These Radicals Have The Right Wing CheeringTim Smart
The Institute for Justice could be called the ACLU of the right. Modeled after the American Civil Liberties Union and other liberal public-interest groups, the institute is borrowing the successful tactics of these organizations to push a radically different agenda. Instead of focusing on the rights of disadvantaged groups, it's promoting a broad agenda that includes boosting the rights of property owners. And conservatives are cheering. "There are literally hundreds of groups on the liberal side," says U.S. Chamber of Commerce counsel Stephen A. Bokat. "There's room for competition."
Founded last fall, the institute is the brainchild of two foot soldiers from the Reagan Revolution. They are former Energy Dept. counsel William H. Mellor III and Clint Bolick, a former Justice Dept. lawyer who also worked as a top aide to Clarence Thomas at the Equal Employment Opportunity Commission. The institute is partly funded by the conservative David H. Koch Charitable Foundation in Wichita.
These crusaders are hoping to reverse decades of U.S. Supreme Court precedents by breathing new life into the Constitution's guarantee that "no person shall be deprived of life, liberty, or property without due process of law." While liberal interest groups have focused on the first two guarantees, the institute is demanding equal recognition for the third. The change in emphasis could unravel decades of government regulation.
INTO THE FRAY. At the turn of the century, courts took a broader view of property rights. The concept was even used to strike down health and safety regulations that, for example, limited the number of hours children could work. From the Depression on, courts have emphasized life and liberty, creating a panoply of protections for criminal defendants and victims of discrimination. Now, conservative legal theorists are pushing the point that the Constitution makes no distinction between individual liberties and the economic rights of property owners.
This is a propitious time for the institute to enter the fray. More than half of all federal judges are Reagan and Bush appointees, and the Supreme Court is in the grasp of conservatives. Two justices, Thomas and Antonin Scalia, are avowed advocates of property rights. In a Jan. 27 ruling that may foreshadow other decisions, Thomas authored a 6-to-3 opinion holding that union organizers could not trespass on company property to recruit members. "We'd be tilting at windmills were it not for a dramatically different judiciary," says Bolick.
The institute is pressing its theories in two pending cases. On Mar. 2, the Supreme Court will hear the case of David H. Lucas, who builds shore homes in his native South Carolina. Lucas is seeking $1.2 million from the state, which barred him from developing two half-million-dollar seafront lots in 1988 when it passed a law protecting its beaches.
The second case is in federal court in Washington, D.C., and concerns Taalib-Din Abdul Uqdah, a Muslim hairdresser whose Cornrows & Co. has been providing natural braids to local African-Americans for more than a decade. He's challenging a District of Columbia ordinance that would close his salon because his workers are not licensed cosmetologists. "You would think I have a business practicing gene-splicing," says Uqdah. "It's ridiculous."
UNFAIR PENALTY. To Bolick and Mellor, the cases show how government can stifle free enterprise and individual choice. The institute, which represents Uqdah and has filed a friend-of-the-court brief backing Lucas, wants to use such cases to push a libertarian agenda (table). But opponents argue that business regulations protect a broader public interest.
In 1989, the institute scored a victory when a federal judge in Washington, D.C., ruled unconstitutional an 84-year-old law banning shoeshine stands. Bolick contends that such laws unfairly penalize outsiders, who often lack income or education. As a result of the ruling, Ego Brown, a vendor, still employs homeless people and teenagers. "We want to establish free-market solutions to the problems of low income," says Bolick.
Liberal advocacy groups attack such claims. Says Ralph G. Neas, executive director of the Leadership Conference on Civil Rights: "The institute and its allies refuse to address the systemic, institutional discrimination in our society."
Perhaps. But with conservative courts reinterpreting the Constitution, the institute's agenda may be more in sync with the times, however distasteful to liberal groups.
THE INSTITUTE'S AGENDA: EDUCATION Favors school choice programs that let poor students use public money for private schools ECONOMIC RIGHTS Opposes restrictive zoning, growth-control ordinances, and job licensing requirements HOUSING Opposes rent control and "linkage" laws that force developers to provide low-income housing to get building permits DATA: BW
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