May 21, 2019

Judge John Dillon

Is the ‘Dillon Rule’ approach to federalism compatible with natural law, individual liberty, and self government?

On episode #230 of his podcast, historian Brion McClanahan discussed state versus local authority with regard to the removal of Confederate monuments in Virginia.  The issue was initially raised in a article that described “an early 20th century law that allows local governments to approve the construction of war memorials but prohibits them from taking those same monuments down without the state government's approval.”

McClanahan then presented two contrasting legal theories of state and local power configurations.  Home Rule exercises local autonomy and limits the degree of state influence in resident affairs.  Alternatively, the Dillon Rule stems from an 1868 decision by Iowa judge John F. Dillon and regards local political units as mere creatures of their states.

Paradoxically, McClanahan, a self-described advocate of thinking and acting locally, subscribes to the Dillon Rule and believes a state can intervene upon a locality’s initiatives and even revoke its operating charter.  According to the Dillon Rule the state government is sovereign over the locality and McClanahan claims that this is the nature of federalism in the United States’ tradition.

Interestingly, an obscure page from the Federal Emergency Management Agency (FEMA) also compares Home versus Dillon Rule and emphasizes that, in either case, “authority is derived from State sovereignty as delegated power”.

This leads to several questions on the nature of sovereignty and the source of political power:

1.      What is the nature of sovereignty and what is its source?

2.      Where does political authority actually derive?

3.      Do political authorities reflect and comport with social organization?

4.      How do people delegate authority to governments to act on their behalf?

5.      In what sequence do people consent to each ‘level’ of various governmental organizations in a federal system?

McClanahan is a historian who specializes in the founding principles of the United States and is associated with the Abbeville Institute exploring Southern tradition.  Highlighting these specialties are significant to distinguish that questions I am posing are different from history, the study of what was, from political theory and the search for legitimate authority.

The study of political-economy explores social relationships conducive to the maximization of wealth creation, properly understood as human well-being.  Included in this concept is the minimization of conflict through property rights, as well as the maximization of social harmony through conflict free exchanges of resources and material goods.  It precludes war by dissuading anti-social behaviors, parasitism, and predation.  It promotes the division of labor, specialization, and the directing of resources to their highest valued ends through market activities aimed at consumer satisfaction.

Progress Yoga

The whole purpose for the American colonists seceding from Great Britain was to organize the form of powers most likely to fulfill their safety and happiness.  Government was moving from status, based on the divine right of kings, to one of contract through a written constitution with enumerated, delegated authorities. 

This was action oriented on increasing consumer satisfaction in the political economy of security production. As much improvement as a written constitutional order provided in the move from status to contract there is much more room for improvement from the present order.

Obviously, the answers to the questions posed above will undoubtedly differ between a historian and a political-economist. 

History in the United States has proven Mao Tze Tung’s dictum that political power grows from the barrel of a gun and power structures within American federalism have not minimized conflict between the various political units.  Authority has not flowed smoothly from the people to their delegated rights protection agencies. Nor have these agencies proven to be good stewards of the powers delegated to them.

History may not have the answers to the political conflicts we are dealing with.  To paraphrase Einstein’s pithy quip, one cannot solve problems with the same level of thinking that created them. Learning the mistakes of the past may be essential, yet dwelling in the past might not be the best strategy for shining light on the way forward. 

This is why a historian cannot answer the questions I’ve posed and justify the Dillon Rule without intellectual leaps over logic, even though it may be fun to watch.