Constitutional Home Rule and Judicial Scrutiny

Abstract:     
This Article was prepared in connection with the Symposium on “Home Rule,” co-sponsored by The Byron R. White Center for the Study of American. Constitutional Law at the University of Colorado Law School, and the Denver University Law Review.

The distribution of powers between levels of government in the state system presents a puzzle for constitutional theory, likewise, it presents a puzzle - actually, more of a ubiquitous governance dilemma - for modem policy making. The specter of Hunter v. Pittsburgh and its injunction that municipalities are best understood as creatures of state government and, therefore, as fundamentally subordinate entities, haunts modern local government law At the same time, constitutional home rule conceivably upends the standard view by according a sphere of authority - indeed, a sovereignty of sorts - to municipalities in the state’s structure of governance and its constitutional theory. How constitutional home rule can be reconciled with the Hunter principle is an enduring puzzle in American local government law.

While home rule is the creation of legislatures acting within constitutional conventions or through other mechanisms, the contours and content of home rule have been developed by the courts through adjudication Home rule doctrine reflects a far-flung effort over more than a century’.s time to find meaning in the ambiguous phrases “local affairs” and “matters of statewide concern.” The result of these efforts has been a highly developed, and still developing, case law,. one that involves drawing lines between what is properly the domain of state government and those powers which may be exercised by municipalities free of state preemption.

In this Article we ask: What are courts essentially doing when they review state/local conflicts under the rubric of constitutional home rule? And what insights into larger matters of judicial capability and doctrinal efficacy are afforded by a close examination of this work of the state courts? In Part I, we frame the home rule inquiry by describing in broad outlines the constitutional structure of municipal home rule In Part II, we undertake some field archeology, involving a close look at how state courts currently decide home rule cases. A better understanding of how the courts approach the potentially difficult task of defining and drawing lines between ‘local affairs” and “matters of statewide concern” will usefully illuminate both the larger conundrum of imperium in zmperto home rule and the enterprise of line- drawing in structural constitutional law cases more generally. In Part III, we consider whether and to what extent the work of the state courts described in Part II can be deemed a success. Such an assessment, we believe, has implications not only for home rule and state constitutionalism, but also for the appropriate role of the courts in demarcating and enforcing federal constitutional boundaries of state regulatory immunity.

Accepted Paper Series