Republicans like to say that they’re the party of small government and local control, but as with their claims to be the party of fiscal discipline, they often fail to follow through when it runs afoul of their other priorities or simply becomes politically inconvenient.

We’ve seen this in recent years with a number of issues, when Republican-led state governments either impose additional restrictions on local governments or refuse to grant them additional flexibility to set policy as they see fit. Usually, when Republican-led governments intervene in this manner, they frame it as a matter of intervening to protect their constituents’ individual constitutional rights from being trampled by some local entity. While it might be nice to think that Republican politicians always have this noble intention when they run roughshod over local governments, there are a couple of problems with this argument. 

The first is a fundamental misunderstanding of what it means to say that something is unconstitutional. While we all have our own views of what should and should not be considered constitutional, until the issue is actually considered by the courts, that’s simply a matter of opinion. The constitutionality of a particular governmental policy is settled by the courts after a legal challenge, not by the opinion of activists or politicians. While it’s perfectly valid for an elected official to oppose a policy because they think it’s unconstitutional, they’re not the ultimate arbiters of constitutionality: The courts are. If any government implements a policy that harms an individual, they’re free to challenge it in court and make their constitutional arguments there. Thankfully, as a constitutional republic, we have a well-established process to do that in this country. Anyone who depends on politicians to protect their own individual liberties is bound to be sorely disappointed.  

Another issue with this approach is that it essentially short-circuits the democratic process at the local level. When local governments make policy, their own constituents have every opportunity to have their voices heard throughout the process. If a decision is made by elected officials, citizens can appeal to them directly to reverse or modify the policy. If that fails, in many jurisdictions they may take it to the ballot box via a referendum campaign and overturn it themselves. If that’s not available as an option, they can always use it as an issue in the next election in order to oust the local elected official(s) and reverse that decision. This isn’t simply a theoretical process: We’ve seen it play out time and time again in Maine. Selectmen and school board members have lost re-election because they dismissed staff without adequate explanation or implemented some controversial policy. These same opportunities exist during, and after, an emergency like the current pandemic. 

So, the usual explanations for Republicans to intervene in local governing are little more than excuses: They’re not the only option for people to have their voices heard or have their rights protected. Instead, as is often the case in politics, in fact the opposite is true. If a state government restricts a local government on a constitutional basis, it’s often because they don’t think the courts are likely to side with their position. They’re also probably not intervening because they have a lack of faith in the local democratic process, but because they know their supporters are unlikely to prevail at the local level. For the most part, these explanations are little more than bad-faith justifications for policy based on ideology designed to appeal to one party’s base. 

In the course of ordinary events, that would merely make for justifiable charges of hypocrisy that could be debated throughout the next campaign. During an emergency, though, hamstringing the ability of local governments to effectively respond could be a matter of life and death. We’ve seen this during the pandemic, when Republican states have restricted – or attempted to restrict – local governments from imposing measure that may well be necessary for public safety. 

The continued importance of local control during an emergency goes in both directions: Just as urban areas in Republican-led states may need more restrictions, rural areas in Democratic-led states may need far fewer. Our federalist constitutional principles shouldn’t be abandoned during a crisis, but neither should a particular ideology be elevated over legitimate public safety concerns. The response to any emergency ought to be a practical matter, rather than becoming yet another issue that’s the subject of partisan political debate. 

Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at:
[email protected]
Twitter: @jimfossel


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