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What is Municipal Home Rule?

“The powerful corporate interests engaged in the exploitation of municipal franchises are securely entrenched behind a series of constitutional and legal checks on the majority which makes it extremely difficult for public opinion to exercise any effective control over them.” -- J. Allen Smith, The Spirit of American Government [pdf], 1907, p. 289

"A local government, needs from the central government, the state, nothing but adequate power to exercise the functions of local government." -- Horace E. Deming, The Government of American Cities [pdf], 1909, p. 126

Official explanations of the meaning of municipal home rule in America are steeped in a history of tension between communities seeking to establish local decision-making and concentrations of wealth cloaked in corporate power exercising influence in state and federal governments. Beginning in the late 1860’s, powerful minorities using corporations and newly bestowed Constitutional protections for corporations took control of federal courts and state legislatures. The result was a constriction of democracy at the community level that prevented majorities of people from enacting laws to protect local businesses, natural resources, workers rights and community values from the vacuuming effect of expanding corporate power and governing authority.

In 1868, a railroad lawyer turned Iowa Supreme Court Justice, John F Dillon, wrote an opinion that became the Corporate Magna Carta over municipal soverignty. The opinion was transformed within a few decades into a corner stone of American municipal law when corporate lawyers then sitting on the U.S. Supreme Court adopted Dillon’s Rule as the default legal code for municipalities across America (Hunter v. Pittsburgh, 1907). It maintains that a political subdivision of a state is connected to the state as a child is connected to a parent. Dillon’s Rule is used in 39 states [including those with defined municipal home rule options] to interpret state law when there is a question of whether or not a local government has a certain power.[1] Dillon’s Rule is employed to narrowly define the power of local governments.

The first part of Dillon’s Rule states that local governments have only three types of powers:

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      those granted in express words,
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      those necessarily or fairly implied in or incident to the powers expressly granted, and
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      those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.

The second part of Dillon’s Rule states that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred.  This is the rule of strict construction of local government powers.[2]

The National League of Cities reports, “The Constitution of the United States of America does not mention local governments.” Yet state laws and federal courts over the past one hundred and fifteen years have relegated municipalities to a subordinate status that contradicts the Constitutional status of The People living in those communities as the source of all governing authority.

The Declaration of Independence states that governments are instituted to secure people’s rights, and that government derives its just powers from the consent of the governed. The Pennsylvania Constitution, Article 1, §2, declares, “all power is inherent in the people and all free governments are founded on their authority and instituted for their peace, safety, and happiness.” Most state constitutions make similar acknowledgements that The People are the source of all governing authority. It is consistent with these fundamental statements of rights and law that communities of people, through their municipal governments, have legitimate authority to make governing decisions about issues affecting their communities and enforce them in law.

The historical need for municipal home rule, as a way of countering the community rights-denying effect of the adoption of “Dillon’s Rule” and it’s application nationally, became even more stark soon afterward. Beginning in the 1880s the U.S. Supreme Court, now packed with railroad corporation lawyers, began "finding" corporations in the US Constitution, although they are nowhere mentioned there. It is a bitter irony of the post-Civil War era that the Court suddenly began to interpret the newly adopted 14th Amendment as though it intended corporations to be protected with the rights of "persons" under the law. The amendment was passed following the abolition of slavery, to guarantee Constitutional rights for freed slaves. But the Corporate Court, while applying those protections to corporations, rejected the clear meaning of the amendment to protect African Americans from bigoted innkeepers and shopkeepers, discriminatory state laws or Klansmen. The Supreme Court said the amendment only protected freed slaves from Federal violations of their newly won rights.

At the same time, these railroad judges got very busy granting Corporations -- NOT their directors and managers, but Corporations as artificial legal "persons" -- Constitutional Rights under the 14th Amendment. Unlike African Americans, the Court found corporations deserving of these protections not only from federal encroachment, but also in the states.

Starting in the 1880s and up to the present day, the US Supreme Court has bestowed Constitutional Rights on jointly owned property known as corporations with predictable regularity. In 1886, the court bestowed 14th Amendment rights of Equal Protection, which prohibits states from denying any person within its jurisdiction the equal protection of the laws. Three years later, the right to Due Process was given to corporations. In essence, the court recognized corporations to be “persons” under the terms of the 14th amendment. As legal “persons,” corporations have thus been granted legal protections and constitutional powers once thought only to apply to living people.

As recently as 1978 the Court gave corporations 1st Amendment free speech rights, allowing industry managers to hide behind corporations and funnel large amounts of money to influence legislation. In 1906 it gave them 4th Amendment protections against “unreasonable search and seizure,” thus handing them the tools to avoid compliance with regulatory agencies like OSHA and the EPA. In 1893 and again in 1922 the Court bestowed 5th Amendment protections against government “takings” of property. In the 1922 case, Pennsylvania Coal Company v Mahon, the coal company complained to the court that laws forcing it to leave pillars of coal to hold up mine ceilings and prevent land and homes above ground from subsiding into the mines constituted an unconstitutional “taking” of property from the corporation, and the Court thus overturned the law.

In 1962, the Court granted corporations 5th amendment immunity from Double Jeopardy, ruling that a corporation can not be re-tried for the same violation if it has been acquitted in a previous trial. And there’s the “Dormant Commerce Clause,” an invention of the court based on the constitutional provision knowns as the Commerce Clause, which gives Congress power to regulate trade between the states. By inventing the "Dormant Commerce Clause," the court declared that – even if Congress has not legislated specifically to protect a commercial activity, the law must be interpreted as if it had in every case intended to do so. Thus, any state or local law is considered unconstitutional if it “burdens” interstate commerce. In a Virginia case, the court ruled that states and municipalities could not ban or regulate trash importation because trash hauling is not a matter of community concern, but a form of "commerce." The interests of profit making thus trump the interests of communities as a matter of indisputable law.

In the 1870s, just prior to the Federal Court successfully “finding” corporations in the US Constitution (after great efforts to achieve just this aim), Thomas Cooley, a Michigan Supreme Court Justice and the first head of the Interstate Commerce Commission, had declared state lawmaking bodies to be “captured legislatures” and mere tools of the corporations. He argued for the rights of municipalities to govern themselves, free from corrupt meddling at the state level. The people in their communities, he argued, had not surrendered their sovereignty to the state.

The movement toward municipal home rule began simultaneously with the constriction of municipal governing authority imposed by corporate controlled courts and legislatures following the Civil War. Even before the court elevated “Dillon’s Rule” to national status over municipalities, the city of Saint Louis drafted and adopted the first municipal home rule charter in America. Today, there are forty-three states that have provisions either in law or within the body of their Constitutions acknowledging the right of citizens, through their municipal governments, to exercise local decision-making power with the weight of law. [A listing of which states have municipal home rule provisions, including links to detailed information is available on this web site.] However, municipal home rule powers vary widely from state to state. In some, the authority is extended only to certain classes of cities, counties, and towns. Some states that retain "Dillon's Rule." continuing to subordinate municipalities to the state legislature, offer some form of municipal chartering. Others are "Home Rule" states, with fewer local constraints. [Do I Live in a Home Rule State or a Dillon's Rule State?] Overall, state legislatures have consistently limited home rule prerogatives. None-the-less, the People, as the legitimate governing authority over municipalities and state legislatures, have just as consistently pushed back.

Today, the need has never been greater for communities to assert local democracy and make choices that carry the weight of law about the health, safety, sustainable business and agricultural practices and quality of life in those communities. State legislators and judges in cahoots with corporate managers and lobbyists have preempted local democracy by erecting and enforcing municipal codes, land use laws, and “development” friendly legislation that keeps citizens out of important decision-making processes. Regulatory agencies and zoning schemes assure corporate access and governing privileges that preempt the rights of citizens to create sustainable communities.

Despite the attempted limitations on self-government imposed on citizens by such illegitimate legal usurpations, people are beginning to embrace the idea of drafting local constitutions – home rule charters – as a way to assert in law their communities’ vision for the future, by enumerating the rights of the municipal citizenry, including their right to a certain quality of life, and codifying legal protections of those rights at the local level.

The Community Environmental Legal Defense Fund is at the forefront of this community justice revolution, and invites you to explore our work and strategy for building a people’s movement that has as its goal the establishment of local democracy and real people-run government, one community at a time.

[1] Jesse J. Richardson, Jr., Meghan Zimmerman Gough, and Robert Puentes “Is Home Rule The Answer? Clarifying The Influence Of Dillon's Rule On Growth Management.” January 2003

[2] Clay Wirt. “Dillon’s Rule.”  Virginia Town & City. August 1989, vol. 24 no. 8, pp 12-15.