by Ben Price
The Community Environmental Legal Defense Fund works with communities to establish self-determination and local self-governance, as a way to end the corporate, privatized, centralized decision-making that has yielded devastating results for nature and people.
Our legal briefs in defense of local laws that we’ve drafted and helped communities enact argue that the right to local self-government is a legitimate demand, and that its denial is both intentional and oppressive, though hidden systemically by the pseudo-democratic processes of regulatory agencies and top-down state and federal systems in which municipalities and communities have no governing role.
This 2010 edition of the Alliance Directory of Organizations That Promote Sustainable Communities is full of good ideas and resources. And yet the structure of governance under which we toil in our communities makes it impossible to implement policies for sustainability that are seen to compete with the “rights” of corporations to profit by imposing policies of waste, toxic production, unsustainable energy use and extraction, and psychologically encouraged over-consumption.
Until the people are legally empowered to be stewards of their local environments, able to set sane policies without preemptive interference by the state on behalf of corporate minorities, the best ideas for creating sustainable communities will continue to be marginalized by the legislature and ruled “illegal and unconstitutional” by the courts.
The history books largely ignore concerted attacks on community self-government in America, though there is a strong tradition of defending the right to local self-governance, first documented in the Declaration of Independence. In a long list of complaints against the British Empire, Jefferson listed the overturning of local laws, the dissolving of community governing assemblies, and the use of the empire’s courts to nullify the right to local self-determination as reasons for rebellion.
Knowing this, we might expect that the post-revolutionary government would place the rights of communities under constitutional protection. And yet, under current American governance, in the guise of “Dillon’s rule,” municipalities are declared to be mere administrative extensions of state authority and not self-governing community level instruments of democracy. This legal theory descends from John Marshall’s 1819 Dartmouthdecision, a case in which the court invented a distinction between public municipal and private business corporations, freeing private corporations from direct governance by the state and enslaving municipal corporations to absolute state domination.
But the first Pennsylvania constitution was clear about the primacy of community as the keystone for governance. In 1776, Pennsylvania revolutionaries drafted a state constitution, asserting that
“all government ought to be instituted and supported for the security and protection of the community as such…government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are only part of that community: And…the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that communityjudged most conducive to the public weal.”
Dillon’s rule claims that municipalities are to the State as children are to parents, and the Dartmouth majority opinion asserts that residents in municipal jurisdictions are mere tenants of the municipality and not citizens of a self-governing community. The Attorney General of Pennsylvania, now a candidate for governor, reiterated this anti-American travesty on January 31, 2008, in attempting to nullify a local law prohibiting corporate disposal of sewage sludge in East Brunswick Township. He wrote: “There is no inalienable right to local self-government.”
So long as state officers and courts advocate for corporate privileges while nullifying local sustainability policies, and the right of the people to use their municipalities to protect the health, safety and welfare of human and natural communities, the right of the people to enact policies for sustainable agriculture, energy production, watershed protection, and environmental stewardship will remain marginalized, in fact, “illegal and unconstitutional.”
The work of the Legal Defense Fund has far to go. People in dozens of municipalities have challenged state usurpations of local self-governing rights. Now, we are building a Community Network to serve as a platform for launching a municipally-driven state constitutional campaign with a goal to erect legal guarantees to community self-governing rights. If you’d like to help prepare your community for future sustainability, contact us.
Ben is Projects Director for the Community Environmental Legal Defense Fund.
(Essays express the ideas of the individual authors and do not necessarily represent the views of the Alliance.)
(Published in the 2010 edition of Sustainable Lehigh Valley)
More Voices of the Valley from Sustainable Lehigh Valley.