Government in the American Style

The American historic preservation system appears complex

This schematic is based upon North Carolina government, Virginia is not different in kind.

Three Organizing Concepts

General structure of the American federal system of government.

The universal nature of the preservation-conservation process

The nature of American free market economic system.

American Government Structure

Three-tiered, federal-state-local system of government.

Each layer of government creates both incentives and obstacles to historic preservation.

Most preservation situations involve all three.

Federal Level: obstacles and opportunities

Constitutional procedures (judicial)

a. congressional mandates (legislative)

b. bureaucratic regulations and attitudes (executive)

Government at each level involves politics: the politics of the situation, the relative political strength of the contestants themselves, and the bureaucracies and institutions representing them.

State Level

Constitutional issues exist at the state level, ButEach State has its own constitution

LegislationDiffering traditions of governing Differing ways of preservation problem solving

Local levels

Thousands of local governmentsEach with their own ways of doing thingsEach has a particular set of social and economic issuesDistinctions between urban, suburban, and rural communities and their distinctive governments.

Governments as “sovereign” and “derivative”

A sovereign government is one that has certain basic powers: to tax its citizens and spend the proceeds; to regulate the personal conduct of its citizens and the way they use their land (police); and to acquire, own, manage, and dispose of property for public purposes-taking or “condemning” that land from unwilling citizens if necessary for public use on payment of fair compensation (eminent domain).

A derivative government exists because certain sovereign powers have been delegated to it within its particular jurisdiction.

Is the Federal Government a sovereign government?

The federal government was created by the states in the Constitution of 1787 and is thus a derivative government in the sense that it can exercise only those powers granted to it by the states in that document: the power to declare war, coin money, and deliver the mail; make treaties with other countries; create an army; regulate interstate commerce; and the like.

This narrow view is sometimes referred to as the “old” federalism.

But Article 1, Section 8, of the Constitution also gives Congress unspecified, general power to pass legislation for the “general welfare,” a power that over the years has, it is argued, enabled the federal government to embrace additional functions not specifically mentioned. Article 1, Section 8 specifically says “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

This more liberal approach is often referred to as the “new” federalism.

Are States Sovereign Governments?States did not give away all their sovereign or inherent power to

the federal government when they created it. They retained for themselves, in Amendments 9 and 10 to the Constitution, the basic power to regulate citizens in their personal conduct and the use of their property. This retained power is called the “police power.”

Amendment 9: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Amendment 10: “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.”

This power includes the right to regulate historic buildings.

How then can the federal government regulate preservation if there is no inherent federal regulatory

authority?

The Golden Rule

In short, federal regulations pertaining to historic preservation, the use of land, and hundreds of other activities are, in effect, a ritual form of bribery, mostly enacted under the “new” federalism of Article 1, Section 8, of the Constitution, which also gives Congress the authority to levy taxes and provide for the general welfare.

The who has the gold makes the rulesMost of the federal government’s “so-called” regulatory

authority thus derives from the tremendous wealth derived from personal and corporate income taxes, which Congress may “give back” to state and local governments with strings attached-strings adopted in general by Congress and later detailed by federal agencies. These are commonly called “federal regulations” and are found in the Code of Federal Regulations (CFR), which is cited in various places in our text book.

Little happens that is not done in part with federal money or is not subject to a federal permit. Thus, disregarding federal policies or failing to abide by federal regulations means losing federal “aid”; this creates political problems at the state and local levels, like raising taxes to make up the loss or forgoing programs that citizens want.

Cities, like the federal government, are created by the states and are also derivative governments

(Counties, historically speaking, are local branches of state government spread over larger geographic areas to better provide state services locally-such as schools, law enforcement, care of the poor, roads, running the courts, holding elections, keeping real estate records, and other functions). The scope of municipal power came to be known as the "Dillon Rule," (John Forrest Dillon 1831-1914 which states that municipal governments only have the powers that are expressly granted to them by the state legislature.

The governmental powers delegated “down” to cities are somewhat different than those of counties in that they center on the needs of citizens living closely together: water and sewer services, police and fire protection, recreation programs, libraries, and so forth. These include land-use regulations like the creation of historic districts and the designation of landmarks, enforcement of subdivision and zoning ordinances, and other growth management measures.

Today, in addition to their traditional responsibilities, many counties have been given the same powers as cities and have therefore also assumed responsibilities that involve historic preservation.

Constitution of VirginiaArticle XI Conservation

Section 1. Natural resources and historical sites of the Commonwealth.To the end that the people have clean air, pure water, and the use and enjoyment for recreation of adequate public lands, waters, and other natural resources, it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings. Further, it shall be the Commonwealth's policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.

Section 2. Conservation and development of natural resources and historical sites.In the furtherance of such policy, the General Assembly may undertake the conservation, development, or utilization of lands or natural resources of the Commonwealth, the acquisition and protection of historical sites and buildings, and the protection of its atmosphere, lands, and waters from pollution, impairment, or destruction, by agencies of the Commonwealth or by the creation of public authorities, or by leases or other contracts with agencies of the United States, with other states, with units of government in the Commonwealth, or with private persons or corporations. Notwithstanding the time limitations of the provisions of Article X, Section 7, of this Constitution, the Commonwealth may participate for any period of years in the cost of projects which shall be the subject of a joint undertaking between the Commonwealth and any agency of the United States or of other states.

Rewards and RegulationsThe different streams of power and authority explain how it is possible that local

governments can simultaneously embrace non-regulatory National Register historic districts or buildings, designated by the U.S. Department of the Interior, and at the same time adopt and enforce local historic district and landmark ordinances passed by the city or county government under its state-delegated regulatory or police power over the same property.

This separation also explains why National Register property owners are generally free to do whatever they want to their buildings so long as no federal money, permit, or other federal program is involved.

But if those same property owners also hold property in a local historic district, or live in a designated landmark established by the local government pursuant to the sovereign police power of the state, they can be jailed or fined for violating a local historic district or landmark ordinance.

As it works, a single historic property can be in one district and not the other, or the other and not the one-or both.