basis case so that doesn’t matter. And among the things they mentioned as possible concerns with unlicensed floristry were misplaced corsage pins, the possibility that floral wire — which is used to hold the stems together on a bouquet — if improperly installed could come unsprung and get entangled in the bride’s gown and then she could trip in the aisle on the day of her wedding and that would be very embarrassing. This was actually said to me by somebody under oath who worked for the Louisiana Horticulture Commission. And then of course there’s the specter of “infected dirt,” which is actually cited by the judge in upholding the law. I don’t know to this day what that dirt was supposed to be infected with, or what good it would do to require people to pass an exam that has nothing on it about infected dirt. But the judge apparently felt otherwise and upheld the law partly on that basis.”

As I mentioned earlier, Neily heads IJ’s Center for Judicial Engagement. To understand why regulations like these are upheld in court, you have to understand what judicial engagement is.

Most of you have heard of “judicial restraint” and “judicial activism.” IJ, myself, and others are proponents of a third way — judicial engagement. We believe that all rights deserve real protection is a concept enshrined in the Constitution. Unfortunately, too few judges believe it.

Though many praise restraint, it is not a virtue. On a superficial level, “restraint” and “activism” are used interchangeably with “good” and “bad,” with no underlying consistent principle. If one likes a court’s ruling, the court used “restraint.” The other side will be angry that the court used “activism.”

Judicial restraint is often understood as judges avoiding striking down laws, even if they’re unconstitutional. This theory also praises when judges defer to the legislature on issues of constitutionality, as though the legislature ever considers it. I ask you, when was the last time you heard a member of Congress earnestly question, “WAIT GUYS — is this law constitutional?” That doesn’t happen. Though it should! This is why we have courts — to make sure laws are constitutional.

Engagement proponents believe the idea that courts’ refusal to do their job is nonsense and an abdication of their duty to uphold and protect the Constitution. Rather, we believe courts must say “no” to government if government acts unconstitutionally, and the case comes to court.

As Neily explains, “…in many cases they’re not really making any serious effort to determine whether the government’s action is in fact constitutional. Instead, they’re starting with what amounts to a predetermined belief that the government’s action must be upheld, and their job is to sort of reason backwards from there.”

Judges often put their fingers on the scale of justice to tip it to the side of government. Some call that the “presumption of constitutionality” — that is, the idea that courts should assume the government is acting within its constitutional bounds and make those who brought the case to court against government prove otherwise.

We believe the burden of proof should be on government to justify its actions. If it acted to protect public health or safety, the government should be able to prove its intentions. If government can’t prove it, that’s a problem. Oftentimes in cases IJ litigates, one will find if the government can’t prove that it acted for a constitutional reason, the reason is that it didn’t.

Think of it this way — government officials know if they say what was really an act of corruption was done for “public health” or “safety,” people are less likely to question their actions. That is why courts must not err on their side, and, instead, seek the true reason for their actions. Republicans ought to do more of that in Congress and state legislatures, too.

Another facet of judicial engagement is that all our rights deserve protection, not just those expressly written in the Constitution. Do you know why rights written in the Constitution get more protection in court than those that are not? Are they more important? Did our founders say that’s how it works?

None of the above. Neily explains that the root of this misunderstanding is from a 1938 Supreme Court case in which the Court “asserts the idea that some rights are fundamental and entitled to meaningful judicial protection, and those are basically the rights contained in the Bill of Rights, and perhaps one or two others; and then every other right you might think of — and that includes everything from the right to earn a living to the right to seek potentially life-saving medical treatment, neither of which are specifically mentioned in the text of the Constitution — should be considered non-fundamental rights that are not entitled to any meaningful judicial protection.”

That’s it. But if you read the 9th Amendment — something we judicial engagement proponents love — it says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Even though proponents of expanding government power beyond its constitutional bounds have ignored this Amendment, it is still in the Constitution and it still means exactly what it says. As IJ’s website explains, the 9th Amendment recognizes that rights not written in the Constitution are “retained by the people. All of these rights are to be protected by government and may not be infringed, even by majorities acting democratically.”

Constitutional scholar Professor Randy Barnett has written at length about this issue, most notably in his paper “The Ninth Amendment: It Means What It Says.”

In that paper, Barnett cites James Madison’s precursor to the final text of the 9th Amendment. Of that precursor, Madison said:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it…”

Madison, among others, understood that, if a list of rights was added, some might think rights not written down were allowed to be violated by the government. The whole point of the 9th Amendment was to make sure nobody thought that. But, as we know, government likes to expand its power, so the courts give our unenumerated rights less protection for no constitutional reason.

All of this also applies to the states via the 14th Amendment, which “forbids states from abridging the broad set of privileges or immunities (meaning rights) held by citizens of the United States.” The survival of individual rights also necessitates judges using judicial review, a process that is included in the original meaning of “judicial Power,” according to Barnett.

Without judicial engagement, courts may, and all too often do, decide that your unenumerated rights don’t deserve real protection. These judges don’t consider the legislature’s true purpose in passing a law, whether it be legitimate or illegitimate; health or corruption; public safety or racism. With judicial engagement, courts seek out the truth — was a law passed to protect public safety? Or were they trying to restrict competition that might have affected a friend’s business?

This understanding of the courts and Constitution is a necessary foundation for much of IJ’s litigation. Embracing such an understanding would move the Republican Party in the right direction, towards liberty and away from authoritarianism and what Trump has preached. It would also reduce IJ’s caseload by advocating for people hurt by corrupt laws and deferential judges.

Real people are hurt when government doesn’t defend constitutional principles, such as the ones IJ defends.

Now that you understand how judicial engagement works, I want to show you what happens when it’s applied to people.

In the case of Sandy Meadows, her right to make a living — which isn’t written in the Constitution — was not protected. So government made up crazy reasons why florists needed to be licensed, and the court didn’t care about the truth. If they had, it would have been obvious that the license did nothing more than protect florists from free market competition, and Sandy Meadows may have lived a longer life.

In a lot of states, you need a license to braid hair. That’s right — that thing you do for your daughter. This has been a big problem for African-style hair braiders. Thankfully, IJ has taken up numerous such cases in different states.

As IJ’s website explains, “to braid hair for a living in Iowa, the state forces braiders to spend thousands of dollars and hours for cosmetology training — training that has nothing to do with African-style hair braiding. Instead of getting their businesses off the ground, Iowan hair braiders are tangled up in senseless regulations.” In order for IJ to succeed in their litigation against these kinds of regulations, courts need to take unenumerated rights seriously. IJ cases on behalf of eyebrow threaders are very similar. Local Republicans ought to work to remove these regulations.

Another common type of IJ client is food truck vendors. In many states, food trucks can’t operate within a certain distance of restaurants. The obvious reason is to prevent competition. This hurts consumers, food truck vendors, and only helps restaurants.

Even more bizarrely, some states license storytelling. In Savannah, Georgia, tour guides were required to obtain a license. “[U]nlicensed storytelling risked fines of up to $1,000, 30 days in jail or even forced participation in a municipal ‘work gang.’” To obtain a license, one would have to pass an exam “that might have nothing at all to do with the subject of their tour, had to pay an annual licensing fee and had to undergo a criminal background check… Tour guides were even required to undergo a physical exam by a doctor to determine whether they were sufficiently healthy to exercise their First Amendment rights. Yes, in Savannah, the government could declare a tour guide too unhealthy to talk.” Thankfully, that law was repealed, but there is still a tax on tour guides. “For every person that they have on a tour, guides are required to pay a $1 fee to the city.”

Then there are cases taken up by IJ on behalf of new taxi and ride-sharing companies that local governments have not allowed to exist. The government of Little Rock, Arkansas upholds a taxi monopoly by only allowing new taxi permits to be issued if “public convenience and necessity” leave no other choice and if doing so will not harm the existing permit holder. That’s wrong and it’s unconstitutional. However, it is impressive that they didn’t even bother to pretend the actual issue was of public health or safety.

One thing a good deal of IJ’s cases has in common: The clients live in cities. And in all of these cases, Republicans ought to be their advocates.

We saw Republicans embrace competition as it relates to Uber and ride-sharing — but that’s just the tip of the iceberg. Imagine a GOP that worked to promote the same liberties as IJ, but through the legislature instead of the courts. How great would it be if state legislatures didn’t pass these regulations that hurt people, so IJ wouldn’t have to litigate their cases?

In July, Senators Ben Sasse and Mike Lee introduced occupational licensing reform legislation that they hoped could be a model for states. In a speech at Heritage, Sasse recounted the story of Ego Brown, who ran a shoe-shining operation in Washington, D.C.

Brown employed homeless people who needed jobs and needed to learn job skills. Unfortunately, Brown didn’t have all the right licenses to shine shoes.

Yes, in D.C. you need a license to shine shoes.

“Today in D.C., to be a shoe shiner, you have to have four different kinds of permits,” explained Sasse. “You have to have a criminal background history. …[A]t least one of these is clearly legitimate to me, which is you have to demonstrate to D.C. that you’ve done all the paperwork so that you can pay your taxes. You have to pay a technology fee to be a shoe shiner in Washington, D.C. And there’s some fourth fee.” The total cost of those is $337 — “but that only licenses you to shine indoors. So there are separate rules if you would want to shoe shine out of doors.”

“And back in 1985, Ego Brown didn’t know those rules, and so he was shut down,” said Sasse. Brown had to go back to working inside barber shops — which was not as profitable, and his business struggled.

He eventually sued the D.C. government so he could be allowed to shine shoes on the street. Brown won the 1989 case. Unfortunately, that only took care of one problem. More recently, a D.C. student learned about all it takes to shine shoes here, including the need for a $1,200 sidewalk permit.

Brown’s lawyer was Clint Bolick, who later co-founded IJ. Bolick was also appointed by Governor Doug Ducey to the Arizona Supreme Court earlier this year.

It was heartening to see Sasse and Lee focus on this story and this kind of policy. We need more of this.

Conclusion

Republicans always talk about “regulation reform” and “free markets.” That’s a good start. But we need to do better. Like IJ, Sasse, Lee, and others, we need to tell the stories of the real people regulations and anti-competitive measures hurt. We need to tell Sandy Meadows’ story and Ego Brown’s story. “Regulation reform” should be a story, not just a talking point. “Free markets” should have faces, not just policies. We need to show who is hurt when the Constitution is ignored, and take IJ’s principles to the other branches of government. We also need to seek out those who are hurt by government and to work to right those wrongs. Principles, integrity, heart, and policy work together in harmony. IJ is the model, and its heart and stories are inseparable from its principles. Their means are worthy of their ends, and the GOP’s ought to be as well.

We need to apply this to all places, especially cities. We also need to invest in cities, campaign in cities, and listen to people in cities. We should be advocates for people hurt by cronyism and arbitrary government, much in the same way as is IJ. The most powerful way to communicate the problem is through individual stories and through defending rights with as much heart as IJ’s staff does.

I realize this only covers a relatively narrow set of issues. But imagine what could happen if we took this kind of constitutionalism and storytelling to all issues. Less talking, and more sympathizing, humanizing, and storytelling. Principles instead of platitudes. Reason instead of false premises. And, with all this, means worthy of their ends.

Consider what is possible if the GOP embraces all that I’ve described here. The GOP could embrace free markets and the Constitution while once again becoming politically competitive in cities, helping cities grow, and encouraging all people to achieve their highest potential.

For further reading:

Institute for Justice:

• Center for Judicial Engagement
• Principles
• Victims of Abdication
• IJ Cases: Economic Liberty
• Model Legislation
• Ideas on occupational licensing

Arthur Brooks: The Conservative Heart

Matt Lewis: New urbanism isn’t just for liberals — conservatives should embrace it too

City Journal: A new generation of Republican mayors focuses on pragmatic solutions, not ideology.