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The Community Democracy Amendment

A Federalism Long Overdue


    Section 1. The political heritage of the People of the United States includes the practice of democracy at the local level. Community democracy is a foundation of the Republic and  accorded deference. 

    Section 2. In providing for the general welfare, Acts of Congress and the States are understood  to establish a floor, not a ceiling, to actions by local and state governments intended to  accomplish the same. Therefore, Acts of the States, municipalities, counties, and other duly  constituted governments of the People of the United States, providing for the general welfare,  ensuring human rights, or pursuing ecological health, and which exceed standards established  in the laws of the United States or the several States, shall not be preempted or otherwise  abridged.

About this proposed consitutional amendment

An axiom of American democracy has long been that government closest to the people governs best. Yet the practice of community democracy enjoys little recognition and no real protection in federal law.  On the contrary, the capacity of local governments to enact the will of their citizens is suffering a sweeping preemption assault. This amendment would bring the practice of community democracy, so vital to the actual constitution of self-government throughout this nation’s history, into the writ Constitution of the United States. 

Recognition has been building of the need for a new federalism establishing a measure of deference to  local governments. This recognition has arisen in response to a series of state and federal preemption  strikes against local laws intended to provide human rights and ecological protections, as well as  investments in the public welfare, greater than those offered by the state and federal governments.  Significantly, in the same period in which the United States have dismantled much of the legacy of the  Great Society and the New Deal, the federal and state governments also increasingly thwarted efforts by  local governments to take up the progressive mantle themselves. 

The contemporary debate over preemption doctrine has its origins in the 1980s, when landlords  successfully lobbied state legislatures to preempt municipal rent control ordinances and corporate  interests convinced the Supreme Court of the United States to the theory of field preemption. In the  1990s, these expanded preemption doctrines began to take effect in new arenas such as  telecommunications law. And since 2005, when Wisconsin became the first state to expressly preempt  municipal minimum wage laws, we’ve witnessed an accelerating cycle of municipal innovation and  retaliatory state and federal preemption. This cycle of contention has in recent years produced waves of  emergency manager laws ending municipal self-government in majority-minority communities as well as  preemptions of immigrant and workers rights ordinances. 

Throughout this period it has been evident that that the history and practice of municipalism and local  home rule have been largely forgotten by their intended beneficiaries. A fifty year struggle to  constitutionalize local home rule produced a series of victories in the 1910s and 1920s, only to be  succeeded by the ascension of the victors to national power through the New Deal and the Cold War  periods. The home rule fight passed into history and the exercise of municipal muscle atrophied.  

In the current period, advocates of community democracy need a common project through which they  can articulate a new federalism that includes local government. The Community Democracy  Amendment would bring local government into the formal constitutional framework of the United   States. It has been endorsed in principle by the 120,000+ people who signed on to the initial Move to  Amend coalition’s Motion to Amend, issued on January 21, 2010. At a time in which the federal courts,  state legislatures, and federal government are perceived to be unresponsive to the wishes of the  majority of citizens, many are looking for new approaches, such as this one, toward renewing American  democracy. 

Drafted in 2017, unpublished until now. - Ben Manski, JD, PhD