Political Science/Spring Term
Essay 1 of 2 for Final
The powers and constraints of powers for both state and local governments hinges on the Bill of Rights where state rights are enumerated, because local governments are authorized by the states.
In local governments, there is home rule, which is the right of the town or city to self-govern, specified by a charter. A charter outlines the responsibilities and powers of a local government, and there are General Act Charters—specifying the rights of all of the municipalities in a state, and Special Act Charters—specifying the rights of one specific municipality. Dillon’s law states the constraint of powers is that they are authorized by the state. In the state of Massachusetts, a county was seized by the state at one time, deemed to be corrupt, and it was abolished. This act was commenced by such a law. This law has been under debate since 1857 but has not been challenged in recent years. Some felt localities should have more independence from the states. Much of this has to do with money allocation. The states receive federal funding in addition to their own revenue. Most cities, towns, or counties are more limited in what they can do for generating revenue, although they have the right to make property purchases. Because of the number of citizens per municipality, it is almost always impossible to raise enough money to be self-sufficient from the state, which allocates tax distributions and grant monies. Local governments have other powers aside from generating their own revenue which include policing, local taxes, fines, or fees for services from the local government, and they have the right to make their own laws for their town as long as these laws do not violate any constitutional or state constitution provision.
In addition to powers granted to localities through charters and home rule, and in addition to the election process which is supposed to give citizens the right to determine who is in power (with some state approval as well, for some jobs), there is a hidden kind of power that underscores the known executive, legislative, and administration powers and process that localities deal with and this is called “bureaucracy”. Bureaucracy is the “unseen” force that also shows its face, upon occasion, in organizations such as unions, and other groups for agencies which conduct policy implementation, street-level bureaucracy, rule-making, and collective bargaining. This is a power of organization that is given by the freedom to assemble, to publish, and to be free in one’s person from seizure of papers or property. Without these things, there would be no confidence in the power of the people.
Localities may elect their own judges as well, just as states are involved in the judiciary process, and district courthouses run and manage the legal aspects of problems and make decisions which hold unless they are challenged at the next level, which is a state superior court or for some states, an intermediary appeals court. A case may be further contested by taking it to federal court, if someone believes the decision violates a fundamental principle of federal law or the constitution and bill of rights. In this sense, the powers of the local government can be enormous if someone is unable to challenge a decision handed down by them. It is only with equal access to the courts that one is able to attempt to change a decision through another court, which might overturn or limit the instructions on the first decision(s). Obstacles created to prevent someone from challenging a case can take both legal and illegal forms. Legal forms of attempting to make it harder for someone to challenge a case, is where someone is poor and the state or locality already knows it’s impossible, by copy costs and transportation, to challenge the case, and illegal forms include blocking of travel (freedom of movement), false arrest to block freedom of movement, torture, theft, non-compliance with rules of discovery and FOIA, and removing documents and evidence from a case file. It may also be illegal to prevent someone from challenging a case because they’re poor if it can be proven there was a conspiracy or strategy in place to do such a thing, which would arise to a RICO claim. There is no limit to powers, in a judicial sense, at even local levels, if justice is deliberately impeded and this is the outcome of corruption.
Oregon has a fascinating constitution, and a copy of the Oregon Constitution online that shows these laws includes the 1857 and current 2011 versions. (See Oregon Blue Book: http://bluebook.state.or.us/state/constitution/orig/const.htm).
Some of the powers expressed in the constitutions (older and newer being much the same) that are online include right to marry; right to practice religion freely; the write to print, say, or otherwise express any thought in writing or in press; right to assemble for a cause; natural right to be free from personal and home search and seizure of papers; and there is mention of corporations, and how a state shall not acquire the debts of a corporation, and mention of the role of state corporations. It is briefly acknowledged state corporations (suggestively pointing to federal corporations as well) are entities of power with rights and constraints. An addition to the current constitution is regarding allocation of state monies from lotteries and these things arise from new forms of generating revenue.
Laws which are mentioned, in the negative sense of not being rights, but constraints upon the state government include “there shall be no secret courts,” (Oregon Constitution Article I, n. 10) which states all courts of any kind must be held openly in public, and that every person shall have access to the courts for injuries against his person, property, or reputation.
Today, there are many secret courts, the largest being juvenile court systems and courts against family rights where Child Protective Services is taking a child from their family or parent. This is despite the fact there is an Oregon Constitution which prohibits such secretive courts, found in the original and 2011 Constitution and Bill of Rights. While most people believe CPS cases are open to the public, it is a misnomer because most of the process is in secretive papers that are often and usually not even provided to the parent(s). The state generates paperwork as if they are investigative agencies like police and do not provide the information to parents or children, share this information with law enforcement instead (mostly for purposes of defamation and to encourage further cooperation with law enforcement in prejudicing the parent(s)), and even the public attorneys are warned to “stay out of it”.
In juvenile court, the court hearings which are secret or “chambers only” have a logic is that a minor should not have their reputation impaired by open court when they can be corrected, however, this gives adults the ability to railroad minors with crimes and offenses and to create an internal law enforcement record against them that is defamatory to all law enforcement and justice systems while keeping potential mistakes and lies from the minor and from the public and press, which would contest it. Protection of the child is not the interest of law enforcement and such courts—they are interested in self and state protection and the rights of minors are abused in violation of the law. It creates a bullying system that no one gets to know about.
The difference between a state constitution and a local charter is that a charter is a certificate of permission or right to operate under laws derived from state and federal constitutions. In a sense, however, the powers derived by the local government respond to the state constitution just as the state constitution. Local governments have powers to tax, to make laws, to appoint executive and administrative boards and council, and to have court and police but they are not considered to be “sovereign” as states and the federal government are.
The tenth amendment to the U.S. Constitution states “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.” (Smith, K. P. 36: table 2-2). This gives all states any and every power otherwise not specified or limited by the federal government. This creates an enormous range of power actually, that a creative group of people could use for organizing their state. The Supremacy clause is one which gives the federal ultimate powers over all laws by stating any law made by them is binding to the states, so, for example, if a state makes a law for their state and it is challenged at the federal Supreme Court level, the decision of the Supreme Court could over-rule the laws or actions made by the state. This creates a tension and bickering at times, between states and the federal government, especially where a state feels they have a great idea and they are taken to Supreme Court over it, or where the federal government says everyone must have federally mandated healthcare and the states argue health is their territory, not the federal government’s. Healthcare was not something previously defined by the federal government, in a broader sense, and was the concern of each of the states. Taking this power then, from the states, to give the federal government more jurisdiction or “powers” which states had otherwise assumed were reserved for them, is part of the argument that has been involved in current topics regarding federal healthcare law.
This is a new development to the U.S. political system and structure just as the invention of “Child and Family Services Department” was, because prior to creating an entire program for taking children away from parents the government deemed unsuitable, children’s concerns were left to the Social Security law, just as elderly persons concerns follow the Social Security Act law, and at that time, in the 1930s, upon creation it was designed to protect the rights of the orphaned and to disperse monies to “at risk” families but had nothing to do with taking children away. Child and Family Protective Services did not become a “program” until 1974. In 1974 the “Child Abuse and Treatment Prevention Act” required states to prevent neglect and abuse and by 1978, large numbers of children were being removed from homes and placed in foster care.
It was in the 1950s that the U.S. began imprisoning minors and taking them to court. In the 1960s only cases where it could be a long-term detention or waived to adult court, did the child or teen receive an open hearing, because otherwise they were closed. The interest in detaining minors is concurrent with U.S. interest in using minors and children for human experiments, such as MK-Ultra, (Erwoid, MK-Ultra) which was developed and operational by 1953 (many say 1951), and from which many of the other programs regarding children, were designed to act as foils for government operations that were secretive. Interest in children then, became not only a federal commodity, but one which piqued the interest of states as well, because the new program created new revenue, tax incentives, grants, and powers to the states from the federal government. It also created an entirely new department and a large number of jobs, at the expense of children’s lives. While the Social Security program, bad enough and intrusive as it may have been, did allocate grants of money to the states, it was much, much, smaller scale and had fewer employees than when the creation of a new department was added.
In this sense, where states received constraints to their powers through the development of a federal healthcare act, because the federal government took some of the powers and placed limits and laws on the states and what they could do, it was the reverse with development of the Department for Children and Family Services because the federal government was creating a new railroad that sent power over children and families, and money, and new jobs, to the states. States profited by new revenue, grants, and jobs, and the federal government profited by having a new surplus of children from which to conduct their experiments. This is an example of the tenuous balancing act that occurs between federal and state powers and limits to these powers.
States, as sovereign entities, have all the powers of the federal government except for the right to make coin and currency, control over the federal armies (they cannot make war), regulation of postal systems, make treaties, to tax imports and exports, regulate interstate and foreign commerce, all of which are left to the federal government. States are given powers to run elections, regulate intrastate commerce, establish republican forms of state and local government, protect public health, safety, and morals, and they may enter into compacts with other states only with Congressional approval. States are also not allowed to impair obligation of contracts, which would be obstruction of justice and/or malfeasance.
Their shared responsibilities and powers include taxation, borrowing money, chartering banks and corporations, taking property by eminent domain, and making and enforcing laws and administration of a judiciary. States are also restricted from depriving anyone the right of citizenship or any of the privileges and rights therein, and requires states to follow and obey due process and equal protection guarantees.
1. A Century of Change. National Report Series Juvenile Justice. Bulletin: “A Century
Of Change” Juvenile Justice. Published 1999. Web. Accessed 3 June 2014.
2. Child Protective Services. Wikipedia. Web. Accessed 3 June 2014.
3. “Constitution of Oregon”. Oregon Blue Book. 2014. Web. Accessed 3 June 2014.
4. “Juvenile Justice History”. Center on Juvenile and Criminal Justice. Center on Juvenile and
Criminal Justice: San Fransisco. 2014. Web. Accessed 3 June 2014. <http://www.cjcj.org/Education1/Juvenile-Justice-History.html>
5. MK-Ultra Timeline. Erwoid.org. Web. Accessed 3 June 2014.
6. Smith K., Greenblatt, A. Governing States and Localities. 4th ed. Ch.2 “Federalism” (pg. 36). CQ Press: California. 2014.
7. “Social Security Act (1935) transcript. Our Documents.gov.
National History Day & National Archives and Records Administration: Washington D.C. 2014. Web. Accessed 3 June 2014. <http://www.ourdocuments.gov/doc.php?flash=true&doc=68>