By Thomas Linzey
July 15th, 2020
Over the past several weeks, several Georgia localities, including Atlanta, East Point, and Athens-Clarke County, have begun to defy the Governor’s refusal to mandate mask-wearing within the state. They’ve done so in response to new highs – of numbers of daily confirmed cases of Covid-19 and of new numbers of hospitalized patients.
One has to wonder why other cities, towns, and counties across the United States, in places where Governors seem to want to defy something as basic as gravity, haven’t done the same.
This kind of rebelliousness in the name of protecting human health isn’t unique to what’s happening in Georgia, of course. It’s not even unique to Covid-19.
Other threats to human health and safety posed by toxic waste incinerators, fracking waste disposal sites, pipelines, and factory farms have led to an accelerating “community rights” movement across the country in which disobedience of state mandates is becoming a new normal. Many communities have begun to openly defy state-issued permits by banning corporate projects likely to pollute their air and trash their land.
They’re resting their refusals on a constitutional right protected by their state constitutions and the federal one – the constitutional right of local, community self-government. Specifically, they’re contending that the state and federal government lack the power to make them sacrifice zones in an era when those governments seem to act more at the behest of those profiting from the creation of those zones than the people who should be protected from them.
That right of local self-government isn’t a new legal doctrine, of course, it’s just a rediscovered one. The history of the United States is one of self-organizing municipalities, beginning with towns in New England; and for over a hundred years, that history of local self-government led courts across the country to limit state power over municipal lawmaking.
The mayors of the various Georgia cities finding themselves in a similar position – with a Governor attempting to stop them from protecting the health, safety, and welfare of the people of the communities those mayors are sworn to protect – should seek the protections afforded by this doctrine. That would mean defending these local mask orders in the name of the constitutional rights of the people of those municipalities to protect themselves in the name of local self-government.
Like the constitutions of other states, the Georgia Constitution bolsters this argument. Section II, paragraph 1 reads that “all government, of right, originates with the people, is founded upon their will only, and is instituted for the good of the whole.” When government fails to protect those ends, the Constitution continues, the people “have the right to alter or reform the same whenever the public good may require it.”
It doesn’t get any clearer than that.
Thomas Alan Linzey is an attorney and the Senior Legal Counsel for the Center for Democratic and Environmental Rights (CDER) (www.centerforenvironmentalrights.org).
