Constitutional Law, Property rights, Rob Natelson

Protecting rights a higher principle than ‘local control’

“Local control” is something politicians promote or ignore at their convenience. The U.S. House of Representatives, led by a Republican majority supposedly dedicated to returning power to the states, recently voted to override state design and safety rules for self-driving cars. In Colorado, opponents of hydraulic fracturing (fracking) began touting “local control” over fracking only when they lost a bid for a statewide ban. And their so-called “local control” proposal would have allowed cities and counties only to tighten anti-fracking rules, not to loosen them.

File photo – Todd Shepherd

Political hypocrisy aside, keeping government close to the people is generally a good idea. Most of the famous bursts in human intellectual and technological progress have occurred in places featuring considerable—sometimes extreme—political decentralization: the city states of ancient Greece and of Renaissance Italy, 17 and 18th century Britain, and 19th century America, among others.

So when is local control good in reality rather than merely as a slogan?

In drafting and ratifying the U.S. Constitution, the American Founders devoted much principled consideration to this question, and as long as their formula was respected the system usually worked very well. Indeed, the seeds of current federal dysfunction were sown when the courts stopped enforcing the Constitution’s boundaries on federal power.

Based on our experience under the Constitution, therefore, some argue for granting cities and counties the same freedom from state control as states are supposed to enjoy from federal control.

However, the analogy is not wholly valid. This is not merely because local governments are creations of state government, while the states are semi-sovereignties. A more important reason is that local governments do not feature the checks and balances—and therefore the protections for individual rights—characteristic of all, or almost all, states.

All states but one (Nebraska) have bicameral legislatures. But nearly all local councils are small, unicameral bodies. State constitutions divide power among the legislative, executive, and judicial branches. Local charters usually blend legislative and executive authority, and in practice municipal law enforcement and courts may serve as revenue-raising agencies.

Most states harbor a variety of special interests (or in James Madison’s term, “factions”) that monitor and check each other. Local units frequently are dominated by so few special interests that they can readily (in Madison’s words) “concert and carry into effect schemes of oppression.” Most state governments are monitored by a vigorous local press; many municipalities are too small to support an effective working press.

Under such conditions, it is no wonder that “local control” may become local tyranny.

On the other hand, the Constitution does offer at least one idea for how to divide state and local spheres: The Constitution grants the federal government extensive authority to protect individual rights from state assault.

The original Constitution banned states from adopting certain kinds of laws, such as ex post facto laws, that violate individual rights. The document also required the federal government to ensure that states not degenerate into monarchies or dictatorships.

Constitutional amendments have carried this further. Today the Constitution allows the federal government to prevent states from re-instituting slavery or unduly infringing voting rights. In addition, the Fourteenth Amendment permits the federal government to interfere if a state denies equal protection of the laws or violates certain protections in the Bill of Rights.

This allocation of federal and state power offers a clue for allocating state and local power. Local governments should be free to operate schools, parks, and police forces, but the state should ensure local government does not oppress individual rights.

Some states have been implementing this idea. Several have passed or are considering laws to protect the free speech rights of students at state universities, which are functionally a kind of local government. Colorado recently adopted a measure curbing municipal judges from abusing their fining power.  After a long struggle the Montana legislature restricted cities’ practice of effectively taxing people who neither resided within the city nor owned land there.

State protection of landowners is crucial, because they can’t escape oppression merely by picking up their land and moving away. The same regulations that infringe their rights as owners may prevent them from selling their property at a reasonable price so they can relocate.

Accordingly, Arizona now largely forbids localities from regulating away property rights without compensation, while Colorado curbs local laws that purport to restrict landowners’ oil and gas rights.

To define the ideal boundaries between state and local control, we should ignore the political hypocrites and weigh sound principles. One such principle is that state governments should protect citizens’ fundamental rights from local oligarchs who try to take them away.

Rob Natelson, a leading constitutional scholar and former law professor, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute, a free market think tank in Denver.


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