How a Little-Know Virginia Law Has Been Used to Uphold White Supremacy and Undermine Local Democracy

Simon Davis-Cohen

This photo shows the Robert E. Lee statue in Charlottesville, Virginia. The city council voted to remove the statue in 2017 and the statue was at the center of the deadly "Unite the Right" rally in the city later that year. Recently, a Virginia district court ruled that the city council does not have the authority to remove the statue.

Novem­ber’s elec­tions deliv­ered an over­whelm­ing vic­to­ry for pro­gres­sives in Vir­ginia, where Democ­rats solid­i­fied a major­i­ty in the Gen­er­al Assem­bly and can­di­dates in local races fol­lowed suit. In Char­lottesville, where the dead­ly white nation­al­ist Unite the Right” ral­ly took place two years ago, vot­ers elect­ed a slate of pro­gres­sive can­di­dates to the city coun­cil, includ­ing an activist, Michael Payne, who is endorsed by the Demo­c­ra­t­ic Social­ists of America.

But the gap between elect­ing pro­gres­sive offi­cials and enact­ing pro­gres­sive poli­cies is a wide one. An ongo­ing court bat­tle over the Con­fed­er­ate stat­ues at the cen­ter of the white nation­al­ist ral­ly shows how a lit­tle-known legal rule has been used to ham­string local democ­ra­cy across the state.

On Sep­tem­ber 13, 2019, Char­lottesville, Vir­ginia Cir­cuit Court Judge Richard Moore over­ruled the Char­lottesville City Council’s deci­sion to remove its pub­lic stat­ues of the Con­fed­er­ate gen­er­als Robert E. Lee and Stonewall Jackson.

The coun­cil had vot­ed to remove the Lee stat­ue in Feb­ru­ary 2017 and lat­er vot­ed to remove the Jack­son stat­ue. As the coun­cil vot­ed to remove the mon­u­ments, the racist lega­cy of the South­ern gen­er­als came into focus.

A nation­al move­ment to remove Con­fed­er­ate mon­u­ments was gain­ing momen­tum after Dylann Roof’s 2015 Con­fed­er­a­cy-inspired mas­sacre at the African Amer­i­can Moth­er Emanuel AME Church in Charleston. Fol­low­ing the white suprema­cist killings, statutes of Lee were tar­get­ed for removal. Many of the mon­u­ments had been erect­ed by reac­tionar­ies in the ear­ly 1900s, by a move­ment to jus­ti­fy the Con­fed­er­a­cy and reframe the South’s defeat in the Civ­il War. How­ev­er, the myth that Lee some­how abhorred slav­ery” has by now been intense­ly chal­lenged. A piece in the The Atlantic in 2017 effec­tive­ly debunked the myth, by mak­ing clear he held white suprema­cist views and treat­ed his slaves brutally.

Two months after the council’s deci­sion to remove the Lee statute, a small group of local res­i­dents sued the city of Char­lottesville, argu­ing the local gov­ern­ment had over­stepped its authority.

That August, white nation­al­ists vio­lent­ly marched on the city at the Unite the Right” ral­ly to defend the stat­ue. The ral­ly would lead to the death of 32-year-old pro­test­er Heather Hey­er, and two state offi­cers who died in a heli­copter crash while patrolling the rally.

In this con­text, Judge Moore’s rul­ing dealt an obvi­ous blow to those seek­ing to chal­lenge the ris­ing tide of white suprema­cy. But there’s anoth­er, crit­i­cal impli­ca­tion that has received less atten­tion. This law­suit reaf­firms a rule that’s been thwart­ing pro­gres­sive pol­i­cy-mak­ing by cities and coun­ties across the country.

A less­er-known ele­ment of the law­suit against the city is its argu­ment that the city res­o­lu­tions vio­lat­ed a cen­tu­ry-old legal doc­trine referred to in Vir­ginia, as the Dil­lon Rule.” That rule, also referred to as Dillon’s Rule,” is named after a cor­po­rate rail­road attor­ney and even­tu­al judge named John F. Dil­lon. To this day, he is cred­it­ed with pio­neer­ing a judi­cial attack on munic­i­pal­i­ties at the peak of post-Civ­il War Recon­struc­tion — a time of height­ened African Amer­i­can elec­toral par­tic­i­pa­tion fol­low­ing the eman­ci­pa­tion of slaves and expan­sion of suf­frage to African Amer­i­can men.

Dil­lon became well-known for a legal trea­tise he wrote in 1873 called The Law of Munic­i­pal Cor­po­ra­tions which raised alarms about local gov­ern­ments that were try­ing to redis­trib­ute wealth and expand demo­c­ra­t­ic par­tic­i­pa­tion in local pub­lic ser­vices. Pop­u­la­tions of urban immi­grants were boom­ing. At the time, there were numer­ous legal bat­tles over local gov­ern­ments’ pow­ers to tax prop­er­ty own­ers —who were over­whelm­ing­ly white — and set labor stan­dards for city con­trac­tors. In a Yale Uni­ver­si­ty lec­ture, Dil­lon called laws that tax prop­er­ty dis­crim­i­na­tion leg­is­la­tion” that infringes on prop­er­ty rights, and urged his audi­ence to fear and guard against… the despo­tism of the many, — of the majority.”

Sim­i­lar argu­ments that upheld the right­ful enjoy­ment” of prop­er­ty, as he wrote, were at the time also being used to pro­tect prop­er­ty own­ers’ rights” to dis­crim­i­nate in pri­vate places, and shield them from tax­a­tion. His trea­tise argued — in reac­tionary fash­ion — that local gov­ern­ments only pos­sess those pow­ers which states explic­it­ly grant them.

This idea has mor­phed into a legal doc­trine that blan­kets the nation.

In 1891, the U.S. Supreme Court effec­tive­ly applied Dillon’s Rule to all Amer­i­can com­mu­ni­ties by cit­ing it in a rul­ing that said an Indi­ana town didn’t have the author­i­ty to sell bonds. The Court lat­er reaf­firmed and broad­ened Dillon’s Rule in 1907. Since then, it’s been used to under­mine com­mu­ni­ty democ­ra­cy in many states.

Just as it was used in the late 1800s, Dillon’s Rule was a tool the State of Michi­gan used to suc­cess­ful­ly defend dis­solv­ing the pow­er of half a dozen major­i­ty African Amer­i­can city gov­ern­ments after the finan­cial cri­sis of 2008 (includ­ing Detroit and Flint). It has been used to defend the Alaba­ma State Legislature’s restric­tions on the gov­ern­ing pow­ers of Birm­ing­ham, a major­i­ty-African Amer­i­can city, and oth­er cities. Every­where, it defines fun­da­men­tal pow­er dynam­ics. The rule is rig­or­ous­ly defend­ed by the Amer­i­can Leg­isla­tive Exchange Coun­cil, a con­ser­v­a­tive cor­po­rate-led, state-lev­el pol­i­cy network.

Some states, such as Michi­gan, iden­ti­fy as Home Rule” states. There, local gov­ern­ments enjoy some assumed local self-gov­ern­ing author­i­ty. How­ev­er, this author­i­ty is super­fi­cial com­pared to the deep­er influ­ence Dillon’s Rule wields, which allows state leg­is­la­tors to uni­lat­er­al­ly rede­fine and restrict what those Home Rule” pow­ers are, at their whim. Home Rule” did not pro­tect the pow­er of the Detroit and Flint city coun­cils from being gutted.

That’s because, under Dillon’s Rule, there is no check on how far a state can go in usurp­ing local democracy.

The impact of Dillon’s Rule in Char­lottesville is not lim­it­ed to the fight over stat­ues. Fol­low­ing the white nation­al­ist Unite the Right” ral­ly there was an effort to ban assault weapons in pub­lic spaces. That too was pro­hib­it­ed by Dillon’s Rule.

A local move­ment also suc­cess­ful­ly lob­bied the city to pur­sue racial jus­tice reforms. This activism led the city to con­sid­er afford­able hous­ing reforms that were seen as a ben­e­fit to the African Amer­i­can com­mu­ni­ty. It was a con­crete response to the white nation­al­ist rally.

But, accord­ing to Dillon’s Rule, the city had lim­it­ed pow­er to enact mean­ing­ful afford­able hous­ing mea­sures. The Vir­ginia Gen­er­al Assem­bly hadn’t grant­ed the city author­i­ty to pass some­thing as sim­ple as an inclu­sion­ary zon­ing ordi­nance to require devel­op­ers set aside a per­cent­age of new devel­op­ments as afford­able.” That reform — much less any­thing stronger — also nev­er went for­ward.

Char­lottesville com­mu­ni­ty mem­bers also mobi­lized to estab­lish a stronger civil­ian review pan­el to process com­plaints against local police offi­cers. These efforts were also stymied by the leg­is­la­ture, which, thanks to Dillon’s Rule, does not allow sub­poe­na pow­ers for Charlottesville’s review board.

This form of repres­sion is not unique to Vir­ginia, Alaba­ma, or Michi­gan. In com­mu­ni­ties across the nation, local move­ments are stymied from rais­ing the min­i­mum wage, gov­ern­ing the fos­sil fuel indus­try, height­en­ing civ­il rights pro­tec­tions, and oth­er­wise weigh­ing in on key soci­etal questions.

How­ev­er, despite the racial­ly-dis­pro­por­tion­ate impacts of Dillon’s Rule, demands for more local democ­ra­cy are often mis­un­der­stood and con­fused with demands for racist lib­er­tar­i­an­ism. That’s why com­mu­ni­ties that work with Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF), which I work for, chal­lenges Dillon’s Rule in a way that main­tains a com­mit­ment to state and fed­er­al pro­tec­tions for civ­il and human rights, while fight­ing for local com­mu­ni­ties’ rights to increase and expand those protections.

CELDF works with local gov­ern­ments and local grass­roots groups that aim to make fun­da­men­tal change to state con­sti­tu­tion­al law, includ­ing abol­ish­ing Dillon’s Rule. This means redefin­ing state law as a floor” that local gov­ern­ments have a right to build upon, in order to height­en pro­tec­tions for civ­il and human rights — just as fed­er­al law acts as a floor” upon which states can increase pro­tec­tions. It means rec­og­niz­ing some con­sti­tu­tion­al demo­c­ra­t­ic pow­ers for local democ­ra­cy, and mov­ing away from the sys­tem we have today — where states remain uncon­strained in their repres­sion of local laws.

CELDF has worked with near­ly 200 munic­i­pal­i­ties and Native nations across ten states that have adopt­ed laws that embody this vision. Our part­ners are advanc­ing state con­sti­tu­tion­al change and have passed and advanced local laws that chal­lenge Dillon’s Rule.

Oppo­si­tion to Dillon’s Rule is gain­ing some momen­tum in Vir­ginia, where CELDF has orga­nized with com­mu­ni­ties. The new Demo­c­ra­t­ic major­i­ty has made some promis­es about allow­ing local gov­ern­ments more author­i­ty to take down racist stat­ues. How­ev­er, its sup­port for struc­tur­al change to reverse Dillon’s Rule is far from clear. And it will take more than a sim­ple elec­toral major­i­ty to make such trans­for­ma­tive change.

In Char­lottesville, the bat­tle over stat­ues con­tin­ues. Sup­port­ers of the Con­fed­er­ate mon­u­ments are press­ing the city to spend mon­ey to pro­tect the stat­ues from van­dal­ism. The city on the oth­er hand is now appeal­ing Judge Moore’s rul­ing, argu­ing the stat­ues send a racist mes­sage. They will like­ly get some help from the new legislature.

One Char­lottesville activist I spoke to told me, I wish a thou­sand locals and [Uni­ver­si­ty of Vir­ginia] stu­dents would put a chain over [the statutes] and pull them down.”

Edi­tor’s Note: This arti­cle was orig­i­nal­ly pub­lished by Scalawag and is repub­lished here with per­mis­sion from the writer. You can read the orig­i­nal ver­sion here.

Simon is a writer, film­mak­er, and works part time for the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund. He edits the Ear to the Ground newslet­ter and can be found on Twit­ter @SimonDavisCohen

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