Resilient Communities are the Foundations of a Resilient America.

Dillon’s Rule and Community Resilience

A guest blog by Dr. Andy Felts, College of Charleston

When the Framers of the Constitution met in Philadelphia in 1788, ostensibly to amend the Articles of Confederation, they had three basic designs to choose from. One of the choices was to continue the confederated system that governed the nation from 1776 to 1788. In that system, the states/colonies held complete sway and the central (federal) government operated with no independent powers.  The Articles gave the Continental Congress no power to tax, had no chief executive, and provided for no higher court to settle interstate disputes. Amending them was virtually impossible, requiring agreement of all the colonies. Thus, the Founders recognized that the Articles were seriously flawed and quickly abandoned that model.

Another model was the reverse of a confederacy, a unitary system (e.g., a monarchy) where all power was lodged in the central government and the states had no independent powers. But the colonies were already fiercely independent and asking them to cede their political autonomy to a central, unitary government was also dismissed.  This led the Founders to settle on a messy compromise—a federal system.

A federal system gives autonomous power both to the states and federal government. In effect, every citizen has two political masters. With the exception of some powers granted exclusively to the federal government and some denied the states, the Constitution was sufficiently vague so that there was little guidance on which powers were held by the states, which by the federal government, and which powers were shared. The current debate on gay marriage is an example of our messy federal system in action. As a result of this intentional Constitutional vagueness, much of our political history can be seen as a series of ongoing squabbles between the states and the federal government.

Frequently, the states have argued that because they are closer to the people, they know what is best. But when they deal with their own local governments it appears they have a double standard. Local governments, not mentioned in the Constitution at all, are effectively at the mercy of their state governments. When local governments argue with their state governments that because they are yet closer to the people they know what is best—the same argument used by states against the feds—they often get the cold shoulder. 

This is a result of Dillon’s Rule, the doctrine that the legal powers – even the existence of local governments – are granted by the states.  According to this legal doctrine, even in the 34 states that have Home Rule (i.e., where local communities have the right to make any laws or regulations as long as they do not violate either the state or federal constitution), the state legislature can annul any action taken by a local government – even dissolve an entire jurisdiction (as was done in 1907 in Pennsylvania) – in opposition to the will of the people.

Thus, while local government is a cornerstone of community resilience, it operates at the mercy of state leaders. Some states do treat their local governments with regard but it is a choice each state can make. In cases where local governments are constrained by state legislatures, their resilience can be dramatically affected.

The case of Gary, IN, provides good examples. John Plodinec in a previous post alluded to the unfortunate actions taken by the state of Indiana that have hampered Gary’s attempts to reinvent itself.  Gun owner registration provides another example. With one of the highest violent crime rates in the nation, Gary officials sought to curb crime by requiring all guns to be registered to make it easier to trace stolen guns and those used in a crime. In addition, the city tried to restrict semi-automatic weapons and high-capacity magazines.

Gary officials are not trying to ban all guns; rather they want to address the crucial issue of crime in their city. But the Indiana state legislature has very different ideas. With some of the most lax state gun laws in the nation, the Senate assistant majority floor leader stated, “To further restrict gun rights in the state of Indiana? No, no, that discussion will not take place in the Indiana General Assembly.” As the law now stands, Indiana state law prevents any local gun bans.

I am not taking sides in the gun control debate, but rather taking on the issue of state vs. local control. I side with Karen Freeman Wilson, the mayor of Gary, who declared: “At some point, they [state government leaders] really do have to understand local communities know what’s best for local residents, especially when you have a polarized general assembly like we have.”

Dillon’s Rule is a vestige from the nineteenth century reflecting the endemic civic corruption of that time.  It has become a major barrier to community resilience that needs to be torn down.