Home Rule

Prior to becoming involved in local politics in Michigan, I did not fully appreciate how dependent local governments are upon state legislation. When I was Mayor of my hometown, I was shocked that so much of what we could and could not do was contingent upon laws at the state-level. Certain roads are under the authority of the state’s Department of Transportation (MDOT) and we needed to get that agency’s authorization to close or modify the street in any way; whether tax abatements are granted to certain businesses;[note]In my state, these decisions are dependent upon guidelines set forth in the State of Michigan’s Public Act 198 of 1974 and Public Act 328 of 1998.[/note] the conditions under which buildings can be purchased, refurbished or erected; how money is used within the city’s budget; the way cities borrow money, and even relatively minor questions like whether to put a stop sign at a certain intersection or how fast a speed limit ought to be—they all have state and even federal guidelines that municipalities must adhere to.The fact is, almost everything your local government does interacts with state law either in permitting what we can do, proscribing what we cannot, or setting standards on discretionary matters. One may applaud these constructs of the state as necessary regulations against potential municipal corruption, or you may deplore them as unnecessary infringements of a higher body of government upon a lower; either way, my purpose here is not to pass judgment on anything the state governments do, but merely to point out that much of what happens locally is bound up with legislation.As distributists who advocate for more autonomy for smaller levels of government, we should be keenly interested in how various levels of government interact, and make our observations from a distributist standpoint.The relationship between state and federal governments is clearly laid down in the United States Constitution, whereby certain powers are granted to the federal government, and many other unnamed powers are reserved to the states (the federal government, however, retains whatever implied powers it deems “necessary and proper” to carry out its function); in cases of conflict, the Constitution trumps all state considerations due to the Supremacy Clause, which affirms the Constitution as the “supreme law of the land.”What about the relationship of each state to the local units of government within it? Since the Constitution makes no mention of the interaction of State and local governments, this relationship is up for debate.

Dillon vs. Cooley

In the United States there are two schools of thought.The first comes from “Dillon’s Rule” named after Chief Justice Forrest Dillon of the Iowa Supreme Court. In the 1868 case, Dillon ruled that cities were wholly creations of the state and had no authority to act other than in ways in which the state officially approved of. He declared:

Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.[note]Clinton v Cedar Rapids and the Missouri River Railroad, (24 Iowa 455; 1868).[/note]

Evoking biblical language, the state is like God breathing life into the municipality, which is likened to Adam. So the state is to the city as God is to man. So, unlike the states, which are granted a broad range of undefined reserved powers, municipalities have only expressly granted powers, and these powers must be granted by the state.In 1891, the United States Supreme Court formally adopted Dillon’s Rule as the standard rule for judging cases in which state and local interests came into conflict.[note]In Merrill v. Monticello, 138 U.S. 673 (1891), and reaffirmed in the important case Hunter v. Pittsburgh, 207 U.S. 161 (1907), which upheld the power of Pennsylvania to consolidate the city of Allegheny into the city of Pittsburgh, despite the wishes of the majority of Allegheny residents.[/note] Since then, Dillon’s Rule has pretty much been the law of the land in the United States.This was not uncontested, however. A grave problem for Dillon’s Rule is the historical fact that many cities in the United States were functioning municipal governments prior to the existence of state governments from where they are thought to have obtained their powers. When the Europeans settled this continent, they founded a series of villages and cities, not states. New York City, for example, was founded in 1624 and New York State was not established until 1788. St. Louis was founded in 1764 but Missouri did not enter the Union until 1821. My hometown of Howell was settled in 1835 and Michigan did not receive statehood until 1837.[note]Howell was not incorporated as a City until 1863, however.[/note]Taking Howell as an example, if all of Howell’s authority is derived from the fiat of the State, then how did the village exercise any legitimate authority between 1835 and 1837? If Dillon’s Rule is applied strictly, that fledgling village had no legal authority whatsoever.The second is called the Cooley Doctrine, named after the famous Chief Justice Thomas Cooley. In an 1871 concurrent opinion in the case People v. Hurlburt in which the court examined the constitutionality of the State appointing local government officials, Cooley dissented from the Dillon Rule. He viewed local governments as organic creations that enjoyed a natural right independent of the will of the State, which he considered an axiom:

Some things are too plain to be written … the usages, the customs, the maxims, that have sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility in neighborhood interests, the precepts which have come from the revolutions which overturned tyrannies, the sentiments of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or legislature at a distance to do so—if a recognition of all these were stricken from the body of our constitutional law, a lifeless skeleton might remain, but the living spirit, that which gives it force and attraction, which makes it valuable and draws to it the affections of the people … would be utterly lost and gone … It would be the boldest mockery to speak of a city as possessing municipal liberty where the state not only shaped its government, but at discretion sent in its own agents to administer it. Local government is [a] matter of absolute right; and the state cannot take it away.[note]People v. Hurlburt, 1871, 104.[/note]

According to Cooley, local governments have a right to exist, function, and appoint or elect their own officers in accordance with their own wishes. They have a legitimacy of their own that is antecedent to their incorporation by the state and, while the state can certainly regulate certain aspects of how they conduct business, cannot ultimately regard them as mere creations of the state.Cooley’s principle was adopted into the Michigan Constitution in 1908, which had the effect of moderating the application of Dillon Rule. Thus, while the Dillon Rule is still the interpretive norm in most of the country, certain states have used the principles of Cooley’s Doctrine to mitigate the rigor with which Dillon’s Rule is enforced. These states are called “Home Rule” states because they allow a greater amount of freedom to local governments in conducting their affairs. Non-Home Rule states opt for a strict interpretation of Dillon’s Rule while Home Rule states, like Michigan, allow more leeway. But, because Dillon’s Rule is the precedent endorsed by the Supreme Court, any conflict between the state and a city will inevitably always be resolved in favor of the state. Thus, Dillon’s Rule becomes a sort of “Supremacy Clause” governing the relations between States and municipal governments.

In Western Tradition

Studying this question more broadly in the western tradition, it is evident that, while cities have usually been granted their city status by the government (e.g., Great Britain), there is also a healthy tradition of “free cities” that are independent of state control.Going back to the Middle Ages, the Holy Roman Empire had numerous municipalities which were classified as “Imperial Cities” or “Free Cities.” Of course there were your run-of-the-mill cities that were subject to the authority of a local baron or ecclesiastic, just like cities in the United States are subject to their state governments. But Free Cities, such as Augsburg and Cologne, were independent of any local lord or sovereign and were entirely free to make their own decisions. The Free Cities could wage war, make treaties, control their own trade, make alliances with each other (like the Hanseatic League) and resist interference from outsiders.“Imperial Cities” were cities that were under the immediate control of the Holy Roman Emperor and, like the Free Cities, owed no allegiance to any local baron or ruler. These cities were also exempt from many burdensome taxes that would otherwise be levied. Some cities combined the titles and styled themselves “Free Imperial Cities.” These cities had representation in the Imperial Estates, as well. A city could gain free status by a variety of means, but it could also have it revoked by the Emperor, for example, if they waged war against him.Over 200 cities were considered Free Cities at one time or another; this amount dwindled in the 17th century with the rise of the nation-states that could not tolerate the presence of free municipalities within their borders. The trend of the age was towards centralization of the nation-state. Most Free Cities in Germany were done away with in 1811 when the Holy Roman Empire was swept away by Napoleon. The last Free Cities were eliminated when the German states united to form the German Empire in 1871.In France, cities could be freed of certain obligations by the king. A classic example is the small town of Domremy in Lorraine, which was freed from taxation in perpetuity in gratitude to Joan of Arc, who was from Domremy, and who led the French in throwing off the English during the Hundred Years’ War. For centuries, in the royal tax ledger books the entry for Domremy would simply say, “nothing due: because of the Maid.”[note]A copy of the act establishing this freedom from taxation survives: “Charles, by the grace of God King of France, to the bailiff of Chaumont and his successors dealing with taxes. In favor of and in request of our beloved Joan the Maid, and for the great, high, notable and profitable services that she has done and does every day toward the recovery of our lordship, we have granted to the inhabitants of Greux and Domremy, of which the aforesaid Joan is a native, that they shall hereafter be free and exempt from any taxes levied or to be levied in the aforesaid district. For so does it please us and we wish it to be done, putting aside whatever ordinances, restrictions, or prohibitions and instructions may be thereto contrary. Given at Chinon, on the last day of July in the year of grace one thousand four hundred twenty nine, and of our reign the seventh.” (Regina Peroud and Marie Veronique Clin, Jeanne d’Arc (Librarie Artheme Fayard: Paris, 1986), 230.[/note] This tax exemption remained in place until the French Revolution when the revolutionaries, despising the memory of the Maid and everything else medieval, did away with the tax exemption for her small villages.Monaco is another French example, a city whose powerful rulers eventually styled themselves as princes and obtained independence from the French crown while pledging an honorary fealty. Notice also that the medieval monarchs had the power to confer this freedom upon certain, specific cities without the compulsion to grant it uniformly; that is, certain cities could be rewarded with free status while existing free cities could be punished by having their status revoked. There could be multiple cities with different statuses.The greatest numbers of free cities were found in northern Italy, where throughout the Middle Ages a vibrant urban civilization flourished. Autonomous cities such as Genoa, Florence, Venice and Perugia were major political players that competed on par with major kingdoms like France and England. The small city-state of San Marino in Italy is a holdover from this period.Going back further, in ancient Rome, the primary unit of government was the city-state, and certain cities called socii Latini once incorporated into the Roman Empire (which was originally the empire of a single city) were considered Romans but remained independent except in matters of defense.In ancient Greece, the cradle of democracy, the initial western experiment in self-government was set up in the context of the City (polis) and cities were the fundamental political units. Leagues of cities sometimes formed (Aetolian League, Ionian League), but at their core they remained municipally centered.The further we go back into history, the more we see the city at the front and center. All of the ancient empires of Mesopotamia (Babylon, Assyria, etc) are really the empires of city-states. The Babylonian Empire was comprised of lands subject to the city of Babylon, for example.These historical examples lead us to conclude that local government is the most fundamental unit of government, just as the family is the most fundamental unit of society.

Natural vs. Artificial

Why this primacy of the city the further back we go into history? Is it because people in olden days were too ignorant to set up sophisticated states at the national level? Quite the contrary; ancient Egypt is a prime example of an ancient state organized at the national level that was quite complex and had remarkable longevity.[note]Egypt is the exception to the principle that ancient civilizations were centered on city-states. Because Egypt arose as a union of multiple kingdoms (Nubia, Upper Egypt, Lower Egypt, parts of the Levant, etc) it was never exclusively focused on a single urban center and had multiple capitals throughout its long history.[/note] It is not that ancient peoples could not organize such states, but rather that they saw no real need to because city government provided the ideal mediation between the individual and the ruler.Cities are natural, organic things. They arise naturally as people come together. They can be seen with the naked eye. They can be gone into and out of; they can even be surrounded, attacked and burned. They are very self-evident, natural centers of influence and as such are not established by law as much as recognized by it as a fundamental reality of human existence. Just like the U.S. Constitution does not grant certain rights but presupposes them, so ancient society and medieval society tended not to view cities as creations of the state but realities that the state is called upon to recognize. Cities are organic developments, the natural products of human interaction, and as such are the natural acting subjects of political activity.This is why, in the ancient and medieval world, national boundaries were always a fuzzy concept. First of all, there were no nation-states, which complicated the issue of national boundaries. More important was the idea that a person’s political identity was not determined by where they happened to live, but to by whom they swore allegiance. Territorial boundaries were not as important back then, and consequently were not as clearly defined and look somewhat confusing when we try to express them in terms of a modern, political map. Again, cities and people do not always conform to tidy territorial boundaries, and the people of the past did not insist that they do.Counties and states, however, are entirely artificial entities that are created by drawing lines on a map. The lines might be drawn with some reasoning behind them, but they are still created by drawing lines and establishing artificial boundaries. Looking to create broader units of government to suit the needs of the modern nation state (and unwilling to tolerate the complexities that the older conception implied), modern governments drew lines, sometimes arbitrarily, across maps to create artificial districts—a classic example are the French “departments“, which were arbitrary lines drawn across France after the Revolution for the express purpose of eroding local loyalties and creating national unity, as well as erasing the memory of the political institutions of the Ancien Régime.The modern French departments are certainly easier to manage from an administrative standpoint, but they are ultimately just lines drawn on a map that have no correspondence with how French society organically developed, unlike the old provinces that grew out of the feudal period. The adoption of the department system was a means of subordinating local loyalties to an emerging nation-state and weakening traditions of home rule and localism left over from the medieval period.Similarly, the establishment of the county system within the United States—in which straight lines are arbitrarily drawn across maps to create sub-departments of the state—serves as a means of subordinating local control to state authority, even if in many cases the municipal governments predated the state governments by centuries. They are administrative units. A county is not something one can see, walk into, look at, burn down, or have any real loyalty towards. It is a legal fiction created for the purpose of administration, as are states. This reflects the modern preoccupation with governance and categorization by territorial divisions created artificially.This is not to say that counties and states are “bad” and cities are “good”, but it is to say that cities reflect a much older and natural form of human organization than counties and states, and that therefore, it is questionable to construe municipal rights as if they somehow are contingent upon the fiat of these administrative units whose existence is merely legal. If all law and order broke down tomorrow, concepts like “Livingston County” or the “State of Michigan” would mean very little. What would county boundaries mean in the absence of the authority that declared those boundaries? The physical city or village, on the other hand, would still exist and be very meaningful because they are actually subsisting realities that are not created by government decree.

Home Rule

Michigan, my state, is a Home Rule state. This means our Constitution does allow for a broad interpretation of Dillon’s Rule. Since this is the case, our State Legislature would be an admirable place to begin an experiment in subsidiarity. All political organization ought to be characterized by the principle of subsidiarity, that is, functions that can be performed by a smaller unit of government ought not to be performed by a larger. In states under Home Rule, this is more of a legal possibility, even within the currently existing framework.Can we really say that everything our state governments do is absolutely necessary and cannot be left to lower bodies of government? Is it really necessary that my city could not repair a crumbling curb on a bridge without the approval of our DOT? Can we really say that we have subsidiarity in this current arrangement? There are many areas in which a Home Rule state could, if it wanted to, grant much more leeway to municipalities in how we conduct their affairs. If we have Home Rule in Michigan (and many other states), let us have a Home Rule that is actually from home—that is not a legal fiction proscribed and circumvented by state law at every turn, but which really treats municipalities as organic, natural political entities that exist in their own right. The state will always be there (per Dillon’s Rule) to make sure that municipalities stay within certain boundaries, but let’s perhaps increase the boundaries just a little bit, please.