Are Local Governments Mere Creatures of the States?
As a new wave of the Covid-19 pandemic began to take hold during the summer of 2021, governors in multiple states — most notably Greg Abbott in Texas and Ron DeSantis in Florida — issued executive orders barring local governments, including school districts, from requiring people to wear masks. In doing so, these governors effectively told local officials they could not take measures to protect the citizens in their charge.
The standard response to those who challenged the orders was to insist that local governments are "creatures of the state" — that is, they were created by state governments for state purposes. Accordingly, the argument goes, states have broad authority to regulate local governments as they see fit.
This account of political authority includes two principal claims: first, that states have absolute sovereignty over local governments within their boundaries, and second, that the governor, acting alone, can exercise the full authority of the state. For the argument to work, both propositions must be true. We maintain that both are false.
Here, however, we focus entirely on the unsoundness of the first claim — one that exchanges self-governance for the modern theory of sovereignty that descends from Jean Bodin and Thomas Hobbes. This is a statist claim, one that contradicts the understanding of popular sovereignty that animated the founding of the American regime.
Interventions by state governors in matters properly left to local self-rule represent a grave assault on communities' ability to provide for and protect their citizens. To regard such actions as legitimate is to dismiss the essential role that local autonomy plays in the republican form of government historically, empirically, and philosophically.
HISTORICAL UNDERPINNINGS
In 1843, Mellen Chamberlain, then a university student who would go on to become a prominent Massachusetts judge, interviewed Revolutionary War veteran Levi Preston, who had fought at the North Bridge in the Battle of Concord. During the interview, a revealing exchange took place:
Chamberlain: "Capt. Preston, what made you go to the Concord fight?"
Preston: "What did I go for?"
Chamberlain: "Yes....My histories all tell me you men of the Revolution took up arms against intolerable oppression. What was it?"
Preston: "Oppression, I didn't feel any that I know of."
Chamberlain: "Were you not oppressed by the Stamp Act?"
Preston: "I never saw any stamps and I always understood that none were ever sold."
Chamberlain: "Well, what about the tea tax?"
Preston: "Tea tax, I never drank a drop of the stuff, the boys threw it all overboard[.]"
Chamberlain: "But I suppose you have been reading Harrington, Sidney and Locke about the eternal principle of liberty?"
Preston: "I never heard of these men. The only books we had were the Bible, the Catechism, Watts' psalms and hymns and the almanacs."
Chamberlain: "Well, then, what was the matter?"
Preston: "Young man, what we meant in fighting the British was this: We always had been free and we meant to be free always!"
In another telling of the story, Judge Chamberlain recounted Captain Preston's last line in slightly different words: "Young man, what we meant in going for those Redcoats was this: we always had governed ourselves and we always meant to. They didn't mean we should." In each version, Captain Preston's meaning remains substantially the same: He insists that the men who fought against the British at Lexington and Concord took up arms to defend the liberty of towns like Lexington, Concord, Salem, Boston, and Danvers to govern themselves. They resisted the British because they believed England intended to take that liberty away.
In The Myth of American Individualism, Barry Alan Shain affirms that Americans of the revolutionary era understood "self-government" to refer primarily to the right of localities to govern themselves. And in fact, self-government — self-rule exercised by the local community — was the standard practice in British North America for well over a century before the Revolutionary War. For the most part, the first states were derived from colonial governments that had been created by local communities such as towns, especially in New England and the Middle Colonies. The majority of colonial governments were built, not from the top down by acts of a superior sovereign, but from the bottom up.
By way of illustration, consider the creation of Connecticut. In his Origins of American Constitutionalism, Donald Lutz explains how the Fundamental Orders of Connecticut established a common government for the towns of Hartford, Windsor, and Wethersfield in 1639. By 1662, the towns of Saybrook, New London, Fairfield, Norwalk, East Hampton, and Southampton (the latter two on Long Island) had joined Connecticut. Similarly in 1643, New Haven, Milford, Guiford, Stamford, Branford, and Southold (on Long Island) joined together to form the colony of New Haven. In 1662, all the towns of New Haven colony — except for the town of New Haven — joined Connecticut. Three years later, New Haven joined the rest.
This same pattern of association obtained in the formation of Rhode Island. In 1642, representatives from the towns of Providence, Pocasset, Warwick, and Portsmouth jointly drafted a compact called the "Organization of the Government of Rhode Island." Their new federation was ratified in the Rhode Island Charter of 1663.
Although Connecticut and Rhode Island provide the most explicit examples of federal construction, the first states more generally were built from the ground up. As Lutz explains, the towns, "each with [their] own covenant or compact for local government...became part of larger colonies" by means of a new compact that linked them together. While this arrangement created a more comprehensive colonial government, it left the towns, their founding covenants, and their respective governments intact. "The result," Lutz observes, was "federal in structure." And in fact, as renowned federalism scholar Daniel Judah Elazar reminds us, the origin of the term "federal" lies in the Latin term foedus, meaning "covenant."
Professors Charles McCoy and J. Wayne Baker also characterize the pattern of association that arose with the American colonies as federal. In Fountainhead of Federalism, they describe the pattern this way:
Primary social entities such as families, congregations, occupational guilds, and commercial organizations exist by virtue of tacit and explicit compacts defining relations among members and committing participants to the group. More comprehensive social structures are based on compacts among less inclusive groups. In political organization, a town is made up of a compact among families, a province of a compact among towns, a commonwealth of a compact among provinces, and international relations of compacts among commonwealths.
"In each case," they add, "a covenant creates the more comprehensive level of political order." Yet, like Lutz, they argue that "the more inclusive entity does not negate the significance, participation, and consent of the covenanted groups that comprise it. Each level retains its importance and its integrity as an operative community with appropriate governmental functions." On this view, political order (in the proper meaning of the phrase) is grounded and originates locally — in concrete, local communities — as a matter of principle, regardless of whether the pattern reflects historical chronology.
This account of political order also embodies a commitment to popular sovereignty, understood as the authority of the political community over its government. As a consequence, federal political order entails a rejection of the sovereignty of the state over the community, including those local communities of which a state is composed. This is not to say that state-local relations in America are "federal" in the particular sense that describes national-state relations, wherein the national government is limited to enumerated powers and states enjoy unspecified reserved powers. If, however, we distinguish "federal" in this particular sense from "federalist" in the more general sense, it becomes clear that states are capable of constituting themselves according to a federalist order, as in the case of the first states.
Of course, not all states began as settlements that joined forces to create larger political associations. Nonetheless, their establishment reflected a deliberate extension of the principle of local self-rule. In the act creating the Northwest Territory, for instance, the Congress of 1785 endowed the territory with a full complement of township boundaries, each one six miles square. This move extended the principle of local self-governance into the American frontier.
As for local governments formed within the boundaries of states after they were founded, most were not created at the discretion of state legislatures or other state officials. In fact, by the middle of the 19th century, state constitutions were being amended to prohibit municipal incorporation by special act of the state legislature. These provisions required the use of general "enabling acts" by which local governments could be created only with the popular consent of the communities to be governed. Urban historian Jon Teaford put it this way: "Local government was no longer bestowed by the state; it was assumed by the citizenry."
Even today, municipal corporations are routinely created at the discretion of local communities by means of initiative petition and popular referendum. As one of your authors (Oakerson) and Roger B. Parks have argued in The American Review of Public Administration, using state legislation to provide a legal framework whereby local communities can opt to create municipal corporations "is not equivalent to state creation of local governments." Otherwise, private corporations — which are also created within legal frameworks provided by state law — would equally be considered creatures of the state.
PHILOSOPHICAL FOUNDATIONS
The historical reality concerning local governments in America does not conform to the pervasive image of these entities as creatures of the state. But what about the nation's philosophical underpinnings? Do the foundation and frame of the American order cohere with the understanding of political authority expressed in the claim that local governments are merely creatures of the states — that is, the modern theory of sovereignty? Or do they reject this account of sovereign power?
To appreciate the framers' understanding of state-local relations, we must first consider the modern theory of sovereignty as initially conceived by 16th-century French jurist Jean Bodin and more systematically elaborated by the English philosopher Thomas Hobbes. For Bodin and Hobbes, the state stands over and above the society or community that it governs. The central tenet of the modern theory of sovereignty is the claim that sovereign power — especially the power to make and enforce law — is both absolute and indivisible.
To say that sovereign power is "absolute" is to say that it has no limits. According to Hobbes, the lack of "so unlimited a Power" results in the "perpetual war of every man against his neighbour." By "unlimited," Hobbes means both that there is no jurisdiction off limits to the sovereign and that there is nothing that sovereign may not, with right, command. Having the power to make and repeal laws as he sees fit, the sovereign may free himself from subjection to any law whenever he pleases. Consequently, says Hobbes (echoing Bodin), to say that "the sovereign power is subject to the civil laws" is "repugnant to the nature of a Commonwealth." Instead, the sovereign stands above the law and cannot be constrained or limited by it. The sovereign is limited only by the strength of the commonwealth and accountable only to God.
To say sovereign power is "indivisible" is to say that it cannot be divided. According to Hobbes, "to divide the power of a Commonwealth" is "to dissolve it," "for powers divided mutually destroy each other." One way of dividing (and thereby dissolving) the commonwealth is by establishing or permitting separate jurisdictions for church and state. "[W]here one [power] can make laws, and another make canons," he declares, "there must needs be two Commonwealths, of one and the same subjects; which is a kingdom divided in itself, and cannot stand." In this passage, Hobbes seeks to rule out any jurisdiction outside the authority of the civil sovereign; indeed, he maintains that all pastors in the commonwealth hold their office only under the civil sovereign. In short, the modern theory of sovereignty requires the consolidation of authority over church and state.
Another way of dividing the commonwealth is to establish a mixed regime. "Sometimes," observes Hobbes, "also in the merely civil government...the power of levying money...has depended on a general assembly; the power of conduct and command...on one man; and the power of making laws...on the accidental consent, not only of those two, but also of a third." "Such government," he adds, "is not government but division of the Commonwealth into three factions." His point here is that control over or exercise of the essential rights and elements of sovereign power cannot be distributed among separate hands; instead, the powers to make law, enforce law, judge controversies, and command the militia must all be placed in the same set of hands, whether they be those of a single person (as in a monarchy) or of an assembly (as in an aristocracy or a democracy).
For Hobbes, mixed regimes inevitably devolve into civil war. In fact, he laid responsibility for the English civil war between Parliament and the Crown at the feet of the division of sovereign power, as institutionalized in England's mixed regime: "If there had not first been an opinion received of the greatest part of England that these powers were divided between the King and the Lords and the House of Commons, the people had never been divided and fallen into this Civil War."
A century later, James Madison would advocate a very different institutional design — one fundamentally antithetical to modern sovereignty's central tenet. While Hobbes never addressed the use of federalism, his account of sovereign power as unlimited and indivisible clearly rules it out.
Madison lays out his argument in Federalist No. 39, wherein he distinguishes between the extent of powers allotted to a national government in a regime that is wholly national and the extent of national power in a regime that is federal:
The idea of a national government involves in it, not only an authority over the individual citizens; but an indefinite supremacy over all persons and things, so far as they are objects of lawful Government. Among a people consolidated into one nation, this supremacy is compleatly vested in the national Legislature. Among communities united for particular purposes, it is vested partly in the general [i.e., national], and partly in the municipal [i.e., non-national] Legislatures" (emphasis added).
Moreover, in a wholly national government or regime, "all local authorities are subordinate to the supreme; and may be controuled, directed or abolished by it at pleasure." In a federal regime, by contrast, "the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them, within its own sphere" (emphasis added).
Madison elaborates the point in a letter to Nicholas Trist dated February 15, 1830:
Other Governments, present an individual & indivisible sovereignty. The Constitution of the U.S. divides the Sovereignty; the portions surrendered by the States, composing the Federal Sovereignty over specified subjects; the portions retained [by the states] forming the Sovereignty of each over the residuary subjects within its sphere. If Sovereignty can not be thus divided, the Political System of the U.S. is a Chimaera, mocking the vain pretensions of human wisdom.
The extent of national authority in the Constitution, says Madison, is thus limited by the federal nature of the regime. The national jurisdiction, as he writes in Federalist No. 39, "extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects." This design divides the highest political authority in the land between two levels of government, creating an imperium in imperio — something that Hobbes emphatically rejects as necessarily incompatible with sovereign power. In its very frame, therefore, the Constitution rests upon a complete rejection of the modern theory of sovereignty, which holds that ultimate political power must be both absolute and indivisible.
Neither the Constitution nor Madison, however, address the relation between states and local governments within their borders. The "inviolable sovereignty" that Madison saw as reserved to the states cannot, without contradiction, be Hobbesian sovereignty; it can only be popular sovereignty. Moreover, the sovereignty reserved to the states belongs not to state governments, but to the people of the states (a point Madison made on multiple occasions). Madison's account of limited, divided political authority was drawn from the tenets of traditional republicanism, wherein the right to govern originates in the people, associated in communities of their making. In contrast to the modern doctrine of sovereignty, in a republic, no government possesses sovereign power.
An explanation of local self-governance — to which Madison, focused on the task at hand, did not attend — was supplied during the following century by Alexis de Tocqueville. Writing on his trip to America in the 1830s, the French diplomat was both impressed and initially puzzled by the autonomy enjoyed by local townships in New England. How could such a robust local autonomy be consistent with the general political order in a society?
The solution he seized upon was that, in lieu of a bureaucratic, command-obedience relationship between state and local authorities, state-local relations in America were governed by the rule of law. If the former had been true of the American regime, then whenever disputes over state and local authority arose, local entities would have been forced to submit to the will of state governments by default. Instead — and to this day — these quarrels are routinely settled in court according to the rule of law.
State legislatures, of course, are capable of enacting general laws that apply to local governments in the same way that laws apply to private citizens or civil associations. And when the actions (or inactions) of local governments have effects that spill beyond local boundaries, state or even national legislation may be justified. But within the framework provided by those laws, a local government must be free to act to secure the common good of the community — it must be free to govern itself.
Popular sovereignty — not only as understood by those who designed the first state constitutions, but also as a matter of principle — requires substantial local autonomy, though obviously not absolute or radical autonomy. At its root, popular sovereignty means self-governance — in other words, it means that the people rule themselves. As Aristotle understood, people practice self-governance when citizens can rule and be ruled in turn. This dynamic of taking turns ruling and being ruled — of ordinary citizens exercising the powers of government themselves — can only be fully realized in concrete, local communities, wherein citizens can interchangeably hold offices of government as jurors, poll workers, elected officials, and the like.
Indeed, the popular sovereign cannot exist as an aggregation of individuals who are independent of each other (as a wholly national popular sovereign would require), because no such fully independent individuals exist. Real individuals are embedded in concrete communities composed of relations between and among individuals, which are necessarily local. More comprehensive political associations are themselves constituted by local communities. Individuals can only participate in self-government as members of communities — whether local, state, or national — that are ultimately grounded in concrete, local associations. We do not mean to say that representation in political associations more comprehensive than local communities is incompatible with self-government, but that self-government entails a political order built from the bottom up.
Self-governing local communities are thus essential institutional ingredients in the composition of a popular sovereign. It follows that popular sovereignty, whereby the people rule over the government, and the theory of the sovereign state, according to which the state exercises authority over society, are mutually opposed: One forecloses the other. In a regime where the people are sovereign, no government per se can exercise absolute and unlimited sovereign power.
THE DEBATE
How, then, did the Hobbesian theory of the sovereign state come to replace the founders' theory of popular sovereignty, especially in legal thought?
The shift occurred during a contentious debate that arose during the latter half of the 19th century between judges Thomas Cooley of Michigan and John Dillon of Iowa. Each man sat on his state's highest court, and each was a noted legal scholar, with Cooley in particular enjoying a reputation as perhaps the pre-eminent constitutional scholar of his time. The principal question at issue was the basis of local authority.
The Michigan state legislature sparked the dispute when it sought to marginalize Detroit's city government by statute, creating a special board of public works to take over many of the city's functions and naming its first set of supervisors. The Michigan supreme court put a stop to this effort in the 1871 case People v. Hurlbut. In a concurring opinion, Cooley maintained that, in the American regime, local communities enjoy an original right to self-rule. Although he conceded that municipalities are subject to state law up to a point, the Michigan legislature had exceeded that point when it tried to substitute its will for that of the people of Detroit in reconstituting the city's government.
Three years earlier, in two Iowa cases (City of Clinton v. Cedar Rapids & Missouri River Railroad Company and Merriam v. Moody's Executors), Dillon had argued precisely the opposite: He claimed that local governments are "creatures of the state" and therefore completely dependent on state government not only for their jurisdiction and authority, but for their continued existence.
In keeping with this logic, Dillon held that local government possesses the authority to act if and only if the state legislature grants it such authority in specific terms. In doubtful cases, the courts should simply deny local authority to act. Put another way, while the powers of state government should be construed broadly, those of the local government should be construed strictly or narrowly. This account of local authority came to be called "Dillon's Rule," and Dillon's text on the subject, Commentaries On The Law of Municipal Corporations, became a standard reference in the legal profession.
Dillon's Rule, like Hobbes's theory of sovereignty, locates sovereignty with the state rather than with the people. Because the modern theory of sovereignty insists that sovereign power must be absolute, Dillon's state sovereign must stand over and above the local communities situated within its jurisdiction, exercising full authority to create, regulate, and abolish local governments at will.
Cooley's account of local authority, by contrast, is grounded in the popular-sovereignty model advanced by the founders. According to this view, the highest political authority in a regime remains the people. The people, not the state, possess the authority to create and dissolve governments. And under a republican regime, local self-government is a fundamental right of the people. It follows that, in the United States, local authority grounds state action, rather than the reverse. Local government therefore cannot, as a matter of principle, depend on the exercise of state authority.
Cooley's position has two important implications. The first is that if local governments are understood as the constitutional creatures of local communities rather than as creatures of the state, they possess local liberty, meaning that their actions as communities need not be specifically authorized by state law. The same rule — no prior authorization needed — underlies the Anglo-American concept of individual liberty. Law can and does limit individual liberty, but otherwise liberty is viewed as original to individuals, not a creation of government. Persons living under such a regime need not apply to government for prior authorization to act.
Individual liberty extends to associations of private individuals, such as corporations. Cooley in effect extends the same logic to municipal corporations — precisely what Dillon denied. Whereas Dillon made local governments dependent on specific prior authorization in order to act, Cooley grounded local action in local liberty — a local right of self-governance.
Second, although state government lacks the authority to abolish local government, state legislation may modify local authority to accommodate a more general good. Put another way, local liberty does not preclude its limitation by state law any more than individual liberty does.
Unlike individuals, local governments have coercive lawmaking authority that is binding on individuals within their jurisdictions. Historically, as Lutz has argued, the authority of local officials was legitimized by community covenants in an expression of popular sovereignty. Then, beginning in the late 19th century, a local home-rule movement arose. This led to the ratification of state constitutional amendments in many states that explicitly provide for the local adoption of municipal charters by popular vote, locally assigning authority to local officials. Home-rule cities are constituted by these charters, not by state laws.
Nevertheless, when state laws preempt local authority, they subtract from local liberty. Conflicts of laws — like those between state and local governments — are necessarily settled in court, but Cooley offered no formula for resolving the question of where to draw the line between state and local power. More recently, attorney and legal scholar Brett Stroud addressed this question with regard to California, a state with a strong home-rule tradition rooted in its state constitution. Stroud notes that, in 1896, Californians amended their state constitution to create a protected category of "municipal affairs" for charter cities — shielding them from state legislative intrusion by means of general laws as well as special acts directed at particular cities. This approach reflected the effort made by the U.S. Supreme Court under Chief Justice William Rehnquist to carve out substantive areas of state autonomy from federal intervention, until it was rejected as unworkable in the 1985 case of Garcia v. San Antonio Metropolitan Transit Authority. Attempting to define the boundaries of a protected municipal domain is not, however, the only possible way to protect local autonomy.
If the courts were to abandon Dillon's Rule, which is no more than a judicial construct, Cooley's position might be construed to require a presumption of local autonomy. The presumption would place a legal burden on state officials to show that state preemption is required in order to serve the wider public good. Under such a doctrine, state officials would be required to demonstrate in court why it is necessary to subtract from local autonomy in a particular case. Over time, courts could learn to apply principles of self-governance that protect local communities from the arbitrary or locally debilitating exercise of state authority.
Understood in this way, Cooley supplies a perspective from which to analyze the legal issue inherent in current controversies over mask mandates. According to Cooley's doctrine, local authorities would need no prior authorization from state law to require masks in places like schools. But in Texas, Florida, and other states, state authorities have prohibited local leaders from enacting mask mandates. In these cases, state officials would need to argue that their interest in proscribing mask mandates outweighs the interest of a local community in requiring masks.
It would be relatively easy for state officials to meet their burden if they were to impose a statewide mask mandate in the face of an ongoing pandemic — after all, the public-health consequences of viral outbreaks ignore local jurisdictional boundaries. But the burden would be much more difficult to overcome when prohibiting local officials from adopting mask mandates in the face of the same pandemic. Courts would likely view masking requirements in schools as a reasonable and ordinary use of inherent local authority to protect people in their jurisdiction from harm. Judges would be required to exercise judgment, of course, but it matters a great deal what principle they use as a guide. The case against local autonomy in this instance would be far from open and shut. A governor could no longer legally defend a decision to bar local mask mandates simply by saying "because I said so."
WHO DECIDES?
Much more is at stake in this controversy than who decides the masking question. America is a self-governing society only insofar as the structure of the political order is federalist (rather than nationalist or statist) and therefore grounded in local communities. Self-government or popular rule requires substantial local autonomy as a matter of principle. The local grounding of self-governance is fundamental to the legitimacy of the American regime at all levels.
Dillon's Rule treats local governments as if they were no more than administrative agencies of state government, agencies that properly depend on express prior authorization by law in order to act. But local governments are categorically different from state agencies: They are instruments of self-governance staffed by elected officials who govern on behalf of the people they represent.
Advocates of state sovereignty may point out that state governors and legislators are also elected by, and govern on behalf of, the people. But the fact that the people elect governors and state lawmakers offers no justification for state-led suppression of authority at the local level. Elections are certainly a necessary component of republican self-government in all but the smallest polities. Nevertheless, elections alone are insufficient to satisfy the requirements of the republican form. As the late Vincent Ostrom — a political scientist who was an early president of the Public Choice Society — wrote in The Meaning of American Federalism, "[v]oting is a very slender thread, hardly strong enough to let us presume that people, by electing representatives, govern." Republican form also depends on federal form, understood broadly to apply to the relations among all levels of government — national, state, and local.
The idea that local governments are creatures of the state derives from a philosophy that is fundamentally at odds with the basic design of the American political system. An import from outside our political order, the modern theory of sovereignty saps the foundations of our constitutional republic. The American legal community ought not to adopt an account of state-local relations rejected in the very frame and design of the American regime. No sound basis exists in the American constitutional order for treating Dillon's Rule as the sober truth of state and local governance.
An understanding of local governments as creatures of the state is a conclusion based on faulty historical, empirical, and philosophical premises. To subject local communities to the political whims of state governors on this suspect basis poses a manifest danger to the republic.
