Regional Governance |
State legislators today, as far as we can ascertain, are totally ignorant of the dangers of Regional Governance, and we have yet to meet one who has read, studied and understands our Constitution. Mr. Horton tells plainly why we should all be making an exhaustive effort to take documentation to our State legislators and convince them of the fact that States are quickly becoming obsolete because of their careless practice of voting for bills which they have never read, let alone written.
We must also, somehow, awaken them to the fact that Governors' Executive Orders are not law any more than are Presidential E.O.'s, and that if they continue to blindly 'obey' their so-called leaders in the legislature we will all be 'led' like lambs to the slaughter into the New Socialist World Order. ----------------------------------------------------------------
Transcript of public hearing, Joint Committee on Regional Government, April 11, 1978, Springfield, Illinois Pages 12 - 33
Rep Lucco : Would it be possible to have each of the witnesses or speakers to not only identify themselves by name, but to tell us what areas, or what regions, or what organizations they represent? We are not familiar with all of you.
Mr. Horton : Very well, Mr. Chairman, my name is David Horton. I am Legal Counsel for the National Committee to Restore the Constitution. I am appearing here at the request of the Illinois Committee to Restore the Constitution.
The Constitution of the United States is a very simply stated document. It says what it means and means what it says. In order to understand what it says, it is simply necessary to see who is speaking in that Constitution. The sovereign states are the parties to the constitutional compact. The words in the preamble of the Constitution, "We, the people of the United States", mean the peoples of the several states, each speaking through its state government in its highest sovereign capacity.
It is in this sense that the Constitution was formed by the thirteen nations that were recognized to be free and independent states by the Treaty of Paris that concluded the Revolutionary War. All other states, all nations that have since joined as parties to this agreement, have come in on an equal footing with the original thirteen sovereigns.
The inspiration of our constitutional structure was that it found a way to insure maximum freedom by limiting government. This limitation is reflected in our state constitutions, but it is still more apparent in the United States Constitution that defines three special, or limited, agencies of government that are created by the absolute sovereignty of the states, who are both the fount of all authority delegated to these three agencies and the repository of all powers that are not so delegated.
Yet, the agencies created by the state have seen fit to ignore the limits of authority granted to them, and have undertaken to exercise powers that were not delegated, and for the use of which no open application has ever been made to the states. In this situation, the position of the state as a party to the constitutional compact is pivotal in causing any correction of constitutional violations. James Madison described the position of the state as follows:
"The ultimate right of the parties to the constitutional compact to judge whether the compact has been dangerously violated must extend to all violations by one delegated authority as well as by another; by the judiciary as well as by the executive or the legislature."
But it is not just a right of the State Legislature, which speaks for the state in its highest sovereign capacity, to enforce the limits of the Constitution within the state's borders. It is more than a right; it is a duty. The famous Resolution of the Kentucky Legislature of November 19, 1799, which was made at a time when the members of that Legislature were personally acquainted with those who framed and adopted the Constitution, states as follows:
"Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force, that to the contract (that is, the Constitution) each state acceded as a state and is an integral party; its co-states forming as to itself, the other party. That government created by this contract was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers. But, that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself as well of infraction as of the mode and measure of redress."
The New York Legislature of 1833 roundly condemned what it called,
"the dangerous heresy that the Constitution is to be interpreted not by the well-understood intentions of those who framed and those who adopted it, but by what can be made out of this word by ingenious interpretation."
To ignore the original intent of the Constitution is to ignore its only lawful meaning. Therefore, it is not just constitutional heresy to depart from the original meaning of the Constitution. It is unlawful, and that is the key to the examination of the regionalism concept.
For example, Figure One, which is a map of these United States combined into ten regions, where state boundaries are deleted but governmental functions are to be performed within these regions – this is a basic violation of the intent and of the express language of this agreement called the Constitution of the United States.
Damage is already being done to our local representative institutions through efforts of intimidation and bribery to take over governmental functions: The stated plan is to intensify the process that is already going on to establish contact directly with local officials and local entities, by-passing state and county government and, in the process, using tax funds, public funds, for the basic purpose of defeating one of the principle objects of all law.
The purpose of law can be summarized this way – to prevent coercion, either by bribery or by force – and the effort that is being made now by the federal agencies defeats this purpose when they say, "you must do what we say or you won't get this money".
For example, in the area of transportation, when the interstate highway system first started, the excuse made for the Feds getting into this area, which had traditionally and consistently been understood to be none of their concern, was that they were building a defense highway system. That is why, when the original expressways were designed, you found no structures passing over them, because the theory was that they were going to use these superhighways to convey large missiles, and you couldn't have any structures over them so that the trucks hauling them could pass through.
That, however, we know was a mere pretext. They are, today, having gotten their foot in the door by this subterfuge, in the highway construction business. They are not, as we are learning to our sorrow, in the highway maintenance business. That is one reason why the problem of defending our local governments requires us to return to two basics. We need to understand that in the last analysis we are dealing with what has been described as a sedition, which is an attempt by indirect means (we might call it the quiet revolution) to basically change our form of government.
Second, to understand the importance of keeping our form of government, we need to know why it is that it is a wise form, and why it is that it works well... some people would say "in spite of our neglect of the institutions that comprise it". There is a parallel, however, between why our free enterprise system works well, and why our system of local control of local affairs works well.
The free enterprise system works well because the man who is making the decisions is the best informed. Secondly, he is responsible for his decisions. He pays the bills and he makes mistakes. That's why our free enterprise system can produce plenty of wheat.
A centralized, vicariously-governed system such as they have in Soviet Russia can convert the bread basket of Europe into a starvation nightmare because they are not adopting this basic principle that we have in our free enterprise system, and the reason why local control of local affairs works best is the same reason that the free enterprise system works best – namely, that our local county commissioners or supervisors, when they make decisions and make mistakes, have to look eyeball to eyeball at the people who are adversely affected by those mistakes.
If they can find a solution, they are much more likely to be responsive and put that solution into effect. Now, if we compare that with what we have with what has been mentioned, the Office of Management and Budget Form A-95, we find that if we're dealing with the federal bureaucracy in any area, they are not solution oriented. If you talk to people, even in LEAA, where I have a certain amount of experience as a District Attorney for eight years in my county, we have had our noses rubbed in that sort of thing too; but if you talk to them with regard to a solution of one of their problems, you might just as well talk to a post.
They are not interested in solutions, and the reason is that they are funded on the basis of having the problem. If you solve the problem, they are out of their funding, and you can't expect a government official – any more than you can expect a businessman – to go against his own pecuniary interest. And we find that they don't. That's one reason why we have a $300 billion-plus federal budget.
True, even local officials, if they make a mistake, tend to have a vested interest in their own error, but they are much more likely to correct an error if; first, they are local; and second, they are periodically accountable by election. This is the principle that needs to be reincorporated into our structure of government if we are to be protected from attacks against it.
There is an available remedy. In understanding this remedy, there is both good news and bad. The good news is that there is the authority in the State Legislature to define or redefine the limits of authority and to enforce those limits within the boundaries of the state. The bad news, of course, is that with the authority comes the responsibility to apply the remedy.
The State Legislature has the power to speak for the State in its highest sovereign capacity, and it is in this capacity that we find the expression of the legislature's power. This is where policy is defined, and that report of the New York Legislature of 1833 that I mentioned a moment ago refers to the states as... in their highest sovereign capacity, which they do through their legislative power. Turning to one of the founders, we find this quotation:
"The true barriers of our liberty in this country",
wrote Mr. Jefferson,
"are our state governments, and the wisest conservative power ever contrived by man is that of which our Revolution and present government found us possessed. Distinct states, amalgamated into one as to their foreign concerns, but single and independent as to their internal administration."
It is as to matters within each state's boundaries that the state is, and remains, sovereign; but there is an intrusion into the rights of the peoples of our several states to govern themselves that is represented by efforts at regional government.
The avowed purpose of regional government is to exercise governmental powers. Now, it is sometimes represented that we are just planners -- we regionalizers, we're just planners, or we're advisory, or we're trying to get a plan here. First thing you know, they will want a piece of the tax base, and then comes some more bad news. That bad news is – we've got this plan.
Now, there is no sense having a plan if we don't implement the plan. So, here we have appointed officials implementing a plan that can very seriously compromise the ability of the elected representatives to continue to make the decisions that they, alone, are accountable for to their voters. Many of these powers that are being exercised in the federal... ten federal regions were never delegated by the states to any agency in Washington and, indeed, off the top of my head, I cannot think of any power that was lawfully delegated under the Constitution that is now being... there is now an attempt being made to exercise this through the ten federal regions.
The wisdom and success of the principle of local control of local affairs by elected officials, state and local, who are periodically accountable to their constituents, is well known. But the tentacles of self-aggrandizing, centralized power are spreading themselves by means of regional governance throughout the social and political structure of our institutions.
City councils are bribed. Legislators are intimidated and citizens are taxed for purposes that not only lack their consent, but call forth their sincere and steadfast opposition.
We are told, for example, that the United States Supreme Court, one of the agencies created by the agreement between the sovereign states, will relieve us of the burden of governing ourselves by deciding, in its infinite wisdom all questions regarding policy that members of that body may be able to lay hand to. We have... they have no lawful authority to decide questions.
The language of the Constitution confines them to a limited number and type of cases. That is to say, where you have a plaintiff and a defendant, and a decision that needs to be made. They have authority to decide a certain number of cases. They have no authority to decide questions. But members of the Court have seen fit to ignore the limits of authority place upon them by the Constitution. A recent expression of this tendency we can get from one of the members of the Court itself; namely Chief Justice Warren Burger, who stated in a 1970 case,
"I do not acquiesce in prior holdings that reportedly, but nonetheless erroneously, are based upon the Constitution. I am bound to reject categorically the thesis that what the Court said lately controls over the Constitution. I will not join in employing recent cases rather than the Constitution to bootstrap ourselves into a result."By placing a premium on recent cases, rather than the language of the Constitution, the Court makes it dangerously simple for future Courts... (Here he is being discreet and referring to his brethren) for future Courts using the technique of interpretation to operate as a continuing Constitutional Convention.
"I would not decide that the Constitution commands this result... (That is to say, the decision in that case) simply because I think it is a desirable one. By investing its own verbal formula, the prevailing opinion simply seeks to reshape the Constitution in accordance with predilections of what is deemed desirable. Constitutional interpretation is not an easy matter, but we should be especially cautious about substituting our own notions for those of the framers."
Now, it is to be noted that we have fallen into a pattern of language usage here that we might do well to examine when we talk about interpretation; and lawyers particularly are brainwashed, you might say, into thinking that courts are supposed to interpret – that is to say that's comparable to taking out of legalese or a foreign language and putting into something simple that we dullards can understand what has been laid out that they are supposed to be going by.
But I think if we avoid that term and say that a court is not supposed to interpret the Law, even ingeniously, but is merely supposed to apply the law, then we can see more clearly what the correct scope of the judicial agency is. It is not a policy-making body, and the condemnation of Chief Justice Burger is better put than I could put it, and no one can accuse him of pecking at the necks of other people when he is sitting right in their shoes and he is saying this.
He knows what he is talking about. He may not use the exact language. He may phrase it in slightly different words, but he is accusing each one of his colleagues of foreswearing their oath of office when they swear to support the Constitution, "this Constitution", and then they do something else.
The ambitious acts of this special agent – that is to say, the Supreme Court – can and will continue only so long as its principal, the State, does nothing.
Sometimes this discussion of the principle of state action can best be boiled down to a rather homely analogy which I hope you will pardon my use of. The farmer who is the principal on his farm – he is the boss. He sends his hired hand to market with a load of pigs to sell the pigs. He creates a special or a limited agency. The hired hand leaves the farm, goes to the market, and sells the team and wagon. Now, the farmer, the principal, has two – possibly three – alternatives open to him.
If the hired hand has made a real good sale, he can ratify, and he says, "Fine. Here is a bill of sale. Give him the money." The hired hand, having no authority to begin with, gives good title. He can do the most obvious thing and repudiate the unauthorized act of his agent.
But he can do a third thing, and this is the key to the Constitutional problem that we are facing today. He can do nothing. Now, if that farmer does nothing, the hired hand who starts out having no authority whatsoever, gives good title that is good even against the farmer himself because the farmer, by his inaction, has ratified the previously unauthorized act of his agent.
And this is what we are down to so far as the concept of principal and agent. We tend to use in our discussion of these things unfortunate phrases that sometimes prevent us from conceptualizing the real relationship between the parties that are involved.
For example, we tend to say things like, "filtered down from the federal government," as if State Legislatures are somehow lackeys that are supposed to do whatever the Feds tell them.
What we don't realize is that it is the State that is the boss. This is the sovereign. This is where sovereignty inheres. Yet if the State Legislature is psyched into thinking that it is the tail being wagged by some Federal dog, it is going to inevitably make a mess of trying to wag because it is not the tail – it's the dog.
Sometimes we summarize this problem by saying that the principal difficulty that we have at this particular point is not a legal one. There is precedent. There is example for handling usurpation that goes back to time immemorial. The principal problem that we have is a psychological one. If we are psyched out – if we think that we can do nothing – then we are beaten, we can't.
But once we get down to the nitty gritty and start studying some of the remedies that are available, then it is a completely different ball game; and it is rather interesting to see the transformation that occurs during such a study as this, where first we start out with the supposition that we can do nothing, and finally when we get a bill proposed, we'll get questions from the same committee that do not reflect a feeling of importance at all, but a question such as this: Are we using a sledgehammer to kill an ant? Are we using too much power to handle this situation?
Lincoln, for example, said in his first inaugural address,
"If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between the parties in personal action, then the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
Now, the key word here is "resigned", because usurpation is a bilateral act. It does not consist alone of an attempt to exercise power by someone having no authority to exercise that power. It consists of that in the first instance, but to complete the act usurpation consists of the party having lawful authority to exercise that power surrendering or acquiescing in the exercise of that power by the usurper.
In other words, Farmer Brown doesn't correct his agent. In other words, resigning the power into the hands of the usurper. Attempts to exercise powers by any federal agency that are not delegated are attempts to change the Constitution without process of law. It is a subterfuge that undermines the Constitution.
What is sometimes referred to as "Mr. Madison's report", I think clarifies the so-called supremacy of the Supreme Court, which is one of the phrases that lawyers frequently get tangled up in. He says,
"If the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments not carried by the formers of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. However true, therefore, it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution...
You notice even there they are using the term 'questions' rather than 'cases'. We look at the Constitution and the language is 'cases', not 'questions'...
"...in all questions submitted to it by the forms of the Constitution to decide in the last resort, this resort must necessarily be the last in relation to the other departments of the government – not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trust."On any other hypothesis," concludes Madison, "the delegation of the judicial power would annul the authority delegated, and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the reach of any rightful remedy, the very Constitution which all were instituted to preserve."
The grouping of the states of the United States into regions for the purpose of exercising governmental powers – multi-state regionalism – and the intimidation of the legislature of each state to divide the state into regions for the purpose of exercising governmental powers – sub-state regionalism – constructs a system of government by appointed bureaucrats that by-passes and undermines the lawful government of each state by its elected state and local officeholders.
The by-passing of our lawfully-elected officials is an exercise of governmental power, and it is a sedition.
The exercise by appointed bureaucrats through federal regionalism of powers that were never delegated to the limited agencies in Washington is a sedition.
The so-called Executive Order No.11647, purporting to group the several states into ten regions, was void.
This is the conclusion that was arrived at by the Joint Interim Study Committee of our sister state, your neighbor, Indiana, in its report which gives the following reasons for its conclusions. I believe you may have copies of the blue-covered report of the Interim Study Committee on Regional Government of the Indiana Legislature.
The reasons are recited. They recite two; there are actually four. First,
"If the so-called Executive Order was legislative in nature, and thus invalid under Article I of the Constitution of the United States, which vests... ‘all legislative power herein granted’ (Not all legislative power, just the legislative power herein granted) "in the Congress of the United States".
Second,
"Neither the states nor the Congress have ever granted authority to any branch or agency of the federal government to exercise regional control over the states."
And in addition, federally-imposed regionalism is further void because it violates yet another express provision of the U.S. Constitution – Article IV, Section 3,
"Nor shall any state be formed by the junction of two or more states or parts of states without the consent of the legislatures of the states concerned, as well as of Congress."
The exercise in multi-state regions of governmental powers combines to that extent the states that have a right under the Constitution to remain free and independent. It is precisely to that extent that multi- state regionalism also violates Article IV, Section 3.
Now, the question sometimes comes up – what do you do when you have a problem that crosses state lines? How do you handle a joint sewer system between two communities that have a state line between them?
This is a problem that is not new, and it has been handled by interstate and intergovernmental contractual agreements, which are preferable and well-favored by local governments because you have got a written agreement. Town A will supply such-and-such and will have such-and-such share of the sewer capacity of this joint venture. Town B will have another share. In other words, they know what they are getting into. They have got a contract that spells out.
When you get into regionalism, it is a completely different ball game. It's violating the Constitution in many different ways, and one of the reasons why local officials are not happy with what's happening is because they cannot see the end of the tunnel. One of the reasons they can't see the end of the tunnel, to mix our metaphors, is because they are being led down the garden path.
Americans have long wondered what redress they have against politicians promising their way into office and swearing on their oath to "support this Constitution", and thereafter proceeding to violate every Constitutional limitation at the earliest opportunity. The use of the state's legislative power can enforce observance of Constitutional requirements.
The measure recommended by the Indiana Committee is but one way to support this Constitution by enforcing it. A few words to those who claim that we enforce the Constitution and violate the divine right, not of kings any more, but the divine right of bureaucrats. They say we shall forfeit the spoonful of pottage that the usurpers threaten to take from us.
First of all, we supply the pottage. By the resourceful and resolute use of the state's legislative power, even funds being misused as pottage can be taken from those who would substitute their will for the requirements of the Constitution and the judgment of our elected representatives. In correctly analyzing the problem, we are halfway to a solution.
The problem is usurpation, and the solution is to enforce the Constitution. The sky will not fall if we enforce the Constitution.
We can, however, be engulfed – just as the Roman Republic was engulfed – by the constant encroachments of irresponsible centralists. The legal maxim... (spoken in Latin first)... "Do Justice 'til the Heavens Crack", is less the issue today than the principle. Unless justice is done by the enforcement of the constitutional compact, the heavens will most inevitably crack.
There have been too many prior incidents of that happening for us to doubt that conclusion. And in Proverbs we find, "Remove mountains, the ancient landmark which thy fathers have set". The landmark is the constitution. That landmark was set by the states when they agreed to a Constitution granting only limited, enumerated powers.
The men of our revolutionary period made themselves the exception to the maxim of the world and finished the revolution which they began. They founded new governments and administered to them in their day and generation until gathered to their fathers, and they did it with the same wisdom, justice, moderation and decorum with which they began. We owe a duty of justice to these men, and to the people who sustain such men. Though eulogy is not our task, but rather gratitude and veneration is the debt of our birth and inheritance, and of the benefits which we have enjoyed from their labors.
The work now being considered by this Committee proposes to acknowledge this debt, and of course, to discharge it is impossible. By laboring to restore their work, Aristotle observed in... (pause while tape is changed)... .... we enter our State Capitols, and by cajoling, intimidation and bribery, seek to compromise the legislative will of those who serve in this legislature for thousands and for tens of thousands.
Those who misapply our tax dollars reveal a predisposition to authoritarian government. They not only misapply public funds to the end of destroying the basic purpose of the law – that is, to prevent coercion – but they commit manifold contempts of this legislature in so doing.
The awakening of the power of the people through their elected representatives in their state legislatures is spreading. In rallying to the support of their leaders in the legislature, the people of Illinois have shown an awareness of the need for restoring constitutional limitations. In undertaking the study of regional government and its effect upon political institutions, your committee will be starting the State of Illinois on the way back to constitutional self-government. Thank you.
Rep Hudson : Ladies and gentlemen. Thank you, Mr. Horton. Ladies and gentlemen, I would request, please, that there be no demonstrations, pro or con, as these witnesses are heard. This is customary in our House, and it's customary in committee. Are you concluded? Did you finish, Mr. Horton?
Mr. Horton : I have some additional material I might review for you, that I think you would like to study at your leisure. One is copies of pamphlets on usurpation, giving some background information. Extra copies will be available for the committee members.
Rep Hudson : All right. If you will leave those, and then I would encourage you then, if you can, to conclude your.... submit those to the members of the committee.
Mr. Horton : By way of suggestion for how you can approach this problem. It is not so important that the whole problem be settled and straightened out in one afternoon or in one session. As any legislator is aware, when you get into a new concept, it sometimes takes time for people to turn on the "think" buttons.
So one of the things I will leave with the committee is what has passed both houses of the South Dakota legislature, which is a little different approach than was recommended, even by Indiana Committee. But it shows the diversity of remedy that is available through state legislative action in handling this particular problem. You might want to, instead of addressing the entire concept of regionalism, you might wish to instead focus on a particular problem that you have a little bit better understanding of all the facets of; for example OSHA. There have been drafted state bills for enforcing the constitutional limits... limitations with regard to OSHA, and this would be one thing that your committee might want to consider doing.
I would be glad to answer any questions, because I realize what I have said here has been something of a summary of a rather extensive proposition.
Rep Hudson : Thank you sir. Are there any questions from the Committee members?
Mr. Horton : Don't tell me I have answered all your questions. Here, I thought I was generating questions.
Rep Hudson : If there are... I think... Senator Carroll.
Sen Carroll : Mr. Horton, just a general question. I gathered from your testimony that you are talking about state sovereign right vis-a-vis the Federal Government. Would you, personally, see anything wrong, then... let's assume that what you have said should come to pass, does come to pass and the State becomes a total sovereign. Does the State have the right to set up its own regions within the state to do certain things such as planning, or anything it wants to do, because the state, then, is the sovereign?
Mr. Horton : That is correct.
Sen Carroll : It could have any control it wants within its boundaries.
Mr. Horton : The State can abolish every county in its district if it wishes. This is a legitimate exercise of the powers of the sovereignty. What we object to is the illegitimate exercise by special agencies that, even if they wanted to do a good job, by virtue of the fact that they are in malfunction junction, they are going to botch it.
Sen Carroll : No, I am not questioning you. I am just asking, because I know that that question comes up constantly; that we, the State, whether it is because of federal pressures or from our own volition, have created some of what people call regionalization within the state. You are using the phrase more in a national sense than in a local sense, and I think I want to accept your comments in the way you intended them to be. I understand them now to have been a national regionalization or national immunity, but that were the state to create any political subdivisions it wants.
Mr. Horton : This is correct, but I think it is important to understand that much of the sub-state regionalism has not been the free exercise of volition.
Sen Carroll : Oh, I understand. I understand. That's what I said as a premise. If it were, then it could... then what you're saying... your comments would be that the state has the total sovereign power to do so.
Mr. Horton : That is correct.
Sen Carroll : Thank you.
Mr. Horton : There are a couple of other items here that might interest you. One is a statement, "Sockdolager! A Tale of Davy Crockett", which is not just an anecdote. It is a very clear and cogent expression of constitutional principle that turns on an event where Davy Crockett was stumping for re-election and ran into the Constitution, and got straightened out by one of his constituents. That's one of the reasons why we find quite a regenerative effect in this union that is happening between the representatives and the represented. This is a combination that you will see exemplified in this pamphlet. That is a winning combination.
The other, on the question of the history of usurpation is this book that I will leave with the secretary. It is, I believe, the first American edition of Coke's commentary on the Magna Carta, which I brought out in 1974, and I invite your particular attention to the concluding phrase in a couple of these chapters. It said, "As it was in the time of King Henry, our grandfather."
Now, if a right is being defined as it was in the time of King Henry, our grandfather, it cannot very well be new. Therefore...
Rep Hudson : Mr. Horton, excuse me. I think a question was raised, and I am wondering if you are not... you have answered the question, and perhaps you are going into something else at this point. I would encourage all of our witnesses simply to answer the question. Or did you consider that to be an extension of your answer?
Mr. Horton : Well, so far as the question of what to do so far as the usurpation is concerned, this is an example of where 700 years ago they had the same problem of usurpation, just as in regional government we have a problem of usurpation here, where in spite of the very clear mandates of the Constitution, we are doing something else, and the solution is to be found in our legal history.
Again, the problem is not new; the solution is not new. And there will be another example that goes back 350 years in this little book that you will be able to draw on to gain assurance of the fact that there is a capability of correcting the problem of usurpation.
Sen Rupp : Mr. Horton, moving down in that same area, if the State grants home rule powers to cities, would you also say that that is perfectly legal, and they, in their particular areas can regionalize – can join with other bodies?
Mr. Horton : Well, our local governments have, for many years, had intergovernmental compact powers. When you use this term "home rule", that can be somewhat ambiguous. It tends to represent that this gives more control, and in some cases, without reviewing the statues, I wouldn't be able to directly answer your question. But in some cases, what it ends up meaning is not rule by the home but rule of the home, and whether it is an advisable...
Sen Carroll : That's not the case in Illinois.
Mr. Horton : Yes. Whether it is an advisable measure is a legislative determination, and under the general premise that all undelegated powers repose in the legislature, they would have a right, even to make them a state. You see, you don't decide whether it is advisable or unadvisable. The question is, do you have authority? The answer to that question is yes.
Sen Rupp : May I interrupt you there a minute? The home rule concept in the State of Illinois, previously the authority was with the State, and the only right that a community had, a city had, was that which was specifically delegated to that city, or another city. Now, home rule has changed that, and that right and that power is reversed. The home rule communities can assume and exercise powers – all those that are not specifically taken from them.
Mr. Horton: Yes
Sen Rupp : And that's a state rule under our home rule provision, and with the state having that all-sovereign power, then that would seem that this, also, would be perfectly in order, according to... following your logic.
Mr. Horton : It would be within the authority of the legislature to do it. Now, whether it is advisable or not is another question, because frequently we find, even with regard to locally-exercised power, that it is very handy to have checks and balances.
Sen Rupp : Yes, but wouldn't my question on the two seem opposite? If we talked about regionalism, this is gathering together bigger units – always bigger units – and smaller units being required to become part of that. Now, home rule is exactly the opposite. Home rule says we are going to bring that power right home, right to the city, right to the people and vote right there, and to those elected officials right there in the city. That, to me, would seem to be the acme. The complete opposite of regionalism is home rule.
Mr. Horton : Well, the concept of local control of local affairs is sound, and if you have a formula that will do that, then you are making progress. If you have a formula that doesn't do that, you are still making progress by trying something that has to be corrected. It's only when you stop trying that you are beaten.
Mr. Campbell : Mr. Chairman.
Rep Hudson : Yes. Representative Campbell.
Rep Campbell : Yes. Mr. Horton, have you not found throughout your experience and so forth, and in dealing with other states, that the regional concept of government, as the term was mentioned before – that has filtered down from the federal government – that this has been done mainly be executive order; and not only that, but done by executive order within the states themselves, and not by the legislature?
[CDR Note: Rep. Campbell just made the exact statement that David Horton mentioned very early on in this testimony. Our use of the term "filtered down from the federal government", as though the federal government were the principal and the state the agent. Maybe it would help us remember if we think of the state as the CEO and the federal government the janitor]
Mr. Horton : The usual procedure is for the governors to ape the President. If the President violates the limits of his authority, everybody thinks they have to do the same thing.
Rep Campbell : But it has been done that way, rather than through legislative action?
Mr. Horton : Oh yes. And when that happens, it is just as... ordinarily it is just as much a usurpation for the Governor to do it as it was for the President to draft it.
Rep Campbell : More so.
Mr. Horton : So, sometimes people get a little nervous when you start talking about enforcing the terms of the Constitution. They want to know, well, do you want to lock up the Governor? Well, the answer to that is very simple. If he is violating the Constitution, he is the first one you want to get at. If you control him, a lot of the rest of your problems are solved. Any further questions? Thank you Mr. Chairman and members of the Committee.
Rep Hudson : Thank you. The Chair will call next Mr. Norbert Goetten, who does not list himself in either way, but his time is limited and he wants to get away.
End David Horton testimony.