Local Self-Governance: The Power Of Local Constitutions

The question of whether localities should be able to form their own constitutions is a complex one, with arguments both for and against. On the one hand, allowing local governments to create their own constitutions could empower them to address specific issues and concerns within their communities, such as sustainable development and local community resilience in the face of climate change. Additionally, local self-governance can promote citizen engagement and participation in government affairs. However, the counterargument rests on the idea that local governments derive their authority from their states, as seen in the Dillon Rule, and that the U.S. Constitution does not discuss local governments, implying that municipalities have no inherent powers. This view holds that local governments should only exercise the powers expressly granted to them by the state, maintaining a unified front of state-level laws and preventing a patchwork of varying local laws.

Explore related products

Constitutional Law: [Connected eBook with Study Center] (Aspen Casebook)

$236.36 $359

Constitutional Law: Principles and Polices (Aspen Treatise)

$97.32 $126.95

Constitutional Law (University Casebook Series)

$305

Constitutional Law: a QuickStudy Laminated Reference Guide

$8.32 $8.95

An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know

$26 $34.95

Constitutional Law [Connected eBook with Study Center] (Aspen Casebook)

$100 $345

Local self-governance and the extension of its principles

The concept of local self-governance has deep roots in the history of the United States, with the first states being derived from colonial governments created by local communities. The Fundamental Orders of Connecticut, established in 1638, is considered the first written quasi-constitutional document, predating the US Constitution by almost a century. This document united several towns under a common government, illustrating the principle of local self-rule.

The extension of local self-governance principles can be seen in the establishment of home-rule cities, where authority is assigned to local officials through municipal charters adopted by popular vote, rather than state laws. This movement towards local autonomy has resulted in states with varying laws and policies, reflecting the diverse interests and values of their communities. For instance, some states have passed bans on critical race theory, while others have focused on sustainable development and community resilience in response to climate change.

However, the tension between state and local powers remains a challenge. The Dillon Rule, for example, asserts that local governments derive their authority solely from their states, limiting their ability to enact policies that deviate from state preferences. This has resulted in conflicts, such as when localities sought to remove confederate statues, only to be overruled by state laws. Similarly, local initiatives for gun safety measures and minimum wage increases have been nullified by state legislators.

To address these conflicts, some argue for a federalist approach, where local or municipal authorities have distinct and independent powers, free from unilateral control by the supreme authority. This balance of powers aims to prevent the subjugation of local interests to national priorities while maintaining a cohesive national government. Madison, in a letter to Nicholas Trist, elaborated on this concept, explaining how the US Constitution divides sovereignty between the federal government and the states.

In conclusion, the extension of local self-governance principles has resulted in a complex interplay between state and local powers. While localities seek to address specific community needs and values, the overarching authority of state governments and the challenge of maintaining a unified national identity present ongoing debates and legal complexities.

The legitimacy of local officials and their authority

Historically, the authority of local officials was often legitimized by community covenants, reflecting an expression of popular sovereignty. This changed in the late 19th century with the emergence of the local home-rule movement, which led to the ratification of state constitutional amendments that explicitly provided for the local adoption of municipal charters by popular vote, thus assigning authority to local officials. This movement challenged the notion that local governments were "mere creatures of the states," asserting their right to self-governance.

The concept of constitutionalism at the state level predates the creation of the national government, as evidenced by the Fundamental Orders of Connecticut, considered the first written quasi-constitutional document in 1638. The establishment of Connecticut's common government for several towns in 1639 demonstrated a bottom-up approach to governance, where local communities formed colonial governments that later joined to create larger political associations. This reflected a deliberate extension of local self-rule.

However, the legitimacy of local officials and their authority is often contested by higher levels of government. The Dillon Rule, named after former Chief Justice of the Iowa Supreme Court, John F. Dillon, asserts that local governments derive their authority solely from their states and have no inherent powers. This view holds that local governments should only exercise powers expressly granted to them by the state, limiting their autonomy. Over half of the states in the US operate under some form of the Dillon Rule, impacting the ability of local officials to enact ordinances desired by their constituents.

In contrast, a federal regime recognizes local or municipal authorities as distinct and independent portions of supremacy, not subordinate to the general authority within their respective spheres. This perspective aligns with the idea of federalism, where states constitute themselves according to a federalist order, allowing for local self-governance. Nonetheless, conflicts between state and local governments often arise, requiring resolution in courts to determine the appropriate balance of power.

While local governments have coercive lawmaking authority within their jurisdictions, their initiatives can be preempted by state laws. For example, local leaders have passed ordinances on increasing minimum wages or gun safety regulations, only to have them nullified by conservative state legislators. This dynamic highlights the complex relationship between local and state authorities and the ongoing struggle for legitimacy and authority in governance.

The Dillon Rule and its implications for local governments

The Dillon Rule is a philosophy of limited local authority, attributed to Iowa Supreme Court Justice John F. Dillon, who first articulated it in an 1868 court case. The rule restricts the power of municipalities to the following:

• Powers explicitly granted to them by the state
• Powers necessarily implied or incident to the powers expressly granted
• Powers essential to the declared objects and purposes of the corporation

The Dillon Rule has significant implications for local governments, particularly in how they interact with and are constrained by state governments. It represents a top-down approach, where local authorities are subordinate to the state and can be controlled or abolished at the state's discretion. This is in contrast to a federal regime, where local authorities have independent sovereignty within their spheres, as described by Madison in a letter to Nicholas Trist in 1830.

The balance of power between state and local governments has been a contentious issue for many years. The COVID-19 pandemic brought this into sharper focus, with cities taking the initiative to issue mask mandates and capacity limits when state governments declined to act. This dynamic is further complicated by political differences between city and state governments, leading to legal conflicts over the scope of local authority.

While the Dillon Rule limits local authority, the concept of Home Rule provides greater autonomy to local governments and restricts state interference in local affairs. Home Rule cities are constituted by municipal charters, adopted by popular vote, rather than state laws. However, the majority of U.S. states apply both the Dillon Rule and Home Rule to varying degrees, and state legislatures frequently modify the scope of local authority.

The tension between the Dillon Rule and Home Rule can be seen in the example of Ohio, where municipalities passed bans that conflicted with state-level legislation. The outcome of the legal battle between these cities and the state government is uncertain, but it highlights the complex dynamics of state-local relations and the ongoing struggle for local self-governance.

Explore related products

Examples & Explanations for Constitutional Law: Individual Rights

$76.95

A Short & Happy Guide to Constitutional Law

$28

Constitutional Law For Dummies

$18 $29.99

Constitutional Law (University Casebook Series)

$297.73

Constitutional Law: [Connected eBook with Study Center] (Aspen Casebook)

$245.32 $359

Examples & Explanations for Constitutional Law: National Power and Federalism

$59.81 $76.95

State preemption and its impact on local laws

State preemption is a legal doctrine that allows higher levels of government to restrict or prevent lower-level governments from self-regulating. In the context of state and local laws, it refers to when state law displaces local ordinances. This occurs when a state legislature passes laws that nullify local measures, often because local jurisdictions adopt policies that conflict with statewide politics.

The preemption doctrine holds that when two authorities come into conflict, the higher authority of law will supersede the lower authority. For example, federal law displaces state law when they conflict, due to the Supremacy Clause of the US Constitution. Similarly, state laws will usually prevail when in conflict with local laws. There are three types of conflicts regarding preemption: outright conflict, express preemption, and implied preemption. Outright conflict occurs when an ordinance directly opposes a state law. Express preemption is when a state law explicitly prohibits or limits local government. Implied preemption is more controversial and occurs when, for example, a local ordinance prohibits an act permitted by the state legislature, or a local ordinance permits an act prohibited by the state legislature.

State preemption has increased in recent years, with conservative state legislators nullifying local ordinances on issues such as minimum wage increases, bans on plastics, mask mandates, and gun safety regulations. For instance, in the last decade, 12 cities and counties in 6 states approved local minimum wage laws, only to see them invalidated by state statute. During the pandemic, conservative lawmakers in almost half of the states enacted prohibitions on locally imposed restrictions, such as mask mandates and limitations on public gatherings, as they believed local officials were overstepping their authority.

The impact of state preemption on local laws is significant, as it subtracts from local liberty and can stifle local control. Local governments have lawmaking authority that is binding on individuals within their jurisdictions, and home-rule cities are constituted by municipal charters, not state laws. However, when state laws preempt local authority, the authority of local officials is diminished.

The role of community covenants in popular sovereignty

The concept of community covenants, or local self-governance, has played a significant role in shaping popular sovereignty. The idea of localities forming their own constitutions is not new, and it has been a part of the American political landscape since its early days.

The Fundamental Orders of Connecticut, established in 1638, is considered the first written quasi-constitutional document, where several towns came together to establish a common government. This was an early example of local communities exercising self-rule and forming their own covenants. The establishment of the Northwest Territory in 1785 by the Congress is another example of the extension of local self-governance.

The authority of local officials has historically been legitimized by these community covenants, which are an expression of popular sovereignty. This is in contrast to the belief that local governments are "mere creatures of the state," as argued by the Dillon Rule, which asserts that local governments derive their authority solely from their states. However, the home-rule movement that arose in the late 19th century led to the ratification of state constitutional amendments that explicitly provided for the local adoption of municipal charters by popular vote, giving authority to local officials.

Community covenants allow for more responsive and effective governance as they enable localities to address issues that are specific to their communities, such as sustainable development, local community resilience, and gun safety regulations. They also encourage citizen engagement and participation in local government, fostering a sense of ownership and investment in the community's well-being.

However, conflicts between state and local governments can arise, and the question of where to draw the line between state and local power remains a challenge. State preemption of local laws can subtract from local liberty and self-governance, as seen in instances where conservative state legislators nullified local ordinances on minimum wage increases or gun safety regulations. Balancing the powers of state and local governments is crucial to maintaining the principles of popular sovereignty and community covenants.

Frequently asked questions