Who Has the Power?

A 2005 paper in the Columbia Journal of Law and Social Problems by Darin Dalmat explains the historic moment we inhabit:

The history of minimum wage regulation has come full circle. States led the charge early in the twentieth century. The federal government protected workers across the country during the middle of the century, but abandoned this role as the century reached its closing decades. Today, at the beginning of the twenty-first century, progressive economic reform must come from states and local governments . . . [But] local governments often face the additional burden of demonstrating that they enjoy sufficient authority.

The power of local governments remains limited and subordinated by a century-old legal doctrine that gives state legislatures unbounded power to constrict local authority.

As a result, local citizens fighting to govern employers and landlords, to halt climate change–inducing extraction, to safeguard refugees, protect workers, stop pipelines, protect natural ecosystems, and build alternatives locally, find they don’t have the legal right to do so. Alternatively, if they happen to have the power to legislate, when they exercise it, states are able to quickly preempt them.

Gentrification is a clear example. Hard-hitting analyses have driven home the devastating impact of gentrification on poor and working class communities of color, yet far less attention has been paid to the fact that Brooklyn’s community boards or Los Angeles’s neighborhood associations or countless other local governing bodies have no power to govern development.

Or take minimum wage. The Left supports a fifteen-dollar minimum wage, but we stop short of addressing how cities can actually achieve this goal when Denver, Oklahoma City, Kansas City, New York City and thousands of other cities are legally prohibited from raising the minimum wage.

The same goes for fossil-fuel extraction — local communities like Broadview, Ohio and Denton, Texas have fought to ban fracking but neither have the democratic authority to say “no” to extraction — and refugee support — where states use their power to bar local governments from increasing protections for refugees. The Left calls for the municipalization of utilities, but doesn’t prioritize localities’ power to seize private corporate property.

In another example, the Left was rightfully up in arms about North Carolina’s horrific House Bill 2 that preempts local governments from increasing civil rights protections for LGBTQ persons, but little has been said about the bill’s first clause and justifying logic:

Whereas, the North Carolina Constitution directs the General Assembly to provide for the organization and government of all cities and counties and to give cities and counties such powers and duties as the General Assembly deems advisable.

Championing good causes is necessary, but insufficient without addressing the profound deficit of local democracy surrounding those issues. In the process, it becomes an assumed truth that states enjoy full discretion over the powers they “give” and/or take away from local communities.

And these strategic shortcomings come with real consequences. When the Left does not prioritize the governing power of local citizens, it alienates them, as is increasingly evident in how right-wing groups are able to pluck the strings of discontent.

This doesn’t have to be the case. But challenging ingrained assumptions that subordinate localities requires envisioning an alternative power structure, where power bubbles up from communities — from below, where local majorities cannot be set aside by emergency managers, or preempted by state legislatures or courts, and where local decisions wield real — constitutionally protected — power.

This is easier said than done of course. Municipalities in the United States possess no constitutional protections; they are legally classified as public corporations, rather than governments. Courts have repeatedly ruled that US citizens’ constitutional guarantee to a “republican form of government” does not extend to the places where we live.

The basis of this state of affairs is established legal logic — things like “Dillon’s Rule,” a formulation which defines municipalities as wards of the state whose privileges can be unilaterally taken away. The inventor of Dillon’s Rule wrote in the late 1800s: “[The state] breathes into [municipalities] the breath of life, without which they cannot exist. As it creates, so it may destroy.”

Dillon’s Rule has not been explicitly adopted in every single state, but its underlining logic is pervasive. Simply put, the removal of local democracy is legal. States have full discretion to pass legislation that allows them to take over localities or to tell them they can’t raise the minimum wage or ban fracking.

False Dichotomies

It is not just legal structures that impede local democracy. Fear of local control is also a factor. Historically, the federal government has played a central role in quelling local racist terrorism and defending minorities in states where white supremacy reigned virtually unfettered. But the Left has failed to move beyond these fears to imagine a system where local governments can possess real constitutional rights, while also remaining checked by state and federal protections. Local versus state/federal oversight is perceived as a dichotomy, where either local or federal/state control reins supreme.

However, this dichotomy is false. We just have to look at our own federalist structure, which defines federal law as a floor states can build on but which they cannot degrade. States can raise the federal minimum wage, but they cannot lower it, or degrade federal civil rights protections.

That concept however does not extend to the state’s relationship to local governments. The state has full discretion to define when a law is a floor or a ceiling.

Reform that defines state law as a floor that localities can raise (and ideally, improve) would address our aspirations for — and fears of — local democracy. It would give local governments the power to raise the minimum wage, but stop them from lowering it. Local democracy and state oversight are not mutually exclusive.

Commerce Is King

There are progressive local examples to draw on, like movements that have sought to socialize public utilities or fights for local control over public education like in Harlem and cities across the nation.

But engaging this legacy and the debate over the proper role of local governments is about more than constitutional protections for local governments. Community self-determination has long been a priority for citizens neglected and discriminated against by the state, as is increasingly the case today.

Part of the challenge in blending local democracy with beneficial state oversight is the philosophy underpinning the current system of law. As it stands, we live under a framework designed primarily to facilitate commerce. For the supreme law of the land — the federal government — uses its power as the regulator of commerce to justify much of its societal intervention.

Federal authority under the Commerce Clause has been used to strike down child labor protections, local price controls, and the Gun-Free School Zones Act.

Tellingly, laws like the Clean Water, 1964 Civil Rights, and National Labor Relations acts did not find their legal authority in US residents’ constitutional rights to a clean environment, civil, or workers’ protections. Those rights don’t exist. Instead, the policies were justified by the Commerce Clause.

The first sentence of the National Labor Relations Act reads:

The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce.

The purpose of law reveals itself. If employers deny workers the ability to collectively bargain — the act surmises — workers will strike, and when workers strike, commerce is burdened or obstructed. Labor rights are translated to a language that is comprehensible in the existing system of law.

Just the same, the effect of clean water and restaurants on commerce was used to justify the Clean Water and 1964 Civil Rights acts. The list goes on.

Though the Clean Water, 1964 Civil Rights, and National Labor Relations acts were wins, they exist within a paradigm of law where nearly everything revolves around commerce. And while it is possible to make gains within this system, it is increasingly imperative to challenge its underlying parameters and assumptions. Local democracy is where the rubber hits the ground in this debate.

When we begin to engage in the debate over what it means for a local government to “improve” law, we find ourselves in a proxy war over the purpose of law itself.

Public Purposes

John Forest Dillon, whose theories inspired Dillon’s Rule, was a lawyer for the railroad industry and a federal judge. He not only despised local majorities, he hated socialism. Dillon once wrote that local governments should never enjoy “powers to accomplish purposes which can better be left to private enterprise.”

“To late nineteenth-century conservatives,” argues legal scholar Joan C. Williams, “the primary threat to the private sphere was intrusion on property rights through redistributive programs (such as bonding, regulation, or the income tax).”

In the late 1800s and early 1900s, a lot of those programs were taking place in municipalities, which, by 1902, were spending more than states and the federal government combined. According to Williams, Dillon was eager “to limit the frenzied issuance of bonds by municipalities in the post-Civil War era.”

Local spending was spurred by local organizing. The turn of the twentieth century saw a wave of public utility municipalizations, as populists and progressives increasingly saw local governments as an most accessible political target.

For Dillon, local governments’ influential role in the economy was setting a dangerous precedent. The 1873 recession — caused in part by extravagant municipal bonding — gave him the opening he needed to fight back.

Local governments had issued a plethora of bonds to lure railroads to their jurisdictions, but many of the projects hadn’t panned out. Local governments — not wanting to pay off what they saw as unjust debt taken out for the benefit of a private industry — began to default.

Dillon hoped to use the panic surrounding the defaults to push his long-held goal of safeguarding railroads from public control and privatizing other societal enterprises. The Supreme Court, however, was primarily interested in preventing local governments from repudiating their debt, which would have sent shock waves through the financial industry. To secure a “healthy” municipal bond market, it held local governments responsible for their railroad bonds.

But Dillon’s vision of private ownership got under way nonetheless. By the end of the century, the definition of the “public purpose” of local projects had narrowed significantly, thanks to a multitude of court cases — like the Supreme Court’s 1875 ruling that a Kansas social program that empowered local governments to aid drought-stricken farmers was illegal and did not fulfill a “public purpose.”

In 1903 and later in 1907 the Supreme Court affirmed the 1868 Iowa Supreme Court decision where Dillon himself — acting as chief justice — introduced Dillon’s Rule.

Raising the Floor

To this day, Dillon’s Rule and protections of private property combine in states across the country to stifle the imagination. For example, a message is sent when private companies sue cities that raise the minimum wage for violating corporate constitutional protections and Dillon’s Rule, or when a state teams up with private industry to sue a locality for banning fracking.

Boulder, Colorado’s grueling effort to municipalize its electric utility sends a clear message to less white and less rich municipalities.

It is time to start playing the long game and to engage in a broader fight to define state law as a floor on which communities can construct better policies. Ultimately, local control is an issue of sovereignty — a fight not only against centralized control of communities, but over the power of civic law to shape our economy.

By fighting for local decision-making power, we implicitly challenge and build power to defy and overturn legal structures that put profits over people and reassert our commitment to real democracy.