Conservatives and liberals like to argue about state power versus federal power. Personally, I’m more interested in state power versus local power. But when push comes to shove, local power seldom wins.
Discussion of federal power usually involves quoting the 10th Amendment to the United States Constitution, which says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
And that settles it. Many people quote this amendment to show that states rule, and the federal government should butt out. But not so fast. The 10th Amendment doles out power among three entities: the United States, the various states and the people.
The first part of the rule is clear: If a power is not delegated to the federal government, only states can do it. Constitutional nerds like me know exactly what’s delegated to the United States. Most of those powers are listed in Article I, Section 8. If you don’t know what that means, look up the Constitution on the National Archives website.
The problem is that some of the powers listed in Section 8 are vague and subject to interpretation. For example, the federal government has power over interstate commerce, but the limits of it are unclear. When the country was founded, most commerce was local, but today even farmers market produce may be raised with stuff from elsewhere.
But let’s go back to the confusing part of the 10th Amendment — the part about “or to the people.” Which powers not given to the United States go to the states, and which go to the people? And how do the people exercise their powers? It sounds almost like the people should have initiative power to override state or federal powers that they don’t like. But there’s no such power in the Constitution. People have indirect power to elect legislators, but they don’t get to vote on issues.
Maybe “or to the people” just means “none of your business.” If it’s personal or family business, it’s none of any government’s business. But if that’s the intention, why not say so? The Constitution isn’t very specific about our privacy rights, which is why many think the government is interfering too much in their business or not enough in other people’s business.
You may remember a column I wrote comparing the U.S. Bill of Rights to the New Mexico Bill of Rights. There are many similarities, so you might expect that the New Mexico Constitution would have its own 10th Amendment. It would probably go like this: “The powers not delegated to New Mexico by its Constitution are reserved to the Counties and Municipalities respectively.” But there’s no such provision. The state constitution doesn’t reserve undelegated power to local government.
In fact, it’s the opposite. The state creates the counties and municipalities, and regulates their laws. The Silver City charter sounds great, but it’s all talk. The charter says we can regulate gambling and bawdy houses or penalize Sabbath-breaking and indecent language, but we can’t.
When Silver City tried to keep its own election times, we found that we can do whatever we want — if the state lets us.
I recently ran across a Facebook discussion that proposed a local ban on fireworks because of fire danger. Most participants (and their dogs) wanted the ban, but no doubt elsewhere on Facebook people support fireworks even if we all burn.
I learned about this issue back in 2011, following the disastrous Quail Ridge Fire. I wrote protest email to several state legislators. One of them (not mine) answered in a snooty tone that fireworks vendors had to buy inventory in advance. It would be unfair to these small businesses if their supplies were wasted.
Well, what about local businesses that might have their buildings burned to the ground?
I suspect if there was a vote, the fireworks fanatics would win. But there was no vote by the people or the Town Council or the County Commission. State law is confusing about what level of government can ban fireworks in a drought. Santa Fe County voted in early June to ban fireworks in some areas, and the ban seemed to hold up, although I wonder if it was effective.
Fortunately, a big rain hit here a few days before the holiday, which might be how we survived the Fourth without government action.
Too bad power isn’t delegated more specifically. The federal government should handle federal issues. The state government should handle state issues. Counties and municipalities should handle local issues. And the people should handle private issues. But good luck drawing the lines between them.
