BY Jemille Q. Duncan
Sep. 22, 2023
The Constitution gives the federal government power to regulate taxes, debts, commerce, post offices, patents and copyrights, lower courts, declarations of war, and the creation of an army and navy. Expressio unius est exclusio alterius. The expression of one thing is the exclusion of the other. By limiting the federal government’s authority to those few things, the Founders left all the juicy issues for local consideration.
This is the reasoning conservative Supreme Court justices give for ruling in favor of localized policymaking, often returning issues to the states. Democrats bash conservative judges for this. But watch how Democrats behave outside the national arena.
The way conservative justices prefer state control over federal control, local Democrats favor municipal control over state control. That’s not necessarily bad. There’s nothing more American than a healthy skepticism of big government. What is bad? Dems’ hypocrisy in criticizing conservative judges for ruling the same way they want to govern locally.
In Philadelphia, Democrats challenge the state of Pennsylvania on everything from raccoon captures to minimum wage. Take guns as an example. State law precludes municipalities from regulating guns. But local Democrats try anyway, attempting to enact gun bans in recreation centers, limits on the number of guns one can purchase each month, and requirements to report lost or stolen guns. The state courts overturned all these attempts because state law simply disallows it. But that hasn’t stopped the City from suing the state — again — to secure local control of guns.
While hearing arguments on the lawsuit, Pennsylvania Supreme Court Justice David Wecht quipped that it reminded him of the Lorrie Morgan song, “What part of no don’t you understand?”
On top of that, Philly Democrats recently urged the General Assembly to give municipalities the authority to create their own minimum wage. They say, “the specific needs of Philadelphia and its residents are unique, and a statewide minimum wage would likely not address these specific needs.” Sounds a whole lot like federalism, which tells us the needs of each state are unique and federal policy cannot address those specific needs.
Even within Philadelphia, Democrats opt for localization, preferring neighborhood-specific policy over citywide policy. Our City Council tells us we can have streeteries in some neighborhoods but not others and, most recently, safe injection sites in some neighborhoods but not others. Democrats scold Republicans and their proclivity for governing state-by-state, but local Democrats govern neighborhood-by-neighborhood.
This is not to doubt the intentions behind all of these local power plays. It does seem time to raise the minimum wage in Philadelphia, we do need more ways to limit gun violence, and there may be an argument for District Councilmembers making decisions for their specific constituents.
But the way they are going about it is no different than what they condemn conservative policymakers for. It benefits local politicians — Republican and Democrat — to want localized policymaking when their party has local control.
When local Democrats do it, they say it’s to enhance community input. When Republicans do it, it’s to advance “state’s rights,” which has all kinds of negative connotations. This is intellectually dishonest.
When Democrats levy attacks against conservative judges for adhering to the Constitution’s emphasis on local policymaking, it’s usually in cases where Democrats relied on the courts to make policy rather than making it themselves.
Instead of encouraging unelected judges to decide pivotal questions of our time, Democrats need to get serious about legislating. The Supreme Court’s decision overturning the right to abortion should be a wake-up call to Democratic lawmakers: Abdicating rights that should be legislated to courts does not work because courts can undo those rights as quickly as they created them.
I no longer want to hear impassioned speeches about the Court stripping rights from us because we were kidding ourselves if we ever thought those court-created rights were ever stable to begin with. Instead, Democrats need to codify every case that granted us a right we hold to be fundamental.
To their credit, some statewide Democrats have begun doing this. State Senators Amanda M. Cappelletti and Judith Schwank introduced an abortion protection package. Philadelphia Democratic State Representatives Malcolm Kenyatta and Danilo Burgos also introduced legislation to protect gay marriage. And State Representative Leanne Kreuger introduced a bill expanding contraception access.
Instead of erroneously attacking courts, Democrats would be better off working to persuade their fellow lawmakers and citizens to legislate those issues.
Jemille Q. Duncan is a public policy professional, columnist, and Gates Scholar at Swarthmore College.
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