The Basis for Local Government in Virginia vs. the Basis for the Federal Government

the June 12, 1776 Virginia Declaration of Rights defined the basis for government authority: all power is vested in, and consequently derived from the people
the June 12, 1776 Virginia Declaration of Rights defined the basis for government authority: "all power is vested in, and consequently derived from the people"
Source: Library of Congress, In convention. June 12, 1776. A declaration of rights made by the representatives of the good people of Virginia

In 1776, the Fifth Virginia Convention declared independence and crafted the first state constitution. The convention claimed that the new state government inherited all the powers of the old colonial government, yet the new constitution eliminated the role of a king who had previously been considered the source of those powers.

Philosophically, the powers of the new Commonwealth of Virginia were based on a "bottom up" grant of the people rather than the old "top down" grant from the king of England. The convention adopted a Bill of Rights earlier on June 12, 1776, before voting on a constitution. In that Bill of Rights, Section 2 stated:1

all power is vested in, and consequently derived from, the people

Though authority flowed from the people, there was no vote by the people to ratify the first constitution. In the chaos the early days of the American Revolution, the Fifth Virginia Convention simply proclaimed the new constitution to be in effect. The role of British officials was eliminated, but the powers of the General Assembly were retained.

The people in Virginia have been defined as the source of authority for the state government since 1776. However, that basis should not be extrapolated to say that "the people" are the source of authority for 95 counties, 38 cities, and 191 towns in Virginia.

Local governments in Virginia get all of their authority to make decisions through laws passed by the state legislature, the General Assembly. The authority cited for splitting from King George III - and for the creation of the Federal government, "We the People..." - is not the authority for the creation of local government in Virginia.

Between 1619-1852, the legislature appointed all local officials, including the members of the county court and the sheriff. After 1619, white men with sufficient property could vote, but only for two people to represent them in the House of Burgesses.

Patrick Henry's speeches in the House of Burgesses were heard by the only people elected by local voters
Patrick Henry's speeches in the House of Burgesses were heard by the only people elected by local voters
Source: Library of Congress, Stamp Act of 1765

Even after the General Assembly was modified with the 1776 state constitution, residents in Virginia's counties and towns still could not vote for the local officials who resolved legal disputes, collected taxes, authorized new ferries, set rates for taverns, and made so many other decisions that impacted local life.

The members of the General Assembly and the governors chose all of those local officials until a new state constitution went into effect in 1852. Today, the legislature still chooses the judges who serve in district and circuit courts.

After 1776, the voting electorate was still restricted to a minority of Virginia residents. Only men could vote, and the 40% of Virginia men who were enslaved could not participate in the decision process. The burgesses revised George Mason's draft of the Virginia Bill of Rights before adoptng it, in order to limit who could participate in the elections and decisionmaking.

George Mason drafted the first version of the 1776 Declaration of Rights, but it was revised during debate in the House of Burgesses
George Mason drafted the first version of the 1776 Declaration of Rights, but it was revised during debate in the House of Burgesses
Source: Library of Virginia, Adoption of the Virginia Declaration of Rights, oil painting

The final version limited who was entitled to "the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." People had to first "enter into a state of society."

That phrase was designed to exclude slaves and prevent them from asserting the right to vote or seek other political rights. All governmental power might be "derived from the people," but not all people could participate in the governmental process.2

George Mason's draft of the Virginia Bill of Rights was edited in 1776 to ensure slaves could not cite that document and claim political rights
George Mason's draft of the Virginia Bill of Rights was edited in 1776 to ensure slaves could not cite that document and claim political rights
Source: British Museum, Newman's Best Virginia (tobacco label)

Today, most local officials are elected by local voters and not appointed by the General Assembly or governor. As a result, local government officials may be the ones who are most responsive to local priorities, but local voters can not increase the powers of local government on their own initiative.

Since 1776 the state constitution has granted all rights for government to the state. The General Asembly has delegated a portion of that authority to local towns, cities, counties, and regional authorities. Local governments have whatever powers were granted by the state legislature, not all powers based on a grant by the people.

The state government in Virginia was not created by local leaders who negotiated a contract that ceded only certain powers to the state and retained all other authority at the local level. There is no equivalent in the Constitution of Virginia to the US Constitution's Tenth Amendment along the lines of "all powers not granted to the state government are reserved to local cities/counties."

The Federal Constitution starts with "We the People of the United States... do ordain and establish this Constitution for the United States of America," but prior to the Civil War politicians in Virginia argued that the Constitution was not a direct contract between all of the American people and the new Federal government. Instead, the US Constitution was a contract between the states, and that contract was ratified by 13 states rather than by a national referendum.

The leaders who met in Philadelphia in 1787 expected the new national government they created to resolve trade and tax issues that had blocked economic development after the American Revolution, but those leaders also feared the new national government would become too powerful. When asked to ratify the new Constitution to replace the Articles of Confederation in 1788, key Virginians such as Patrick Henry objected. Three of Virginia's representatives who participated in the 1787 Constitutional Convention (including George Mason) refused to sign the final version.

George Washington, depicted as standing at the table as the Constitution is signed, was key to adoption of a Federal government
George Washington, depicted as standing at the table as the Constitution is signed, was key to adoption of a Federal government
Source: Architect of the Capitol, Signing of the Constitution (by Howard Chandler Christy, 1940)

To soften the opposition, James Madison promised that a Bill of Rights would be added to the United States Constitution. The first nine amendments limited the power of the new Federal government, and the Tenth Amendment was expected to provide a final level of protection. It stated that the authority of the Federal government was limited to specifically-authorized purposes:3

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Of course, other clauses have been interpreted later to authorize broad powers now exercised by the US Congress, President, and Supreme Court. The "original intent" of the Founders continues to be debated in Supreme Court cases today, as states contend with the central government over which level of government has a specific authority.

what became the Tenth Amendment to the US Constitution (originally the 17th amendment proposed by the House of Representatives in 1789) limits the power of the Federal government, but there is no equivalent in the Constitution of Virginia limiting the authority of the state and reserving other powers to local governments
what became the Tenth Amendment to the US Constitution (originally the 17th amendment proposed by the House of Representatives in 1789) limits the power of the Federal government, but there is no equivalent in the Constitution of Virginia limiting the authority of the state and reserving other powers to local governments
Source: National Archives, Senate Revisions to House-passed Amendments to the Constitution (draft of Bill of Rights), September 9, 1789

There is no queston regarding the power of the General Assembly regarding the local governments in Virginia. State courts have applied the Dillon Rule since 1896, making clear that local governments have no "home rule" powers. All power flows down from the state legislature. Virginia's cities, counties, and towns have no original authority, no powers granted directly by the people.

The General Assembly has defined "uniform charter powers" for all cities and towns, in Code of Virginia Section 15.2-1100 et seq. It has also established some clear authorities for counties.

Transportation planning has been controlled by the state since the General Assembly authorized the Little River Turnpike, and the Board of Public Works was finally created in 1813. Counties managed local roads until the 1932 Byrd Road Act centralized responsibility for road construction and maintenance at the state level. Though four counties were permitted to retain their authority, there was no question that the state legislature determined local authorities.

The General Assembly has given authority for land use planning and zoning to the separate local jurisdictions. The state did create 21 Planning District Commissions to facilitate regional coordination, and the Federal government mandates regional planning for its transportation funding, but the General Assembly has not required that local jurisdictions coordinate their land use decisions.

A small slice of one jurisdiction may be completely surrounded by another jurisdiction, but each city/county/town can ignore the planning of its neighbor. For example, Fairfax County determines the use of the Fairfax courthouse property, which is part of the county. The courthouse property is completely surrounded by the City of Fairfax, whch has a separate long-range Comprehensive Plan and separate zoning categories.

a small slice of Fairfax County is isolated within the boundaries of the City of Fairfax, comparable to a hole in a doughnut
a small slice of Fairfax County is isolated within the boundaries of the City of Fairfax, comparable to a hole in a doughnut
Source:
Fairfax County Comprehensive Plan

Local Government Autonomy and the Dillon Rule in Virginia

Forms of County Government in Virginia

Links

References

1. "Virginia’s Declaration of Rights (1776)," Liberty, Equality, Fraternity: Exploring the French Revolution, https://chnm.gmu.edu/revolution/d/270/ (last checked August 24, 2017)
2. "The Virginia Declaration of Rights, June 12, 1776," Library of Virginia, http://edu.lva.virginia.gov/online_classroom/shaping_the_constitution/doc/declaration_rights (last checked August 24, 2017)
3. "US Constitution," National Archives, http://www.archives.gov/exhibits/charters/constitution_transcript.html (last checked February 18, 2015)


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