The Peoples’ Constitution – Local Power

By Ben Lenhart

With so many laws and regulations coming out of Washington, DC, it can seem like the federal government doesn’t leave much room for local governments to operate. On top of that, our Constitution holds that federal laws have top priority—any state or local laws to the contrary are void. So where does this leave states or localities if they want to run their own affairs and pass their own laws? Where does it leave Loudoun County, or its towns, such as Leesburg, Hamilton or Hillsboro? Is there still room for Virginia or Loudoun to try new policies on zoning, housing, guns, schools or roads? This article looks at the three-way “vertical” power-sharing between Washington, the states, and localities. Despite all the attention paid to Washington, “Local Power” remains enormous.

Supremacy Clause and the One-Way Ratchet

Article Six of the Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made … under the Authority of the United States, shall be the supreme Law of the Land.”Known as the “Supremacy Clause” this leaves no doubt that state and local laws must give way to federal law. If the U.S. Congress raises the minimum wage to $12/hour, no state or local government can pass laws setting the minimum wage below $12. And if they pass such a law, it will be struck down by the courts, as they have done many times when faced with state laws that conflict with federal law.

While states can’t go below the federal minimum wage, they can go above it, and many have done so in recent years. This “one-way ratchet” effect is common with many federal laws: Congress or the courts can establish a minimum federal right, such as minimum wage or minimum protections for gun rights or free speech rights. But states often are free to go beyond the federal minimum and grant greater rights to their citizens, so long as those “greater rights” don’t violate any federal law or the Constitution. A famous example is the Heller case (2008) where a sharply divided Supreme Court held that that gun ownership was an individual right protected by the Constitution. States can’t take away gun rights given by Heller, but states can add to those rights. After Heller, many states have passed new laws creating additional gun rights not addressed by Heller, such as the right to “concealed carry.” But in creating these state-level rights, the state law must not violate federal law—for example, the state can’t give gun rights to men but not women (this would violate the Equal Protection clause of the Constitution).

Federal Government—Enumerated Powers Only

In drafting our Constitution in 1787, the greatest fear of the Founders was that the new federal government would become too strong, and would threaten American’s individual rights—such as freedom of speech or freedom of religion—that the people had fought so hard to win in the Revolutionary War. To safeguard against this, the Constitution was set up to control and even “weaken” the federal government so that it did not grow into a dictatorship. Checks and balances are everywhere in the Constitution: judicial review, frequent elections, the Bill of Rights, the veto, impeachment, etc. But the biggest check on federal power is less obvious: the power of the federal government is limited to the powers granted in the Constitution. The federalgovernment can pass laws within those powers, but it can’t pass laws beyond those powers. For example, in the Lopez case (1995), the Supreme Court struck down a law creating a gun-free zone around a school. The court acknowledged that it may be a perfectly sensible law, but it was invalid nonetheless because the Constitution did not give the federal government the power to legislate in this area. The federal government is one of enumerated powers, and the creation of a school gun-free zone is not among those enumerated powers.

State Governments—Opposite Structure

Most states have a structure that is directly opposite that of the federal government—while the federal government is limited to those enumerated powers set out in the Constitution, state governments usually have unlimited power to pass any and all laws that they believe to be good for their people (so long as the state law does not conflict with federal law). For example, like most states, the Virginia Constitution (Article IV) gives its legislature immense power to pass laws on “all subjects of legislation not herein forbidden or restricted.” While the federal government can pass laws only in the areas where the Constitution gives it power, Virginia can pass laws in any and all areas, unless the Virginia Constitution (or federal law) forbids legislation in a particular area. The federal legislative power starts with nothing and then adds those powers given to it by the Constitution, while most states start with everything—all legislative power—and then take away certain powers via the state Constitution or federal law.

This stark difference in legislative power echoes the 10th Amendment to the federalConstitution, which says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 10th amendment was critical for winning ratification of the Constitution because it helped address concerns of the “Anti-Federalists”—such as George Mason and Patrick Henry, who favored state power over federal power.

Loudoun County and The Dillon Rule

Oddly enough, Loudoun County (and all Virginia counties) have a power structure closer to the federal government than the state government. Why? Because Loudoun can pass laws only on subjects where the Virginia legislature grants it power. Like the majority of states, Virginia operates under the Dillon Rule, named after a famous Iowa Judge, which holds that localities are limited to the powers expressly granted them by the state government. Other states follow “home rule,” where more power resided with cities and counties, and some states are hybrids, but Virginia is in the Dillon rule camp. An example of the Dillon rule: current Virginia law allows local governments to erect certain war monuments, but forbids them from damaging or removing them once erected. But with changes in the Virginia legislature, this law may soon change to give local governments (including Loudoun) more control over war monuments.

Lopez Example

The school gun-free zone case mentioned above (Lopez) illustrates the powers of each of the three levels of government: federal, state and local. First, the federalgovernment lacks the power to create the gun-free zone (because the power is not given to the federal government in the Constitution). Second, Virginia clearly has the power to establish such a zone (provided the zone does not otherwise violate federal law). Third, Loudoun County (or any Virginia County) very likely lacks the power to create such a zone, although the state could give that power to local governments if it so chose.


Why does America have this system of vertically shared power? First, this was the cry of the Anti-Federalists. The Constitution may never have passed if it did not allow the states to retain large swaths of power. Second, common sense: local governments better understand local conditions. Richmond has a better handle than Washington on most issues facing Virginia, and Loudoun has a clearer picture than Richmond of the pressing issues in Loudoun. Third, and most important, as Abe Lincoln said, America is a government is “of, by and for the People,” and this three-way power share is the best way to achieve that lofty goal.

While our governments at all levels are far from perfect, this structure allows local power to respond to local needs. It gives more people the chance to be active citizens and have a say in their local affairs (a quality deemed essential by the Founders). It allows for “laboratories of democracy” as states and localities try out new ideas. Finally, the vertical separation of power, by serving as a check and balance on governments at all levels, seeks to reduce the odds of tyranny and thereby increase the odds that the people will retain the fundamental individual rights guaranteed by the Constitution.

Ben Lenhart

[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]

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