"Community Rights" as an Organizing Strategy
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Michael Livingston 
The following was co-authored with Sara Cromwell and Sarah Owens, members of the IOPS Oregon Chapter, and posted primarily for other IOPS U.S. chapters who might be considering strategic alliances with so-called “community rights” organizations. It is written from the perspective of participatory societal values with full knowledge that some visitors to IOPS who read it may disagree with our assessment, based on their own perspective and values. However, it is offered to all readers only as information/opinion, and not advice, and should not substitute for case-by-case analysis based on individual circumstances. We undertook this work because community rights-based activity is on the increase in Oregon, and, when we went looking for information, we could find very little critical analysis of the movement from a left perspective, and even less in the way of legal analysis. If you read it, we hope you find it helpful, or at least informative.
“Community Rights” as an Organizing Strategy
The path to a better future includes creating experiments in its image in the present, yes, but it also includes a long march through existing institutions, battling for changes that improve people’s lives today. Fanfare for the Future, Volume 3, by Michael Albert, Jessica Azulay and David Marty at 130 (ZBooks, 2012).
Demands made against existing institutions ought to enhance people’s lives, advance the likelihood of further successful struggle, and advance the consciousness and organizational capacity to pursue those further aims. These provide the yardsticks for measuring success. Fanfare for the Future, Volume 3, by Michael Albert, Jessica Azulay and David Marty at 130 (ZBooks, 2012).
We became interested in “community rights” through a friend who was enthusiastically recommending it and the Community Environmental Legal Defense Fund (CELDF) to just about everyone he knew. We’d heard of CELDF before, but never gave it much attention. That changed when CELDF started promoting “community rights” here in Oregon.
"Community rights" is CELDF’s fourth phase, or strategy, for protecting local communities against unwanted corporate business operations. The first, was to challenge land use permit applications, which often delayed, but ultimately failed to prevent the offending corporate activity. The second was to assist communities to enact ordinances asserting “their right to self-govern.” The third (Democracy School Online Part VII at ~17:00 to 23:00) was to assist communities to enact ordinances that purported to strip corporations of their constitutional rights. A few years later, CELDF conceived and launched its “community rights” strategy.
Now, some may be wondering, just what are “community rights”, and why haven’t they been invoked previously? Well, advocates maintain that they are “the same [rights] as those in the Declaration of Independence, especially our right to local self-governance”, whereby communities may "reject unsustainable economic and environmental policies set by state and federal governments" (see Mission Statement).
U.S.ians who remember their high school civics instruction will recall that the Declaration of Independence listed the grievances the American colonies (i.e., states) had against the King of England and that, based on those grievances, the signers of the document declared that “these United Colonies are, and of Right ought to be, Free and Independent States” and that “they are Absolved from all Allegiance to the British Crown.” According to the Declaration, the rationale supporting that rebellious act goes something like this: (1) the people have “certain inalienable [r]ights,” which include “[l]ife, [l]iberty, and the pursuit of happiness”; (2) “[g]overnments” are established “to secure these rights” and derive “their just powers from the consent of the governed“; and (3) when “any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government.” The Declaration of Independence did not “institute [a] new government” to secure these, or any other, “rights.” The Constitution of the United States, which was adopted 15 years later, did establish a “new government,” and, in addition, guaranteed certain rights to individuals and the states and established an amendment process by which the provisions of the Constitution could be altered. The Constitution does not refer to the Declaration of Independence, and Article VI of the document states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
So, contrary to the claim of community righters, the Declaration of Independence is not the source of, or authority for, any legally enforceable right, much less “community rights.”
“Community rights” rhetoric continually conflates the right of “self-governance” -- which the Constitution recognizes through its amendment process -- with the hoped-for right to local self-governance, which the Constitution does not recognize. Therefore, even if the voters in Lane County or Benton County (Oregon) were to enact their community rights measures, all the provisions that conflict with the Constitution, federal statutes, or state law (which means virtually all the provisions community righters care about) would be unenforceable, a fact that CELDF and some, but not all, community righters know. But, are “community rights” nevertheless a good idea?
As Michael Lilliquist (Bellingham Washington City Councilor) and David MacLeod (Integral Permaculture publisher) have pointed out, “[h]yper-local democracy is a dangerous and potentially corrupting tool; you don’t want to use a tool which you would not allow others to use.” But, except for the requirement of a majority vote, “community rights” proponents have not identified any limitations on these rights. To them, the “right to local self-governance” means that cities and counties can, if they choose, exempt themselves from any state or federal law or regulation that they don’t like. So, for example, a county could adopt an ordinance prohibiting construction of an interstate highway across its boundaries, or an ordinance barring Latinos from renting or owning homes in the area, or, as David MacLeod observed, counties and cities could overturn legally sound state and federal environmental regulations, “which is exactly what the Tea Party wants to do.” Sound like a good idea to you?
Although it purports to provide cities and counties with the means to protect themselves against environmental degradation, the “community rights” movement is based on a theory of “local” self-governance and autonomy that, if applied everywhere, would almost certainly result in a patchwork approach to environmental protection. It is unreasonable to assume (as “community rights” advocates apparently do) that local communities will be any more immune to capitalist influences than the federal government or the states are, and there’s every reason to think that, for every pro-environment measure, there is likely to be a competing pro-industry measure. What if the Josephine County (Oregon) anti-GMO ordinance was enacted, but the anti-GMO ordinance on the ballot in neighboring Jackson County was not? Aquifers, rivers and streams, and the wind and the rain do not start and stop at local political boundaries; in other words, there are few, if any, completely self-contained "local" natural environments.
There is further irony in the movement’s claim to be promoting democracy, when, in fact, its brand of local self-governance would promote a sort of tribalism and insularity that are inimical to solidarity and shared responsibility. Michael Lilliquist notes correctly that "the people’s sovereignty is embodied collectively not separately by the federal and state and local governments” and that “[e]very city is not and cannot be sovereign and independent." As Lilliquist further observes, the effort to enact local ordinances that are unenforceable (because they are in direct conflict with federal and state law) “is practically designed to create a constitutional showdown between local and federal government -- but that’s not what most people are concerned about. The common target of concern is the influence of corporations in our political and legal and regulatory systems."
The questions and concerns we’ve outlined here are those that any citizen in a community considering a “community rights” ordinance could be expected to raise. Yet, neither CELDF Projects Director Ben Price in his response to MacLeod’s blog, nor the “community rights” advocacy group Coal Free Bellingham in its response to Lilliquist’s assessment of their proposed ordinance, answered or addressed them in a direct, meaningful way. Their refusal (or inability) to do so is further evidence that this model for “local self-governance” can’t withstand much scrutiny.
The “community rights” strategy, like many strategies, is complex and hard to pin down. In the words of one advocate, you have to “mobilize a majority of the people” in a community, “underneath an ordinance vehicle” that “declares” their community rights, “a new structure of law” for the community will be established, causing the community to come into “direct confrontation with the corporate entities seeking to abuse what is within our community.” If that strikes you as somewhat obscure, try the descriptions here and here).
We think the strategy boils down to this: First, convince people who oppose an ongoing or proposed local activity (1) that efforts at regulation or law reform would be pointless, (2) that there is legal authority for the right to local self-governance, (3) that “community rights” measures like this and this and this, if enacted, are “legally binding” and will protect the community from the objectionable activity, and (4) that, if such measures fail to pass or are overturned, set aside or repealed, it is because the legal system is flawed or the community lacked courage and not because the measures themselves were patently unreasonable, unconstitutional, or unworkable. Then, tell people it’s a “win-win” strategy, because enacting or attempting to enact such measures will, over time, through some unspecified process, “drive” community rights “into law”, and hide or downplay the expectation that “winning” will require massive numbers to “rise up to demand a new structure” of law in a “complete revolt of sorts” that won’t occur for decades. It also helps to motivate people if you tell them that the “community rights” strategy is substantially similar to the abolitionist, suffrage and civil rights movements’ strategies, thereby putting “community rights” activism on a moral and historical par with activism in the name of civil rights and the right to equal justice under the law. (Understanding how intelligent people have come to have these false expectations requires a detailed examination of CELDF propaganda, especially its “Democracy School” curriculum, which we intend to undertake in a subsequent blog.)
The actual consequences of this organizational strategy are likely to include: (1) substantial legal costs to cities and counties forced to defend ultimately indefensible ordinances in state and federal courts and, in some cases, pay damages to the individuals and businesses who bring the lawsuits; (2) lost-opportunity costs that result when motivated citizens spend time and energy on these ordinances instead of participating in regulatory processes, law reform actions, coalition-building and meaningful protests; (3) divided communities like Mora County, New Mexico; (4) disappointment and disillusionment when, because they are illegal and unenforceable, the ordinances turn out to be ineffective to stop the activities from which they were supposed to protect the community; and (5) the enactment of “backlash” legislation like Pennsylvania’s ACRE and Oregon’s Senate Bill 863. About 10,000 citizens of Bellingham, Washington, signed a petition to put Coal Free Bellingham’s Community Bill of Rights on the ballot last year. We very much doubt that the signature gatherers told those folks when they signed the petitions that the proposed ordinance was unconstitutional and would be unenforceable, even if adopted.
It appears that, despite years spent implementing its “community rights” strategy, CELDF has never undertaken a comprehensive review and analysis to determine whether or how well it is achieving the advertised goal of actually protecting communities from harmful or unwanted activity. Or, if it has, it has not shared the results. Of equal, if not greater, concern is the absence of any vision for the new “structure of law” that is expected to be established as a result of the “community rights” strategy. Without such a vision, there can be no real effort to prepare and develop prefigurative institutions, roles and skills, and, consequently, nothing to prevent a prompt and successful counterrevolution and return to the old “structure of law” with the multi-national corporations, again, in control.
For the reasons discussed above, we think the community rights strategy fails to measure up to the yardstick for success set out in the Fanfare quotes at the top of this blog, which requires that demands made against existing institutions enhance people’s lives, advance the likelihood of further successful struggle, and advance consciousness and organizational capacity to pursue our efforts to plant the seeds of the future in the present. IOPS members should weigh very carefully whether to associate strategically or otherwise with community rights advocacy groups in their region.
Revised 3/22/14 to correct the spelling of David MacLeod's name.
3/24 Update: we have reliable information that CELDF’s response to this blog was posted in the comments under the pseudonym “Ivan Illich.”
3/29 Update: "Ivan Illich" reports that although he associates with CELDF and community rights groups, he is not CELDF staff and does not represent CELDF.
2/13/15 Update: Rick Nikolewski reports for Watchdog.org that the US District Court invalidated the Mora County, NM's ordinance and may award tens or hundreds of thousands in attorney fees against the County. (This and a similar suit were settled in April .)
6/29/15 Update: Richard Valdmanis reports for Reuters that "Linzey says his goal is not to write local laws that are popular, or stand up in court, but rather to trigger a public debate about community rights to local self-government - even if it means a community ultimately falls into financial ruin.
"If enough of these cases get in front of a judge, there is a chance we could start to have an impact within the judiciary," said Linzey. "And if a town goes bankrupt trying to defend one of our ordinances, well, perhaps that's exactly what is needed to trigger a national movement.""
Valdmanis notes that "The group [CELDF] has never won a case that went to court." (from "Green Group's Unconventional Fight Against Fracking")
Discussion 86 Comments
I have made similar arguments against CELDF in the past.
Here's my current thinking, stimulated in part by your thoughts.
Constitutionality, at this point, is a pretty thin justification for anything. The right has eroded the constitution to the point where I'd say pretty much anything is fair game. The questions I prioritize are-- what's the consequence? Is it effective?
Which you are paying attention to as well, so we have some common ground there.
The consequences of these campaigns are fairly unclear to me. Certainly, failure seems highly likely given the power of the opposition to them and the weakness of their proponents. On the other hand, when people see government betrayal up close, this sometimes helps them understand how the world works.
I actually think "hyper-local" democracy is exactly what the left/anarchists/democratic activists have always wanted. The trick is figuring out how to be a hyper-local democrat working toward wider expansion of collaboration and concern, instead of a hyper-local democrat holed up in a militia compound waiting for the government to invade.
And I don't see a clear answer to that question coming from either CELDF, or your essay.
Which is totally what I expect-- I don't have an answer. And no one that I've encountered yet does.
I will share with you a more concrete approach that I've theorized though certainly not practiced with any sort of demonstrable or reproducible success.
I think a lot of smaller municipalities could do a lot with their city government if the people in charge of it were dynamic, strong and visionary people. And I think electing such people is actually realistic in the relatively short term.
Imagine small loans/gifts of money to encourage local cooperatives. Creating small local public transit or even incentives for car-sharing. Incentives for turning yards into gardens and turning public buildings into spaces for community exchange of resources. As we build community, we can further reduce police forces and other vestigial arms of the mini-state; with a community that is willing to pool its resources, we can accomplish ever loftier goals.
To get there, we have to practice a new notion of public service. It's not "you elect me to run your city." Instead "you elect me to be your guide, mentor and facilitator to help you take responsibility for your own city and community."
I think we can bring that notion of public service into our organizing and projects whatever they may be. My very limited experience indicates to me that this can work. It is also incredibly slow, painful and lonely. Luckily, the world is so broken that we are pretty much all alienated and stressed out, so being an activist really isn't that much of a sacrifice anymore.
Like Ira, I'm of a mixed mind concerning CELDF. I've taught constitutional law for about 10 years at U Oregon, and I recognize that much of CELF's legal analysis, especially its constitutional analysis, is dubious. When I've pushed CELDF representatives about these issues, they've sometimes acknowledged that what they're doing isn't strictly constitutional and is more like legalistic guerrilla warfare. Other times, they've just obfuscated.
At the same time, there's value to much of the education and to the inspiration and sense of empowerment that CELDF provides to many. For this reason, I (along with the Wayne Morse Center) agreed to sponsor one of their Democracy Schools a couple of years back.
I think the jury's out on the efficacy of their approach. Yes, their followers are pretty much destined to lose each individual legal battle as it makes its way up the appellate process. But that can take years. In the meantime, many of these rebellious assertions of community autonomy can have a cumulative impact on the political environment. The "sagebrush rebellion" antics of right wing property zealots during the 80s and 90s were based on similar arguments and were, likewise, clearly illegal, despite various claims to constitutionality. But those antics were effective in shifting the political climate and national land policy in the direction they favored.
More recently, in Pennsylvania's Robinson Township decision, that state's Supreme Court sided with local communities and the state's constitutional environmental protection provision to strike down the state legislature's attempt to ram fracking down the throat of every local political subdivision. It seems likely that the court was influenced to some extent by the breadth and depth of local resistance -- much of which was facilitated by CELDF.
I recognize that the analogy to the Sagebrush Rebellion won't bring much assurance to the blog's author. It reinforces their point that local power is at best a double edged sword; it serves local bigotry and corruption and environmental recalcitrance as readily as it serves more enlightened local agendas. And, yes, in many areas of environmental policy, effective measures require strong national -- even international -- regimes. The philosophy underlying the local sovereignty movement implicitly undermines all such regimes.
To answer the question of whether we can approve the principles behind CELF's strategic means, I suppose we would need to know whether it's more in the nature of national and international regimes to support initiatives such as environmental protection and resource preservation, or to support industrial development and global capital's efforts to pillage those resources. I'd like to believe the former, but I suspect the latter may be more true.
It would also be nice to know whether local sovereignty would more often be employed on behalf of beneficent causes or regressive ones. I've wondered that for years, but I'm still clueless.
Hi John,
I actually give local sovereignty a lot of priority. I think the main danger comes from truly huge corporations playing government entities off against each other. If private, unaccountable tyrannies (thank you Noam Chomsky) continue to dominate, it doesn't matter much if municipalities or even states have more formal power.
I really think this line of debate is in many ways missing the point. Another way to put it-- I see potential value to approaching these battles as a means to building relationships, community, organization, commitment. But if the campaigners see their method or strategy as the one true path, then they've already lost, I'd say.
Also-- Local sovereignty doesn't preclude large scale cooperation. In our world, we are so alienated and power is so concentrated that we mostly are able to simulate cooperation by having a big powerful bureaucratic entity or maybe a few of them simply impose an "agreement." I don't like it, but we just don't have any other way to do it at the moment.
This is my experience with people involved:
"value to approaching these battles as a means to building relationships, community, organization, commitment."
Glad to hear you find value in it.
Good discussion. I agree with your concerns about community rights.
Great article with a thorough analysis. I concur with your assessment of this strategy. Using the courts is like organizing a movement to elect somebody - it drains precious resources (time, energy, money) and diverts movements into hierarchical power structures which are antithetical to anarchist and syndicalist revolutionary practice: horizontal, grassroots organizations expressing demands directly - not through state institutions - and winning political power and drawing increased popular participation by direct action. Pushing for state legislation is provincial and unsolidaritous. Fracking should be illegal everywhere, not just in the backyards of those privileged enough to muster the funds to fight it in the courts. We need to build movements and autonomous, self-managed organizations, not legal teams. You don't need a law degree to know justice. I quote Boots Riley:
They got the TV, we got the truth
They own the judges and we got the proof
We got hella people, they got helicopters
They got the bombs and we got the, we got the
WE GOT THE GUILLOTINE
Hi, Will Henry, it's true you don't need a law degree to know justice, and that there is great power in the people (assuming that's what you meant by your reference to The Coup's inspiring video http://www.youtube.com/watch?v=acT_PSAZ7BQ ). But, to be clear, the question of the blog is whether a particular strategy for reform (or, as Fanfare quote at the beginning of the blog puts it, for "making demands on existing institutions") measures up to IOPS standards. We conclude it doesn't for the reasons cited. However, again to be clear, we did not conclude anything about litigation generally as a strategy for reform. As lawyers, you would expect us to believe in the power of effective litigation -- to gain important reforms -- not our broader aim of a participatory society -- but to gain that which begins to satisfy the "pressing needs of the moment" (Fanfare, Volume 3 at 129), for example, litigation for police reform, preserving women's right to choose, individual privacy rights, food and drug safety and environmental regulation. I hope you would agree that these are part of a necessary "long march through existing institutions, battling for changes that improve people's lives today -- even as they auger and prepare for more changes tomorrow." (Id.) It's the wisdom and consequences of a litigation strategy that one knows in advance will be ineffective that we question here.
Community Rights are locked up within the frame work of a system that allows a corporation to keep maneuvering through the courts until they achieve the outcome they desire or they move to another community to try the exact same tactic until it works. You can look at the history of corporate personhood to see the lengths of which a corporation will go to get exactly what they want..
If we are talking about the failure of a suggested tactics. I agree completely that individual communities acting on its to achieve ,whatever, its agenda is will almost always fail against any corporate agenda. The court at some point will almost always interrupt law, statute or other legal avenues to the benefit of the corporation. It does not matter how much support you have in a community or organization when a legal decision is made. It is not based on democracy it's passed on legal opinion more times than not.
I believe controlling markets to effect the flow of capital is the best way to combat these kind of practices. This would be the only democratic process available where collective consumer consent could effect corporate policies.
I understand that this requires collective efforts on a massive scale, but it wouldn't be left in the hands of the courts if an organization existed and could put financial pressure on company to change its behavior.
I agree that corporations and the people who run them have too much influence. And, I think you and I also could agree that, because "growth" is essential to their continued accumulation of wealth and political power, unless something changes, they will continue to poison and cook the planet and impoverish working folks. So, the first question is, "What has to change?" and the next question is, "What's our strategy to do that?" This blog is an assessment of the "community rights" strategy for change, and, after digging into what that strategy is and measuring it against the standards set out in the quotes at the top of the blog, we conclude that the strategy is not a good one and say why. A primary deficiency is its failure to be clear about what the changed society that it seeks will look like and how the "community rights" model will get us there. As we observe in the blog: "Of equal, if not greater concern is the absence of any vision for the 'new structure of law' that is expected to be established of the 'community rights' strategy. Without such a vision, there is no real effort to prepare and develop prefigurative institutions, roles and skills, and, consequently, nothing top prevent a prompt and successful counter revolution and return to the old 'structure of law' with multinational corporations, again, in control.
If your criticism of the courts is that their decisions are not based on a vote of the community, I have to say that I'm glad that's the case. Courts, if they are to work at all, must decide cases and controversies based on the law. Any other system of judicial decision-making is an arbitrary one, even when the outcomes are benign. So, the law-making process is important -- that's where policies are set. One of the problems with CELDF's "community rights" strategy is that it effectively discourages activists from participating in that process by telling them that the process is "cooked" and they shouldn't bother. At least here in Oregon, that's a lost opportunity.
I will address your post within the next couple of days.
The American legal system has been crafted in such a way, by the business community, that taking on capital interest is like playing against a casino. You are gambling on a judges decision based on his/her interruption of the law. If law was finite you wouldn't have an appeal process.
Even if a community won against a corporation. That corporation can still force the community into another court by way of appeal. The community is forced to continue using it's resource to play in a rigged game. Where a corporation can keep appealing and legal maneuvering in such way to drag things out to drain the communities resources and get an outcome that the corporation desires.
Even if a community survives the appeal process and financial strain of legal action. The corporation can alway try again in an adjacent community.
I'm afraid it's not as simple as that. Although the outcomes in some cases may appear to follow the pattern that you describe -- e.g., the Citizens United decision -- that is not how "[t]he American legal system has been crafted," and it is not how courts work most of the time. Take a look at this article about a recent decision by the Pennsylvania Supreme Court:
http://articles.philly.com/2013-12-21/news/45419865_1_gas-act-act-13-marcellus-shale-coalition
I will have to defer to your judgment on legal issues. You got the education and experience. However, I am of an anarchist ideology so the courts run counter to my way of thinking. I will research the out comes of public interest v. capital interest in court decisions. The results and if there is secondary issues not being considered. There has to be some where to look to find how court cases trend in specific matters like fracking.. If you can advise to where a person might look for these kind of details I would grateful.
I believe fixing this really comes down to two key issues; the first is a debt jubilee because this will free us from any obligation to, and support of, oligarchic systems; the second lies in land reform, and by this I mean that we must insist that it is the birthright, and a human right of every one of us to a free and fair share of the land and its resources to make ourselves self sustaining. While this would be a shock to the systems of almost everybody it would work like a therapy for the majority while it acts like a poison to the exploitative systems that harm us.
To win this war, and to change it for the better we need to create for ourselves a social safety net that protects us all. Human beings cannot live, and they cannot wield power, without a land base, a water supply, and the tools and means to create our own survival. We must insist that it is our primary right to a free and fair share of these things as our birthright, and as a human-right that cannot be denied by anyone. Only with this steady platform beneath our feet can we steer through the torrid channels and hidden eddies that are planted everywhere by the corp/gov exploiters.
Imagine how your life would be different if you knew from the very beginning of your understanding that you have an absolute right to be here, and the means to freely take care of yourself. If we knew that our homes were secure and did not require the income from jobs to provide it, and did not require a bank mortgage made of pixie dust and our signatures to obtain it, we could with impunity say NO to the war jobs, NO to the Halliburton jobs, NO to the Montsanto and insurance company jobs, NO to the fast food jobs, we could say NO to government jobs and handouts that keep us voting for and supporting those who have chosen to become our enemies.
Instead of each devoting 10+ hours per day of our lives to supporting the corporate machinery we could work 3 hours per day to give ourselves our own representative government, to provide free health care, free education, and other vital services to each other as our community service, and then use the rest of our time to form action groups to restore our environment, to create healthy local food supplies, to alter the laws so they protect us against predatory entities that work to enslave us and to demolish the landscape in search of ever more profits. By freeing our time we will gift ourselves with an unstoppable weapon of every free man and woman with a wish to make things better in action and using their wits and their wisdom to turn the course of our society to something sane, and safe, and desirable.
Malcolm Gladwell said in his book The Tipping Point - How Little Things Can Make a Big Difference "If you want to bring a fundamental change in people's belief and behavior you need to create a community around them where those new beliefs can be practiced and expressed and nurtured.
These primary steps can create that environment and they are; 1. Call a debt jubilee and free ourselves from obligation and support of the existing corrupt system. 2. Declare that through usurious taxes used for illegal wars, through mortgages made from nothing but our signatures and compounded by usurious interest and bailouts, through centuries of fiat currency that has acted as a hidden tax upon the entire population, and through corporate wage slavery that is designed to leave us too poor to escape that system, we have long since PAID IN FULL for America and we can claim it as our own.
If we don't do this we will go on sinking in the quicksand made by the massive power and finances of the corp/gov oligarchs who have every intention of taking everything of value that we have and making it their own. If we can no longer stomach their slavery and exploitation then we need to take some bold steps that will secure and empower the people immediately so that we are not vulnerable, but are instead powerful and heavily armed with ideas, solutions, help, and action.
So I say, START!
If the "this" that you're talking about "fixing" is the ever-accelerating increase in the power and influence of corporations, I agree that your debt jubilee and land reform proposals might well be ways to withdraw support from corporations and to free us regular folks from our dependence on them. And, I think these proposals would be an appropriate topic for a separate blog or forum discussion. This blog asks whether the "community rights" movement is a worthwhile organizational strategy, and we'd like to keep the discussion here focused on that, and, particularly whether the movement meets the following criteria, which are set out in FANFARE FOR THE FUTURE, vol 3: "Demands made against existing institutions ought to enhance people's lives, advance the likelihood of further successful struggle, and advance the consciousness and organizational capacity to pursue those further aims."
I attended a weekend workshop by Paul Cienfuegos, who is associated with "community rights" strategy. The value for me was in seeing how the US Constitution has been interpreted through Law (especially the Commerce Clause) to promote capitalism and the property rights it is based on. Paul and the liberals in the workshop were uninterested in my analysis and many of them have been wasting time and energy with expensive court challenges which go nowhere.
I also live in a rural county run by reactionary "sagebrush rebellion" types who really take this "local autonomy" business to heart. They rule here because capitalist ideology of private property, competition,self-reliance and the perfection of markets rules here. The concept of Public Land and a Federal Governement are anathema to these folks. With local rule they would rape our forest for profit in a heartbeat.
Community Rights people need to be confronted with a radical critique at every opportunity, engaged with in a respectful manner and given alternative, productive strategies for change.
Very interesting observations. Of course you're exactly right about the need for radical critique and constructive engagement of community rights people. I expect it would go a very long way to addressing the concerns raised in the blog.
(1)
Livingston says "So, contrary to the claim of community righters, the Declaration of Independence is not the source of, or authority for, any legally enforceable right, much less “community rights.”"
The Declaration is one source for the theory of liberal (in the 18th century sense) democratic government, where the people create their government, their consent gives it legitimacy, and they have the right to create a government to protect their rights. Livingston seems to be looking for a "Bill of Rights" in the Declaration of Independence, and appropriately not finding one, and then saying we are saying there is one. We're not pointing to the Declaration as a source of substantive enforceable rights (although the right to life, liberty, and the pursuit of happiness is a substantive right, and better expressed in the Declaration than in the federal Fifth Amendment where it is actually enforceable (minus the happiness part)), but rather pointing to the Declaration as a source of the procedural right to use our government to defend our rights.
The Declaration expresses a procedural right to self-government as a foundational principle of the legitimacy of the state. Indeed, the US Constitutional framers were all in agreement that government must have the "consent of the governed." They didn't agree on who the governed were (did the governed include non-land-owners, or women?). They also didn't agree on whether the governed should govern directly (direct democracy) or through representatives (representative democracy). But they all agreed that consent was necessary for legitimate government.
None of this precludes the right to local self-government as an inherent right in our theory of government. See the history of Rhode Island governance in Amasa M. Eaton, The Right to Local Self-Government, 13 Harvard Law Review 441 (1900).
(2)
Livingston says "“Community rights” rhetoric continually conflates the right of “self-governance” -- which the Constitution recognizes through its amendment process -- with the hoped-for right to local self-governance, which the Constitution does not recognize."
The U.S. Constitution is an agreement between the states, which are frequently viewed as the sovereign powers. The states (actually, the people of the states - which problematizes the common view that the states hold the sovereign power) agreed to give certain powers to a federal government. The issues addressed by the U.S. Constitution are issues of the distribution of power between the states and the federal government, not between the local governments, state governments, and federal governments. It didn't make any sense, structurally, to discuss local power in the constitution.
Further, Livingston misses the key distinction between the U.S. Constitution being a constitution granting limited powers, and the police power held by states (and we argue also general purpose local governments). "Police power" means the authority to enact any law that benefits the health, safety, and general welfare of the community. The federal government can only do what the U.S. Constitution gives it the power to do (with elasticity in the necessary and proper clause). The U.S. Constitution is a grant of power. States, and local governments with police powers, can do anything that benefits the health, safety, and general welfare, that is not otherwise in violation of their constitutions. Thus, state constitutions are limitations (not grants) of authority. This is fundamental constitutional structure, that is fundamentally misunderstood by claiming "the Constitution does not recognize" the right to local self government.
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Livingston says "But, except for the requirement of a majority vote, “community rights” proponents have not identified any limitations on these rights. To them, the “right to local self-governance” means that cities and counties can, if they choose, exempt themselves from any state or federal law or regulation that they don’t like."
It is well established in constitutional theory that state constitutions may provide greater rights than the federal "floor" expressed in the federal Bill of Rights. See, e.g., Justice William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harvard Law Review 489 (1977). What community rights advocates argue is that local governments have the authority to create greater human rights and ecosystem protections than provided at the state or federal level. If the state can raise rights above the federal floor (this is established constitutional theory) then local governments should be able to raise humane and ecosystem rights above the level provided by the state.
Livingston's example of "an ordinance barring Latinos from renting or owning homes in the area" would go below the federal floor provided in the Fourteenth Amendment's equal protection clause. It is not rights-raising, but rights lowering.
Livingston's example of "counties and cities could overturn legally sound state and federal environmental regulations" is also rights-lowering. Community Rights is the authority to create greater environmental protections, if the people in a locality decide that their health, safety, and general welfare requires greater environmental protections than provided by state or federal law. Under the contemporary system of preemption and Dillon's Rule, the mere existence of a state or federal environmental regulation can serve as a bar to enactment of local law, even local law that is more protective of the environment.
Community Rights is not synonymous with local autonomy. Community Rights argues that local governments should have the authority to create a new story of rights on top of the first floor provided by federal law and the second story provided by state law (some states don't build a second story of constitutional rights, and the people of those states are left with only the protection of the federal rights - also state constitutional rights may not count in federal courts).
(Theoretically, this should be a fourth floor, because international law provides the ground floor, but the United States has trouble recognizing international law...)
Community Rights is the power to expand rights when the people at the local government level desire greater protection of human and ecosystem rights. Arguments that suggest local authority to raise rights can be used for xenophobic purposes, or to weaken environmental protections, misunderstand the constitutional structure of U.S. government, and the place in which Community Rights advocates attempt to assert local power.
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Livingston says "the “community rights” movement is based on a theory of “local” self-governance and autonomy that, if applied everywhere, would almost certainly result in a patchwork approach to environmental protection. It is unreasonable to assume (as “community rights” advocates apparently do) that local communities will be any more immune to capitalist influences than the federal government or the states are, and there’s every reason to think that, for every pro-environment measure, there is likely to be a competing pro-industry measure."
In case it is not clear by now, the "pro-industry measure" - if it attempts to weaken environmental protections provided by the state or federal government - is not within the local self-government power of the local government. That power is the authority to raise human and ecosystem rights above the state or federal floor, not lower them.
Conventional political economics argues that governments that provide greater protections for workers and the environment put themselves at a competitive disadvantage in the contemporary economy. If that is true, then a community that adopts community rights laws is doing so at its own economic detriment. Never-the-less, a community should have the right to do that. If the community decides its future is better with clean water and civil liberties in the workplace, then it should have the power to make that so. It may be less competitive in the capitalist global economy, but that is a choice it should be allowed to make.
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Lilliquist says "The common target of concern is the influence of corporations in our political and legal and regulatory systems." Corporations have designed a system where they go to the government to get permits to cause harm to a community, and if the community wants to fight back, its legitimate means of doing so is not to challenge the corporation, but to challenge the regulatory government.
Corporations use preemption, Dillon's Rule, the dormant commerce clause, the contracts clause, and corporate personhood (including regulatory takings) to strike down local laws that attempt to provide the community with greater protection than the corporate-created state regulatory system provides. Community Rights is a challenge to these corporate rights theories (not just corporate personhood), as these theories elevate the rights of property (corporations are property) above the rights of people governing themselves in their own community.
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Livingston challenges CELDF's theory of social change, then suggests that this causes " lost-opportunity costs that result when motivated citizens spend time and energy on these ordinances instead of participating in regulatory processes, law reform actions, coalition-building and meaningful protests."
I suggest Bill Moyer et al., Doing Deomcracy: The MAP Model for Organizing Social Change, in particular the idea that after a take-off phase of a social movement, people return to their communities to institutionalize the new social thinking that emerged in the take-off phase. In the global justice movement take-off phase around 1998 to 2003, we challenged the systemic premises of neo-liberalism, global capitalism, and transnational corporations. We said that the rights of workers and the environment are more important than corporate profit, and our government policy should reflect that. I see the community rights framework as a key tactic for institutionalizing that government policy. It starts, necessarily, from the ground up.
When what we need to change is a system of laws that subordinates democratic decision-making, human rights, and ecosystems, as below the interests of corporations, then what is "meaningful protest"? Asking Congress to do something about it? Protesting individual corporations (they are exerting their power to maximize shareholder profits, which is what they are designed to do)? I suggest that "meaningful protest" is challenging the rules that glue that system together, the rules that put corporations in a position to be more powerful than people in communities.
We have a system that makes sustainability illegal. CELDF is challenge that system in strategic ways. See Donella Meadows, Leverage Points: Places to Intervene in a System, available at http://www.donellameadows.org/archives/leverage-points-places-to-intervene-in-a-system/
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Livingston criticizes CELDF for saying "that the “community rights” strategy is substantially similar to the abolitionist, suffrage and civil rights movements’ strategies."
The courts today do not recognize a right to local self-government. They do not recognize that local governments exercise that inherent power of governments to protect rights. The courts also do not recognize ecosystems as having rights. Ecosystems are property. One of the fundamental rights of a property owner is the right to destroy one's property.
There are at least two ways that the community rights movement is analogous to the abolitionists and the suffragettes. One is substantive, the other procedural.
Substantively, both historic movements sought to change a group of people from being "property" to being rights-bearing. Slaves were not considered people. They had no legal rights. The courts refused to engage in changing this system. In State v. Mann, 2 Dev. (N.C.) 263 (1829), where Lydia, an enslaved person, was shot in the back by her "master," the court said "We cannot allow the right of the master to be brought into discussion in the Courts of Justice. The slave, to remain a slave, must be made sensible, that there is no appeal from his master." The court also said "It is useless however, to complain of things inherent in our political state."
When slavery was abolished, some governments paid slave-owners compensation for "taking" the slave owner's property.
Women became rights-bearing over time, partly because a single adult woman (a "master-less" woman, essentially) would not have been able to function in society without the ability to own property or contract.
These social movements sought to recognize rights.
Procedurally, both movements did not accept the idea that it is useless to complain of things inherent in our political state. The abolitionists never accepted the premise that slaves were not persons. They organized mass illegal non-violent direct action, like the underground railroad, to challenge the slave system. They burned the U.S. Constitution as a slave-document.
The suffragettes votes when the system said they could not vote. Susan B. Anthony told the judge at her sentencing for illegally voting "Your denial of my citizen's right to vote, is the denial of my right of consent as one of the governed . . . the denial of my sacred rights to life, liberty, property . . . ." United States v. Susan B. Anthony (1873). Anthony is speaking the words of the Declaration of Independence, not the words of the U.S. Constitution. She is actively committing civil disobedience against a system that refuses to recognize her rights.
Today, communities are attempting to assert their right to protect their health, safety, and general welfare, by raising their human and ecosystem rights above the level provided by state or federal law. This is rejected by the courts today, because the courts do not recognize this right to local self-governance, just as the courts did not recognize Anthony's right to vote, or Lydia's right to protection by state laws criminalizing battery.
What do you do in this situation? Do you agree with the judge in State v. Mann that "it is useless, however, to complain of things inherent in our political state"? Or do you challenge those inherent, structural, injustices?
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Livingston proposes that community rights "ordinances [are] unconstitutional"
Abolition of slavery was unconstitutional.
Women voting was unconstitutional.
The eight hour workday was unconstitutional. See Lochner era "Liberty to Contract" theory of substantive due process.
Social change is the process of expanding rights, which inherently means making something that is not allowed into something that is allowed.
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Livingston says "Without such a vision, there can be no real effort to prepare and develop prefigurative institutions, roles and skills, and, consequently, nothing to prevent a prompt and successful counterrevolution and return to the old “structure of law” with the multi-national corporations, again, in control."
One of the arguments for the federal structure of state and federal relations is that states are free to experiment with different policies without subjecting the entire country to those policy experiments.
If the right to local self-government were recognized, then the ability to experiment with new policies expands a thousand fold. How do you propose developing prefigurative institutions when those institutions cannot even come into existence because corporate rights doctrines make them "unconstitutional"?
I hope it is clear by now that community rights is not proposing to completely reject the framework of governance in the United States. Instead, it is seeking to build a mechanism for communities to provide greater rights-protections if they decide to. This framework fits on top of the protections already provided by state and federal law.
Ivan, I see you joined IOPS today. Do you, in fact, agree with the IOPS commitments and vision? Or are you trolling?
Sarah,
Yes, I joined IOPS website today. I was unaware of its existence prior to today when I saw this blog post. I've been aware of participatory economics theory, and involved in social movements advocating the ideas in the mission and vision for IOPS, for at least fifteen years. I agre with the framework of prefigurative radical politics.
This is part of the reason I took the time to comment on this post. There are legitimate critiques that can be made of community rights, but there are also a lot of red herrings. I attempted to clarify the legal structure community rights attempts to address and the theory it is promoting.
Trolling, according to wise wikipedia, is "[i]n Internet slang, a troll is a person who sows discord on the Internet by [1] starting arguments or upsetting people, [2] by posting inflammatory, extraneous, or off-topic messages in an online community (such as a forum, chat room, or blog), either accidentally or with the deliberate intent of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion."
[1] Starting arguments or upsetting people
I recognize that my post was contradictory to Livingston's blog entry, and is thus argumentative. I'm not sure how not to do that, when I disagree with his understanding of what Community Rights is and therefore I disagree about his analysis of its utility as a tool for creating the world we want to live in.
If there is a better way to approach this (recognizing that we're posting comments on a blog, which is a structurally limited way to discourse) I'm happy to work with that.
[2] posting inflammatory, extraneous, or off-topic messages
I'm not sure how my post fits into any of these categories. Please let me know if I'm missing something.
Rather, I note that IOPS Key Goals and Strategies include:
"IOPS flexibly explores and advocates long term vision sufficiently to inspire and orient current activity but does not advocate or seek to implement detailed blueprints that transcend movement needs and knowledge."
"IOPS sees social strategy and especially tactics as largely contingent on place and time and therefore continually revises shared views in light of new evidence including regularly updating analysis, vision, and strategy."
Community Rights organizing is critical to opening space to explore alternative visions for society. When progressives and radicals try creative lawmaking that builds our vision, we frequently get shut down by the structural controls enforced by corporations. Community Rights pushes directly against those corporate controls while simultaneously advancing the positive rights we seek.
Community rights organizing warrants thoughtful consideration by all people seeking a free society. These strategies are not promoted only by CELDF, but show up in a variety of places where people are thinking systemically about social change. For example:
(a) The Malcolm X Grassroots Movement and Jackson People's Assembly in Jackson Mississippi outlines their "Jackson Plan: A Struggle for Self-Determination, Participatory Democracy, and Economic Justice." In the plan, they say "We also aim to make several critical structural changes to the city of Jackson’s governance structure. The most critical change we will propose and fight for is: Creating a Human Rights Charter to replace the existing city charter as the basis of sovereignty and governance for the city."
See http://www.organizingupgrade.com/index.php/component/k2/item/539-the-jackson-plan
(b) Local self-governance is central to the political change theory of Social Ecology, which shares much in common (and some disagreements) with ParEcon. See Janet Biehl, The Politics of Social Ecology: Libertarian Municipalism (Black Rose Books, 1998).
(c) community governance is central to contemporary autonomous marxist theorists. John Holloway uses the term "social self-determination" to describe the world we seek, rather than "socialism." See John Holloway, Change the World Without Taking Power: The Meaning of Revolution Today (Pluto Press, 2005).
I was responding to encourage that discussion, and not let IOPS discard a viable tool for the wrong reasons. I agree with Livingston that coalition-building is necessary. We should be working to make all our liberatory tools better, not arguing whether we just need a hammer or just need a screwdriver.
Ivan, concerning your response to me (beginning "Sarah"), in which you write "there are legitimate critiques that can be made of community rights." Could you elaborate on what those critiques are?
Certainly, "Community Rights organizing is critical to opening space to explore alternative visions for society", including the kinds of organizing referred to in a), b) and c). I'm sure we were all disheartened to hear of Chokwe Lumumba's death.
But of course, the blog is not discussing community rights organizing generally, but a particular strategy centered on passing unenforceable ordinances under the guise that they help protect communities from various perceived threats (including, notably, wind farms that offend the views of private property owners, http://www.vnews.com/home/9111605-95/grafton-cut-from-wind-farm-project-scaled-back-has-fewer-turbines ). Nor is the blog discussing local self-governance generally, but the alleged right to local self-governance that, by definition, includes the right to nullify state and federal law by majority vote.
And, while some may sincerely believe that "Community Rights pushes directly against...corporate controls while simultaneously advancing the positive rights we seek", it remains that there has been no comprehensive analysis of the effectiveness of the unenforceable ordinance strategy, or none that has been made public. After more than a decade of organizing and the passage of more than 150 community rights ordinances, there probably exists an adequate data set. It remains only for CELDF to collect and share it. Doesn't seem to me like that's asking too much.
Finally, I'll just point out that you did not join a website (you wrote "Yes, I joined IOPS website today"), you joined an organization. When I asked, "Do you, in fact, agree with the IOPS commitments and vision?", you answered, "I've been aware of participatory economics theory, and involved in social movements advocating the ideas in the mission and vision for IOPS, for at least fifteen years. I agre[e] with the framework of prefigurative radical politics." Assuming that by this you mean "yes", and that you did not join simply to be able to comment on the blog, which would be very disrespectful, then there is no difficulty. Welcome aboard. Your membership brings the IOPS Spokane Chapter closer to "working" status. I encourage you to see if you can't get everyone together for a face-to-face meeting in furtherance of our shared goals and vision.
Sarah,
I think some of the legitimate critiques that can be made of community rights are general jurispurdential challenges for constitutional governments. Oregon Jurist Hans Linde writes about some of these issues, and would be a good place to start. See Hans A. Linde, "What Is a Constitution, What Is Not, and Why Does It Matter?" 87 Or. L. Rev. 717 (2008), available at http://law.uoregon.edu/org/olrold/archives/87/Linde.pdf
I disagree with you that the right to local self-governance "by definition, includes the right to nullify state and federal law by majority vote." It is a right to create greater human rights and environmental protections through local governments. Under that right, local governments can recognize rights under their local charters (just as state and federal governments do in their constitutions) and laws passed to further those rights should not be preempted by state law. This is not nullification.
I agree with you too that it is time for a review of the efficacy of CELDF's work. To be a legitimate study, it shouldn't be done by CELDF (although CELDF is the easiest source for the list of communities in which it has supported community rights). As my understanding is that most communities that have enacted community rights laws have done so in response to a particular threat (e.g. factory farm, fracking), the dataset should include (1) whether that threat ended up materializing in the community (evaluation of the physical reality on the ground as a result of the law), and (2) whether the community rights law is still valid law (evaluation of the legal reality on the ground as a result of the law). If you know any graduate students looking for a research project, this would be a study that would help us all to have.
Finally, I need to respond to the update that currently appears at the bottom of the blog post:
"3/24 Update: we have reliable information that CELDF’s response to this blog was posted in the comments under the pseudonym “Ivan Illich.”"
That "reliable information" is about as reliable as the original blog post's interpretation of community rights. That is, it is a hasty-researched conclusion conveniently reached to support preconceived assumptions. This blog is about ideas, and specifically discussion of the efficacy of community rights organizing. Who we are is not the topic of this blog.
Before Sarah wipes my user because I wanted to disagree anonymously, let me be clear in answering her question that I agree with the vision and mission of IOPS and hope that it grows as a viable organization. I took the time to join IOPS, comment on this post, and continue to take the time to reply, because I think that the original blog post hazardously misunderstood community rights. That kind of misunderstanding can easily lead the Left to fracture and infight rather than unite around shared visions and agree to disagree about the particulars. “One 'No,' and many 'Yeses',” as the Zapatistas have said.
I am generally not a fan of blogs and posting my name out on the internet in the comment stream of blogs. I also recognized that I would be critiquing a sanctioned view, which is an easy way to become an organizational outsider. For these reasons, I decided to join this conversation under a pseudonym.
It turns out, that was a wise decision. Who I am became an immediate issue to the original blog post authors, and my reply must now be as much procedural as substantive. Once again, we are discussing who we are, not the ideas and strategies we will use to create the world we want.
Rather than send me a message through the IOPS website, nor contact CELDF to confirm or deny the "reliable information," the authors posted this update. Since that update has been up for a week now, I feel the need to publicly correct the record: I am speaking for myself as an individual, with my own ideas. I do associate with CELDF and community groups that work for community rights, but I'm not CELDF staff nor representing CELDF.
I hope that the authors solicite an official response from CELDF, and that that response gets posted on this space so that we can properly explore these ideas with all the information on the table.
Thank you.
Ivan,
I appreciate that there are other ways to characterize community rights, but it doesn’t matter for purposes of our analysis whether one uses the word nullify, or some other word, to convey the problem that these ordinances purport to invalidate, make ineffective, supercede, etc., state and federal law. See, for example, most of Section 5 of the Mora County, NM, ordinance: http://www.celdf.org/downloads/Mora_Co_Community_Rights_Ordinance_042913.pdf
And Section 3(f) of the Benton County, OR, ordinance:
https://bentonccrc.org/the-initiative/
I’m glad we can agree on the need for a comprehensive review of the results of the community rights strategy so far. CELDF could certainly supply the bulk of the data, e.g., case names, docket numbers, judgments, orders, etc. I could also supply a list of its active and inactive affiliate groups, their histories, contact information, membership numbers, activities, etc.
The information that your posts were CELDF’s was an email thread that included emails from Paul Cienfuegos, who, like yourself, is associated with CELDF, and, like yourself, joined IOPS and then immediately posted pro-CELDF, pro-community rights comments. In the thread, Paul stated he had “just forwarded [the link to our blog] to the CELDF gang to see if any of them are planning an official response to it”, and later, “I also happen to know another person closely connected with CELDF who has chosen to respond online to the original piece, with the pen name Ivan Illich, to protect their identity.” However, as you have stated your response was not made on behalf of CELDF, I have added an update to the blog to that effect.
That's "IT [CELDF] could also supply the bulk of the data..."
Wow Sarah, accusing people of trolling, not very assume good faith of you. I don't see what Ivan is saying as trolling, looks like he is answering your post.
Hi, Mark, as I wrote below,
I think my questions and observation were fair and not inappropriate under the circumstances, and I took Ivan's answer.
I answered your comments and questions through the private message system courteously and directly, and invited you to comment on the blog. If you have an additional, substantive, comment to make about the blog, I'd be happy to entertain it.
"IVAN,"
The "community rights" movement and CELDF claim to be "protecting" communities from environmental degradation through the enactment of "legally binding" local ordinances. In order to be legally binding and protect the community, these ordinances must be enforceable by courts. The claimed authority for the ordinances we're talking about in this blog is the "inherent right" of "local self-governance." However, in your response, you acknowledge that courts do not recognize that right and that the ordinances are unenforceable under current law. For example:
"3) * * * Under the contemporary system of preemption and Dillon's Rule, the mere existence of a state or federal environmental regulation can serve as a bar to enactment of local law, even local law that is more protective of the environment. * * *"
"7) * * * The courts today do not recognize a right to local self-government. They do not recognize that local governments exercise that inherent power of governments to protect rights. * * *"
"9) * * * If the right to local self-government were recognized, then the ability to experiment with new policies expands a thousand fold. How do you propose developing prefigurative institutions when those institutions cannot even come into existence because corporate rights doctrines make them 'unconstitutional'? * * * "
And, because this "right to local self-government" is not based on -- and, indeed, is in conflict with -- current federal and state law, the repeated "assertion" of that "right" in the courts in defense of these ordinances won't result in its recognition. I suspect that many folks who sign petitions to put "community rights" ordinances on a local ballot would be surprised to learn that: (a) the ordinances are enforceable and, therefore, afford no protection from anything; (b) at least some of the "community rights" advocates know that; and (c) enacting these ordinances is really a sort of "protest," the goal of which is to bring about fundamental change in the federal and state legal structure sometime in the future. If the goal of the "community rights" movement is to change the current legal structure so that these ordinances will be enforceable, which appears to be the case, the question presented by this blog remains: Is the "community rights" approach an effective organizing strategy?
The remainder of your reply echoes the CELDF Democracy School's peculiar "spin" on history and the law (e.g., complaints about "Dillon's Rule" and "the dormant commerce clause"), or makes points that are addressed adequately in the blog itself.
"IVAN,"
Through an apparent error on my part, my response to what you have written here appears below your reply to Sarah's comment.
That's "folks who sign petitions to put "community rights" ordinances on a local ballot would be surprised to learn that: (a) the ordinances are UNenforceable and, therefore, afford no protection from anything."
Yes. Thank you, Sarah. The second-last paragraph in my response to "IVAN" above should read:
"And, because this "right to local self-government" is not based on -- and, indeed, is in conflict with -- current federal and state law, the repeated "assertion" of that "right" in the courts in defense of these ordinances won't result in its recognition. I suspect that many folks who sign petitions to put "community rights" ordinances on a local ballot would be surprised to learn that: (a) the ordinances are UNenforceable and, therefore, afford no protection from anything; (b) at least some of the "community rights" advocates know that; and (c) enacting these ordinances is really a sort of "protest," the goal of which is to bring about fundamental change in the federal and state legal structure sometime in the future. If the goal of the "community rights" movement is to change the current legal structure so that these ordinances will be enforceable, which appears to be the case, the question presented by this blog remains: Is the "community rights" approach an effective organizing strategy?"
Sarah, Michael, Sara,
“Legally binding”
Community Rights laws are enforceable by the courts, if the courts chose to enforce them. These laws are different from, for example, the We The People amendments proposed by Move to Amend at the state level. The We The People amendment is asking others – state legislators and Congressional representatives – to take a stand on a position and to make law. It isn't making law directly (except for the requirement to send a copy of the We The People amendment to Congress). There isn't anything in the amendment that directly challenges corporate power, even though the goal is to challenge corporate power.
Contrast that with a community rights law, where people recognize rights to, for example, a sustainable environment, and specific policies that will enforce that right (say, banning unsustainable agriculture) and decide that the community right takes precedence over any ostensible powers claimed by corporations. This law isn't asking someone else to pass a law, it makes the policies directly. It is a law, and is enforceable by the community. Thus, it is “legally binding.”
In our government system, the courts decide whether a law is valid. A government must have the power to pass a law, so a law can be invalid by being beyond the authority of the government. For example, the Affordable Care Act individual mandate was not outside the authority of the federal government, because Chief Justice Roberts (the swing vote on that case in the United States Supreme Court) said that the people had delegated to Congress the authority to pass that law through the Taxing Clause of the United States Constitution. National Federation of Independent Businesses v. Sebelius, http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf Had Chief Justice Roberts decided that the Affordable Care Act wasn't covered by the Tax Clause, then the law would have been unconstitutional – it would have been legislation that Congress (the federal legislature) did not have the authority to pass into law.
The federal government is a government of limited powers: Congress can only pass laws that are in the enumerated powers in the Constitution, or necessary and proper to those enumerated powers. State governments, on the other hand, have plenary power, which means they wield the police power, the authority to pass any law that benefits health, safety, and welfare. This is a very broad test, and easy to pass, so a state government has the power to pass almost any law.
But in addition to being within the authority of the government, a law must also not be something that the people have prohibited the government from passing. This is where the limitations on government action in the federal Bill of Rights come in. Conservatives in the United States are now trying to challenge the Affordable Care Action on this basis, arguing that the law harms their religious rights in violation of the prohibitions on government action under the First Amendment.
In the western states, populist and progressive movements played important roles in founding the states and writing the state constitutions. Distrustful of corporations and the power corporations held over the legislatures, the people wrote constitutional provisions that would provide for direct democracy. See Oregon Constitution Article I, Section 1 (“[A]ll power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may thing proper.”), Section 26 (“No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good”), Section 33 (“This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people”), and Article VI, Section 10 (“A county charter may provide for the exercise by the county of authority over matters of county concern.”). We all have different ideas of what these words mean. I think they mean that the people can pass laws through the county government to protect human rights and the environment, and those laws should not be preempted by state or federal law. If a court disagrees, well, our system of government says that the court's opinion of what a law means (including the words in a constitution) is the final word. So, the court's opinion trumps my opinion.
That doesn't mean that we shouldn't continue to argue an opinion that contradicts the court's current view. Indigenous peoples have been doing that since the beginning of the United States, arguing against the Courts opinions that the federal government has near-plenary power over them. Blacks resisted the United States Supreme Court's Plessy v. Ferguson (“separate but equal”) holding. Thurgood Marshall's decades-long legal campaign to undo that court opinion (culminating in Brown v. Board of Education) was a long term strategy that never accepted that court's opinion as just. Just because the Court says it doesn't make it right. It makes it law, but there are unjust laws.
Workers had to struggle against the United States Supreme Court for several decades during the early Twentieth Century when the Court interpreted the words “nor shall any State deprive any person of life, liberty, or property, without due process of law” (Fourteenth Amendment) to mean that liberty includes the “liberty of contract” and laws that restrict that “liberty” are unconstitutional as violations of the Fourteenth Amendment. The struggle for the eight hour workday, against child labor, workplace safety, and other labor laws was a struggle against a United States Supreme Court opinion that said that these laws were unconstitutional. One hundred years ago, the weekend was unconstitutional.
So, to say something that seems right and just is “unconstitutional” is often a cop-out. Corporations have been working to build a system where the changes that we need to live in a just participatory society are “unconstitutional.” We can tinker around the edge of that system with market populism (“let's all buy the right products and change the world”) and autonomous spaces (“let's tinker in the narrow cracks that the corporations have left for us to work in”), or we can take on that system directly. That means arguing that those words quoted above from the Oregon Constitution mean the people have the power to pass binding laws to enforce our human rights and environmental protections.
The most effective way to put that power into action is to pass those laws. Just like local governments and states passed worker protection laws in the early Twentieth Century despite the Lochner “liberty of contract.”
In the same era that the Supreme Court shot down Plessy's challenge to separate but equal laws, and New York's effort to protect bakery workers' health (Lochner v. New York), the Supreme Court also shot down the right to local self-government. In Hunter v. Pittsburg, 207 U.S. 161 (1907) the federal Supreme Court waded into the relationship between the states and local governments, holding that local governments “are political subdivisions of the state, created as convenient agencies” for the state, and that “the state has complete power to modify the authority it has granted to a local government, even the power to destroy it.” In the previous decades, courts had begun to recognize the right to local self-government. The Hunter opinion closed down that prospect, just as the Supreme Court had been closing down worker rights laws and racial justice laws.
The limitations on community rights are court-created limitations. To challenge court-created laws, we must raise the issues in the courts, and overrule the prior holdings, just like Brown overruled Plessy, and West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), overruled Lochner and its progeny. We do that by passing laws and defending them on the basis of the right to local self-government, and by making local, state, and national constitutional change (but recognize that the courts can and will easily limit the expanse of the constitutional provisions we push for, as happened with the Civil War Amendments. See The Slaughter-House Cases, 83 U.S. 36 (1873), and The Civil Rights Cases, 109 U.S. 3 (1883)).
This is a long path we walk. We won't get the Court to always agree with us. We may sometimes end up like Homer Plessy, where we bring a test case only to find the unjust precedent locks against us more tightly. But if we believe in opening up space for people to experiment with solutions to corporate control and alternatives to capitalism, then we need to talk this path. If we believe in democracy – real people power protecting human and ecosystem rights – then we need to walk this path.
I hope we can all walk this path together.
"For [Thomas] Linzey, [CELDF's executive director], disobedient lawmaking is an organizing tactic, not a legal one. He knows municipalities violate the law when they assert supremacy over state and federal governments. He expects “lawsuits galore” and assumes judges won’t permit these affronts to the Constitution. But he also believes that every courtroom defeat will trigger a bigger backlash against the status quo, leading to more municipal defiance. Over time, he expects to build the critical mass necessary to amend state constitutions and eventually the federal one. http://www.thenation.com/article/172266/rebel-towns#
Elsewhere he admits the strategy is likely to require decades to reach its goals; that's decades of activists listening to, learning, and repeating legal gobbledygook like yours, Ivan, with the expectation that those arguments will fail to convince anyone with any legal training (which ultimately is who they must convince). I don't think many folks, if the strategy is explained to them plainly, will think that's much of a strategy. It certainly doesn't measure up to the yardstick for reform efforts in use in IOPS, a point your remarks fail utterly to address. I cannot imagine any informed person choosing to walk such a path.
You say: "Community Rights laws are enforceable by the courts, if the courts chose to enforce them." That begs the question.
A judge who complies with the law and with her/his oath of office does NOT have that choice, because (as we have observed and you already have acknowledged) these "community rights" ordinances are in direct conflict with current federal and state constitutional provisions and statutes, and repeatedly asserting that the ordinances are based on the “inherent” right of local self-governance will not change that.
Your analogy to "Brown overrul[ing] Plessy" doesn't work. Both cases were based on the 14th Amendment’s “equal protection” clause, and the plaintiffs in Brown successfully argued that, in the context of public education, the application of the “separate but equal” doctrine established in Plessy denied them equal protection under the law. By contrast, Mora County and other communities who will be defending these indefensible ordinances in court will not be there to argue that the Citizens United decision should reversed because the decision was based on a demonstrably erroneous construction of the relevant constitutional provisions. The remainder of your legal analysis is equally inapposite, if not uninformed.
In effect, you are advocating for a system in which every community and every judge can refuse to comply with ANY law or constitutional provision with which they disagree.
Excellent post Ivan!
Equating community rights to abolition, suffrage and civil rights? No. Communities HAVE rights. Citizens HAVE rights. Community rights as an organizing strategy cannot legitimately be equated to the measures necessary to assert rights for people who had none after centuries of systematic oppression because of their immutable characteristics.
Ivan wrote:
"Community Rights is the authority to create greater environmental protections, if the people in a locality decide that their health, safety, and general welfare requires greater environmental protections than provided by state or federal law"
the source of which is, apparently, the so-called “procedural right” of citizens, based on the Declaration of Independence, to self-govern. However, the Declaration is not the source of any right, substantive or procedural. The Constitution, statutes, rules, ordinances are the sources of our substantive and procedural rights.
Ivan dismissed the co-authors’ concerns that “community rights” could be used to “overturn legally sound state and federal environmental regulations” or “bar[] Latinos from renting or owning homes in the area,” arguing that such ordinances would be “rights-lowering,” and therefore would not meet constitutional thresholds allowing states or municipalities to pass only “rights-raising” measures that offer more protection than existing federal laws.
It’s short-sighted to pretend that community rights would only be employed by those sharing a view of the community, as though it’s not probable that these new “rights” would also be susceptible to use by those who disagree with the current proponents of those rights. Would not pro-corporate, pro-GMO, pro-isolationists in a community have access to, and employ, the same “rights” to prosecute their vision of the future, at the expense of the community? What if the proponents of a measure believed that Latinos renting or owning homes posed a threat to the community? Southern communities in the 1950s certainly viewed black families as a threat to white communities. The United States in the 1940s viewed citizens of Japanese origin or descent as a threat to national security. Current US-Mexico border-state and town sentiments argue against resigning those types of xenophobic sentiments to the past.
Contrary to Ivan's sentiment, I disagree that we have a "system" that "makes sustainability illegal." We have community rights organizers convincing communities and citizens that the "system" makes sustainability illegal. That's not the case. Communities have rights. Zoning, enforceable ordinances, self-government through representative democracy, etc. Citizens have rights. Voting, campaigning, protesting, blogging, running for office, attending and speaking at council meetings, reviewing and commenting on rules for administrative agencies, etc. That we don't use them, or use them effectively, or that others with the same or similar rights use them more effectively, does not mean the rights don't exist, and it’s disingenuous at best to convince communities and citizens that they don’t have rights, or that their rights don’t matter, occupy them in futile activities aimed at unenforceable or unconstitutional ordinances, and then use the failure of the ordinance as proof that they system, such as you’ve painted it, is against them.
Community rights is a specific expansion of local authority, not the general local authority that would allow the xenophobic or destructive activities described above.
Please see my post above that starts with "legally binding" on government power to act and prohibitions from acting. With community rights, we're saying that local laws that expand human rights and environmental protections are within the local government's power to pass. Second, we're saying that the prohibitions on government action that protection corporations do not apply to community rights. This is a specific carveout of the existing system, a threshold test for the court before it decides whether preemption is appropriate analysis.
This is analogous to the home rule framework of St. Louis v. Western Union tel. Co., 149 U.S. 465 (1893), where the Court said that purely local laws are not preempted by the state. However, community rights isn't advocating for all "purely local" laws to be exempted from state preemption, but rather only rights-raising laws: those laws that are grounded in the local constitution.
The constitutional analysis is key (and misunderstood). Even though the government may have the power to pass a law, that law can still be prohibited by the "Bill of Rights." A local law to bar Latin@s from living in the municipality would be struck down for the same reason regardless of whether we have the right to local self-government: it violates the federal Fourteenth Amendment equal protection clause (and whatever state constitutional equal protection clause exists in the state). Those protections don't go away just because a government has an exception from state or federal preemption for certain kinds of local laws.
I also want to clarify, and apologize for not being clear. I'm not equating community rights to abolition, suffrage, and civil rights. I'm drawing parallels between the strategy of those movements in regard to (1) seeking structural change (recognizing new rights), and (2) doing so through non-violent direct action (behaving as if they have those rights).
The later, to me, is essential to prefigurative politics and I would hope central to our organizing strategies.
Please continue to try to stop harms through the regulatory system. Things would be a lot worse now but for those laws and the effort that people put into administrative rulemaking processes, etc. I'm just saying that the system is rigged, and the best we can hope for with that system is to hold ground.
It's like the story of some village next to some river. The villagers see a baby floating down the river, and swim out to rescue her. Another one comes and they swim out again. More babies come floating down the river. The villagers are exhausted saving all these babies that are floating down the river.
As they rest on the bank recovering their strength, looking for the next baby to come floating down, a few villagers leave, walking upstream.
"Wait a second!" Cry the villagers on the bank, "where are you going? The next baby is already floating by! We need everyone here pulling theses babies out of the water."
The villagers that are heading upstream call back, "Please keep pulling the babies out of the water. We're going to go stop whomever is throwing them in."
Ivan, you seem to be laboring under the impression that the source of the co-authors' opinions on the effectiveness of community rights as an organizing strategy, as measured against the yardsticks set forth in the introduction and closing paragraph of the original blog, is based on the co-authors' misunderstanding of what community rights is, or what, for instance, CELDF's organizing strategy is, or U.S. history, or our constitution. Let me assure you, that's not the case.
You also seem to be under the impression that anyone who concludes as we did must be, according to various statements you made in your comments on this blog, "spineless," "silly," or ignorant, or, somehow, aligned with or sympathetic to the plight of slave owners (what?! seriously?!). Let me assure you that that, too, is not the case.
The co-authors of this blog, as clearly outlined in the preface and conclusion of the original blog, after thorough research and each holding a secure grasp of our country's history, the law and constitutional theory, concluded that community rights as an organizing strategy does not measure up against the yardstick for success set forth in the preface. That our conclusion is, or might be, different than your own (I say "might be" because your comments have not squarely addressed the thesis of this blog or stated how the community rights organizing strategy does satisfy the yardstick for success set forth above), does not make the co-authors undereducated on U.S. history, the constitution, community rights, or CELDF, nor does it make us corporate sympathizers, or political traditionalists, or any other epithet you wish to throw at us.
And we said that all without questioning your intelligence or name-calling.
Portions if my comment, above, are responsive to Paul C.'s posting, below. My apologies for any confusion.
I see.
Please allow me to point out that the blog was co-authored, as you appear to assume the views and analysis are Michael's alone.
Ivan's thoroughness and precision might lead one to assume that his addressing the author of the original article as "Livingston" is an intentional slight and perhaps the only possible basis for accusing him of trolling. However, given the way the blog is headed by the statement "Written by: Michael Livingston" and given that Michael has been the only author responding to comments (until your very brief and pointed ad hominem accusation), it seems a forgivable oversight. In other words, "troll much?"
Sarah and Sara,
I do apologize. I did make an oversight (as Marc inferred below) and did not realize the article was co-authored.
Sorry about that.
Thank you.
Hi, Mark. I think my questions and observation were fair and not inappropriate under the circumstances, and I took Ivan's answer. If you have a substantive comment to make about the blog, I'd be happy to entertain it.
Happy to see this blog. Certainly an interesting read. Obviously I'm not from the US and don't claim any particular knowledge about community rights. Having said that I just want to mention that recently IOPS Vienna discussed topics which seem related. More specifically we discussed the article «What Then Can I Do? Ten Ways to Democratize the Economy» by Gar Alperovitz and Keane Bhatt:
http://www.garalperovitz.com/what-then-can-i-do/
They discuss things like «Participatory Budgeting» and so on, all in relation to the current situation in the US including many ongoing, often prospering, examples. Maybe some of the suggestions in that article might be more reasonable organizing strategies to achieve self-management of local communities than «Community Rights». Again, I'm in no position to judge that. Just a suggestion.
Thanks for the suggestion, Johannes, I'll take a look myself. There's an interesting interview of GA & Michael Albert out yesterday, maybe you've seen it:
http://truth-out.org/opinion/item/22557-gar-alperovitz-and-michael-albert-a-conversation-on-economic-visions
Another option that someone from the UK Chapter might comment on, if they're in the neighborhood, is the community rights organizing around the Localism Act of 2011:
http://www.legislation.gov.uk/ukpga/2011/20/contents/enacted
http://locality.org.uk/wp-content/uploads/Community-Rights-and-the-Localism-Act.pdf
Full disclosure: I've only skimmed these materials.
Thank you for joining this conversation and for the link to the article. The "local" actions described there are good examples of the sort of thinking and community-building that we need to be doing. Notwithstanding the out-of-balance influence that corporations have, it would be a big mistake for us simply to abandon our local and state legislative and judicial institutions, as the "community righters" urge folks to do.
A relevant update for those interested, Mora County, NM, is now defending its ordinance against a second lawsuit.
(http://celdf.org/john-olivas-statement-march-2014 )
And on 3/20/14, "Judge Charles Carlson overturned the Lane County [OR] Clerk’s October, 2013 determination that the Local Food System Ordinance of Lane County met all the procedural requirements for initiatives. The decision came despite cooperation between the initiative proponents...and the County to ensure that the initiative did comply." (http://www.localfoodrights.com/press_release )
A couple of quotes add perspective to these developments:
"The ban is unconstitutional. I think we all knew that going in. CELDF was very upfront about that...But we all felt that we were
going to get the raw end of the stick anyway. We’re going to get screwed anyway, so let’s at least make a statement." Marino Rivera Mora County, NM (http://www.santafenewmexican.com/news/local_news/world-is-watching-mora-county-battle-against-fracking/article_edc8353d-3c1e-5ce1-ba74-d8c12d682fab.html )
"Community [rights] leaders need to be able to show the citizens that they have been betrayed by the system, and by the people that are running this supposed 'democracy'”. Dana Allen, Benton County, OR (which has an ordinance very similar to the Lane County initiative). (http://readthedirt.org/fighting-for-the-right-to-food-sovereignty-benton-county-oregon )
"Huh? Community leaders need to be able to show the citizens that they have been betrayed by the system?? I think that GMOs alone are enough pain. Experiencing victimhood is merely demoralizing, not uplifiting." BCOMNES, GMO Free Jackson County (this is a comment on the previously cited webpage)
"I think it entirely predictable that the couple of hundred communities that have adopted Community Rights laws are set up for confusion, wasted time and misdirected energy, litigation,
unnecessary and unethical legal expense, frustration, and failure." Mike Blevins, Decorah, IA (http://www.decorahnews.com/opinion/stories/288.html )
In the above letter to the editor, Mike Blevins offers a detailed critique of CELDF's Democracy School curriculum and suggests alternative approaches to the problem of unwanted industry activity. I can't recall if we linked to his letter in the blog, but even if we did, it's worth emphasizing (and reading if you care about this subject). You can read a response letter to the editor here:
http://www.decorahnews.com/opinion/stories/289.html
Thanks for that last letter to the editor link Sarah and I appreciate the work you all have put into thinking about this.
The main criticism I see in the blog is that the CELDF strategy is not successful since "community rights" ordinances are not enforceable and thus will fail to secure advances. But if I understand the blog correctly, the strategy is also misleading in that people are made to believe that these ordinances create a binding legal status where, in actuality, they do not. If my understanding is correct and it is the case that people are being misled in this way, that by itself should be a compelling reason why IOPS chapters and members should distance themselves from community rights advocacy activities engaging in this strategy.
Yes. And, the problem is compounded when local government officials DO know that the "community rights"/CELDF ordinance they're adopting is not enforceable and do it anyway, which is what the Mora County, New Mexico, County Commission did when it voted 2-1 to adopt an ordinance banning oil and gas drilling, or "fracking."
http://www.santafenewmexican.com/news/local_news/world-is-watching-mora-county-battle-against-fracking/article_edc8353d-3c1e-5ce1-ba74-d8c12d682fab.html
Last November, three corporations and a private individual filed a lawsuit against the county in federal district court challenging the ordinance, and, in January, Royal Dutch Shell also sued the county over the ordinance.
http://m.santafenewmexican.com/news/local_news/mora-county-faces-new-lawsuit-over-drilling-ban/article_c450c244-e949-596e-a4e2-8a487131843d.html?mode=jqm#.Ut6GCXrru4Q.twitter
Even though they know that the ordinance is unenforceable and legally indefensible, the County Commissioners have voted to defend against the lawsuits and hire attorneys, which likely will require the expenditure of some public funds. Kathleen Dudley, a CELDF New Mexico Community Rights organizer, explained: "The focus of the lawsuit won’t be on fracking, but on challenging the current fact that corporations (like the plaintiffs) have more rights than the people of Mora County. In other words, we don’t have a fracking problem, we have a democracy problem."
http://greenfiretimes.com/2013/11/mora-county-commission-votes-to-defend-the-celdf-bill-of-rights-ordinance/#.Uy9RgoWzAqI
It is ironic that a county that adopted and decided to defend an indefensible ordinance in order to make a political statement against corporate power may end up having to pay some of the legal fees for the lawyers representing Royal Dutch Shell.
http://www.law.cornell.edu/rules/frcp/rule_11
As I read through these posts, ultimately the conflict in our various positions on this issue is over fundamental questions of social change. Do you only try to change the system through actions that are legal? Is civil disobedience ever ok? Is non-violent direct action ever ok?
Structural change (which is what is required to abolish capitalism and other systems of domination) means confronting the structure, directly. We're debating the validity of civil disobedience, but masking it in a framework of "constitutionality." Mora County is taking non-violent direct action against a system that is causing global ecological meltdown. This is more than just a "statement" when it keeps the frackers off the land.
Ivan, the question is not whether civil disobedience or non-violent direct action are, generally speaking, useful in bringing about reforms, which they obviously can be. Leaving aside whether enacting or attempting to enact obviously unconstitutional measures can legitimately be referred to as "direct action" or "civil disobedience" or compared to the classic examples of civil disobedience such as segregated lunch counter sit ins, the question is whether or not CELDF's community rights organizing strategy generally measures up the IOPS yardstick referred to at the beginning of the blog. For the reasons stated in the blog, we concluded that members should consider very carefully whether to enter into strategic alliances with so-called community rights efforts in the U.S., particularly those associated with CELDF.
No Ivan, I do not think that is the thrust of this blog. Without quoting further passages from it, I think the opening quotes and the final paragraph are quite clear. It is about connecting theory and vision into a coherent strategy in order to bring about serious structural change. The argument is the "community rights" strategies have huge gaps, holes or problems, and from an IOPS perspective, these need to be looked at, seriously.
Well, that's my reading.
"The path to a better future includes creating experiments in its image in the present, yes, but it also includes a long march through existing institutions, battling for changes that improve people’s lives today. Fanfare for the Future, Volume 3, by Michael Albert, Jessica Azulay and David Marty at 130 (ZBooks, 2012)."
" Demands made against existing institutions ought to enhance people’s lives, advance the likelihood of further successful struggle, and advance the consciousness and organizational capacity to pursue those further aims. These provide the yardsticks for measuring success. Fanfare for the Future, Volume 3, by Michael Albert, Jessica Azulay and David Marty at 130 (ZBooks, 2012)."
"For the reasons discussed above, we think the community rights strategy fails to measure up to the yardstick for success set out in the Fanfare quotes at the top of this blog, which requires that demands made against existing institutions enhance people’s lives, advance the likelihood of further successful struggle, and advance consciousness and organizational capacity to pursue our efforts to plant the seeds of the future in the present. IOPS members should weigh very carefully whether to associate strategically or otherwise with community rights advocacy groups in their region."
Lambert, anyone who talks to a CELDF person or goes to a one or three day, knows that the legal status is part of the strategy. I didn't see any misleading of folks on that issue when I was involved a few years ago.
When you google [CELDF "legally binding"] you find plenty of claims by CELDF that they assist communities in enacting "legally binding" law. But if these local ordinances are in fact not legally binding, then how are these claims not misleading?
When you talk to people involved, you are not mislead.
MARK,
The assertion that, if a person takes a one to three-day training, he/she will understand that these ordinances are not meant to be enforceable is both questionable and non-responsive to Lambert's point. The real solution is for the CELDF/"community rights" simply to stop making these false claims to start with. But, they don't.
I’ve been aware and involved in CELDF’s community rights movement for about six years. Before CELDF my experience in local self government included two campaigns to amend the city charter (one succeeded) and 4 campaigns to help elect city councilors. I have helped direct campaigns for the Oregon House and Senate. My (still incomplete) understanding of organizing strategies is based on experience and research.
I was attracted to CELDF’s claims that rights asserted in the US Declaration could inoculate local ordinances against legal challenges. When I made it clear that I was unwilling to organize a petition campaign that would most likely end up in court, I was reassured that CELDF was training lawyers in our area to defend these ordinances pre and post ballot. What is not clear is how these defense efforts are funded. That information may be spelled out in the agreement with CELDF that campaigns are required to sign.
I set aside my doubts and established and led a new CELDF county chapter as we joined six other Oregon counties and created the Oregon Community Rights Network. Some of these chapters led petition campaigns to keep GMO agriculture out of their counties.
It is difficult to evaluate the effectiveness of the CELDF organizing strategy because published CELDF information doesn’t include yardsticks for measuring progress. Nor does CELDF provide adequate information on how to organize and mount effective local petition campaigns.
From my experience CELDF’s organizing strategy lacks many of the basic attributes of successful organizing. As described to me on a few occasions the CELDF organizing strategy is to initiate “enough” ordinances from “enough” communities to attract “enough” attention until “enough” activists support campaigns to “drive” community rights into state constitutions.
Without CELDF guidance about effective organizing, time and resources are wasted and focus is lost. After 3 years, basic organizational choices continue to be debated here in the Northwest (bylaws, boards, delegates, communication, money etc).
Because sustaining campaign momentum is difficult, successful organizing strategies always include plans for doing that. Once a CELDF petition is in litigation there is little motivation for activists to stay involved during the weeks and months the legal outcome is decided. It is very difficult to sustain this organizing model where campaigns ramp up for petitioning and then wind down during litigating. Again the CELDF organizing strategy fails to suggest ways local groups can deal with this problem.
As I continued to be involved with CELDF, I realized that leaders failed to address two problems with the organizing model: poor organizing support of the movement and addressing persistent doubts about the legality of “community rights” ordinances.
I assumed I would be allowed to take time away from community rights organizing in order to be involved in drafting GMO policy at the state level and other legislative campaigns.
When that was discouraged, I resigned.
Why and how did the CELDF folks discourage your involvement in drafting GMO policy at the state level?
During a conference call with CELDF's Northwest organizer and a couple of local supporters a could of months ago, we were planning a local petition campaign launch for 2015. I reminded the organizer that there was an opportunity to follow through with the non-GMO sentiment that had motivated some counties to draft and adopt anti-GMO ordinances.
Concerned that county petition campaigns to prohibit GMO agriculture in Oregon would create a patchwork of incompatible policy, the legislature drafted and adopted a law making the Oregon Department of Agriculture sole authority over plants and seeds in the State. Post session the Governor set up a task force to clarify and support discussion of how the new law would be administered. He invited a broad range of interested parties and individuals.
I suggested to the organizer that as I continued to lead and assist planning for a local community rights sponsored activist convention later this year I could also be involved with the Governors's task force.
The organizer suggested that doing so would not be "productive" and that my time would be better spent working on local organizing. I said that my understanding of Dillon's Rule and preemption suggested that being involved in drafting state policy gave me another opportunity to introduce community rights to others involved at the state level.
The organizer repeated that CELDF strategy called for "eventually" working at the state level but only after more local campaigns were underway. I suggested that it would be more efficient to simply seek legislation asserting community rights and then I stopped pushing.
After the call one of the people I was working with told me that ANY effort as I suggested amounted to "working with the corrupt system we are trying to change."
I am unaware of anyone who was vehemently campaigning to keep GMO agriculture out of their counties actually following up and attempting to influence policy.
Diverting activists from essential post-election activity or engaging with legislatures is a major flaw in the CELDF strategy.
Thanks for sharing your experience Richard. I would ask: how were you able to introduce an anti-capitalist critique into the campaign against GMOs? Because GMO's in and of themselves are not the problem, just as corporations or corruption are not really the problem. The problem is how capitalism (market imperatives, investment, share value, etc) undermines participation.
CELDF doesn't talk about capitalism because it wants to play the inside game. GMO activists generally don't talk about capitalism for the same reason, same with 90% of single issue activist organizations, of which there are literally thousands. IOPS is different, I hope.
You're welcome.
The anti-capitalist critique appears in the CELDF Democracy School. (See online Democracy School on the CEDLF website.) That critique is almost entirely about what I call the philosophical foundations of capitalism; selected rhetoric from the 15th through the 19th centuries justifying exploitation and monopoly.
The CELDF organizing strategy is exclusively about campaigns leading to "legal encounters" without meaningful reference to capitalism.
As you suggest this is another major flaw in the CELDF organizing model.
Hey, Richard, one of the Democracy School "themes" is, "Accumulations of property and capital, in the form of the corporation, have been given constitutional 'rights' and protections over the past one hundred and thirty years." Look under section F at http://www.celdf.org/democracy-school-curriculum
-- but I don't think capitalism actually discussed -- or even mentioned in that critique you refer to. (Or did I miss it?)
Dave: "Because GMO's in and of themselves are not the problem..."
Know it's digressing from the thread topic, but just on the GMO issue: separating GMO technology from its industrial-capitalist-reductionist matrix (as you seem to here) might be a little difficult, Dave. (Cf nuclear technology and a few others).
Here's Vandana Shiva in a post now online at Common Dreams:"The most violent display of mechanistic science is in the promotion of industrial agriculture, including genetically modified organisms as a solution to hunger and malnutrition. Industrial agriculture uses chemicals developed for warfare as inputs. Genetic engineering is based on the idea of genes as “master molecules” giving unidirectional commands to the rest of the organism. The reality is that living systems are self-organised, interactive and dynamic. The genome is fluid."
You're right, Peter -- "the GMO issue" you raise is a digression and is not responsive to Dave's point. Let's stay on track. The question here is whether "community rights" makes sense as an organizational strategy, not the merits of the particular local debate. Here in Oregon it's GMO's, and in Pennsylvania and New Mexico, it's fracking. But, the "community rights" strategy is the same everywhere. And, I think Dave has raised an important point -- i.e., "CELDF doesn't talk about capitalism."
These are my comments, written in the same order as your original essay:
. Or go to youtube and key in "Community Rights TV". Or read "Rebel Towns" in The Nation magazine . Or sign up for my Community Rights Update at PaulCienfuegos.com.
. I rest my case.)
I find it fascinating that you choose to make invisible our first national constitution - the Articles of Confederation and Perpetual Union - stating that "[t]he Constitution" was adopted 15 years after the Declaration of Independence. The elite organized a successful coup against our first constitution, replacing it illegally with the one we now suffer under, which mostly privileges property and commerce over people. Our first constitution was much more aligned with the revolution that had just transpired. It very purposefully provided for a weak federal government with a more decentralized strong state authority. There would be no Executive or Judicial branches of the federal government, and no Senate. Fascinating that this much more authentically democratic legal structure is irrelevant to you in your review of early American history.
We give real focus to this early story in our Community Rights workshops and trainings. I am one of many full-time educators and organizers in this movement (PaulCienfuegos.com), and work in partnership with CELDF.org. I am the only full-time community rights educator and organizer doing this work from a home base in Oregon, so I would welcome a visit since you also live in this area.
You stand proudly with the so-called "Founding Fathers", mostly white propertied slave-holders, and comfortably defend their so-called authority to pronounce that the Declaration of Independence has no legal authority for law-making. Do you also stand proudly with the Supreme Court when they profess that corporations are persons, or that women are not? Do you believe that a truly democratic society can withstand a "supreme" court that does not allow an appeal? Are you comfortable knowing that new categories of people (women, slaves, etc) had to survive the constitutional amendment process to win new rights under law, while corporate "persons" simply have to win the votes of five supreme court judges?
You are correct that our (second) US Constitution doesn't recognize the "right to local self-governance", but our original revolutionary constitution and the related early revolutionary state constitutions (like Pennsylvania's, before theirs too was removed by a coup) certainly did. CELDF organizer Ben Price has done some marvelous historical research on this. Perhaps you could quote from it in your next piece?
You state that the Benton and Lane County (Oregon) community rights ballot initiatives are "unenforceable" because they conflict with state and federal law. (Implication: So why bother?!) Clearly, you haven't paid very close attention to the purpose of our work, which is to frontally assault unjust state and federal law and constitutional structures, in order to drive new rights into law. Are you also bothered that the American revolutionaries themselves were doing things that violated existing (British) law? Would you have preferred that they just played nice, and continued to ask the king for more crumbs of justice? All of our great social movements have succeeded when they very purposefully broke unjust laws in order to drive new rights into law. Why are you blind to (or uncomfortable with) this obvious historical truth?
You quote Bellingham, WA, city council member Michael Lilliquist saying that "hyper-local democracy is a dangerous and potentially corrupting tool." He proved his utter contempt for the local democratic process when he and the other entirely liberal city council sued to keep from the ballot a community rights ordinance that would have banned all coal trains from passing through their city. The entire city council was opposed to these coal trains, but they wanted to ensure that their own constituents, who had voted them into office, would not be allowed to vote on this critical social matter. Why? They made similar claims as the authors of this article - that the initiative was illegal, and therefore the public should not even be entitled to cast their vote for or against it. I was the initial instructor in Bellingham that got this campaign rolling, and I was shocked at how spineless was their city council.
Frederick Douglass said it best of all, "Power concedes nothing without a demand. It never did, and it never will." We aren't going to stop the coal trains, or the tar sands pipelines, or the exported manufacturing jobs, or the health insurance crisis, or the GMO nightmare, or the..... without making a demand. And that demand sometimes has to be made by breaking the law. In fact, that's usually the only way that major social change ends up happening. My colleagues at CELDF.org call our local law-making efforts, "collective acts of municipal civil disobedience". In other words, the local community rights laws themselves are acts of very purposeful and targeted law-breaking.
The authors also get it wrong that we "have not identified any limitations on these rights" that we are trying to enshrine locally. In fact, the opposite is true, and we're very clear about it. We do not challenge state and federal preemption laws unless those laws violate a local community's right to drive more or higher rights, or environmental protections into local law. We don't have any objection to state and federal layers of government setting a floor for rights and environmental protections; in fact we support government when it does so. But how dare they set a ceiling, by telling local governments that they have no authority to set stronger protections.
The authors claim that locally-based ecological protection law are irrelevant because the wind and the rain don't respect political boundaries. What an absurd argument. Do the authors think that the existing regulatory structures of law at the state and federal levels are working just fine, thank you? We start our law-making work locally because this is the only layer of governance in this country where We the People have not been entirely buried under corporate control. We still have the capacity to out-organize the corporate elite locally. Of course it's not good enough to ban GMO ag in one county, and not in the next. Which is why we then build state community rights networks to drive these newly recognized rights into state laws, and ultimately higher still. It is why we are already doing just that in Colorado, where their community rights network has filed a state constitutional amendment that will be voted on this November state-wide by the voters. It is why we have already established community rights networks in eight states, and climbing fast.
It's a cheap shot to suggest that our movement can't withstand much scrutiny when the authors talked only to a few people. Are you not cognizant of the fact that your reporting all too closely resembles that of the New York Times, when it sends a reporter into a march of tens of thousands of people walking past their office front door, and comes out with a story interviewing two folks who didn't quite get a chance to utter the right sound-bites before the reporter snuck back to his/her office to write a hostile story claiming that no one in the crowd seemed to know why they were there. In fact, CELDF.org and myself and other organizers have now helped 160 communities in nine states to pass these community rights laws, almost all of which have successfully stopped fracking, water withdrawal for bottling, urban sewage sludge dumping on farmland, unsustainable energy development, and much more. Your credibility suffers when you can't be bothered to interview folks in any of those 160 communities.
If readers wish to bypass this lousy reporting and find out for yourselves what the community rights movement is all about, check out "Sins of the Fathers" by CELDF's executive director Thomas Linzey
Do the authors really believe that our system of laws is working for the common person? Do the authors really believe that it's "unreasonable" for a community to say a loud and enforceable NO to GMO agriculture, or endless coal trains rumbling through their towns, or fracking of their drinking water? You're fine with things the way they are? You think the regulatory system is working just fine? (Actually, it is! It was designed to regulate citizens' political action, not stop corporate harms. Details here:
I'm sure you would protest and claim that this is not at all what you are promoting. But I must say, for so-called radicals and out of the box thinkers, you are surprisingly uninformed about the subject you've written about, and silent about what you would suggest as an alternative. Are we all supposed to just keep asking nicely for the corporations to cause a little less harm, as the regulatory officials keep insisting that we do? If the American revolutionaries had continued down that path with the king, we wouldn't be where we are today. If the suffragists had given up after the Supreme Court ruled that women were not "persons", we would now live in a different society. Yet the authors think that simply because we are attempting to pass laws that are not yet legal, our efforts are hopeless and silly. Or that simply because the courts will attempt to overrule our local law-making, we should give up before we even begin. Perhaps the authors should re-read their Zinn histories.
The authors claim that we have no "vision for the new structure of law" that will result from our efforts. Again, that's silly. Perhaps you asked the wrong questions. Perhaps your preconceptions about what we are doing made it impossible for you to understand what you were told.
I can't wait to read your upcoming blog on the CELDF Democracy School curriculum. Will you be claiming that the CELDF teachers made up that historical source material also?
My apologies for the "tone" of my response, but I can't help but wonder why you didn't do a more thorough investigation of our work before writing a piece so full of misrepresentations and lazy journalism. And I really want to appreciate all of the folks who've taken time to send public responses to this essay. It brings our relatively new movement's work to life more effectively than the original critique.
Paul, I see you joined IOPS today. I would like to call your attention to the IOPS site usage policy, which prohibits personal attacks of any sort http://www.iopsociety.org/article/site-usage-policy
The fact that in the last paragraph of your response you apologize for “for the ‘tone’ of my response” indicates you were aware the tone was ad hominem or otherwise objectionable, but, despite that realization, you finished by accusing Michael, Sara and me of misrepresentation and “lazy journalism.”
Although the site usage policy provides that, “if something that someone has posted upsets you, and seems to you contrary to IOPS norms, or out of character for the person, or for IOPS, assume it is not intended, and at most, if anything, ask for clarification”, no reasonable person could conclude the highly personal and negative tone of some (many) of your comment was not intended. I would therefore ask that, should you post additional remarks on this blog, or elsewhere on the IOPS site, to moderate the tone of your writing. If you feel that any statement we actually made was not factual, bring the correct facts to our attention, and we can proceed from there.
That's "the highly personal and negative tone of some (many) of your commentS."
Paul, you recently circulated an advertisement for an upcoming 3-day workshop (sliding scale of $100 to $300) at Tryon Life Community Farm in Portland that asserted:
“160 communities have passed legally binding, locally enforceable Community Rights laws that for the first time in U.S. history enshrine the inherent right of a local majority of residents to protect the health and welfare of their local places. Each of these new-paradigm laws defines what the community wants, reins in corporate so-called "rights", and stops legal but harmful corporate activity dead in its tracks.”
Yet nowhere in the ad did you even suggest that these “local community rights laws themselves are acts of very purposeful and targeted law-breaking”, are “not yet legal”, or that “the courts will attempt to overrule” them. I think many would consider the ad misleading at best, even if you do not.
Sarah,
You can launch the same criticism about any proposed law, because no proposed law "not yet legal" and subject to being voided by a court. Under this argument, Obama (or Obomba or Obummer, however one is feeling today) should have campaigned for the Affordable Care Act by saying "and by the way, the courts may find this whole thing is beyond Congress' authority and thus unconstitutional."
This argument is also similar to arguments made during political campaigns against third party candidats as "Unelectable." It is a hypothesis, presented as a conclusion.
Thank you.
Ivan, the criticism was not about a proposed law. It was about misleading advertising.
Like “Ivan Illich’s” comment above and CELDF Projects Director Ben Price’s response to MacLeod’s blog and Coal Free Bellingham’s response to City Councilman Lilliquist’s assessment of their proposed ordinance (both of which are referenced in our opening discussion), your post -- particularly its multiple ad hominem accusations -- is further evidence that the CELDF “community rights” model can’t withstand much scrutiny and that its spokespersons are unable, or unwilling, to address squarely the concerns that any thoughtful citizen in a community considering a “community rights” ordinance could be expected to raise.
This blog assesses the CELDF "community rights" strategy for change by measuring it against the standards set out in the quotes at the top of the blog. We have described the elements of that strategy as reflected in the words and actions of its architects and spokespersons -- for example, claims that these “community rights” ordinances are “legally binding” and protect communities from imminent threats of harm when they do not, and actions encouraging local governments to adopt and defend in court legally indefensible ordinances as a form of civil disobedience that somehow will (over time) “drive” these community rights “into law.” This blog is focused on the merits of the CELDF “community rights“ organizational strategy -- it’s NOT about whether corporations should have the same constitutional rights as “persons” (they shouldn’t), whether “fracking” is bad for the environment (it is), whether individual participants in the “community rights” movement are motivated by the desire to build a better world (they probable are), or whether the adoption of the U.S. Constitution was, in effect, a sort of counter-revolution (as you and CELDF contend).
Aside from its purely ad hominem content, your post consists primarily of criticisms of statements we didn’t make and/or beliefs we don’t have, or criticisms that reflect a profound, if not intentional, misreading of what we’ve said, and, readers of this blog who review its content objectively and in its entirety will see that. Here’s just one example: The first six paragraphs of your post concern our discussion of the enforceability of the CELDF “community rights” ordinances. That discussion clearly and specifically addressed the CELDF “community rights” claim to be "protecting" communities from environmental degradation through the enactment of "legally binding" local ordinances -- a claim that, as Sarah points out, you yourself have made recently in Oregon. In order to be legally binding and protect the community, these ordinances must be enforceable by courts, and they are not enforceable by courts because there is NO current legal authority for them and they violate existing state and federal law. That’s our point, and that’s the reality (whether you or I like it or not) and the consequence is that the claim that these ordinances are “legally binding” is just plain wrong. So, contrary to your post, a person doesn’t have to “stand proudly with * * * mostly white propertied slave-holders” in order to come to that conclusion, all he/she has to do is be rational and know what the facts are.
This answer (below) is from Bellingham Councilor Michael Lilliquist:
The topic being discussed is this: Is CELDF’s strategy to pass community bills of rights an effective tool to overcome and reform our broken legal system, which unjustly favors corporate interests over the good of the community?
I think there are great many conceptual and practical flaws to the CELDF approach, but I will discuss briefly only a few of them.
First, we need to realize that CELDF intentionally proposes laws and ordinances which are unconstitutional, in the hope of creating a legal clash — a sort of glorious defeat like the civil rights march on Selma, Alabama. Though beaten and imprisoned, the march was a success because the “defeat” focused public attention and roused people to further action. The problem with CELDF’s petition/initiative in Bellingham is that they received the defeat that they sought, but it was not glorious. They were simply thrown out of court at the local level, and their appeal was dealt with with equal ease. More importantly, the basis for their appeal left no grounds for a higher appeal. They could not take their case up the judicial ladder in order to achieve a glorious defeat. In this sense, the CELDF strategy in this case was a failure, because it did not lay the groundwork for a truly Constitutional challenge. It was a botched protest.
Keep in mind that I know and like many of the local organizers personally, and I tried to tell some of them that their strategy was going to fail. The petition was poorly written, and lacked the focus necessary to lay the foundation for a proper constitutional legal challenge. It not only violated the Commerce Clause of the US constitution, it also challenged the state constitution concerning cities’ authorities, violated state law concerning appropriate subject matter, and violated local laws concerning the initiative process, to name a few. It was a metaphorical train wreck. It could have been overturned on any number of grounds, none of which concerned corporate rights.
A better effort would have narrowed the scope, and isolated the key constitutional issue of corporate rights, federal permit shielding, etc. versus public welfare. Instead, the CELDF-inspired campaign threw in a whole kitchen sink of ideas, including direct regulation of coal and greenhouse gas production.
More importantly, as I and many others have pointed out, the CELDF approach is structured to bring about a clash between local and federal governments, yet the real conflict is between democratic government and the corporate corruption of that democracy. They have taken aim at the wrong target, or are hoping that by wounding federal authority they will somehow incidentally wound corporate rights. To me, that’s a profound tactical and legal blunder.
Could the CELDF approach work in other communities or if done differently? Maybe, but it would involve a rather tedious process of court proceedings and appeals, which could lose public interest, and may not produce the glorious defeat that they are hoping to experience.
Now, let’s step back look at the problem again.
Over a hundred year period, the US Supreme Court has handed down a series of rulings that steadily increased the power and immunities of corporations, while systematically curtailing and disempowering citizens and their elected representatives to protect the public interest. On this, I agree with CELDF, Cienfuegos, and many others. So, how do we fix this?
One obvious solution is already staring us in the face. A simple and straightforward constitutional amendment, as has been proposed and introduced already in several similar version, would declare that the rights of individual persons enumerated in the US Constitution are those of natural persons, not fictional/legal persons such as corporations. Boom. Done. A hundred years of bad decisions rectified, and the legal basis for corporations demoted to subservience to the political will of the people.
How likely is such a strategy to succeed? Well, 16 state legislatures are already on record calling for such an amendment, and two states have asked for the same thing by overwhelming popular vote of the people (75%!). Several other states are working on the same thing, including my own state of Washington. Polls show that a great as 80% of Americans do not agree with the Citizens United Decision, and would support it’s overturning. People at all points along the political spectrum are in agreement on this one issue. A growing handful of congressional leaders are on board as well. In other words, this is a very winnable battle, and just this one battle would win the entire war.
So, what do we make of CELDF’s community bill of rights strategy, when compared alongside the large and nationwide effort to amend the Constitution to overturn Citizens United?
Strategically and tactically, why support a probable loser when their is a likely winner at hand?
As much as I agree with CELDF’s diagnosis of the problem, I think they have prescribed the wrong medicine. They are treating an infection with deadly chemotherapy instead of with an antibiotic.
With all their energy and commitment, CELDF should join the Move to Amend. They should champion Senator Sander’s amendment proposal. They should gather signatures to put I-1329 on the Washington ballot, as I am doing. They should help cities and other governments pass resolution calling for the overturning of Citizens United, as I did in Bellingham. They should write newspaper editorials advocating for an amendment that restores our democracy to We the People, as I have done. They could provide leadership to help put this one over the top.
As I said, this blog is about whether or not the CELDF approach will be effective. Let’s focus on that. Instead, some people have chosen to attack the motives and character of other people. They conflate a rejection of their method with a rejection of their goals. They are mistaking a friend for an enemy.
(Michael Lilliquist)
I decided to take a look at this thread again.
There's definitely a lot more to see than ten days ago!
Well, that's all I want to contribute at the moment.
Or anyway, what I think the conversation needs.
So far this thread has been a thoughtful critique of the CELDF "community rights" movement in relation to the "yardsticks" Albert, Azulav, and Marty propose in the second Fanfare quote above.
It's reasonable to conclude that "community rights" can enhance people's lives by reawakening interest in how rights are accommodated in the American legal system. There is some excellent discussion in this thread about the origin and legal assertion of rights in America.
But it must be said that CELDF's "community rights" movement does not "enhance the likelihood of further successful struggle." Absent fundamental changes the "community rights" movement will continue to fail because the movement does not "advance the consciousness and organizational capacity to pursue" further aims.
But what about organizing the movement toward a more participatory society?
Using these same yardsticks, what organizing strategies are more likely to succeed in that movement? How can we propose a participatory society for the world in ways that 1) demands made against existing institutions enhance people’s lives, and 2) "advance the likelihood of further successful struggle," and 3) "advance the consciousness and organizational capacity to pursue those further aims"?
Hi, Richard, sorry for the delay in responding. To your question, “what about organizing the movement toward a more participatory society?” I take it you’re wanting to change the subject? Because, our critique of community rights as an organizing strategy really has very little to do with organizing the movement toward a more participatory society -- it’s more of a warning sign: DANGER LOOSE ROCKS! As the blog notes, the community rights strategy is, in our view, a reform strategy, the ultimate goal of which is a reform of the U.S. Constitution, just like Move to Amend’s goal is a reform of the U.S. Constitution. That is why we reviewed and analyzed the strategy using the yardstick for measuring “demands against existing institutions” (reforms), and not as a strategy for revolution. (More about theory, vision and strategy for bringing about a participatory society is, of course, available in the Fanfare Series, which also discusses the need for continuing reform efforts to improve people’s lives today, even as we seek to advance our revolutionary aims.)
So, to be clear, we would use a different yardstick for revolutionary strategy, which is not about making demands on existing institutions, but about changing those institutions. We’d still want our efforts to enhance people’s lives and advance consciousness and organizational capacity, but we would also much more as well. But since this blog is about community rights as an organizing strategy (for reform), I don’t want to get side-tracked. You can bring up these questions at the next Salem IOPS meeting (but be prepared with your own ideas, since the questions are very, very broad), and, in the meantime, remember the Fanfare Series and the forums and blogs on the IOPS website (here) -- which are in the main attempts to answer those very questions.
No problem, no hurry.
Re: “…we reviewed and analyzed the [CELDF] strategy using the yardstick for measuring “demands against existing institutions” (reforms), and not as a strategy for revolution.” To me “demands agains existing institutions” are essential to the strategy for revolution.
My sense of “revolutionary strategy” is that it is inclusive and opportunistic. The revolution unfolding in East Ukraine appears to follow an historic norm; demands on existing institutions are occurring simultaneously with actions that are changing those institutions.
I appreciate the Fanfare Series and the quotes that provided a basis for this excellent discussion about CELDF. Rather than changing the subject I hoped my question would extend the discussion and possibly lead to sharing ideas about how Fanfare idealism may be realized in IOPS.
I didn’t see that as a tangential discussion but rather as enriching the discussion. We used the FanFare quotes to evaluate the CELDF organizing strategy. I’m satisfied that we found the CELDF organizing strategy wanting. At some point it must be asked what a successful organizing strategy looks like and decide if it is appropriate for IOPS.
I could bring up these questions at the next Salem IOPS meeting but I thought they were more appropriately raised here to encourage discussion about what an IOPS organizing strategy might look like.
After sorting through the various IOPS blogs with my questions in mind I was unable to find an ongoing discussion like this one so I turned to “Why join IOPS Q&A;” which was very informative.
This quote about “program” from Item 15 is especially helpful:
“IOPS has no international, national, or even city programs in the sense of shared demands and campaigns, as yet, because of two beliefs. First, program like that is meaningful when it has serious participation and energy from large numbers of people. Program without participation is posturing. So, IOPS program, to be real, needs IOPS to be larger.
"Second, program like that should emerge from the self managing explorations and decisions of a membership that will be involved in its implementation. To have relatively few initial members, after a few weeks, set a shared program for a year or more, and thus for many many others who are not involved in the deliberations or decision to implement - would violate the spirit of self management.”
In other words "we've only just begun" so there is no IOPS organizing strategy, yet.
"I could bring up these questions at the next Salem IOPS meeting but I thought they were more appropriately raised here to encourage discussion about what an IOPS organizing strategy might look like."
Right. And what I was trying, perhaps too subtly, was to convey that common sense and blog etiquette require that, rather than bring up an entirely different and very broad subject in the comments of a blog about a very specific topic, one should raise the subject elsewhere, like in the forum, or in one's own blog, or in a face to face meeting. That's all.
OK.
RICHARD
In the "FORUM" section of the IOPS website, there is a subsection captioned "Strategy & Organization -- A place to discuss IOPS short, medium and long term Strategy and Organizational Issues," and there are more than 20 open discussions under that caption. This blog assesses the organizational strategy of the "community rights" movement.
Noted.
A CELDF organizer posted their response - at the cross post over at Zcomm:
http://Zcomm.org/zblogs/community-rights-as-an-organizing-strategy
Had the cross post been known of earlier,
could have been a place to send people so as not to upset folks.
Mark, "Had the cross post been known of earlier,
could have been a place to send people so as not to upset folks"? Not sure what you mean by that, but there was a link to the ZBlog post in MacLeod's blog, which our blog discussed and linked to.
The authors reply to CELDF's response:
Certain of Mr. Huschke’s key points we agree with:
1) There is a “main driving force of the endless production of more which is grinding people and planet into dust” (though we think it’s capitalism, not the U.S. Constitution).
2) Reform efforts (“the whole fight within the existing rules”) is about “how to make things less bad” (which is why we think they are not “a fool’s errand”, but a worthy undertaking, provided the strategy for reform measures up to the requirements set out at the beginning of our blog).
3) Clarity is critical.
The remainder of his comment falls into one or more of the following categories:
Equivocations. For example, in the comment, “rights” sometimes refers to human or natural rights (e.g., “Rights for corporations do not exist”), and sometimes to enforceable legal rights (e.g., the right to vote, the right to local self-government); “self government” sometimes to the legally recognized decisionmaking authority of cities and counties, and sometimes refers to the claimed right of those entities to ignore conflicting state and federal law. By ignoring the clear distinctions made in the blog, and continuing to engage in such logical fallacies, Mr. Huschke intentionally attempts to support arguments favoring legal recognition of claimed rights by repeated reference to established rights of same name. (And yes, we understand that this is part of the strategy.)
Exaggerations. For example, Mr. Huschke claims that community rights ordinances are a “direct challenge” to corporate rights. However, that’s like saying driving 100 mph in a 30 mph zone is a direct challenge to speed limits. Because community rights ordinances are so patently unconstitutional, they are no “challenge” at all, direct or indirect; everyone knows they’re going to be summarily thrown out of court. (It’s part of the strategy.) Compare laws intended to limit women’s reproductive rights; they’re a challenge to those rights because they’re written in a way that gives them some chance of being upheld, and some are upheld. Community rights ordinances, at least those drafted by CELDF, are not written in a way that gives them some chance of being upheld -- their drafters aren’t even trying to do that because they want them invalidated. That’s the strategy. The problem is, many of the people who believe in and vote to enact these ordinances don’t understand the strategy, and are convinced the ordinances are a “direct challenge.”
Other exaggerations include the contention that community rights ordinances “confront” climate change “head-on”, that the lawsuit seeking to overturn Mora County’s ordinance is about “the rights of the community vs. the power and privileges of corporations”, and that the “parallels” between community rights and civil rights are “real”, if by “real” is meant “factual.”
Obfuscations. For example, responding to our critique of the community rights strategy with an exegesis on what motivated community rights advocates to undertake the strategy, and how they had no alternative because the system’s rigged and no one can be trusted. To that we say, so what? We’re all motivated and we all know the system’s rigged: what about the problems with the community rights strategy?
Another obfuscation example: This impenetrable sentence, “Community rights work is about being prepared for both a short term loss and win, with a clear understanding that the structure is what it is and will validate what it does through current legal doctrines -- and at the same time it needs to be challenged directly in order to dismantle and rebuild it.” Mr. Huschke is reportedly the organizer for Oregon, Washington and Hawaii. It is reasonable to assume he is able to communicate using plain language, yet he chooses not to (note: his blog comment is four times as long as our blog). The reason for this should be clear: if the community rights strategy were to be communicated in plain language, it would have far fewer fans. That is why, as Mr. Huschke states, “Part of what community rights work is about is changing the way one talks.”
Misrepresentations. For example, we did not, as Mr. Huschke implies, argue that what is legal is therefore legitimate. Obviously the fact that a thing is legal does not make it right. We also did not argue that enacting unconstitutional and therefore unenforceable ordinances was “illegal”, a description frequently used by community rights advocates, along with terms like “civil disobedience”, to create the false impression that their actions bear some similarity to historical civil rights actions. Our argument was altogether different. Our argument was that the means used to enact the community rights ordinances is highly questionable and probably unethical, and that the impact of the community rights strategy on activism and environmental degradation is unlikely to be positive in either the short or long term. Notably, there was no response to that argument in Mr. Huschke’s comment.
Personal attacks. For example, the gratuitous personal comments about the character and motivation of the councilor from Bellingham, which were cheap shots with no substance (but much manipulative potential). See Whining.
Whining. For example, bemoaning at great length the entirely predictable (and predicted) failure of the Bellingham measure, claiming betrayal of trust by elected officials, etc., etc. (Yes, we realize that this is part of the strategy.) See also Personal attacks.
Finally, Mr. Huschke commented that our blog “undermine[s] revolutionary efforts through the form of community rights.” However, we see nothing revolutionary about the community rights strategy. Anti-federalism plus anti-corporatism does not equate to anti-capitalism, and, in our view, that which is not anti-capitalist does not deserve to be called revolutionary. Rather, the ultimate goal of the community rights strategy is merely to reform the U.S. Constitution to limit the power of corporations (“stress it, break it, and fix it all at the same time”). It is a reform effort, and that is why we reviewed and analyzed it according to the yardstick for measuring demands on existing institutions (reforms) set out at the beginning of the blog.
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