Should the City Charter Have a Bill of Rights?

Like the federal and state constitutions, the city’s charter creates the institutions of government, allocates power among them and defines how government operates. Like the federal and state constitutions, a charter limits government power to prevent abuses of authority. At both the federal and state levels, this is accomplished, in part, by the inclusion of a bill of rights. Should the new Los Angeles City Charter also include a bill of rights to limit the power of future city governments?

Most of the proposed charter will delineate government structure and procedures. The Elected Charter Reform Commission has spent most of its time considering such questions as how power should be allocated between the mayor and City Council, how the budget and finance process should be handled, how the delivery of city services might be improved, what should be the size of the City Council and whether there should be neighborhood councils. However, no issue has produced as much controversy or criticism as a proposal by one of its committees to include a bill of rights in the new charter.

Why a bill of rights? No government should have the power to deprive its citizens of fundamental rights. The limits on government power should be in the charter that grants it authority. The people, in ratifying a charter or a constitution limited by a bill of rights, are empowering their government but denying it authority to violate basic liberties.

Under the law, a city can provide more rights for its citizens than federal or state law accords. A bill of rights in the charter can protect citizens against government abuses in areas where federal law and state law are inadequate. For example, federal law does not prohibit discrimination based on sexual orientation, and state law provides only very limited protections. A bill of rights could prevent the city of Los Angeles from discriminating against gay men or lesbians.

Similarly, because of recent Supreme Court decisions, there is little federal constitutional protection for free exercise of religion. In 1990, the Supreme Court overturned decades of precedents and held that general laws that burden religion cannot be challenged under the free exercise clause. A federal statute that attempted to overturn this decision was declared unconstitutional in 1997. Current state law is unclear.

A bill of rights in the charter could ensure that the city government is limited in its ability to hinder the free exercise of religion.

Opponents of the bill of rights argue that it is unnecessary and does not belong in a charter; they claim that federal and state laws are adequate to safeguard rights. When the U.S. Constitution was drafted 211 years ago, the same argument was made: that a bill of rights was unnecessary because other sources of law adequately protected liberties. Those ratifying the Constitution rejected this view and insisted on a bill of rights. Every state constitution includes a bill of rights, even though there are federal protections.

Opponents argue that a bill of rights might doom the charter. There is an easy answer to this objection: The bill of rights can be voted on in a separate initiative. If voters don’t want a bill of rights, they can reject it, but still approve the rest of the charter. Indeed, rather than jeopardizing approval of the charter, a bill of rights might help to rally support for it. It could be unifying by declaring the rights that all share regardless of where they live or their race, ethnicity or citizenship.

The proposed bill of rights explicitly states that it cannot be the basis for suits for money damages against the city. There would be no agency or bureaucracy for enforcement. The scope of a bill of rights is limited; every provision limits what the city government can do, none regulates private conduct.

The elected charter commission has not yet made a decision about whether to accept its committee’s recommendation for a bill of rights. If it decides to propose a bill of rights, then it must decide what liberties to enumerate. I hope my fellow commissioners and ultimately the voters will remember that a charter is a constitution that both empowers and limits government to best protect the rights of individuals.