Local Governments: The Crucibles of Democracy

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Patrick Mulhearn
December 21, 2019

The most common frustration evinced by constituents of local governments is the limits of local authority.  People expect a problem to be solved by whomever answers the phone at their local government office and don’t really care that it’s a State or Federal issue.

And the limited local authority is very much for a reason: local governments have been intentionally circumscribed in our federal system by State and Federal agencies and the courts. Local governments are agents of the state, and for the most part exist as areas of delegated authority—think Health and Human Services, infrastructure and law enforcement.  But it’s all the other, less explicit, areas of responsibility that ultimately define, “Local.”

For Richard Pratchett these areas of responsibility, while fluid, together comprise what we consider to be local autonomy. But because much of this autonomy is described by superior levels of government power, to act becomes more of a question of sovereignty—who wields ultimate power—rather than whatever momentary authority has been delegated. Pratchett asserts that it’s helpful to think of local government’s relationship to sovereignty in three dimensions: freedom from, freedom to and as a reflection of local identity. It is the tension between local and state authority—between autonomy and sovereignty—that defines American Federalism. 

Dillon’s Rule vs. Home Rule

The Progressive Movement of the late 19^th and early 20^th centuries was the genesis of modern local government. It was during this period that concerted efforts were made to professionalize and systematize government in order to root out the corruption that was endemic to the spoils system predating a civil service.

Indeed the face of this corruption was local governments, who, “Often trampled on private property rights when they pursued railroad facilities,” or pursued other interests not to the public benefit such as awarding utility franchises to friends and family and dissolving local governments to avoid accumulated debts. 

In a series of court decisions starting in 1865 Judge John Dillon of Ohio attempted to further clarify the actual authority of local governments in the United States. These decisions eventually became what’s known as Dillon’s Rule, that local governments are, “Creatures of the State,” with only the authority specifically delegated to them either, “In express words. . . implied or incident to the powers expressly granted. . . or those essential to the declared objects and purposes of the corporation.”

The reforms of the Progressive Era, though, were a reaction to the more ancient doctrine of Home Rule that had defined local government since the Magna Carta. Rather than the statutory construction of Dillon’s Rule, it evolved from a tradition of local decisionmaking. Before there was a State there was the town or the village. We can recall even here in North America that the very beginnings of our nation were in the local governments that dotted New England, and the tradition of their authority drove much of our lawmaking until the Progressive Era.

Home Rule in the modern sense, though, is more of a top-down affair.  Since the Constitution vests a sovereignty in the States, even under Home Rule the real power rests with them. So while counties and cities in places like Kansas have authority under Home Rule, it’s still delegated to them by their state constitution and not the product of their own gumption.

Laboratories of Democracy

In Pratchett’s matrix, Dillon’s rule is the freedom to, while Home Rule is the freedom from; but there’s the third dimension—local identity—that comprises a lot of what happens in local government. In this sense, local governments exist in the vacuum between delegated authorities, so while common functions like Medicare and food stamps will be the same regardless of the local entity there are other areas not considered by the State or Federal governments into which the locals may stray.

Some of these efforts are non-controversial: maybe a local government has an innovative approach to spending their federal homelessness money, or perhaps there’s a new transit project that will reduce local congestion. Others, though, can be quite controversial: think Sanctuary Cities for the undocumented, or Gun Sanctuary jurisdictions (for the guns) or soda taxes.  Even broadband has become controversial: who has the authority to invest in a broadband network? (In 25 states it’s not the local government).

And all of this is good: Because a lot of these powers are not explicitly granted or prohibited, local governments have the presumed latitude to develop bespoke solutions to the problems they face.  Even though local governments face a host of common problems, many, “May not prefer a common solution.” Every local government is a laboratory and every solution tested there is an opportunity for something novel to evolve.

This is the essence of what Justice Brandeis was getting at when he asserted that, “A single courageous State may, if its citizens choose, serve as a laboratory,” and since many of the most intractable, wicked problems are actually faced by local governments rather than the State we should allow locals the latitude to experiment.

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Author: Patrick Mulhearn, MPA, is a public policy analyst for the Santa Cruz County, California, Board of Supervisors.  He focuses primarily on policies relating to telecommunications and transportation infrastructure and local governance.  He may be reached at [email protected].

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