June 4, 2021
The fight over the Revised Detroit City Charter is a fight about race, it is a fight about democracy and it is a fight about the future.
Courts are far from infallible. In 1857, the U.S. Supreme Court issued its opinion in Dred Scott. The majority wrote that Blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
Detroit is America’s largest majority Black city. One could substitute the word “Detroiters” for “negro” in the language of Dred Scott and one would have an apt description of how the mayor, the governor and, now, the Michigan courts treat the democratic rights of Detroiters and their ability to vote for their own Charter.
This is a strong statement, but it must be viewed in light of 75 years of regional isolation and abandonment of Detroit, the democratic disenfranchisement of Emergency Management, the ongoing tyranny of the Bankruptcy Plan of Adjustment and the so-called Financial Review Board that still polices Detroit like an army of fiscal occupation.
Whose actions concerning the City Charter has proven the Dred Scott analogy wrong? The mayor has not proven it wrong. Instead, he relies on un-publicly produced documents and analyses to discredit the financial implications of the Charter proposal.
The Governor has not proven it wrong in her policy-driven and not legally-driven “disapproval” of the Charter revisions and her refusal to even consider the Charter Commission’s good faith efforts to address whatever concerns she may have had.
Now, the majority of the Court of Appeals has not proven it wrong.
At its core, this case is about whether Detroiters will be afforded basic democratic rights.
Everyone agrees that the Michigan State Constitution is a populist document affording cities strong home rule rights, including the right to revise their own city charters. Everyone also agrees that the state laws are silent on whether a charter commission has the right to place charter revisions on the ballot after they have been rejected by the governor. State law does not say they can. State law does not say they can not.
The lawyers for the charter commission, the dissent of the Court of Appeals and an amicus brief by a group of Wayne Law professors argue that given the strength of the state constitutional embrace of local democratic rights, state law denial of those rights must be express – and it is not. We still believe that is the correct legal interpretation.
But there is a greater tragedy in this tragedy. Neither the Circuit Court nor the Court of Appeals speak of the substantive provisions of the new Detroit Charter and its Detroiter’s Bill of Rights.
This is the real reason behind the political and legal opposition to the Charter. Since the death of the Great Society, cities have languished in persistent policies of fiscal austerity, neoliberalism and empty promises of economic development fueled by tax abatements for already wealthy corporations. Existing policies are making the lives of real Detroiters worse, not better. We need new ideas, new policies and new approaches that put people and not property at the center of development. The new city charter does just that.
The new Detroit City Charter and the Detroiter’s Bill of Rights are an express rejection of the failed economic, social and political policies of the past. The Charter is a positive assertion of positive rights to meet the essential needs of the residents of Detroit. This is why it is perceived to be so dangerous.
Peter Hammer is professor of law and director of the Damon Keith Center for Civil Rights at Wayne State University Law School.