Principles of Home Rule for the Twenty-First Century

67 Pages Posted: 19 Feb 2020 Last revised: 2 Apr 2020

See all articles by Richard Briffault

Richard Briffault

Columbia Law School

Nestor M. Davidson

Fordham University School of Law

Paul A. Diller

Willamette University College of Law

Sarah Fox

Northern Illinois University - College of Law

Laurie Reynolds

University of Illinois College of Law

Erin A. Scharff

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Richard Schragger

University of Virginia School of Law

Rick Su

University of North Carolina School of Law

Date Written: February 17, 2020

Abstract

The National League of Cities’ “Principles of Home Rule for the Twenty-First Century” updates the American Municipal Association’s 1953 “Model Constitutional Provisions for Municipal Home Rule.” The AMA approach was widely adopted, but those provisions are now over 65 years old and intervening social, demographic, economic, and political changes necessitates a new approach to the legal structure of state-local relations. The NLC’s approach is organized around four basic principles, which are cashed-out in a model constitutional home rule provision, with commentary. The first principle states that a state’s law of home rule should provide local governments the full capacity to govern to the limits of state law across the entire range of subject matters. The second principle states that home rule should guarantee local fiscal authority and ensure local fiscal stability. The third principle embodies a presumption against state preemption of local laws, authorizing such preemption only when expressly stated and when the displacement of local authority is narrowly tailored to achieve a substantial state interest. The fourth principle states that local governments should have authority to manage their own democratic processes and structure of governance and should be able to act without fear of retaliation for the exercise of local authority.

These principles are meant to readjust a state-local relationship that has recently become heavily tilted toward the exercise of state power. In many states, preemptive laws and judicial decisions have reduced existing state constitutional grants of home rule to a narrowly constricted sphere. Preemptive and punitive state laws are undermining the original purpose of home rule, as embodied in the 1953 AMA provisions, to provide for meaningful self-government at the local level.

Keywords: state and local government law, state constitutional law, local government law, cities, urban law, home rule, preemption

Suggested Citation

Briffault, Richard and Davidson, Nestor M. and Diller, Paul A. and Fox, Sarah and Reynolds, Laurie and Scharff, Erin A. and Schragger, Richard and Su, Rick, Principles of Home Rule for the Twenty-First Century (February 17, 2020). Virginia Public Law and Legal Theory Research Paper No. 2020-16; National League of Cities. February 12, 2020.; Fordham Law Legal Studies Research Paper No. 3539617. Available at SSRN: https://ssrn.com/abstract=3539617

Richard Briffault

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-2638 (Phone)
212-854-7946 (Fax)

Nestor M. Davidson

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Paul A. Diller

Willamette University College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States
503-370-6595 (Phone)

HOME PAGE: http://www.willamette.edu/wucl/faculty/profiles/diller/

Sarah Fox

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Laurie Reynolds

University of Illinois College of Law

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Erin A. Scharff

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

P.O. Box 877906
Tempe, AZ 85287-7906
United States

Richard Schragger (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Rick Su

University of North Carolina School of Law ( email )

160 Ridge Road
Chapel Hill, NC 27599-3380
United States
(919) 962-5106 (Phone)

HOME PAGE: http://www.law.unc.edu/faculty/directory/surick

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