By Lindsey Schromen-Warwin, NLG Member
Seattle City Councilmember Kshama Sawant’s keynote speech at the Guild convention in November 2018 highlighted the importance of community organizing for local policy changes. It’s not enough to just organize and demonstrate, and it is not enough to just get “the right people” elected to public office. Sawant emphasized the synergy between organizing and policymaking. That model of social change makes organized people into actors in their own local governments. It revives democracy – literally, people power.
To protect people’s rights, health, safety and welfare, Seattle is enacting policies to raise revenue from the most affluent in order to provide essential services. But the courts often don’t agree with cities taking bold policy. A trial court struck down Seattle’s income tax ordinance, holding that the state hadn’t authorized it. Seattle has appealed.
Courts striking local laws based on lack of state authorization is nothing new. That legal doctrine is frequently called “Dillon’s Rule,” named for the nineteenth century jurist (turned railroad corporation attorney) who argued for local governments only having the powers expressly given to them by the state. Dillon’s Rule won out over the right of local self-government that some other jurists advocated.
But lots of people didn’t like Dillon’s Rule, and in response the populist and progressive reformers of the late nineteenth and early twentieth centuries advocated for “Home Rule,” and successfully put Home Rule provisions in many state constitutions. Home Rule was supposed to give more local control to cities. But many Home Rule provisions were vague on preemption, and courts quickly limited Home Rule powers whenever the state acted. Thus, conflicting state law and local law are usually resolved in favor of the state, even when the local law is more protective of people’s rights, health, safety and welfare. This “ceiling preemption” cuts off the democratic policymaking potential of cities.
We shouldn’t accept Dillon’s Rule or ceiling preemption. Besides the practical effect of cutting off the policymaking of the governments that are closest to the people, these legal concepts fail to treat home rule cities as part of the structure of vertical federalism. Just as state constitutions are an independent source of human rights and civil liberties, so too should city charters be able to expand protections for the people against the corporate state. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).
Our role, as lawyers and legal workers, is to argue that cities should be able to expand people’s rights above the level provided by the state. City Charters should form a third story in the framework of rights protections. (Actually, since international human rights law should be the ground floor, cities would make up the fourth story, but that is another conversation.)
To build a free, just, and democratic society we need to be able to put into law protections for people’s rights, health, safety, and welfare. That requires a structural change in our system of government: uprooting Dillon’s Rule and ceiling preemption.
Cities provide a space to act for the collective good. Cities are governments, and yet they are close to the people and capable of being a space that merges organizing and policymaking, as Seattle is demonstrating. We need to re-imagine the possibilities for using local government power as a tool of collective liberation.
The organizing model that Sawant is a spokesperson for is demonstrating how to make that happen. To support this organizing, one of our roles as the Guild is to articulate the structure change needed to make that democratic lawmaking legal.■
Above : Seattle City Councilmember Kshama Sawant delivers the 2018 #Law4thePeople Keynote Address in Portland, OR on November 1. (Photo: Curtis McGuire)