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.
Constitutional Law | Law | Public Law and Legal Theory | State and Local Government Law
Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger & Rick Su,
Principles of Home Rule for the Twenty-First Century,
National League of Cities, February 12, 2020; Fordham Law Legal Studies Research Paper No. 3539617; University of Virginia School of Law Public Law & Legal Theory Research Paper No. 2020-16
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