the subordinate city

september 2016


In the 1999 book entitled City Making: Building Communities Without Building Walls, Gerald  E. Frug discusses the powerlessness of the city in relation to the state. Cities today function under stateautonomy, with multiple layers of restrictions which prevent them from self-governing. Even though  historical documentation of medieval towns operating successfully under local autonomy exists in  abundance, cities have continued to exist as merely subordinates of the state. John Dillon articulated the  need for this restriction of city power in his treatise in 1872. Referred to as Dillon’s Rule, the treatise  exemplified the need for state control over local decision-making in order to counteract a (seemingly irrational and illegitimate) fear that democracy at the local level would harm individual and state interests. Curiously, Dillon’s Rule has been challenged minimally. The few examples that advocate otherwise, such as the Cooley-Eaton-McQuillin thesis and the constitutional amendment of “home rule,” have proved to be unsuccessful both academically and politically, respectively. Thus, cities today are still unable to exercise legislation that is free from state control and invasion.

Dillon's Rule
As a response to the changing nature of the private/public sphere in terms of the city, the state,and private corporations in the nineteenth century, John Dillon formally defended the need for stateautonomy. He advocated for the need to protect the city against democratic abuse and the privateeconomic power of corporations. Dillon backed the idea of full state control over the city, believing thattoo much control at the local level would be harmful to both the state and the individual. For example, fuzzy boundaries of the private/public distinction between city and corporations led to wasteful sums ofmoney being paid by the city, such as in the case of financing railroads. Dillon thus argued that there belimitations and restrictions on taxpayer responsibilities in order to prevent such expenses from occurring. He sought to protect the city by forcing it under state control, believing that the democracy practiced at the state level would prevent corruption at the local level. 

Because the city was created by the state, Dillon argued, it had no business in the private spherewhatsoever. Thus he argued that city government be fully public and dedicated to the common good of itsresidents. He believed this could be accomplished by staffing city government with elite, best fit individuals, in terms of “intelligence, business experience, capacity, and moral character.”(1) Furthermore,Dillon backed the state’s legislative control over the city, as well as strict court rulings to champion this  control. Subsequently, after these authorities were set in place, a democratic process at the local level  could proceed. This became known as Dillon’s Rule, where the state could challenge any political process at the city level and have complete control over the local government whenever it deemed necessary.  

Dillon’s Rule, where there is “state control of cities, restriction of cities to ‘public’ functions, and strict construction of city powers,” still acts as the the predominant approach to city government today.(2) This means that the state has absolute power over the city: the federal government often attaches string to federal grants as a way to limit city ability to generate revenue, tax increases must be authorized, and the city cannot act as a lawmaking body whatsoever. This way of governing has been seldom challenged throughout modern Western history and has been, according to William Munro in 1923 (in his piece The Government of American Cities), a societal norm that generally goes unquestioned.(3) Nearly a century later, the issue is still rarely discussed, nor is it considered a pressing issue of the time.


Refuting Dillon's Rule
The only academic challenges to Dillon’s Rule were presented by three reformers in the late nineteenth and early twentieth centuries, Judge Thomas Cooley, Amasa Eaton, and Eugene McQuillin. Together, these rejections of state autonomy became known as the Cooley-Eaton-McQuillin thesis. Judge Thomas Cooley presented a perspective that advocated against absolute state rule over cities, explaining that political liberty, and thus self-government, was implied within the definition of freedom. He also argued that local government was an absolute right that must be protected by the restriction of the state’s legislative power. Similarly, Amasa Eaton published a series of articles called “The Right to Local Self-Government,” which parsed through the histories of England and America, presenting cases in which city governments existed independently in the past. These examples of autonomous city governments, which were present prior to state incorporation, sought to act as proof that cities should not be held to the legislative restriction at the state level.

Additionally, Eugene McQuillin’s 1911 treatise, The Law of Municipal Corporations, presenteda long-form, in-depth critique of Dillon’s Rule. McQuillin emphatically criticized Dillon’s claim thatcities were created by the state, citing historical examples as evidence. However, McQuillin agreed thatthe state should have control over all public functions that it created. But because cities were not birthed  by the state, he argued, the state has no right to absolute power over local government. In other words, the city’s functions are not public at all. In McQuillin’s perspective, the city should instead be considered  private and therefore must be subject to “the same constitutional protection as other private rights.”(4) According to Frug, the city as a private entity could therefore not be subject to state control.

Home Rule
Although no other academic challenges to Dillon’s Rule were ever articulated, there was apolitical movement in the late 1800s that challenged state authority over city government. In an effort to the “reverse the cities’ loss of self government” and give public corporations back the power that they oncehad, reformers worked to create constitutional amendments to restrict state rule.(5) These amendments, though they were enacted, failed to provide the intended outcome of city protection from the invasion of state autonomy. Instead, the state continually refused to grant autonomy to the city, claiming that it would threaten both state and individual interests.

One constitutional amendment enacted required the state to pass only “general” legislation, as  opposed to “special” or “local” legislation. This amendment’s intention was to limit the state’s legislationthat acted to control city decision-making. However, this weak clause proved to be unable to limit state power, as it does not fully prohibit the state’s ability to deal with local issues. Another constitutional  restriction of state autonomy granted cities “home rule,” which gave local government the ability to create  legislation without state permission. The amendment additionally sought to prevent state invasion of city  legislation. Home rule, however, has also been generally unsuccessful at protecting the city from state control. The failure arises because courts have had the power to make subjective decisions on whether issues are of either statewide or local concern. Oftentimes, the argument can easily be made that local  concerns affect nearby cities and towns. Thus, essentially all city issues can be considered statewide, and  the court rule has generally opted in the way of protecting the interests of the state and the individual “at  the expensive of city power.”(6)

The comparison of Dillon’s Rule with both the Cooley-Eaton McQuillin thesis and the home  rule amendment clearly illustrates the state’s intentions with regards to the city. From this perspective, it is obvious that the state has little interest in allowing local governments to be fully autonomous in the  least. Thus, cities remain under strict state control, with a variety of layers of restrictions. Ultimately, the city finds itself stuck with the majority of legislation and decision-making subject to state intrusion and infiltration.


Footnotes
1. Gerald E. Frug, City Making: Building Communities Without Building Walls (Princeton: Princeton University Press, 1999): 47. 2. Ibid.
3. Ibid, 49-50.
4. Ibid, 49.
5. Ibid, 50.
6. Ibid, 51.

Works Cited
Frug, Gerald E. City Making: Building Communities Without Building Walls. Princeton:  Princeton University Press, 1999.

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