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At the beach, home rule is in the bag


One thing we can safely say about the election last November is that it was divisive, or at least that it has done little to heal the country’s divisions. The smoke had barely cleared (some would say it still hasn’t) when Richard Florida, the noted urban theorist, weighed in with his solution to what was ailing America.

It was devolution, Florida said. The return of power. Not states’ rights, but the rights of individuals to assemble in the smallest meaningful units of government, in their towns and cities, to fix their own problems:

Devolution and local empowerment would enable blue-state metro economies to invest their own resources while allowing others to do the same. It would respect local differences, local desires, and local needs. Importantly, it could also enable blue and red America to mutually coexist.

We cannot go through this trauma every four years. It will tear the country apart. We need a strategy and a system where these two Americas can live peaceably beside one another, and where each can undertake the investments and shape the safety nets and other policy measures they need.

It sounds like a panacea, where the lion will lie down with the lamb, which probably should make us suspicious. It seems unlikely that red and blue America can coexist separately when they’re often arguing about national policy. Still, why toss the baby with the saltwater?

We’ve had instances of devolution in action in South Carolina, and the state House reaction earlier this year, which are telling.

The state’s machinery looms large in the lives of its citizens, directly employing tens of thousands, including its public-school teachers; maintaining or failing to maintain a vast inventory of state roads; involving itself in the selection of officers down to magistrates, often with little local input; and on and on. And then there was the moment in the last session when the House again took up the convoluted question of a proposed ban on bans on the use of plastic bags.

It was a curious moment in part because South Carolina is technically a “home rule state,” meaning that its cities, towns, and counties enjoy some measure of autonomy since the state’s 1895 constitution was amended in 1973.

The ban on bag bans ultimately stalled in the House, putting a vote off for a year but by no means killing it. Similar bans have been pushed in other states by plastics manufacturers.

Meanwhile, the state already has two local bag bans, one passed by Isle of Palms in June of 2015  “to improve the environment of the City of Isle of Palms by encouraging the use of reusable checkout bags and banning the use of single-use plastic bags for retail checkout of purchased goods,” and a similar one passed by Folly Beach last September.

The city of Folly Beach has a population of 2,739. It has an elected mayor and six-member city council, and a slate of ordinances. It’s one of the smallest units of governance you’ll find.

On the first day of summer this year, and the first summer day with its bag ban in effect, Mayor Tim Goodwin said it was “going great.” He attributes the ban’s success, he said, to the fact that “Ninety-nine percent of the businesses were behind it to start with… It’s all about protecting what we have, it’s the fragile environment, and they want to bring their customers here.”

When the bag-ban ban came up again in the last session (a vote in the House was postponed until next year), Godwin said he was frustrated, even though Folly’s ban would have been grandfathered in. “If a community has a problem — and litter is a problem — and it sees a way to control its problem, I don’t think you as a General Assembly should tell us how to fix our problems.”

To be able to fix problems is what makes being mayor of a tiny city rewarding, he said. “This is the nice stuff you can do, the feel-good, great things you can do. I wish we did it all over the state.”

Some might think that wise policy as well, but then it wouldn’t be home rule. Suppose the state banned the use of plastic bags, period, as California did last year, telling all retailers they couldn’t dispense them. Could one small city pass an ordinance saying the use of plastic bags there was permitted?

In theory, no. Just as the U.S. Constitution has a supremacy clause, holding that federal laws are the supreme laws of the land, supremacy is implied in the relation of South Carolina’s laws to all the parts of the state.

The way to ban bags all over the state would be city by city, town by town, smaller government by smaller government. (In California, the statewide ban arose in response to cities and towns banning bags piecemeal. It was, in effect, a recognition of home rule.)

“Everybody feels good,” said Dick Cronin, mayor of the city of Isle of Palms, population 4,319, speaking on Thursday of its bag ban “The island residents and the visitors, they appreciate the fact that this is an environmental move to help protect the marsh and ocean areas.”

And there is a bigger argument, Cronin said. “The legislature has promoted and fostered home rule. Making this a statewide issue and taking it away from those of us at the municipal and county level is breaking that apart. We know more and care more about the environment on the coast than legislators from the Midlands and Upstate would.

“What’s going to be next? Is everything a municipality feels is good for our residents going to be taken away?

“Let us do what we think is best. That’s what home rule is all about.”

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  • Laird

    “Home Rule” was never intended to give municipalities unlimited authority. (In fact, the Home Rule law hardly affected them at all; most of its effect was at the county level.) Municipalities are subsidiary political entities; they have only such powers as the state chooses to delegate to them. And of course, any such delegated powers can be withdrawn at will (unless barred by the constitution). Under state law, municipalities only have the power to adopt regulations and ordinances which are “not inconsistent with the Constitution and general law of this State” (and the constitution says nothing contrary to that). Thus, if the state chooses to restrict their ability to ban plastic bags, or anything else, that is certainly within its power.

    There are some matters which are best left to local control, and some which are better dealt with state-wide. I don’t know which category banning plastic bags falls into, but I will note that in this era of large chains of stores it is probably more efficient to have a single rule applicable to all than to have to deal with a hodge-podge of local rules. Certainly that is properly a political decision to be made in Columbia.

    I would also note that if, as Folly Beach Mayor Goodwin says, 99% of local businesses are behind the ban, there’s nothing to stop them (or their counterparts in other beach towns) from adopting that policy voluntarily. Certainly that’s the policy of some stores, such as Whole Foods which strongly encourages the use of reusable totes (although I don’t believe it actually forbids plastic). Not everything has to be a law. Not everything should be a law. Politicians are too quick to apply the power of government to impose their personal preferences on everyone. To the extent that tendency is reined in, even if it requires a statute to do so, it’s probably a good thing.

    • Robert Meyerowitz

      I suppose I’m not convinced any political decisions are properly made in Columbia, law notwithstanding, or, more seriously, that the devolution of power to little cities is necessarily bad, or that the inconvenience of chain stores is more important than what these people say is best for their burgs. Home rule is a philosophy as well as a part of SC’s constitution — at least, that’s what I was trying to get at. And Laird, I’m grateful that you read it. 🙂

      • Laird

        Fair enough; what we’re debating here is philosophy, not law. Having seen “up close and personal” just how local governments work, I’m not a particular fan of devolving to them too much power. It’s bad enough that we have one Hugh Leatherman; I wouldn’t want dozens of them! But I’ll just leave it at that. Thanks for the article.

        • Robert Meyerowitz

          Are dozens of little Leathermans better than one big one… this is like a Zen koan.

          You’re most welcome.