One of the most intriguing stories of the year is the situation surrounding the Cobb County Board of Commissioners’ decision to invoke home rule to change their district map, rejecting the district map passed by the General Assembly. While it may seem straightforward, it is more nuanced. It deals with political philosophy fundamentals and constitutional structure. Every civics, government, and US or Georgia history class should be talking about it when it reaches a court after the new year.
It presents an opportunity to determine whether some Republicans are worthy of the conservative title so often proclaimed and a rare opportunity to help democrats and independents see the value in conservatism.
The underlying question is whether county governments have the right to craft their own district maps or if that power must be explicitly granted to them by the General Assembly.
To answer this for myself, I (ignoring all GA precedents on the subject) take the approach of Justice Clarence Thomas and look to first principles–One principle underpins our government: the consent of the governed determines all power. The people gave some power to the federal government for limited and enumerated purposes (long since ignored), and the people of each state granted some power to the states through the various state constitutions. To put it another way, the individuals within each state are sovereign–the source of authority in our system of self-government.
Next, from Justice Thomas Cooley (father of the home rule doctrine that Cobb is using).
the highest political authority in a regime remains the people. The people, not the state, possess the authority to create and dissolve governments. And under a republican regime, local self-government is a fundamental right of the people. It follows that, in the United States, local authority grounds state action, rather than the reverse. Local government therefore cannot, as a matter of principle, depend on the exercise of state authority
local communities rather than as creatures of the state, they possess local liberty, meaning that their actions as communities need not be specifically authorized by state law. The same rule—no prior authorization needed—underlies the Anglo-American concept of individual liberty. Law can and does limit individual liberty, but otherwise, liberty is viewed as original to individuals, not a creation of government.
So, the General Assembly has no business drawing maps for county commission districts unless it can show a compelling reason for state intervention.
Unfortunately, many of Georgia’s past leaders broke from first principles over the years for one reason or another. On this issue, Cobb county could not have a worse voice from history squarely against their case, as seen below.
“There is nothing in the Constitution of this state which guarantees to the people living within the limits of a municipal corporation the absolute right of local self-government. How far people so situated may be allowed to participate in the choice of officers who are to administer the affairs of the local government is a matter exclusively within the judgment and discretion of the General Assembly.”
Judge Andrew J. Cobb, 1902
Though they should, it seems unlikely a superior court or the Georgia Supreme Court would rule against the state legislature and precedent on this issue.
As the courts consider following Justice Thomas’ path of originalism, one in which stare decisis comes second to getting the right decision, they could follow in another Georgian’s footsteps.
“When an error of this magnitude and which moves in so wide an orbit competes with truth in the struggle for existence, the maxim for a supreme court, supreme in the majesty of duty as well as in the majesty of power, is not Stare decisis, but Fiat justitia ruat coelum.[Let justice be done though the heavens fall.]”
Justice Logan Bleckley of the Supreme Court of Georgia, 1891
As for politics, I see no reason a Republican should stand against Cobb County Commissioners on this issue. While state legislators are rightfully frustrated with the leftwing ascendency in Cobb and Gwinett, this cannot be used as a pretext to trample on local government. The legislature makes elections law and should ensure that districts are lawful and meet standards, but county commissions are equally capable of drawing their district maps as state legislators are in drawing state house and senate district maps.
Republicans have a rare opportunity to demonstrate bipartisanship and the benefits of conservatism by backing the Cobb Commissioners. Given the sentiment of the Republican base toward local control, the stance to support the Cobb Commissioners would not be politically costly. If anything, it would confirm to voters that it isn’t empty rhetoric when we talk about local control. Plus, if the courts reject Cobb’s move, a constitutional amendment to strengthen local autonomy would have broad bipartisan support from voters.
Finally, on a fundamental point, adhering to first principles requires that you stand up for those who disagree with you. The choice is simple here. Conservatives–at least those who favor limited government and liberty–should appreciate the effort to increase local autonomy and liberty.