The People v. the State of Florida

By Chuck O’Neal and Thomas Linzey

On December 3, 1838, fifty-five elected delegates of the Florida Constitutional Convention of 1838 gathered in St. Joseph (near the city of Port St. Joe) to draft Florida’s first Constitution.

Borrowing heavily from the Declaration of Independence, they proclaimed, in Article I, Section 2 of that Constitution:

That all political power is inherent in the people, and all free governments are founded on their authority, and established for their benefit; and, therefore, they have, at all times, an inalienable and indefeasible right to alter or abolish their form of government, in such manner as they may deem expedient. . .

The language of the Declaration was, in turn, borrowed from the 1776 Virginia Declaration of Rights, which was adopted before the Declaration of Independence. That Virginia Declaration proclaimed that “a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish [government] in such manner as shall be judged most conducive to the public [well-being].”

Lofty words, indeed. Sentiments that grew directly out of interference by the English king and parliament with home-grown colonial governments in what would become the United States.

The state government of Florida, however, seems to be unwilling to live within these constitutional constraints. A recent report by Integrity Florida, titled Preemption Strategy: The Attack on Home Rule in Florida, recounts how the state legislature has used state preemption – the power to prohibit localities from adopting laws on certain issues – to routinely override the peoples’ authority at the local level to set higher standards for public health, environmental and other protections.

As recounted in that report, everything from plastic straw-bans adopted by ten Florida cities, to local regulation of firearms, plastic bag bans, regulation of rideshare companies, local protection of coral reefs, and even local regulation of vegetable gardens, have been the subject of preemption bills passed by the legislature.

In 2017, the state legislature went so far as to propose bills in both the House and the Senate that would forbid the adoption of any local laws that sought to regulate any “matters of commerce, trade, and labor.”

Unsurprisingly, the rise in the introduction of preemption bills has coincided with increased access to the Florida legislature by corporate trade associations like the Florida Retail Federation, the Florida Chamber of Commerce, and the Associated Industries of Florida. According to Integrity Florida, those associations now employ sixty registered lobbyists drawn from nineteen lobbying firms.

Now, the state is at it again.

This time, with the mis-named “Clean Waterways Act,” (SB 712) which would, among other things, preempt Floridians from protecting their lagoons, streams, rivers, and bays by prohibiting localities from adopting more stringent environmental protections. Specifically, the Act would stop Floridians from following the lead of dozens of other municipalities in the U.S., like the City of Pittsburgh, which have replaced insufficient state regulation of water pollution with laws of their own.

Not only is it a good idea for this practice of preemption to come to an end in Florida, it’s a constitutional mandate that it cease.

The constitutional right of Floridians to set higher standards for their quality of life, their health and safety, and their natural environment, when the state fails to protect them, simply cannot be reconciled with the state’s assertion of power to override those standards.

Even the original drafters of the 1838 Florida Constitution predicted these attacks on Floridians’ right of local self-government. In Article I, Section 27, they declared that to “guard against the transgressions upon the rights of the people,” that the right of self-government “shall forever remain inviolate, and that all laws contrary thereto. . . shall be void.”

It doesn’t get any clearer than that.

Chuck O’Neal is a Director of the Florida Rights of Nature Network and was a 2016 candidate for State Senator in Florida’s Senate District 11. Thomas Linzey is an attorney, and serves as senior legal counsel for the Washington-based Center for Democratic and Environmental Rights (CDER).