Guest Essayist: Marc Clauson

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Home Rule or Dillon Rule? What is the meaning, purpose and impact for American citizens to choose “Home Rule” or “Dillon Rule” authority to govern their cities? How does each work for local as compared to state government?

John Dillon, a Federal judge in the nineteenth century, wrote a famous treatise, Municipal Corporations (1872), in which the legal doctrine of the power of municipal governments was expressed.  The rule that emerged from his book and court cases was that local governments were “creatures of the state” and only had power to do what was expressly authorized by the state legislature or in the state constitution or what was implied in those laws or what was necessary to carry out those powers granted.  The opposite rule, the “Cooley Doctrine,” is derived from the work of the judge Thomas Cooley, and expressed the idea of the inherent right of self-government for local entities. The idea of Home Rule for cities arose out of the Cooley Doctrine.

Neither of these legal theories is inherently better than the other, though some might think (with some support) that the Dillon Rule prevents cities from straying too far from legitimate authority.  The key is what a legislature or state constitution allows a city to do.  If under the Dillon Rule the city is granted expansive authority, then the rule does not effectively limit governmental power.  The Cooley Doctrine already tends to allow a greater range of independent authority to a city, which may amount to an inappropriate scope of power.  If the American political experiment was predicated on limited government, as was the case of the United States Constitution, then local governments should also fall under the umbrella of that political theory.  There is no inherent reason why they should be treated differently than state and national governments.

The implications of the Dillon Rule are that a check on inappropriate power of a city can exist if a legislature exercises its political will.  On the other hand, the Cooley Doctrine might allow a larger scope of power than would be beneficial to citizens, unless the particular city government form adopted (strong mayor, weak mayor, council, strong charter, etc.) can provide a check.  In the end, what one wants to see is a city/local government that possesses powers that are similar in nature to those possessed by the national government under the Constitution, adjusting of course for the differing functions.  My point has to do with the scope and nature of powers.  If a particular power is allowed (under whichever rule), it still should not be an unlimited power.  Moreover, not all powers are legitimate for any given local government or for any such government.  Under current law of local government, it is incumbent on the state legislatures to create institutional arrangements that do limit power, or that appropriate state constitutional limits be in place.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

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4 replies
  1. barb Zack
    barb Zack says:

    I actually emailed this to several of my friends who have served or are on their City Councils..

    Excellent article and perspectives..

    Reply
  2. Publius Senex Dassault
    Publius Senex Dassault says:

    I appreciate the continued discussion of Dillon versus home rule. Here are some thoughts that come to mind:

    1) The founders understood and time has validated that checks and balances are required at all levels of government. The only check with home rule is the electorate, which is an important, but insufficient check if it is the sole check. There does not appear to be any counter balance to the whims of the electorate.

    2) I think we are seeing the unbridled application of Home Rule with cities that decide to defy State and Federal law with regards to immigrants. While I think our immigration laws are not fit for the times, I believe these should be addressed through the governmental system and processes we have, not rebellious anarchy.

    3) Dillon rule can certainly be oppressive, but this can be ameliorated via elections, changes to State constitutions, laws and regulations. All of which will or should require reasoned contemplation which Madison called politicking, which he believed would guard against polar, untested, radical social changes whose effect is worse than what was being addressed.

    These essays have 1) brought to my attention political theory I was heretofore not exposed to, thereby CA succeeds in its mission to educate, 2) helped me contemplate the strengths and weaknesses from which I am able to construct an reasoned conclusion. Thank you.

    PSD

    Reply
    • Cathy Gillespie
      Cathy Gillespie says:

      Hi Phillip – We don’t thank you often enough for your taking the time to comment on the essays! Thank you so much for your interest and the thought you put into reading and commenting! We appreciate you! May we share a portion of your comment above on our social media? “These essays have 1) brought to my attention political theory I was heretofore not exposed to, thereby CA succeeds in its mission to educate, 2) helped me contemplate the strengths and weaknesses from which I am able to construct an reasoned conclusion. Thank you.”

      Reply

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