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Local Constitutions Local Constitutions
Nestor M. Davidson
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Local Constitutions
Nestor M. Davidson*
Municipal charters are the forgotten constitutions of our federal system.
Scholars generally understand our democracy to be governed by federal and
state constitutions, but there is a third, almost entirely ignored realm of
constitutional law and practice that lives at the local-government level,
embodied in the charters that govern cities, counties, and towns. Engaging these
foundational documents is critical. In an era of political gridlock and national
polarization, with cities and other local governments increasingly grappling with
policy concerns once considered state, federal, or even international
responsibilities, the legal institutions that govern local democracy merit
newfound scrutiny.
Although municipal charters serve many of the functions that constitutions
perform at other levels of government—delineating public institutions and
articulating areas of “higher” law—legal scholars rarely take them seriously as
constitutional texts. This Article argues that foregrounding the constitutional
nature of municipal charters provides new theoretical insights into local
governance and the role that local governments play in our political order. Like
the federal Constitution, charters can be an important locus for constitutional
meaning and civic identity, rendering fundamental choices about governmental
structure, political process, and individual rights more salient and doctrinally
significant.
Understanding municipal charters as constitutions, in turn, carries
important normative implications. Properly framed, charters can reinforce the
contested nature of local governments as democratic polities, rather than
administrative arms of the states or quasi-private service providers, at a time
when the democratic underpinnings of localism are under strain. Improving
charter constitutionalism can also serve to legitimate cities and other local
governments by furthering rule-of-law values, such as transparency and
stability.
*Albert A. Walsh Professor of Real Estate, Land Use, and Property Law, Fordham Law School.
For helpful feedback and discussion, the author thanks Yishai Blank, Richard Briffault, Clare
Huntington, Elizabeth Kronk Warner, Joseph Landau, Aaron Saiger, David Schleicher, Richard
Schragger, Christopher Serkin, Nadav Shoked, and Kellen Zale, as well as faculty at the Yale Law
School Chartering the City Conference, the 2018 Property Works in Progress Conference, the Sixth
Annual International and Comparative Urban Law Conference, the Marshall M. Criser
Distinguished Lecture and Workshop at the University of Florida, and the University of Kansas
Law School Faculty Workshop. The author also thanks Shivangi Bhatia, Louis Cholden-Brown,
James Fitzpatrick, Anna Gregg, Kaitlyn Laurie, Charlie Metzger, and Stephanie Salomon for their
excellent research assistance and Kelly Leong in the Fordham Law Library for her diligence and
creativity in ferreting out materials on city charters.
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A newfound appreciation of the conceptual and normative potential of
municipal charters, finally, suggests pathways for reforming the law and
practice surrounding these instruments. This Article thus proposes pragmatic
innovations in how local governments and the states can approach charters,
emphasizing the centrality of inclusive process in ratifying and amending
charters at what are, ultimately, vital local constitutional moments.
INTRODUCTION .......................................................................................... 841
I. MUNICIPAL CHARTERS IN HISTORY AND
CONTEMPORARY PRACTICE ............................................................... 847
A. Charters and the Transformation of the
Municipal Corporation ............................................................ 848
1. Origins in English Legal History .......................................... 848
2. The Early American Divergence in Municipal Identity ......... 850
3. Charters and the Legacy of Home-Rule Reform ................... 852
B. The Varied Modern Law of Municipal Charters .................... 855
1. Adoption, Modification, and the Form of Charters ............... 856
2. Legal Implications of Charter Adoption ............................... 861
C. Themes in Charter Content ..................................................... 864
1. Powers and Boundaries ....................................................... 865
2. Governmental Structure and Administration ........................ 865
3. Political Process, Political Rights, and Local
Direct Democracy .............................................................. 866
4. Sub-Localism ....................................................................... 867
5. Individual Rights .................................................................. 868
6. Other Provisions .................................................................. 869
II. CONSTITUTIONALISM AND “SUBCONSTITUTIONALISM” .................... 870
A. Function, Meaning, and Value in Constitutionalism .............. 871
1. What Constitutions Do—Of Constitutional Function ............ 871
a. Structure, Form, and the Allocation of Power................. 871
b. Framing the Political Process ........................................ 872
c. Rights and the Fundamentality of Constitutional Law ..... 873
2. What Constitutions Mean—Salience and Civic Identity ........ 875
3. The Contested Value of Constitutions ................................... 877
B. “Sub”-Constitutions and “Subconstitutionalism” ................... 879
III. ON THE POSSIBILITIES OF CHARTERS AS LOCAL CONSTITUTIONS .... 881
A. Charters and Local Governments as Democratic Polities ....... 882
1. The Contested Nature of Local Governments ....................... 882
2. Democratic Legitimacy, Local Power, and Charters ............ 885
B. Charters as Focal Points for Democratic Deliberation ............ 887
1. Constitutional Moments and Community Identity ................. 887
2. Defining “Higher Law” at the Local Level ........................... 890
3. Charters in Local Governance and the Rule of Law ............. 892
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C. Normative Concerns with Localism and the Limits of the
Constitutional Analogy ........................................................... 893
1. Reinforcing Local Parochialism or Simply Irrelevant? ......... 894
2. What Distinguishes Charters in Constitutional Terms .......... 896
IV. A REFORM AGENDA FOR CHARTERS ................................................. 898
A. Avenues for Pragmatic Reform .............................................. 898
1. Simple Rules for Complex Instruments ................................. 898
2. The Importance of Local Constitutional Process .................. 900
B. Coda: A Scholarly Agenda for Local Constitutions ............... 902
CONCLUSION ............................................................................................. 904
APPENDIX .................................................................................................. 906
Introduction
Among the understudied legal institutions of local governance—and
there are many1—arguably the most overlooked in the literature is the
municipal charter. If one can imagine studying federal or state constitutional
law without engaging in any depth with the theory and substance of actual
federal or state constitutions themselves, that essentially describes the
discourse in local-government legal scholarship.2
1.See Nestor M. Davidson, Localist Administrative Law, 126 YALE L.J. 564, 574–79 (2017)
(highlighting gaps in the literature on local-government legal-institutional structure); see also
Richard C. Schragger, Can Strong Mayors Empower Weak Cities? On the Power of Local
Executives in a Federal System, 115 YALE L.J. 2542, 2546 (2006) (noting the absence of legal
scholarship on local executives).
2.There is a modest literature on specific city charters, most notably on the charter of New York
City, e.g., John Avlon, Change the Rules and You Change the Game: That’s Why Charter Revisions
Matter in New York City, 58 N.Y.L. SCH. L. REV. 25 (2013–2014); Richard Briffault, The New York
City Charter and the Question of Scale, 42 N.Y.L. SCH. L. REV. 1059 (1998); Chicago, e.g.,
MAUREEN A. FLANAGAN, CHARTER REFORM IN CHICAGO (1987) (describing the history—and
consequences—of Chicago’s failed attempt to adopt its own charter in the Progressive Era); and
Los Angeles, about which Dean Chemerinsky has published a pair of delightful essays reflecting on
his experience as a “Framer” of the city’s 1999 charter revision, Erwin Chemerinsky, On Being a
Framer: The Los Angeles Charter Reform Commission, 2 GREEN BAG 2D 131 (1999); Erwin
Chemerinsky, Further Reflections of a Framer: The Los Angeles Charter Reform Experience, 3
GREEN BAG 2D 125 (1999); see also RAPHAEL SONENSHEIN, THE CITY AT STAKE: SECESSION,
REFORM, AND THE BATTLE FOR LOS ANGELES (2004) (describing the Los Angeles city charter
revision process).
Legal scholars, moreover, at times mention municipal charters in passing in exegeses of local
legal identity or in analyses of specific local-government structural features. See, e.g., Schragger,
supra note 1, at 2547–50 (discussing charters in the context of local executive power); David J.
Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255, 2289–2300 (2003) (discussing charters
as they pertained to home-rule reform); Richard Briffault, Our Localism: Part I—The Structure of
Local Government Law, 90 COLUM. L. REV. 1, 10, 85, 104 n.458 (1990) [hereinafter Briffault, Our
Localism: Part I] (noting the role of charters in passing); Gerald E. Frug, The City as a Legal
Concept, 93 HARV. L. REV. 1057, 1087, 1092–95, 1098 (1980) (briefly exploring the historical link
between charters and municipal identity). None of the extant literature, however, directly engages
with charters as such or explores their constitutional dimensions.
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This is a significant and unfortunate oversight. The municipal charter
has the potential to be as fundamental to our understanding of local
government as constitutions are to our conceptions of federal and state
governments. In functional terms, charters play critical roles in structuring
public institutions, framing political process, and demarcating areas of
“higher” law at the local level. Equally important, however, charters can
serve as focal points for public meaning and democratic legitimacy in ways
that echo other constitutions. Understanding the nature of charters is critical
as cities and other local governments increasingly take on responsibility for
what were once considered state, federal, or even international policy
concerns across a diverse range of domains.3
The varied and complex law of municipal charters—rules on adoption
and amendment as well as the legal force that charters carry—and the actual
content of these instruments have not been subject to sustained scholarly
examination. Charters, however, carry a rich historical pedigree,4 and their
contemporary practice reveals many nuances.5 Familiarly, charters can grant
3.The increasing centrality of cities and other local governments as policy actors—
addressing issues as diverse as economic development, environmental regulation, public health,
antidiscrimination, firearm safety, immigration, the sharing economy, and new technology, among
others—has been well-documented in the scholarly literature. See, e.g., Katrina M. Wyman &
Danielle Spiegel-Feld, The Urban Environmental Renaissance, 108 CALIF. L. REV. 305 (2020)
(exploring the role of cities as environmental lawmakers); Richard C. Schragger, The Attack on
American Cities, 96 TEXAS L. REV. 1163 (2018) (discussing cities’ attempts to regulate in a wide
variety of areas and states’ efforts to preempt those local regulations); Lori Riverstone-Newell, The
Rise of State Preemption Laws in Response to Local Policy Innovation, 47 PUBLIUS 403 (2017)
(same). The importance of cities as policy actors has also been a staple of recent popular discourse.
E.g., BRUCE KATZ & JEREMY NOWAK, THE NEW LOCALISM: HOW CITIES CAN THRIVE IN THE AGE
OF POPULISM (2017); BENJAMIN R. BARBER, IF MAYORS RULED THE WORLD: DYSFUNCTIONAL
NATIONS, RISING CITIES (2013).
4.See infra subpart I(A). For example, the Carta Civilibus Londonarum, the City of London’s
charter, dating back to the year 1100, served as the model for early American charters. DALE
KRANE, PLATON N. RIGOS & MELVIN B. HILL JR., HOME RULE IN AMERICA: A FIFTY-STATE
HANDBOOK 7 (2001). Historical conflicts with the British monarchy and Parliament over London’s
charter, moreover, shaped early understandings of local sovereignty in the United States. See
Barron, supra note 2, at 2277 (“The great seventeenth-century battle over the revocation of
London’s city charter . . . remained a live precedent to many early-nineteenth-century Americans.”).
In U.S. history, the development of the city charter reflects the corporate roots of municipal law and
a parallel history of the transformation of municipal corporations into recognizably public entities.
See Frug, supra note 2, at 1099–1109 (discussing the development of the public–private distinction
in American corporate law); James E. Herget, The Missing Power of Local Governments: A
Divergence Between Text and Practice in Our Early State Constitutions, 62 VA. L. REV. 999, 1005
(1976) (observing that early American law “treated units of local government as corporations”).
5.Among the questions relevant to understanding the law of municipal charters are who are
authorized to draft and adopt them, by what process, under what state constitutional or statutory
constraints, how they are amended, and perhaps most importantly, what legal implications flow
from their adoption. As the Article outlines, there is significant variation across the states on these
questions. See infra subpart I(B). For example, charters are not legally mandatory in all states;
indeed, some states do not allow cities to adopt their own charters and many local governments do
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local governments powers and immunities from oversight not shared by non-
charter municipalities.6 Although this home-rule valence has been the
primary focus of the modest extant literature,7 charters perform much broader
functions. These instruments, for example, structure public institutions and
allocate authority within local governments as well as between municipalities
and their residents. Municipal charters thus delineate local separation of
powers (or its frequent absence), create administrative bodies and channel
legislative delegation, and set the terms of local political process. Perhaps
surprisingly, some charters also provide local protection for individual rights,
many of which have no parallels in state or federal constitutional law.8
Shifting from the descriptive to the conceptual, how might we best
understand the functional role and meaning of municipal charters in
constitutional terms? Although there is much theoretical and normative
debate in the literature on constitutionalism,9 there is at least a rough
consensus that constitutions mark a realm of lawmaking paradigmatically
more insulated from the normal political process than ordinary legislation—
intentionally harder to adopt and correspondingly harder to amend.10 That
not have charters. Where a community is not authorized to adopt a charter or is authorized but has
chosen not to do so, state law generally defines the structure and authority of that local government.
See 2A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 9:7 (3d ed. 2006)
(outlining different kinds of municipal charters in general).
6.See infra section I(B)(2).
7.See supra note 2. Home rule generally refers to local-government legal authority under state
constitutional and statutory law, including the formal power to act as well as immunity from state
interference with local policy and governance choices. KRANE ET AL., supra note 4, at ix. Home
rule, which varies significantly from state to state and even within states for different types of local
governments, is often contrasted with a narrower view of local legal authority known as “Dillon’s
Rule,” after the influential nineteenth-century Iowa jurist Judge John F. Dillon. Dillon’s Rule asserts
that local power must be explicitly delegated from the state and that such delegations should be
narrowly construed. See id. at 9–10 (describing Dillon’s Rule); Barron, supra note 2, at 2278 (same);
Briffault, Our Localism: Part I, supra note 2, at 8 (same).
8.Political rights include voting, ballot access, and local procedural protections in legislative
and administrative contexts. See, e.g., MacMann v. Matthes, 843 F.3d 770, 775 (8th Cir. 2016)
(discussing referenda processes and resident rights under the Columbia City Charter and the
Missouri Constitution). On examples of individual rights provisions in municipal charters, including
local-level bills of rights, see infra text accompanying notes 130–34.
Some charters contain an array of other provisions, often with little clarity as to what
distinguishes “charter-worthy” lawmaking from ordinary local ordinances. In this way, municipal
charters bear some semblance to many state constitutions, which are notoriously “statute-like” and
amended with relatively great frequency. See Bruce E. Cain & Roger G. Noll, Malleable
Constitutions: Reflections on State Constitutional Reform, 87 TEXAS L. REV. 1517, 1524, 1542
(2009) (commenting on the frequency of state constitutional amendments and observing that state
constitutions often “includ[e] policies that would normally be found in statutes”).
9.See infra subpart II(A).
10.See Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional
Commitment, 124 HARV. L. REV. 657, 663 (2011) (arguing that “the institutional arrangements that
place power in the hands of . . . [constitutionally empowered] decisionmakers must themselves be
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political insulation, in turn, implies a different role for the judiciary in
applying what can be characterized as fundamental law, whether in terms of
political structure or individual rights.11 Although local governments are
largely ignored in constitutional discourse,12 charters too can serve this
traditional constitutional function of enshrining “higher” law, albeit at the
local level.13
Foregrounding the constitutional nature of municipal charters carries
normative implications. Charter constitutionalism, first, can reinforce the
public and democratic nature of local governments at a moment when that
identity is increasingly contested.14 Municipalities have long had an
relatively stable, not subject to revision or subversion by the opponents of constitutionally desirable
outcomes”). But see Christopher Serkin & Nelson Tebbe, Is the Constitution Special?, 101
CORNELL L. REV. 701 (2016) (noting and critiquing the widespread view that constitutional law is
distinctive in the link between the process of ratification and democratic legitimacy). In some states,
“charters” are understood to include all legislation related to the municipal corporation, whether
specified in a single document or not. See, e.g., Lucas v. Bd. of Cty. Rd. Comm’rs, 348 N.W.2d
660, 667 (Mich. 1984) (“[T]here is ample authority for the proposition that statutory provisions not
mentioned per se in a municipal charter are automatically read into the charter and become a part
thereof.”). One consequence of conceiving of charters in constitutional terms would be recognizing
the value of narrowing this doctrine to make clear that only what appears in a clearly delineated
charter adopted by a polity as such should be considered fundamental. See infra subpart III(B).
11.Cf. People v. Morris, 13 Wend. 325, 334 (N.Y. Sup. Ct. 1835) (describing local charters as
bills of rights).
12.As Ran Hirschl has recently argued:
Cities feature centrally in canonical political theory texts (e.g., Plato’s Republic,
Machiavelli’s The Prince, and Marx and Engels’s The German Ideology) as well as in
utopian and avant-garde social thought (e.g., Campanella’s The City of the Sun, Charles
Fourier’s imagined community of Phalanstère, the Paris Commune (1871), or Walter
Benjamin’s The Paris Arcades Project). Novel thinking about urbanization and cities
is prevalent throughout the human sciences; Henri Lefebvre’s Le droit à la ville, Saskia
Sassen’s work on global cities, Paul Krugman’s theorization of megacities as
economies of scale, Richard Florida’s ideas about cities as magnets for the creative
classes, and Benjamin Barber’s If Mayors Ruled the World are merely a few examples
of this scholarly richness. By stark contrast, very little of this intellectual flurry has
penetrated constitutional law, let alone comparative constitutional law, where the city
is virtually nonexistent.
RAN HIRSCHL, CITY, STATE: CONSTITUTIONALISM AND THE MEGACITY 9–10 (2020).
13.The literature on the federal Constitution, vast and ever growing, hardly needs a “see, e.g.”
citation to acknowledge. There is also a rich, burgeoning literature on state constitutions and state
constitutional law, however, and here a small sample of the literature bears mention. See, e.g.,
EMILY ZACKIN, LOOKING FOR RIGHTS IN ALL THE WRONG PLACES: WHY STATE CONSTITUTIONS
CONTAIN AMERICA’S POSITIVE RIGHTS 2–3 (2013) (rejecting the view that the United States lacks
a “positive rights” tradition and urging readers to look instead to state constitutions, which “have
long mandated active government intervention in social and economic life”); G. ALAN TARR,
UNDERSTANDING STATE CONSTITUTIONS 1–3 (1998) (underscoring the importance of state
constitutions in American life). This literature is explored in greater depth throughout this Article.
See infra Part II.
14.See generally Richard Briffault, The Challenge of the New Preemption, 70 STAN. L. REV.
1995 (2018) (observing that in recent years, states have frequently and aggressively preempted
local-government policies); Erin Adele Scharff, Hyper Preemption: A Reordering of the State–
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inherently ambiguous legal status—at times viewed as arms of the state15 or
as quasi-private service providers.16 As states aggressively limit or block
local policies, cities are grappling with ways to reinforce their regulatory
authority to confront an array of challenges.17 Although not dispositive,
elevating charters as constitutions has the potential to reinforce and legitimate
the public nature of local governments, helping local governments claim the
mantle of democratic polity more forcefully.
A second normative implication of a constitutional understanding of
charters is their potential to serve as a focal point for democratic deliberation
and civic identity. The literature on constitutionalism underscores ways in
which these foundational instruments shape legal cultures.18 Having a forum
and a process to delineate a realm of higher law at the local level—in terms
of structure, political process, and rights—not only can signal to courts the
distinctive importance of provisions embodied in charters but also can
channel a community’s self-determination.19 It can also reinforce rule-of-law
values by rendering governance choices more salient and stable.20 Municipal
Local Relationship?, 106 GEO. L.J. 1469 (2018) (same); Schragger, supra note 3 (same). The advent
of the coronavirus pandemic has also sharpened conflicts between local governments and states
around public health. See, e.g., Lindsay F. Wiley, Democratizing the Law of Social Distancing,
YALE J. HEALTH POL’Y L. & ETHICS, Dec. 2020, at 50 (discussing preemption of local authority
among the structural constraints on pandemic responses); see also Complaint for Declaratory and
Injunctive Relief at 9, Kemp v. Bottoms, No. 2020CV338387 (Fulton Cty. Super. Ct. July 16, 2020)
(asserting in a lawsuit by the Georgia governor against the Atlanta mayor and other local officials
that the governor’s pandemic-emergency executive orders preempted the city’s public health
measures, including a mandate on mask-wearing).
15.See, e.g., Aaron Saiger, Local Government as a Choice of Agency Form, 77 OHIO ST. L.J.
423, 431 (2016) (describing local governments “as ‘agents’ of the state”).
16.See generally Gerald E. Frug, City Services, 73 N.Y.U. L. REV. 23 (1998) (discussing local
service provision). This quasi-private conception of local governments echoes their shared origins
with other corporate forms. Frug, supra note 2, at 1095–98; see also HENDRIK HARTOG, PUBLIC
PROPERTY AND PRIVATE POWER: THE CORPORATION OF THE CITY OF NEW YORK IN AMERICAN
LAW, 1730–1870, at 2 (1983) (describing municipalities as corporations created “solely for the
purpose of providing subordinate administration”). Indeed, it is still common to talk about
“municipal incorporation” and label cities by their corporate names.
17.Municipal regulatory identity has traditionally centered around issues such as education and
land use. Briffault, Our Localism: Part I, supra note 2, at 99. But in recent decades, cities are
increasingly addressing a much broader array of policy challenges. See supra note 3.
18.See HIRSCHL, supra note 12, at 16 (“From a normative and poetic standpoint, constitutions,
constitutional institutions, and constitutional jurisprudence do more than allocating competences,
powers, and rights;” rather, “[t]aken together, they define and signal who we are as a political
community, what moral and political ideals we cherish and strive for, and how we wish for others
to reflect upon our polity”).
19.See infra subpart II(B).
20.It is certainly fair to raise concerns about the entrenchment of structural and policy choices
that can arise from an instrument that embodies the counter-majoritarian nature of constitutional
law. See Christopher Serkin, Public Entrenchment Through Private Law: Binding Local
Governments, 78 U. CHI. L. REV. 879, 887–88 (2011) (defining entrenchment as an action that
“limits the policy choices available to future governments”). In refining and sharpening local
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charters should thus be understood less as public analogues to the corporate
charters with which they share common origins21 and much more as loci for
public meaning.
There are limits, of course, to the analogy between municipal charters,
on one hand, and state constitutions and the federal Constitution (as well as
other national constitutions) on the other. Charters are creations of state law
even if they have independent legal significance within local governments.22
As such, the scope of charters is materially defined by law external to the
polities that adopt them, and charter law is often subject to state override.23
Charters are also nonmandatory—it is possible (and not entirely uncommon)
for municipalities not to adopt their own charters or for states not to authorize
such adoption.24 But all these distinctions are contingent and worth
interrogating.
In that light, then, this Article’s conceptual and normative frame
suggests pathways for the pragmatic reform of charter law and practice.
Despite significant institutional variety at the local level, taking charters
seriously as constitutions suggests a few simple rules cities should consider
when adopting or amending these texts.25 Charters should be clearly
identifiable, as such, to focus their salience; relatively parsimonious to mark
their content as distinctive; and concerned with recognizably fundamental
questions across structure, political process, and rights.26 Procedurally,
governance, charters could also exacerbate the risk of parochialism and exclusion at the local level,
a perennial concern in debates about local legal empowerment. But there are targeted ways to
address these concerns, and there are clear benefits to transparent local constitutionalism. See infra
subpart III(C).
21.Frug, supra note 2, at 1095–98; Herget, supra note 4, at 1004–06.
22.Alan Tarr has noted:
[I]n most federal systems, the federal constitution is an “incomplete” framework
document in that it does not prescribe all constitutional processes and arrangements.
Rather, it leaves “space” in the federal system’s constitutional architecture to be filled
by the constitutions of its sub-national units, even while it sets parameters within which
those units are permitted to act.
G. Alan Tarr, Explaining Sub-National Constitutional Space, 115 PENN ST. L. REV. 1133, 1133
(2011). Much the same can be said for the relationship between state law and the local
constitutionalism embodied in municipal charters, although there are notable differences in what
might be considered the sub-sub-national constitutional space. See infra section III(C)(2).
23.State constitutions are, of course, subordinate to federal law under the Supremacy Clause,
U.S. CONST. art. VI, cl. 2, so this is a difference of degree rather than of kind.
24.The fact that many local governments do not have self-adopted charters itself presents a
puzzle. Why would a local government, given a choice, not adopt a charter and announce itself as
an independent public governing body? The reasons are hard to discern definitively, but the cost of
maintaining the structures that come with charters may outweigh any benefits that flow from
additional authority and customization. For further discussion, see infra subpart III(A).
25.See infra subpart IV(A).
26.Moreover, not only should local governments that have adopted charters attend more fully
to them, elevating and clarifying their role as fundamental law, but local governments that have not
adopted charters should do so, to the extent they are authorized.
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charter adoption and amendment should be inclusive, grounded in expertise,
and infrequent, reflecting the gravity of the constitutional moment at issue.27
This Article, in sum, seeks to make four contributions to the literature
and proceeds accordingly. Part I provides an empirical analysis of the
patterns of adoption, function, and content of contemporary municipal
charters—a grounding absent from current scholarship. From this, Part II
provides a new conceptual framework for understanding the roles that
charters can play in local governance: guiding local deliberations about
governmental structure, marking community identity, and enshrining
fundamental values. This conceptual framework then yields normative
claims, elaborated in Part III, grounded in the democratic legitimating
potential of constitutionalism in local governance. And the Article concludes
in Part IV by building on these foundations to outline potential reforms to
charter practice.
This is, no doubt, great weight to put on a single legal instrument.28
However, if we are to take local democracy seriously—and we should, now
more than ever, when cities are leading so much of the national policy
discourse in the face of significant legal headwinds—then legal scholars must
attend to the institutional structures of the level of governance closest to the
governed.29 In that task, the too-often-neglected local constitution, the
municipal charter, is a vital core.
I. Municipal Charters in History and Contemporary Practice
Understanding municipal charters as constitutions requires an empirical
foundation. This Part thus begins with a review of the historical development
of charters in Anglo-American law. It then turns to the ways in which state
and local law address charters today, focusing on charter authorization as
well as the legal consequences of charter adoption. This Part, finally, rounds
27.See infra subpart IV(A).
28.On the necessity of modesty regarding claims about the value of constitutions, Walton
Hamilton’s entry on constitutionalism for the Encyclopedia of the Social Sciences is an apt
reminder: “Constitutionalism is the name given to the trust which men repose in the power of words
engrossed on parchment to keep a government in order.” Gerhard Caspar, Constitutionalism 3 (U.
Chi. L. Sch., Occasional Paper No. 22, 1987) (quoting Hamilton).
29.This Article at times uses city as a synecdoche for all local governments, but charters exist
in municipalities of all sizes and counties as well. This Article should thus be read with sensitivity
to scalar differences. For example, arguments from democratic legitimacy may play out differently
in small towns, moderate-sized suburbs, and large global cities. Cf. Richard Briffault, Our Localism:
Part II—Localism and Legal Theory, 90 COLUM. L. REV. 346, 346–56 (1990) (exploring the
“triangular relationship” among a city, its suburbs, and the state government). But there are
sufficient unifying aspects to the role that charters play in all of these local governments to warrant
isolating and elevating this particular aspect of local constitutionalism. The Article, moreover,
focuses on local governments of general jurisdiction, bracketing other local bodies that do not play
the same democratic role in governance. See generally George W. Liebmann, The New American
Local Government, 34 URB. LAW. 93 (2002) (examining special districts and similar local entities).
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out this groundwork discussion with a sampling of common provisions in
contemporary charters to illustrate what these instruments actually contain.
A. Charters and the Transformation of the Municipal Corporation
Charters have been inextricably linked to the development of local-
government law since at least the Norman Conquest. As this subpart outlines,
the municipal charter was a critical element in the transformation of
communities in England into genuine polities, and it likewise played a central
role in the vicissitudes of local legal identity in the United States from the
Founding through successive waves of home-rule reform.
1. Origins in English Legal History.—The Magna Carta, or Great
Charter, has taken on the role of a foundational constitutional moment in
Anglo-American legal history,30 but in English history, municipal charters
were also fundamental in establishing political rights and the allocation of
authority in the long path out of feudalism. In 1066, William the Conqueror
confirmed the special status of London granted under the Saxon kings,
promising not to disturb the city’s ancient liberties,31 and in 1100, King
Henry I formally recognized the city’s status in the Carta Civilibus
Londonarum—the municipal charter of the City of London.32
The Carta Civilibus Londonarum contained the seeds of local self-
government, granting citizens the right to elect their sheriff, power to hold
their own courts (while exempting them from all other courts), and protection
30.See Jill Lapore, The Rule of History: Magna Carta, the Bill of Rights, and the Hold of Time,
NEW YORKER, Apr. 20, 2015 (highlighting the importance of the Magna Carta in American legal
and political culture); see also MAGNA CARTA AND ITS MODERN LEGACY (Robert Hazell & James
Melton eds., 2015) (collecting essays on the Magna Carta’s lasting influence).
31.The charter of 1066, which is still held in the London Metropolitan Archives (ref. COL/CH
/01/001/A), was brief and to the point:
William the King greets William the Bishop and Gosfrith the Port Reeve, and all the
burghers of London, both French and English, cordially. And I will have you know
that I desire you to be worthy of all the laws that you were worthy of in King Edward’s
day. And I will that every child be his father’s heir after his father’s death. And I will
suffer no man to do you injury. God have you in His Holy Keeping.
WILLIAM BENNETT MUNRO, MUNICIPAL GOVERNMENT AND ADMINISTRATION 47 n.1 (1923). The
Port Reeve or Portwarden was, at the time, the official charged with authority over the town (“port”
in this sense meaning a place of trade, not a seaport)—essentially a proto-mayor. The official
website of the City of London formerly noted, only slightly grandiosely, that “[t]hese few lines may
have laid the foundation for the parliamentary democracy we have today and created a model for
cantonal governance that the British Empire made global.” CITY OF LONDON, THE LONDON
CHARTER OF LIBERTIES, https://www.cityoflondon.gov.uk/things-to-do/london-metropolitan-
archives/the-collections/Pages/london-charter-of-liberties.aspx (webpage no longer available).
32.MUNRO, supra note 31, at 47; see also KRANE ET AL., supra note 4, at 7. When William the
Conqueror took England in 1066, proto-local governments were in place. The Saxon tun, or
township, run by the tything, an elected representative system of government, became the Norman
vill, or village. JOHN J. CLARKE, A HISTORY OF LOCAL GOVERNMENT OF THE UNITED KINGDOM
8, 10 (1955).
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from certain general duties and special exactions.33 Among the concessions
forced on King John in the Magna Carta in 1215 were a reaffirmation of
London’s rights and an expansion of royal protection for “liberties and free
customs” to all townships.34 During this period, municipal charters in
England slowly began to protect local political communities and express the
structural elements of their governance.35
A critical turning point in the development of municipal charters in
English legal history came with the attack by King Charles II on London’s
charter in the late seventeenth century.36 The short version of this
complicated history is that Charles was concerned that Parliament would bar
his brother James, the Duke of York, from ascending to the throne because
of James’s Catholicism, and one way to influence the vote was to control the
representatives to Parliament elected by the governing bodies of the
boroughs. In 1682, Charles drew on a long-standing proceeding, the quo
warranto—an action seeking forfeiture of a charter for violations of the
document—alleging (successfully) that London had the temerity to impose
tolls on goods coming to market in the city and to petition the King to
summon Parliament.37 The resulting forfeiture of London’s charter paved the
way for the surrender of many other borough charters under the threat of quo
warranto proceedings in the reigns of Charles and James II.38
33.MUNRO, supra note 31, at 47. In this regard, London’s Carta tellingly addressed not only
government structure, but it was also understood as a model of a grant of rights and liberties to the
city’s citizens. London was granted a new charter in 1191, extending local franchise to include the
right to elect a mayor. English boroughs developed legal authority primarily around their roles as
centers of trade, and the legal structures that governed English local-government law reflected this.
See JON C. TEAFORD, THE MUNICIPAL REVOLUTION IN AMERICA: ORIGINS OF MODERN URBAN
GOVERNMENT 1650–1825, at 6–15 (1975) (discussing the role of merchants in early English urban
governance and the primacy of trade as a municipal regulatory focus).
34.MUNRO, supra note 31, at 48 n.1.
35.Charters—municipal and otherwise—had long been an instrument of royal prerogative, but
concerns of local self-governance edged into their intersection for borough charters. For example,
King Richard I, in the era before the Magna Carta, sold charters to fund crusades, exchanging
revenue for a certain, albeit limited, modicum of local independence, such as courts free of royal
jurisdiction. Id. at 48.
36.See generally JENNIFER LEVIN, THE CHARTER CONTROVERSY IN THE CITY OF LONDON,
1660–1688, AND ITS CONSEQUENCES (1969) (recounting the history of the attack on London’s
charter by Charles II).
37.JOHN SHORTT, INFORMATIONS (CRIMINAL AND QUO WARRANTO), MANDAMUS, AND
PROHIBITION 147 (1888); see also LEVIN, supra note 36, at 49 (describing the judgment for
forfeiture for an “illegal by-law” setting a toll and a “libellous Petition”).
38.London technically surrendered its charter before judgment demanding its forfeiture could
be enforced, seeking to preserve the legal fiction that it had not dissolved as a corporate body and
thus could have its ancient liberties eventually returned by the sovereign. LEVIN, supra note 36, at
50–52. After the 1683 quo warranto decision, London was governed by a Royal Commission. The
King appointed all officers—the lord mayor, sheriffs, and sixteen justices of the peace, among other
city officials. Id. at 55.
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850 Texas Law Review [Vol. 99:839
In 1688, however, the Glorious Revolution ended James’s reign, and the
succeeding reign of William and Mary was marked by reversal of the London
forfeiture as well as restoration of other municipal charters.39 This established
the principle that a municipal charter, once granted, could not be revoked by
the crown,40 although local governments in England—like cities today in
most states—remained subject to legislative oversight.41
2. The Early American Divergence in Municipal Identity.—London’s
charter—and late seventeenth-century conflicts over its revocation and
restoration—helped shape the colonial understanding of the nature of local
governments,42 with the charter serving as the model for a number of early
American charters.43 At the time of the Founding, the basic concept of
charters was relatively similar for colonies, cities, and companies;44 although
in substance, colonial local-government charters were tailored to their
functions.45 Indeed, Mary Bilder and Nikolas Bowie have argued
persuasively that conflicts over charters—corporate, municipal, and
colonial—were deeply influential in the development of a distinctive U.S.
constitutional culture, including the institution of judicial review.46
39.Frug, supra note 2, at 1094.
40.See SHORTT, supra note 37, at 147 (“The judgment against the corporation of the City of
London was reversed as illegal and arbitrary . . . and it was declared . . . and enacted . . . that the
mayor and commonalty and citizens should forever after continue a body corporate and without any
seizure or forejudger of their franchises, liberties, or privileges on pretence of any forfeiture or
misdemeanor.”).
41.See Frug, supra note 2, at 1094 (noting that after the Glorious Revolution, Parliament still
had “absolute power to dissolve corporations,” including municipalities).
42.As David Barron has noted, the “great seventeenth-century battle over the revocation of
London’s city charter,” echoed as “a live precedent to many early-nineteenth-century Americans.”
Barron, supra note 2, at 2277.
43.KRANE ET AL., supra note 4, at 7; see also TEAFORD, supra note 33, at 3 (noting the
transplantation of Elizabethan municipal corporate form to “urban centers flanking the Hudson, the
Delaware, and the James”).
44.HARTOG, supra note 16, at 185 (“One reason why there was no ‘law’ of municipal
corporations [in early America] was because chartered cities were already part of an undifferentiated
‘law’ of corporations.”).
45.New York’s 1686 charter, for instance, provided for a Common Council comprised of, for
instance, aldermen who were elected by popular vote and a mayor. MUNRO, supra note 31, at 86,
88. The city’s Common Council had the power to pass ordinances, provided they were not contrary
to laws of England. Id. at 86–87.
46.See generally MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL
LEGAL CULTURE AND THE EMPIRE (2004) (discussing colonial America’s transatlantic legal
culture); Nikolas Bowie, Why the Constitution Was Written Down, 71 STAN. L. REV. 1397 (2019)
(exploring the foundations of U.S.-written constitutionalism in quo warranto litigation over the
Massachusetts Bay Colony’s charter); Mary Sarah Bilder, Charter Constitutionalism: The Myth of
Edward Coke and the Virginia Charter, 94 N.C. L. REV. 1545 (2016) (examining early written
constitutionalism in the American colonies, especially in letters patent); Mary Sarah Bilder, The
Corporate Origins of Judicial Review, 116 YALE L.J. 502 (2006) (arguing that the institution of
judicial review originated in English corporate law).
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As Gerald Frug has extensively explored, however, the early post-
Revolutionary American history of local-government law is a story of
divergence between municipal corporations and private corporations, a
divergence that continues to echo in the nature of the charters of each
institution.47 Private charters, and private corporations in general, eventually
gained immunity from legislative revocation through a property-rights frame
vindicated in the Supreme Court’s Trustees of Dartmouth College v.
Woodward48 case.49 At the same time, municipalities (and their charters)
came to be understood as subordinate to the states as a legal matter, reversing
what had been the understanding in at least some of the colonies about the
local–state relationship.50 As this formal subordination ripened in the
nineteenth century to become the prevailing view of local legal identity,
known as Dillon’s Rule, courts drew on rules of construction for corporate
charters in narrowly interpreting state delegations of authority to cities.51 As
47.Frug, supra note 2, at 1099–1109; see also HARTOG, supra note 16, at 3–4 (discussing the
corporate origins of early American cities and the public–private divergence in corporate identity).
James Herget notes that despite a prevailing understanding of the importance of written
constitutionalism at the time of the Revolution, “the original state constitutions did not allocate any
governmental power to local governments.” Herget, supra note 4, at 1002.
48.17 U.S. (4 Wheat.) 518 (1819).
49.See Frug, supra note 2, at 1102–03 (discussing the development of the public–private
distinction in corporate law and Trustees of Dartmouth College); see also JAMES WILLARD HURST,
THE LEGITIMACY OF THE BUSINESS CORPORATION IN THE LAW OF THE UNITED STATES, 1780–
1970, at 60 (1970) (discussing the accretive nature of the divergence between private and public
corporations).
50.See generally Amasa M. Eaton, The Right to Local Self-Government, 13 HARV. L. REV. 441
(1900) (discussing colonial understandings of local government). The right to local self-government
is often associated—in contrast to Dillon’s Rule—with Thomas Cooley, who argued famously that
the “right in the state is a right, not to run and operate the machinery of local government, but to
provide for it and put it in motion.” People ex rel. LeRoy v. Hurlbut, 24 Mich. 44, 111 (Mich. 1871);
see also David J. Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U.
PA. L. REV. 487, 515–21 (1999) (explicating Cooley’s approach to local governments). An
important shift in local-government law in the immediate post-Revolutionary era was transfer of the
power to charter from the executive (formerly a royal prerogative) to the legislative branch in the
states. Charter issuance—and amendment—became ordinary state legislation. MUNRO, supra note
31, at 91.
51.1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS 448–50
(5th ed. 1911); see also HARTOG, supra note 16, at 183 n.14 (commenting on the Rule’s corporate
origin); Briffault, Our Localism: Part I, supra note 2, at 9 n.18 (discussing this history).
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852 Texas Law Review [Vol. 99:839
with the state wresting control of other instruments of local governance,
states in the pre-home-rule-reform era enjoyed significant control over
municipal charters.52
3. Charters and the Legacy of Home-Rule Reform.—Much of the history
of the development of local legal identity in the first century of U.S. history
involved the subjugation of municipalities and their governing structures in
state law and an understanding of local authority as inherently constrained—
with the charter reflecting that transformation. The next critical turning point
in the development of the charter arrived with the first wave of home-rule
reform, starting after the Civil War and fueled by the rapid urbanization the
country experienced in that era.53 When Progressive Era reformers sought to
claim urban power in restructuring state–local relations, they looked to the
charter as the instrument to protect local legal identity. Many first-wave
home-rule constitutional provisions were designed, accordingly, to link the
scope of local legal autonomy to charter adoption.
The home-rule movement of the late nineteenth century had its first
success in Missouri in 1875, with a state constitutional amendment that
authorized cities with populations over 100,000 to adopt a charter,54 which
St. Louis (the only city of that size in the state at the time) subsequently did.55
Missouri constrained and channeled local discretion to adopt and modify the
charter, creating a Board of Freeholders made up of property owners in the
city to draft the charter and restricting local power to amend the charter to
two-year intervals, and only then by a supermajority.56 But the innovation of
local adoption was a major milestone in the development of charters in the
United States nonetheless, echoing fights over the power of charter grants in
English history.
52.See Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The
Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 COLUM.
L. REV. 775, 805 (1992) (describing the nineteenth-century pre-home-rule movement practice of
“rural-dominated state legislatures” adopting evocatively named “ripper bills” that took core local
governance functions, such as the appointment of local officials, out of the hands of cities).
53.On the history of home-rule reform, see generally Barron, supra note 2.
54.MO. CONST. of 1875, art. IX, § 16.
55.As David Barron has noted:
Under the Missouri Constitution, the charter would set forth the city’s powers and the
form that its government would take. The charter also would define the scope of city
power in important respects and, in this way, would take the place of a general
municipal incorporation act or state legislation directed at St. Louis in particular. In
addition, the state constitutional conferral of home rule would provide the city with
some immunity from state legislative preemption, at least over what courts took to
terming matters of “local” concern. Finally, home rule would confer some measure of
local initiatory power that could be exercised independent of an express and specific
state statutory delegation.
Barron, supra note 2, at 2290.
56.Id. at 2297–98.
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First-wave home-rule advocates focused on charters as an instrument of
local power in part because, as David Barron has argued, they shared a
significant concern for structural reform within cities.57 An influential good-
government group of the time, the National Municipal League,58 developed
a model city charter first to promote the idea of the strong-mayor form of
government and then, beginning in 1915, to emphasize a more technocratic
council–manager structure as an ideal type of municipal reform.59 Regardless
of the specific details of structure, however, early reformers were united in
their focus on channeling home rule through the adoption of charters with the
recognition that enhanced self-government was inextricably linked to that
process.60
57.Id. At the time, municipal charters were generally seen as inflexible, distributing power so
incoherently that neither a city council, a mayor, nor a state legislature could be held accountable
for governance failures. See CLIFFORD WHEELER PATTON, THE BATTLE FOR MUNICIPAL REFORM:
MOBILIZATION AND ATTACK, 1875–1900, at 59 (1940) (describing several such failures).
Corruption was also an abiding concern at both the state and the local level for Progressive Era
advocates. Id. at 61. An important impetus for linking home rule to charter reform was therefore
simultaneously a desire to protect local governments from unreasonable state interference and to
transform the actual governance structure of local governments. See ERNEST S. GRIFFITH, A
HISTORY OF AMERICAN CITY GOVERNMENT: THE PROGRESSIVE YEARS AND THEIR AFTERMATH,
1900–1920, at 28 (1974) (discussing the scope of municipal reform in the Progressive Era).
58.On the National Municipal League and the origins of its Model City Charter, see FRANK
MANN STEWART, A HALF CENTURY OF MUNICIPAL REFORM: THE HISTORY OF THE NATIONAL
MUNICIPAL LEAGUE 98–101 (1950). To get a sense of the level of attention the first model city
charter garnered, among the attendees at the Municipal League of Philadelphia and the City Club
of New York’s “First National Conference for Good City Government” in January 1894 were
“Theodore Roosevelt, then a member of the U.S. Civil Service Commission; Charles W. Eliot,
president of Harvard University; Marshall Field, a prominent Chicago businessman; and future
cabinet members Charles Francis Adams and Charles J. Bonaparte.” H. George Frederickson, Curtis
Wood & Brett Logan, How American City Governments Have Changed: The Evolution of the Model
City Charter, 90 NAT’L CIVIC REV. 3, 4 (2003).
59.See Schragger, supra note 1, at 2547–48 (noting the early endorsement by the National
Municipal League in its first Model City Charter in 1901 of a strong-mayor form, citing NAT’L
MUN. LEAGUE, A MUNICIPAL PROGRAM (1901), and the League’s ensuing about-face in the 1915
second edition of its model). For more on the continuing impact of the Model City Charter, see infra
subpart I(C).
60.As Howard Lee McBain, a widely influential political scientist and Progressive Era
reformer, summarized the relationship between the charter and home rule:
[I]t is of high importance in the interest of legal certainty that the power to adopt and
amend the municipal charter should be granted to the end that the powers of self-
government may be realized; or, to put it conversely, that the powers of self-
government should be clearly made dependent for their realization upon the exercise
of the charter-making power.
HOWARD LEE MCBAIN, THE LAW AND THE PRACTICE OF MUNICIPAL HOME RULE 668–69 (1916).
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Taking this brief history of charter development from the post-
Progressive Era through today, successive waves of home-rule reform and
revision have continued to look to the charter as a focal point. In 1953,
another major civic organization, the American Municipal Association
(AMA) (which later became the National League of Cities),61 published
Model Constitutional Provisions for Municipal Home Rule.62 Jefferson
Fordham, then Dean of the University of Pennsylvania Law School and the
era’s leading scholar of local-government law, was the principal drafter of
the AMA’s Model. The Fordham Model, as it came to be known, proposed a
number of changes over then-prevailing home-rule approaches, notably
decoupling the first-wave reformers’ linkage between the adoption of
charters and the grant of home rule.63 The Fordham Model proved highly
influential, shaping nearly all state constitutional reform of local government
after 1953.64
* * *
61.In 1964, the AMA renamed itself the National League of Cities, and today it is the largest
association of municipal officials.
62.JEFFERSON B. FORDHAM, AM. MUN. ASS’N, MODEL CONSTITUTIONAL PROVISIONS FOR
MUNICIPAL HOME RULE (1953).
63.Dean Fordham described the linkage as the “McBain” conception of home rule, referencing
Howard Lee McBain, who had supplied much of the intellectual heft to earlier conceptions of home
rule. The Fordham Model, by contrast, proposed a significant shift from earlier conceptions about
the actual effect of charter adoption. To Fordham, the earlier model had treated the charter as “an
instrument of grant,” which is to say the tool through which a local government obtained home-rule
powers. The Fordham Model, by contrast, shifted its understanding of charters to an instrument of
limitation given that the Fordham Model provided “direct constitutional devolution of substantive
home rule powers dependent upon the adoption of a home rule charter.” FORDHAM, supra note 62,
at 19–20; cf. MCBAIN, supra note 60, at 668–69 (conceptualizing charters as power-granting texts).
64.U.S. ADVISORY COMMISSION ON INTERGOVERNMENTAL REL., MEASURING LOCAL
DISCRETIONARY AUTHORITY 6 (1981). The AMA’s successor organization, the National League
of Cities, recently promulgated a new model constitutional approach to home rule that
conspicuously brackets the interplay between charters and home rule. See NAT’L LEAGUE OF
CITIES, PRINCIPLES OF HOME RULE FOR THE 21ST CENTURY 30–31 (2020) (noting that the model
constitutional article leaves open the question of the link between charters and home rule).
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In short, a legal instrument with roots in royal grants of authority and
indistinguishable from other types of charters has long served basic
constitutive functions in local governance, imbued increasingly, albeit
unevenly, with constitutional meaning as the legal identity of cities has
developed. Today, the modern law of charters reflects many aspects of this
historical development, leaving a legacy of tremendous variation across
states, as we shall now see.
B. The Varied Modern Law of Municipal Charters
Turning to the role that charters play today, it is appropriate to begin with
the basic law of charters, which derives primarily from state constitutional
and statutory provisions.65 There is law that flows from charters—ordering
structure and political process,66 as well as influencing the state–local legal
relationship—but there is also the predicate law that governs charters. As this
subpart outlines, this body of law attends to whether and how state law
authorizes adoption, the process through which local governments adopt and
modify charters, and what forms of charters are allowed.
65.As discussed below, see infra text accompanying notes 99–105, there is a state jurisprudence
of charter law that fleshes out the details of the constitutional and statutory law of charters that bears
mention as well, although this discussion—for the sake of parsimony—will focus on the primary
constitutional and statutory sources of that jurisprudence.
It bears noting as well that there are no meaningful direct federal constitutional constraints on
charter law. As is often noted, the federal Constitution nowhere mentions local governments. See
Richard Briffault, Home Rule for the Twenty-First Century, 36 URB. LAW. 253, 257 (2004) (“Our
federal constitution is entirely silent with respect to local governments. It makes no reference to
local government at all. From a constitutional perspective, American federalism is a two-tier system,
not the three-tier system we actually experience in our governance.”). And the Republican
Guarantee Clause, U.S. CONST. art. IV, § 4—setting aside questions of justiciability—has not been
interpreted to set the terms for how state law structures local governance. See, e.g., State ex rel.
Porterie v. Smith, 166 So. 72, 82 (La. 1935).
That said, individual rights, such as equal protection and the principle of one-person, one-vote,
can meaningfully shape local charters. Most famously, the U.S. Supreme Court’s decision finding
the part of the New York City Charter that apportioned the city’s Board of Estimate unconstitutional
in Board of Estimate v. Morris, 489 U.S. 688 (1989), provided the impetus for the city’s subsequent
sweeping charter reform. Anthony W. Crowell, Revisionists’ History: A Foreword, 58 N.Y.L. SCH.
L. REV. 11, 14 (2013).
66.See infra subpart I(C).
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856 Texas Law Review [Vol. 99:839
1. Adoption, Modification, and the Form of Charters.—Unlike the federal
government and the states, there is no legal necessity for local governments
to have charters. Some states do not provide legal authority for charters, and
in many states, charters may be adopted by local governments but need not
be. Where there is no locally adopted charter, state law ordinarily fulfills the
function of articulating the structure of local governance and related
constitutive tasks.
To be precise, while forty-four states authorize cities to adopt (or allow
states to grant) municipal charters,67 five states—Alabama,68 Idaho,69
67.ALASKA CONST. art. X, § 9; ARIZ. CONST. art. XIII, § 2; ARK. CODE ANN. § 14-42-307
(2019); CAL. CONST. art. XI, § 3(a); COLO. CONST. art. XX, § 6; CONN. GEN. STAT. § 7-148 (2019);
DEL. CODE ANN. tit. 22, § 802 (2019); FLA. STAT. § 166.021 (2018); GA. CONST. art. IX, § II,
para. II; IOWA CONST. art. III, § 38A; KAN. CONST. art. 12, § 5; LA. CONST. art. VI, § 5; ME.
CONST. art. VIII, pt. 2, § I; MD. CONST. art. XI-E, § 3; MASS. GEN. LAWS ch. 43B, § 13 (2017);
MICH. CONST. art. VII, § 22; MINN. CONST. art. XII, § 4; MISS. CODE ANN. § 21-3-1 (2019); MO.
CONST. art. VI, § 19; MONT. CONST. art. XI §§ 5, 6; NEB. CONST. art. XI, § 5; NEV. CONST. art. 8,
§ 8; N.H. CONST. pt. I, art. 39; N.J. STAT. ANN. §§ 40:69A-1–40:69A-210 (West 2019); N.M.
CONST. art. X, § 6; N.Y. CONST. art IX, § 2; N.C. CONST. art. VII, § 1; N.D. CENT. CODE §§ 40-
05.1-02, 40-05.1-06 (2019); OHIO CONST. art. XVIII, § 7; OKLA. CONST. art. XVIII, § 3(a); OR.
CONST. art. XI, §§ 2, 2a; PA. CONST. art. IX, § 2; R.I. CONST. art. XIII, § 2; S.C. CONST. art. VIII,
§ 11; S.D. CONST. art. IX, § 2; TENN. CONST. art. XI, § 9; TEX. CONST. art. XI, § 5; UTAH CONST.
art. XI, § 5; VT. STAT. ANN. tit. 17, § 2645 (2019); VA. CODE ANN. §§ 15.2-1100, 15.2-1102
(2019); WASH. CONST. art. XI, § 10; W. VA. CONST. art. VI, § 39a; WIS. CONST. art. XI, § 3; WYO.
CONST. art. 13, § 1.For more information on North Carolina’s state granted rather than locally
adopted charters, see, for example, How NC Cities Work, N.C. LEAGUE OF MUNICIPALITIES,
https://www.nclm.org/advocacy/how-nc-cities-work [https://perma.cc/K3PF-8VJS]; North
Carolina Constitution, Statutes & Ordinances Research, UNIV. OF N.C. KATHRINE R. EVERETT L.
LIBR., https://guides.lib.unc.edu/ncstatutes/ordinances [https://perma.cc/5UXU-5JD3]; and Forms
of North Carolina City Government, UNIV. OF N.C. SCH. OF GOV’T, https://www.sog.unc
.edu/resources/faq-collections/modifying-citys-charter-summary-questions-and-answers
[https://perma.cc/T9SP-CSVU].
68.Alabama does not allow municipal charter cities. See generally ALA. CONST. art. IV, § 94
(prohibiting the state legislature from authorizing certain municipal actions). Two of Alabama’s
sixty-seven counties are subject to home rule (the rest are general law), see ALA. CONST. amend.
783, § 1 (allowing for home rule in Baldwin County); ALA. CONST. amend. 707, § 1 (allowing for
home rule in Shelby County), while all 460 of Alabama’s municipalities are general law. See
generally ALA. CONST. art. IV, §§ 89, 104 (prohibiting the state legislature from exempting
municipal corporations from the legislature’s general laws and from enacting “special” or “local”
legislation concerning specific municipalities); see also U.S. DEP’T OF COM., U.S. CENSUS
BUREAU, ALABAMA: 2010 CENSUS OF POPULATION AND HOUSING, at III-3 (2012) (stating that
Alabama contains sixty-seven counties and 460 “incorporated places”).
69.While Idaho allows charter adoption for counties, IDAHO CODE § 31-5801 (2019), it does
not explicitly allow municipal charter adoption for cities. See IDAHO CODE § 50-301 (2019)
(outlining the powers of cities). Of Idaho’s 200 municipalities, 199 are general law municipalities;
one—Bellevue—is a charter city, retaining a charter granted to it by the Territorial Legislature
before the Idaho Constitution was adopted. LAWRENCE DENNEY, SEC’Y OF STATE, IDAHO BLUE
BOOK 2017–2018, at 268 (J. Harvey ed., 24th ed. 2017). Despite the authorization, however, all
forty-four of Idaho’s counties are general law. Id.
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Illinois,70 Indiana,71 and Kentucky72—do not.73 Hawaii, interestingly, has
four local governments (Honolulu, Hawaii, Maui, and Kauai), all
administered as counties and all of which are charter/home-rule
jurisdictions.74 And some states that allow charter cities have minimum
population requirements for adoption.75
Despite widespread authorization to adopt municipal charters in state
law, many municipalities choose not to do so, particularly in smaller
communities. For example, in twenty-eight states, fewer than half of the
municipalities have adopted charters.76 Indeed, in only five states have
70.Illinois allows for home rule but does not authorize charter cities. ILL. CONST. art. VII, § 6.
General home-rule power is allowed for any city with over 25,000 people, but charters are not
required for home rule; and cities are not authorized to adopt their own charters. Id. Of Illinois’s
1,298 municipalities, 217 have home rule. Home Rule Municipalities, ILL. MUN. LEAGUE (July 20,
2019), https://www.iml.org/homerule-municipalities [https://perma.cc/7RJK-KS7C]; see also ILL.
MUN. LEAGUE, A CANDIDATE’S GUIDE TO MUNICIPAL GOVERNMENT 1 (2020), https://www.iml
.org/file.cfm?key=14434 [https://perma.cc/U52Y-WULK] (identifying 1,298 municipalities in
Illinois).
71.All of Indiana’s counties and municipalities are general law. IND. CONST. art. IV, § 23.
72.Kentucky, however, does allow municipal charters for consolidated governments, of which
there is one—Lexington-Fayette—out of 120 counties governed by a charter. LEG. RES. COMM’N,
INFORMATIONAL BULL. NO. 145, KY. MUN. STATUTORY LAW 2, 152 (2018). All of Kentucky’s
municipalities are general law. Id. at 39, 41.
73.While states like Idaho, Iowa, New Hampshire, and Oklahoma allow for the adoption of
county charters, none of their counties have done so. And while all municipalities in Florida,
Georgia, Maryland, and Virginia have charters, not all of the counties in these states are governed
under a charter even though each allows for charter counties. E.g., Charter County Information,
FLA. ASS’N OF COUNTIES, https://www.fl-counties.com/charter-county-information [https://
perma.cc/FZL7-5PDA]; County Government Structure, MD. ASS’N OF COUNTIES, https://
www.mdcounties.org/DocumentCenter/View/2967/2-Co-Government-Structure-updated-October-
2018 [https://perma.cc/ZE2J-SNUR].
74.HAW. CONST. art. VIII, §§ 1–2; HAW. REV. STAT. §§ 50-1, 50-2 (2019). Hawaii’s fifth
county, Kalawao, is a former leper colony and continues to be “under the jurisdiction and control
of the [state] department of health.” HAW. REV. STAT. § 326-34(b) (2019).
75.Delaware requires a minimum population of 1,000 people. DEL. CODE ANN. tit. 22, § 802
(2019). Three states—Colorado, Oklahoma, and West Virginia—require at least 2,000 people.
COLO. CONST. art. XX, § 6; OKLA. CONST. art. XVIII, § 3(a); W. VA. CONST. art. VI, § 39a.
Arizona requires 3,500 people. ARIZ. CONST. art. XIII, § 2. Three states—Missouri, Nebraska, and
Texas—set their threshold at 5,000 people. MO. CONST. art. VI, § 19; NEB. CONST. art. XI, § 2;
TEX. CONST. art. XI, § 5. Alaska allows charters only in first-class (general law) cities with at least
400 permanent residents. ALASKA CONST. art. X, § 9; ALASKA STAT. § 29.05.011 (2019).
76.For example, only 10 of Alaska’s 149 municipalities have adopted charters, LOCAL
BOUNDARY COMM’N, ALASKA DEP’T OF COMMERCE, CMTY. & ECON. DEV., LOCAL
GOVERNMENT IN ALASKA 3, 8 (2015); 2017 Census of Governments – Organization,
U.S. CENSUS BUREAU tbl.2, https://www2.census.gov/programs-surveys/gus/tables/2017/cog2017
_cg1700org02.zip [https://perma.cc/ZJ3T-L3BR]; 20 of 91 municipalities in Arizona, Arizona City
and Town Data, LEAGUE ARIZ. CITIES & TOWNS, https://www.azleague.org/199/Arizona-City-
Town-Data [https://perma.cc/K3CA-HWM6]; 121 of 482 in California, Learn About Cities,
LEAGUE OF CAL. CITIES, https://www.cacities.org/Resources/Learn-About-Cities [https://perma.cc
/FS6R-43F8]; 101 of 271 in Colorado, SAM MAMET, COLO. MUN. LEAGUE, OVERVIEW OF
COLORADO MUNICIPAL HOME RULE 4 (2018), https://www.cml.org/home/publications-news
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858 Texas Law Review [Vol. 99:839
charters been adopted in more than half the municipalities.77 In addition, two
states—Arkansas and South Carolina—allow for the adoption of a municipal
/resource-detail/Bullet-Point-Overview-of-Home-Rule [https://perma.cc/UC4W-WJFD]; Active
Colorado Municipalities, COLO. DEP’T OF LOCAL AFFAIRS, https://dola.colorado.gov/lgis
/municipalities.jsf [https://perma.cc/W4BQ-URXN]; 30 of 304 in Louisiana, HOUSE LEGIS. SERV.,
LA. HOUSE OF REPRESENTATIVES, STATE AND LOCAL GOVERNMENT IN LOUISIANA: AN
OVERVIEW 3A-4 (11th rev. 2011); 47 of 488 in Maine, Ordinances & Home Rule, ME. MUN. ASS’N,
https://www.memun.org/Training-Resources/Local-Government/Ordinances-Home-Rule [https://
perma.cc/KM4F-FDVN]; 107 of 853 in Minnesota, LEAGUE OF MINN. CITIES, HANDBOOK FOR
MINNESOTA CITIES ch. 4, § I, at 3 (2020); 20 of 298 in Mississippi, MISS. STATE UNIV., MUNICIPAL
GOVERNMENT IN MISSISSIPPI 8, 364–71 (6th ed. 2017); in Missouri, 37 of 944 municipalities are
home-rule charter cities, while six operate under a state granted special legislative charter, Manual
for Missouri Municipal Clerks at 5, MISSOURI CITY CLERKS AND FINANCE OFFICERS ASS’N,
MANUAL FOR MISSOURI MUNICIPAL CLERKS 5 (2017); 33 of 129 in Montana, LOCAL GOV’T CTR.,
MONT. STATE UNIV., MONTANA MUNICIPAL OFFICIALS HANDBOOK 10 (Kenneth L. Weaver ed.,
3rd ed. 2020); 134 of 565 municipalities in New Jersey operate under Optional Municipal Charter
Law statutes, and 11 operate under state granted special charter, CTR. FOR GOV’T SERVS., RUTGERS
UNIV., FORMS OF MUNICIPAL GOVERNMENT IN NEW JERSEY 2 (2011), https://cgs.rutgers.edu/sites
/cgs.rutgers.edu/files/documents/resources/rc_munichart_formsgovt_2011.pdf [https://perma.cc
/Q3WT-GYE3]; 12 of 105 in New Mexico, N.M. MUN. LEAGUE, FORMS OF MUNICIPAL
GOVERNMENT IN NEW MEXICO 1 (2016), https://nmml.org/wp-content/uploads/2016-Forms-of-
Municipal-Government-update.pdf [https://perma.cc/8TTA-5NMX]; N.M. LEGISLATURE,
LEGISLATIVE HANDBOOK: HOME RULE MUNICIPALITIES 1 (2020), https://www.nmlegis.gov
/Publications/handbook/home_rule_municipalities_20.pdf [https://perma.cc/7NYV-2AHY]; 62 of
1,530 in New York, DIV. OF LOCAL GOV’T SERV’S, N.Y. DEP’T OF STATE, LOCAL GOVERNMENT
HANDBOOK 59 (7th ed. 2018); 264 of 931 municipalities in Ohio, OHIO MUN. LEAGUE, APPENDIX
A: OHIO MUNICIPALITIES WITH CHARTERS, http://www.omlohio.org/DocumentCenter/View/116
/Cities-and-Villages-with-Charters-PDF [https://perma.cc/KKY2-MEA8]; 65 of 2,559 in
Pennsylvania, GOVERNOR’S CTR. FOR LOCAL GOV’T SERVS., PA. DEP’T OF CMTY. & ECON. DEV.,
HOME RULE IN PENNSYLVANIA 32 (11th ed. 2020); 10 of 309 in South Dakota, Overview of
Municipal Government in SD, S.D. MUN. LEAGUE, https://www.sdmunicipalleague.org [https://
perma.cc/6DE4-YARQ]; 351 of 1,218 in Texas, TEX. MUN. LEAGUE, TEXAS HOME RULE
CHARTERS (Kelly McBride & Scott Houston eds., 2d ed. 2010), https://www.tml.org/189/Texas-
Home-Rule-Charters—-Second-Edition [https://perma.cc/6R8B-CZ8Z]; only 1 of 250 in Utah,
TOOELE CITY, UTAH, AMENDED TOOELE CITY CHARTER, pmbl. (2006); 81 of 279 in Vermont,
Municipal Action Paper No. 1: Fostering Freedom for Municipalities to Thrive: Self-Governance
in 2018, VT. LEAGUE OF CITIES & TOWNS, https://www.vlct.org/resource/municipal-action-paper-
no-1-fostering-freedom-municipalities-thrive-self-governance-2018 [https://perma.cc/D9NT-
JJ5F]; 11 of 281 in Washington, City and Town Forms of Government, MUN. RESEARCH & SERVS.
CTR., http://mrsc.org/Home/Explore-Topics/Legal/General-Government/City-and-Town-Forms-
of-Government.aspx [https://perma.cc/GE74-B6G3]; and only 1 out of Wisconsin’s 601
municipalities is governed under a self-adopted charter, although all cities and villages have home-
rule authority, Claire Silverman, Municipal Home Rule in Wisconsin, MUN., June 2016, at 16, 16;
2017 Census of Governments – Organization, U.S. CENSUS BUREAU tbl.2, https://
www2.census.gov/programs-surveys/gus/tables/2017/cog2017_cg1700org02.zip [https://perma.cc
/ZJ3T-L3BR] (providing data for the total municipalities in these states).
77.For example, 109 of 173 in Connecticut, Connecticut Charters and Ordinances by Town,
ST. OF CONN. JUD. BRANCH L. LIBR. SERVS., https://www.jud.ct.gov/lawlib/ordinances.htm
[https://perma.cc/3BHM-SPYB]; 55 of 57 in Delaware, Delaware’s Town Charters, ST. OF DEL.,
http://charters.delaware.gov [https://perma.cc/YXD9-6RF7]; 13 of 19 in Nevada, City Charters of
Nevada, LEGIS. COUNSEL BUREAU, NEV. LEGIS., https://www.leg.state.nv.us/CityCharters [https://
perma.cc/CQ5J-A2E4]; and 229 out of 345 in Tennessee are governed under a state-granted private-
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charter, but none of their municipalities has done so.78 Conversely, in Florida,
Georgia, Maryland, North Carolina, and Virginia, all municipalities have
charters.79
The process for adopting and amending a municipal charter varies from
state to state with distinct nuances. Typically, even where state constitutions
confer the right to adopt and amend home-rule charters, state statutes set forth
the specific procedures and requirements for doing so, with many states
providing specific options. Generally, states may allow municipalities to
propose charter adoption or amendment by electing a charter commission.80
The charter commission is responsible for preparing a draft of the proposed
charter or charter amendments—or in some cases, studying whether a charter
should be adopted at all.81 If a majority vote approves a commission-
act charter, a home-rule charter, or a metropolitan/consolidated charter, Charters, MUN. TECH.
ADVISORY SERV., UNIV. OF TENN., http://www.mtas.tennessee.edu/cities_bychartertype_files
[https://perma.cc/33CC-22YX].
78.See MUN. ASS’N OF S.C., FORMS AND POWERS OF MUNICIPAL GOVERNMENT: AN ELECTED
OFFICIAL’S GUIDE 2 (2017) (noting that even though South Carolina’s constitution permits
municipal charters, the state legislature has never passed implementation legislation); Cities in
Arkansas, BALLOTPEDIA, https://ballotpedia.org/Cities_in_Arkansas#cite_note-Types-1 [https://
perma.cc/72HT-4UYH].
79.FLA. LEAGUE OF CITIES, THE FLORIDA MUNICIPAL OFFICIALS’ MANUAL 7 (2013);
Georgia’s City Governments, NEW GA. ENCYCLOPEDIA (Oct. 31, 2018), https://
www.georgiaencyclopedia.org/articles/counties-cities-neighborhoods/georgias-city-governments
[https://perma.cc/FSR6-YA4E]; Municipal Charters, MD. MUN. LEAGUE, https://www
.mdmunicipal.org/190/Municipal-Charters [https://perma.cc/4WFU-XFRJ]; How NC Cities Work,
N.C. LEAGUE OF MUN., https://www.nclm.org/advocacy/how-nc-cities-work [https://perma.cc
/RQH2-S55K]; Charters, VA. LAW LIBR., https://law.lis.virginia.gov/charters/ [https://perma.cc
/ANP3-MT74]; VA. CODE ANN. § 15.2-204 (West 2020) (“Cities and towns shall have . . . uniform
charter powers. Such powers do not need to be set out or incorporated by reference in a city or town
charter.”).
80.See, e.g., CAL. GOV’T CODE § 34451 (Deering 2020) (“The charter may be proposed by a
charter commission . . . .”); see also CAL. GOV’T CODE § 34455 (Deering 2020) (“The charter
commissioners shall propose a charter and may propose amendments to a charter . . . . The charter
so prepared shall be signed by a majority of the charter commissioners and shall be filed in the
office of the clerk of the governing body of the city or city and county.”).
81.Questions include whether a charter commission should be elected, and if elected, the
candidates to serve on any such commission must be submitted to voters in many states. E.g., CAL.
GOV’T CODE § 34453 (Deering 2020). In California, if a majority of voters supports electing a
charter commission, “the 15 candidates for the office of charter commissioner receiving the highest
number of votes shall forthwith organize as a charter commission.” Id. But if the election question
does not receive a majority, “no charter commission shall be deemed to have been elected.” Id.
Other states have similar procedures. See, e.g., CAL. CONST. art. XVIII, § 8 (“The legislative
authority of any city or village may by a two-thirds vote of its members, and upon petition of ten
per centum of the electors shall forthwith, provide by ordinance for the submission to the electors,
of the question, ‘Shall a commission be chosen to frame a charter.’”); TENN. CONST. art. XI, § 9
(“Any municipality may by ordinance submit to its qualified voters in a general or special election
the question: ‘Shall this municipality adopt home rule?’”).
States also differ in their process for electing or nominating members of charter commissions.
For example, in California, the governing body of a city may call an election for choosing the charter
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proposed charter in a subsequent election, the charter becomes effective.82
The commission may also periodically submit amendments to a charter to
voters.83
Alternatively, states may allow the local legislative or governing body,
in its own discretion, to put the question of charter adoption or amendment
before the electorate.84 Furthermore, states may allow local voters to petition
for the adoption or amendment of a charter, requiring a certain percentage of
qualified electors to sign the petition.85
commissioners, either by a majority vote or on presentation of a petition signed by at least 15% of
the registered voters of the city. CAL. GOV’T CODE § 34452(a) (Deering 2020). Other states do
things quite differently. See, e.g., ME. STAT. tit. 30-A, § 2102(2) (2019) (“On the written petition
of a number of voters equal to at least 20% of the number of votes cast in the municipality at the
last gubernatorial election, but in no case less than 10, the municipal officers, by order, shall provide
for the establishment of a charter commission” to revise or prepare a new municipal charter); N.M.
CONST. art. X, § 6(C) (“In the absence of law, the governing body of a municipality may appoint a
charter commission upon its own initiative or shall appoint a charter commission upon the filing of
a petition containing the signatures of at least five percent of the registered qualified electors of the
municipality.”). But see MINN. STAT. § 410.05.01 (2019) (“When the district court of the judicial
district in which a city is situated, deems it for the best interest of the city so to do, the court, acting
through its chief judge, may appoint a charter commission to frame and amend a charter.”).
82.See, e.g., ALASKA CONST. art. X, § 9 (“All charters, or parts or amendments of charters,
shall be submitted to the qualified voters of the borough or city, and shall become effective if
approved by a majority of those who vote on the specific question.”); CAL. GOV’T CODE § 34459
(Deering 2020) (“If the voters vote in favor of the charter proposal, amendment, or repeal, it shall
be deemed to be ratified, but shall not take effect until accepted and filed by the Secretary of State
pursuant to Section 34460.”); LA. CONST. art. VI, § 5 (“A home rule charter shall be adopted,
amended, or repealed when approved by a majority of the electors voting thereon at an election held
for that purpose.”); N.D. CENT. CODE § 40-05.1-05 (2019) (“If a majority of the qualified voters
voting on the charter at the election vote in favor of the home rule charter, the charter is ratified and
is the organic law of the city, and extends to all its local and city matters.”).
83.See, e.g., CAL. GOV’T CODE § 34462(b) (Deering 2020) (“A charter commission may
submit portions of the proposed or amended charter to the voters periodically.”).
84.See, e.g., ARIZ. CONST. art. XIII, § 2 (“The charter so ratified may be amended by
amendments proposed and submitted by the legislative authority of the city . . . .”); CAL. GOV’T
CODE § 34458 (Deering 2020) (“[T]he governing board of a city or city and county, on its own
motion” may propose, amend, or repeal or cause to be proposed, amended, or repealed “a charter,
and may submit the proposal for the adoption, amendment, or repeal thereof, to the voters at the
next established statewide general election . . . .”); COLO. REV. STAT. § 31-2-204(1)(b) (2018)
(“Proceedings to adopt a home rule charter for a municipality may be initiated . . . [b]y the adoption
of an ordinance by the governing body of the municipality, without the prior submission of a petition
therefor.”). States may require a public hearing on the matter of charter proposal and on the content
of the proposed charter prior to approving the submission to voters of a proposal to adopt a charter.
E.g., CAL. GOV’T CODE § 34458(b) (Deering 2020). In California, at least two public hearings must
be held. Id.
85.See, e.g., COLO. CONST. art. XX, § 9(1) (“[T]he registered electors of each city and county,
city, and town of the state are hereby vested with the power to adopt, amend, and repeal a home rule
charter.”); COLO. REV. STAT. § 31-2-210(1)(a)(III) (2020) (“A petition to submit an amendment at
the next regular election must be signed by at least five percent of the registered electors of the
municipality registered on the date of filing the statement of intent . . . .”); IOWA CODE § 372.9(1)(b)
(2020) (“Eligible electors of the city equal in number to at least twenty-five percent of the persons
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When communities adopt charters, state law generally provides great
flexibility as to form and content. Some states provide a set of options from
which local governments can choose, with varying approaches to basic
structural issues, such as executive form.86 If a local community does not
directly adopt a charter, charters are generally derived from state legislation
and can be created by a special state act or through general state incorporation
laws.87
2. Legal Implications of Charter Adoption.—What flows from adopting a
charter, as a legal matter? This question involves two distinct valences of
charters. The first reflects questions of local legal authority in what might be
described as the home-rule or vertical dimensions of charter adoption.88 The
second involves the horizontal interplay between “charter law” and ordinary
local legislation or executive action, paralleling the role that constitutional
law plays at the state and federal level.
As to questions of local authority, there is a relatively large Venn-
diagram overlap between home rule and charter adoption, but the overlap is
not complete.89 Many states tie home rule to charter adoption,90 reflecting the
who voted at the last regular city election petitioning the council to appoint a charter commission to
prepare a proposed charter.”); N.Y. MUN. HOME RULE LAW § 36(3) (McKinney 2020) (“Qualified
electors . . . in [a] number equal to at least fifteen per centum of the total number of votes cast for
governor at the last gubernatorial election in such city, or forty-five thousand, whichever is less,”
can file a petition to submit “to the electors of such city of a proposed local law for the creation of
a commission to draft a new or revised city charter for such city . . . .”).
The charter commission is given a time frame for submitting a draft to the legislative body,
which in turn provides for publication of the charter and submission to the electors in an election.
See, e.g., CAL. GOV’T CODE § 34457 (Deering 2020) (“After the charter prepared by the charter
commission has been filed . . . the proposed charter shall be submitted to the voters of the city or
city and county at the next established statewide general election . . . .”); IOWA CODE § 372.9(3)
(2020) (“The proposed home rule charter must be submitted at a special election . . . . However, the
date of the last publication must be not less than thirty nor more than sixty days before the
election.”); N.M. CONST. art. X, § 6(C) (“The proposed charter shall be submitted to the registered
qualified electors of the municipality within one year after the appointment of the charter
commission.”).
86.2A MCQUILLIN, supra note 5, § 9:7.
87.Id. § 9:7 n.2 (noting examples from Massachusetts, New Jersey, and New York).
88.This could perhaps more broadly be thought of as the local-government authority aspect of
charters, as not all states that have locally adopted charters have home rule, as will be explored later.
89.The basic interplay between varieties of home rule and state approaches to charter
authorization is mapped out in the Appendix to this Article.
90.California, for example, distinguishes between “charter cities,” which have significantly
more home rule authority, and “general law cities”—a distinction that carries through on issues such
as preemption (charter cities prevail over the state on questions of “municipal affairs”), see CAL.
CONST. art. XI, § 5 (“City charters adopted pursuant to this Constitution shall supersede any existing
charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith.”); form
of government (charter cities can choose any form of local-government structure), see CAL. CONST.
art. XI, § 5(b) (empowering charter cities to organize their own governments); CAL. GOV’T CODE
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862 Texas Law Review [Vol. 99:839
approach of Progressive Era home-rule reformers.91 Some states, however,
disaggregate charter adoption and local-government power, as second-wave
home-rule reform proposed.92 Virginia, for example, authorizes local
governments to adopt charters,93 but it is a “Dillon’s Rule” state, which is to
say a state in which local-government authority is derived from explicit state
legislative grants.94 Illinois, by contrast, does not authorize local
governments to adopt their own charters (with Chicago famously still
retaining its nineteenth-century charter),95 but has a relatively strong form of
state constitutionally derived home rule.96 This reflects the debate between
the McBain view of charters as a grant of local power versus the Fordham
view of charters as a limitation on local power that simmered in the
background of home-rule reform over the course of the twentieth century.97
§ 34450 (Deering 2020) (same), whereas general law cities are limited to a prescribed state form,
see CAL. CONST. art. XI, § 2(a) (stating that for general law cities, the legislature shall “prescribe
uniform procedure for city formation and provide for city powers”); elections, see CAL. ELEC. CODE
§§ 10101–10103 (Deering 2020) (differentiating charter cities and general law cities); legislative
process, see Brougher v. Bd. of Pub. Works, 271 P. 487, 493 (Cal. 1928) (noting that charter cities
enjoy police powers under the state constitution); and other areas of local authority.
91.See supra section I(A)(3).
92.See supra note 63 and accompanying text (explaining the debate between McBain and
Fordham about the nature of charters in home rule). The conceptual debate about charters as a source
or a limitation on local power echoes similar divides in state and federal constitutional law.
Traditionally, states have been understood as having plenary police power, and state constitutions
are generally interpreted as limitations on that plenary authority rather than grants of authority.
G. Alan Tarr, State Constitutional Design and State Constitutional Interpretation, 72 MONT. L.
REV. 7, 12–13 (2011). By contrast, the federal government is at least nominally a government, like
many local governments, of limited and enumerated powers. See, e.g., United States v. Comstock,
560 U.S. 126, 133 (2010) (recognizing that acts of Congress must be based on one or more of the
enumerated powers given in the Constitution).
93.VA. CODE ANN. § 15.2-201 (2020).
94.See, e.g., City of Richmond v. Confrere Club of Richmond, 387 S.E.2d 471, 473 (Va. 1990)
(“In determining the legislative powers of local governing bodies, Virginia follows the Dillon Rule
of strict construction.”). As the Supreme Court of Virginia explained, the “Dillon Rule provides that
municipal corporations possess and can exercise only those powers expressly granted by the General
Assembly, those necessarily or fairly implied therefrom, and those that are essential and
indispensable.” Id. (citations omitted). Moreover, “[i]f there is any reasonable doubt whether
legislative power exists, that doubt must be resolved against the local governing body.” Id. For more
discussion of home rule and Dillon’s Rule, see supra note 7.
95.FLANAGAN, supra note 2, passim.
96.See Robert Kratovil & John T. Ziegweid, Illinois Municipal Home Rule and Urban Land—
A Test Run of the New Constitution, 22 DE PAUL L. REV. 359, 362 (1972) (“The new [Illinois]
constitution provides explicitly for home rule without mention of the need for a charter . . . .”).
Illinois is not alone in this regard. See, e.g., George D. Vaubel, Municipal Home Rule in Ohio (1976-
1995), 22 OHIO N.U. L. REV. 143, 148–49 (1995) (“Charters are not the source of municipal Home
Rule [in Ohio]. Rather, charter provisions serve as limits upon power, e.g., that of the legislative
authority of a municipality . . . .”). Constitutional home rule simply means local legal authority that
derives directly from state constitutional law, rather than from state statutes.
97.See supra note 63 and accompanying text.
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As to the separate question of the legal effect within a local government
of adopting a charter, the analogy between charters and other constitutions
mostly holds, although not in all cases. Peter Strauss has articulated the
reasonable intuition that a hierarchical relationship among constitutions,
ordinary legislation, and regulations must be essentially fractal, operating
more or less the same at the federal, state, and local levels.98 And in practice,
charter law mostly trumps other municipal law, tracking Strauss’s intuition
about charters.
Thus, it is possible to find many cases that treat charter law as “supreme
within its field”99 or that reflect the proposition that the charter “bears the
same general relation to its ordinances that the Constitution of the state bears
to its statutes.”100 To pick one example, in State ex rel. Devine v. Hoermle,101
the Ohio Supreme Court held that a municipal ordinance authorizing the
mayor of Columbus to fill a vacancy on the city council violated the city
charter’s provisions reserving that power to the council itself.102 Similar cases
are quite common.103
In some instances, however, charter provisions and ordinary legislation,
at least in jurisdictions with state-granted charters, are treated as legally
98.See Peter L. Strauss, From Expertise to Politics: The Transformation of American
Rulemaking, 31 WAKE FOREST L. REV. 745, 746 (1996) (“Institutionally, at [national, state, and
local] levels, one can also describe a hierarchy that I suspect must be quite general in complex
political societies.”). Strauss explains the functioning of that hierarchical relationship:
At the apex, one places the constitutional document—the charter, in the case of
municipalities; then ordinary legislation produced by a representative legislature; then
“regulations” adopted by governmental organs other than the legislature—
“subordinate legislation,” as it is often called; and, even less formally, declarations of
policy or interpretation, or documents offering guidance for compliance with the
foregoing.
Id.
99.Granger v. City of Minneapolis, 233 N.W. 821, 822 (Minn. 1930).
100.Johnson v. Arnold, 169 S.E. 505, 506 (Ga. 1933).
101.156 N.E.2d 131 (Ohio 1959).
102.Id. at 133.
103.See, e.g., City & Cty. of San Francisco v. Patterson, 202 Cal. App. 3d 95, 102 (Cal. Ct.
App. 1988) (“It is well established that the charter of a municipality is its constitution . . . . [And]
‘an ordinance can no more change or limit the effect of a charter than a statute can modify or
supersede a provision of the state Constitution.’” (citations omitted)); St. Croix v. Superior Court,
175 Cal. Rptr. 3d 202, 210 (Cal. Ct. App. 2014) (“[A]n ordinance must conform to, be subordinate
to, not conflict with, and not exceed the [city’s] charter, and can no more change or limit the effect
of the charter than a legislative act can modify or supersede a provision of the constitution of the
state.” (citations omitted)).
In the run-of-the-mill of cases involving potential conflicts between charters and ordinary
municipal legislation, courts must first determine whether there is, in fact, a conflict. Then, courts
can find ways to reconcile charters with subsequent local legislation. See, e.g., Gorney v. City of
Madison Heights, 535 N.W.2d 263, 266–67 (Mich. App. 1995) (finding no conflict between charter
provision mandating all legislation to be adopted by “ordinance” and the adoption of a “resolution”
authorizing the imposition of property taxes, given separate provision in the charter referencing
resolution authority).
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equivalent.104 These latter cases underscore a residual ambiguity about the
legal standing of charters as fundamental law, and of course, not all local
governments even have the authority to adopt charters.105
C. Themes in Charter Content
As with so much of local-government law, the landscape of the
contemporary use of charters is remarkably varied across states and even
within states. As a leading treatise has noted, municipal “charters present the
widest variation both in form and substance and preclude practical
classification.”106 In terms of the content of charters, what is generally true
of the process of creating constitutions everywhere is no less true of local
constitutionalism, namely that what “primarily determines the content of
constitutions are the intensely local political considerations ‘on the ground’
when the constitution is drafted.”107
Notwithstanding the challenge of local variation, this subpart provides
an overview of the content of charters culled from a sample of cities across
the country of varying sizes. And since 1901, the National Civic League
(NCL) (and its predecessor, the National Municipal League)108 has published
eight editions of its widely adopted Model City Charter, setting baseline
terms for many local governments and framing some common elements.109
Themes that emerge from an examination of on-the-ground practice and the
current edition of the Model City Charter include the following.
104.See, e.g., In re Opinion of the Justices, 276 A.2d 736, 739 (Del. 1971) (“A municipal
charter consists of the creative Act of incorporation, together with all those laws in force which
relate to the incorporation, whether in defining the powers of the municipal corporation or in
regulating the mode of the exercise thereof.” (citing Trailway Oil Co. v. City of Mobile, 122 So.2d
757 (Ala. 1960); City of St. Petersburg v. English, 45 So. 483 (Fla. 1907); Tommasi v. Bolger, 100
N.Y.S. 367 (App. Div. 1906); Fitzgerald v. City of Cleveland, 103 N.E. 512 (Ohio 1913))). There
is some older caselaw that treats all local law pertaining to governmental structure, or even all local
law, as constituting the “charter.” For example, in Fitzgerald v. City of Cleveland, the court noted
that the “provision of a charter which is passed within the limits of the constitutional grant of
authority to the city is as much the law as a statute passed by the General Assembly.” 103 N.E. 512,
516 (Ohio 1913). However, the case was decided before Ohio adopted modern constitutional home
rule, and similar modern cases are rare.
105.See supra section I(B)(1).
106.2A MCQUILLIN, supra note 5, § 9:3.
107.Mark Tushnet, Some Skepticism About Normative Constitutional Advice, 49 WM. & MARY
L. REV. 1473, 1474 (2008).
108.See supra section I(B)(3).
109.NAT’L CIVIC LEAGUE, MODEL CITY CHARTER: DEFINING GOOD GOVERNMENT IN A NEW
MILLENNIUM (8th ed., 2d prtg. 2011) [hereinafter MODEL CITY CHARTER].
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1. Powers and Boundaries.—Some charters explicitly reinforce the
breadth of local power,110 although many have the effect in state law of
claiming home-rule power simply through adoption without stating as much
in the document.111 Charters also delineate political boundaries at times, both
in terms of the external borders of a local government112 and in terms of
internal municipal boundaries, such as wards, council districts, and the
like.113
2. Governmental Structure and Administration.—If there is one fairly
universal leitmotif in charters, it is, not surprisingly, an articulation of
governmental structure and the internal allocation of authority. Thus, most
charters lay out the composition of the local legislature, address whether there
is a mayor, and if so, what powers the mayor has.114 The process for recalling
specific officials, often hotly contested at the local level,115 can also be
specified.116
Charters often explain the structure of the local “administrative city-
state,”117 laying out details on specific agencies, departments, boards, and
similar administrative structures.118 Honolulu’s charter, for example, runs to
about 140 pages, roughly half of which covers the administrative apparatus
110.Id. art. I, § 1.01 (“Powers of the City”) (“The city shall have all powers possible for a city
to have under the constitution and laws of this state as fully and completely as though they were
specifically enumerated in the charter.”).
111.See supra section I(B)(1) and infra Appendix.
112.See, e.g., CHARTER OF BURLINGTON, VT. art. I, § 1 (setting forth the metes and bounds of
the city of Burlington, based on markers such as “the east shore of Lake Champlain, at the northwest
corner of one-hundred-acre lot number one hundred and sixty-three” and “Colchester Avenue,
easterly of the Mary Fletcher Hospital . . . to the center of Winooski River,” among others).
113.E.g., CHARTER OF ATLANTA, GA., ORD. NO. 2001-13 app. I (Council Districts).
114.The NCL’s Model City Charter provides modular options for strong mayor, weak mayor,
and its traditional council–manager form. See MODEL CITY CHARTER, supra note 109, at 56–61
(articulating pros and cons to each approach and mapping changes to the Model needed to adopt
each).
115.See, e.g., Jeff B. Flinn, Windcrest Voters to Decide on Recall Procedures in May, MY SAN
ANTONIO (Feb. 26, 2019, 12:00 AM), https://www.mysanantonio.com/news/local/communities
/northeast/article/Windcrest-voters-to-decide-on-recall-procedures-13644219.php [https://perma
.cc/J8SJ-VE2G]. The National Civic League did not include a recall mechanism in the seventh
edition of its Model City Charter but changed its position to provide for recall in the current eighth
edition. See Christopher T. Gates & Robert Loper, Reviewing the Model City Charter: The Making
of the Eighth Edition, PUB. MGMT., April 2003, at 4, 6–7.
116.MODEL CITY CHARTER, supra note 109, § 6.04.
117.Davidson, supra note 1, at 570.
118.The NCL’s Model City Charter is relatively parsimonious when it comes to the structure
of local administration, empowering the city council to “establish city departments, offices, or
agencies in addition to those created by this charter.” MODEL CITY CHARTER, supra note 109,
§ 4.01. The Model City Charter specifically references only a small handful of such institutions.
See, e.g., id. § 4.03 (“Legal Officer”); id. § 4.04 (“Land Use, Development, and Environmental
Planning”); id. § 7.01(b) (“Board of Ethics”).
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of the city.119 And interestingly, although courts are generally thought of as
the province of the states and the federal government, some cities actually
have a local judiciary enumerated in their charters.120
At one more level of granularity down in terms of governance, charters
often address personnel and civil service as part of the structural local
constitution.121 Ethics rules can be part of this as well.122 And in the realm of
governmental structure, many charters also address important aspects of local
fiscal governance. These provisions can include an elaboration of taxing
powers and process, bonding authority, and rules on contracting, among
others.123
3. Political Process, Political Rights, and Local Direct Democracy.—
Charters often specify local political rights and processes.124 These
119.CHARTER OF HONOLULU, HAW. art. IV–VIII (addressing, inter alia, seventeen executive
departments, the Board of Water Supply, and the Prosecuting Attorney).
120.See, e.g., CHARTER OF PHOENIX, ARIZ. ch. VIII (establishing the city court system as a
“separate and independent branch of the [city] government”); CHARTER OF JUNCTION CITY, OR.
§ 26 (authorizing the city council to create the office of municipal judge). For more on how these
local courts operate, evolve, and differ from nonlocal courts, see generally Annie Decker, A Theory
of Local Common Law, 35 CARDOZO L. REV. 1939, 1956–66 (2014); Ethan J. Leib, Localist
Statutory Interpretation, 161 U. PA. L. REV. 897, 902, 907 (2013); and Justin Weinstein-Tull, The
Structures of Local Courts, 106 VA. L. REV. 1031 (2020). For an exploration of local courts’
criminal jurisdiction, see generally Alexandra Natapoff, Criminal Municipal Courts, 134 HARV. L.
REV. 964 (2021).
121.MODEL CITY CHARTER, supra note 109, § 4.02.
122.Id. § 7.02. Some charters, like Dearborn, Michigan’s charter, require city governments to
be explicitly nonpartisan. CHARTER OF DEARBORN, MI. § 12.6 (“All City elections shall be
nonpartisan.”).
123.MODEL CITY CHARTER, supra note 109, art. V (“Financial Management”).
124.Charters, tellingly, often have preambles that articulate notions of democracy and assert
local sovereignty, whatever the formal legal status of a given community might be. For example,
the St. Augustine, Florida Charter states:
We the people of the City of St. Augustine Beach, Florida, under the constitution and
laws of the United States of America and the State of Florida, in order to provide the
benefits of local government responsive to the will and values of our citizens, do
hereby adopt this Charter to define the powers and structure of our government. By
this action, we secure the benefits of home rule and affirm the values of representative
democracy, professional management, strong political leadership, citizen participation,
and regional cooperation. We believe in an open, responsive government that abides
by the highest ethical standards, operates as a careful steward of the human, fiscal, and
natural resources of our city; that allows for fair and equitable participation of all
persons in the affairs of the city; that provides for transparency, accountability, and
ethics in governance; that fosters fiscal responsibility; and that meets the needs of a
healthy, progressive city.
CHARTER OF ST. AUGUSTINE BEACH, FLA. pmbl. Similarly, the Charter of Honolulu, Hawaii states:
We, the people of the City and County of Honolulu, accepting responsibility to seek to
achieve in our time that righteousness by which the life of our land is preserved and to
encourage and enable our people to participate in their governance, do hereby adopt
this Charter of the City and County of Honolulu.
CHARTER OF HONOLULU, HAW. pmbl.
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provisions can address election methods, resident voting rights, campaign
finance issues, and other process questions.125 Among the more controversial
aspects of charters, moreover, are local initiative-and-referendum powers.126
4. Sub-Localism.—Charters often specify ways in which a city delegates
authority to neighborhood-level and other sub-local institutions.127 Examples
of this sub-localism include the process for selecting and the powers of
community boards, neighborhood advisory committees, and similar
125.See, e.g., CHARTER OF AUGUSTA-RICHMOND CTY., GA. § 1-28 (defining the bounds of ten
commission districts); CHARTER OF SAN FRANCISCO, CAL. § 13.111 (establishing the eligibility for
noncitizen parents or caregivers to vote for the board of education); CHARTER OF BURLINGTON, VT.
§ 3-7 (requiring prospective voters to take the Freeman’s Oath to establish eligibility); CHARTER OF
TUCSON, ARIZ. ch. XVI subch. B (“Voluntary Expenditure Limitation”); CHARTER OF
MULTNOMAH CTY., OR. § 11.60 (“Campaign Finance”); see also David Garrick, New Proposal for
Publicly Financed Elections in San Diego Aiming for 2020 Ballot, SAN DIEGO UNION-TRIB.
(Mar. 6, 2019, 12:30 PM), https://www.sandiegouniontribune.com/news/politics/sd-me-election-
public-finance-20190305-story.html [https://perma.cc/K4K3-KPL2] (noting that advocates are
aiming to amend San Diego’s city charter through a 2020 ballot initiative to provide for public
financing of local elections).
Reflecting this, New York City Mayor Bill de Blasio outlined an ambitious plan of electoral
reform at the start of his second term, focusing on public funding of campaigns and ballot access,
notably situating this agenda in proposals to amend the city’s charter. See William Neuman, Mayor
Wants City Charter Revision to Tackle Campaign Finance, N.Y. TIMES (Feb. 12, 2018), https://
www.nytimes.com/2018/02/12/nyregion/de-blasio-charter-revision-campaign-contributions.html
[https://perma.cc/6XTD-KQ4B]. Mayor de Blasio went on to establish a mayoral city charter
revision commission that proposed and passed campaign finance reform (and two other proposals
addressing public engagement and community boards). Noah Manskar, NYC Charter Amendments
Win Approval from Voters, PATCH (Nov. 6, 2018, 10:43 PM), https://patch.com/new-york/new-
york-city/nyc-charter-amendments-win-approval-voters [https://perma.cc/6TUX-MWFU]. The
New York City Council later launched its own revision commission with a mandate to examine the
entire charter. CHARTER REVISION COMMISSION 2019, http://www.charter2019.nyc/ [https://perma
.cc/R96Q-Z4RH]; see About, CHARTER REVISION COMMISSION 2019, https://
www.charter2019.nyc/background [https://perma.cc/U5Z4-VGZN] (“The New York City Charter
is the City’s constitution.”).
126.MODEL CITY CHARTER, supra note 109, § 6.04. In many jurisdictions, charters provide
the only practical avenue for local direct democracy, which means that matters that are not really
“fundamental” end up in charters simply because there is no other way for community members to
circumvent resistance by local elected officials to alternative policy priorities.
127.For discussion of the increasing importance of sub-local institutions in urban governance,
see, for example, Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82
MINN. L. REV. 503 (1997); Stephen R. Miller, Legal Neighborhoods, 37 HARV. ENVTL. L. REV.
105 (2013); Nadav Shoked, The New Local, 100 VA. L. REV. 1323 (2014); Kenneth A. Stahl,
Neighborhood Empowerment and the Future of the City, 161 U. PA. L. REV. 939 (2013).
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bodies.128 Charters can also address sub-local institutions, such as wards,
boroughs, and the like.129
5. Individual Rights.—Some municipal charters, perhaps surprisingly,
address individual rights, although this does not appear to be overly common.
Anchorage’s charter, for example, has a bill of rights that includes rights to
“opportunities in housing, public accommodations, employment, and
education without regard to race, religion, sex, color, national origin, marital
status, or physical disability.”130 Atlanta’s charter is another example with a
local bill of rights, addressing, among other things, religion and conscience,
speech, search and seizure, nondiscrimination, and environmental
protection.131
Reflecting a growing awareness of cities as rights-protecting public
bodies,132 the National Civic League, in the most recent edition of its Model
128.See, e.g., CHARTER OF L.A., CAL. art. IX (establishing the Department of Neighborhood
Empowerment and the certification and powers of Neighborhood Councils); CHARTER OF DETROIT,
MICH. art. 9, ch. 1 (“Community Advisory Councils”). Scholars have noted the increasingly
important interplay between city-wide governance and neighborhood-level structures. See, e.g.,
Erwin Chemerinsky & Sam Kleiner, Federalism from the Neighborhood Up: Los Angeles’s
Neighborhood Councils, Minority Representation, and Democratic Legitimacy, 32 YALE L. &
POL’Y REV. 569 (2014) (summarizing 1999 reform of the Los Angeles City Charter, which centered
around decentralizing power to neighborhood councils); Matthew J. Parlow, Civic Republicanism,
Public Choice Theory, and Neighborhood Councils: A New Model for Civic Engagement, 79 U.
COLO. L. REV. 137 (2008) (suggesting that “local government substructures” could combat the
capture of local government by special interests).
129.See, e.g., CHARTER OF SUFFOLK, VA. § 3.02 (dividing the city into seven boroughs);
CHARTER OF NEW YORK, N.Y. § 2 (continuing the existing five boroughs).
130.CHARTER OF ANCHORAGE, ALASKA art. II, § 7. Interestingly, the Anchorage Bill of Rights
contains some fairly specific and, it is fair to say, unfamiliar rights, such as “immunity from official
actions of the assembly taken after 12:00 midnight and before 7:00 a.m., actual time,” and the right
“to be heard at public hearings prior to adoption of proposed six-year plans of the school system,”
among others. Id. §§ 5, 10.
131.Atlanta, Ga., Ordinance 2001-13, § 1 (Feb. 13, 2001) (“Bill of Rights”); see also Nushrat
Rahman, Bill of Rights for Detroiters Could Be First Change to City Charter in 8 Years, DETROIT
FREE PRESS (July 29, 2020, 2:56 PM), https://www.freep.com/story/news/local/2020/07/29/detroit-
bill-of-rights-city-council/5531860002/ [https://perma.cc/ZKY6-KURX] (reporting on a proposal
to add “eight core values” to Detroit’s charter: “the right to water and sanitation, the right to
environmental health, the right to safety, to right to live free from discrimination, the right to
recreation, the right to access and mobility, the right to housing[,] and the right to ‘the fulfillment
of basic needs’ like food and utilities”).
132.Scholars have explored the role of cities in protecting individual (federal) rights. See, e.g.,
David J. Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. PA. L.
REV. 487, 515–21 (1999) (exploring the role of “a strong system of local self-governance” in
protecting “constitutional freedom”); Richard C. Schragger, Cities as Constitutional Actors: The
Case of Same-Sex Marriage, 21 J.L. & POL. 147, 167–68 (2005) (discussing the role of cities in
vindicating individual constitutional rights). Other scholars have highlighted the role of local
governments advancing civil rights law more generally. See, e.g., Olatunde C.A. Johnson, The Local
Turn; Innovation and Diffusion in Civil Rights Law, 79 L. & CONTEMP. PROBS. 115 (2016)
(identifying cities as civil rights innovators, for example, in protecting antidiscrimination rights).
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City Charter, added new model preamble language addressing “diversity and
inclusiveness.”133 As the NCL notes, the organization did so “to underscore
the right of every individual to equal opportunities and establish policies to
prohibit discrimination based on race, color, religion, national origin, gender,
age, sexual orientation, gender expression, marital status, military status or
physical or mental disability.”134
6. Other Provisions.—Finally, beyond those general categories, many
charters—particularly those in jurisdictions that do not draw a sufficiently
clear distinction between what is and is not “charter-worthy”135—contain an
odd assortment of other provisions.136 As is the case with many state
constitutions, particularly in states that have the initiative power for
constitutional amendments,137 charters may simply provide an alternative
procedural focus for legal change where more straightforward legislative
routes do not appear feasible. With that hydraulic function, charters can
become, unfortunately, the object and recipient of legal provisions that are
not in any reasonable sense “constitutional.”
* * *
133.MODEL CITY CHARTER, supra note 109, at i. Indeed, the NCL tied the fact of offering
model preamble language at all to a constitutional vision of charters. Id. at iii. (“One of the changes
made in the Eighth Edition is the inclusion of a preamble, which emphasizes that the charter is the
constitution of the municipality adopted by its citizens.”).
134.Id. at i. The NCL Model, however, does not offer any substantive rights-based protections
in the model charter itself.
135.See infra section III(B)(3) for discussion of this distinction.
136.The San Francisco City Charter, for example, contains provisions that specify in detail
performance measures for the Muni, the city’s public transit agency. See CHARTER OF S.F., CAL.
§ 8A.103(c) (mandating a minimum on-time performance of 85% and a service delivery minimum
of 98.5% of scheduled service hours, among other standards); see also CHARTER OF NEW ORLEANS,
LA. art. IX, ch. 5 (“Minimum Wage”); CHARTER OF NEW YORK, N.Y. § 460 (“Gun-free school
safety zones”).
One particularly high-profile recent example is the February 2019 addition by voters in Toledo,
Ohio, to their city charter of a “Lake Erie Bill of Rights” (LEBOR). LEBOR provides among other
things, that city residents may bring suit against a government or business that interferes with the
right of “the Lake Erie Ecosystem to exist, flourish and naturally evolve.” TOLEDO MUN. CODE ch.
XVII, § 254(a); see also Julia Conley, In ‘Historic Vote,’ Ohio City Residents Grant Lake Erie
Legal Rights of a Person, ECOWATCH (Feb. 28, 2019, 8:51 AM), https://www.ecowatch.com/lake-
erie-bill-of-rights-2630261411.html [https://perma.cc/2B62-RCQN] (reporting that 61% of voters
voted in favor of LEBOR). However, LEBOR was challenged in federal district court the day after
passage, and the court subsequently held LEBOR void for vagueness under the Fourteenth
Amendment’s Due Process Clause. Drewes Farm P’ship v. City of Toledo, 441 F. Supp. 3d 551,
556 (N.D. Ohio 2020); Briana Malaska, Local Farmer Files Lawsuit Against Lake Erie Bill of
Rights, WNWO (Feb. 27, 2019), https://nbc24.com/news/local/local-farmer-files-lawsuit-against-
lake-erie-bill-of-rights [https://perma.cc/S87S-DYC5].
137.See generally Cain & Noll, supra note 8 (expounding on and analyzing the various
processes states have available to amend or revise their constitutions).
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From the history and empirical landscape laid out above, it is clear that
municipal charters speak as constitutional documents to multiple audiences
within and outside local governments. Charters primarily constitute the
structure and functions of local government and can address important legal
determinants of the rights of members of a community. But charters also
delineate essential aspects of the state–local relationship and signal to courts
about particularly fundamental local issues. In short, charters play a distinctly
constitutional role in local governance, but that role is well worth unpacking
in detail.138 To do so, it is important to pause first and reflect on relevant
elements of the conceptual landscape of constitutionalism, a task to which we
now turn.
II. Constitutionalism and “Subconstitutionalism”
Constitutionalism has deep roots in the American tradition. When Chief
Justice Marshall famously wrote in McCulloch v. Maryland139 that “[w]e
must never forget, that it is a constitution we are expounding,”140 he reflected
the common understanding that there is some fundamental meaning—
something jurisprudentially and culturally distinctive—about the nature of a
constitution. But what exactly is that distinctive meaning? And how might
that meaning differ for constitutions below the national level?
Building on Part I’s exploration of charter history and contemporary
practice, this Part takes a step back to lay the predicate for a more conceptual
question: what should a charter be? To answer that question, this Part draws
on the literature of constitutionalism to articulate a framework through which
to evaluate the pragmatic and normative purposes a local constitution might
serve. That framework focuses on constitutional function, constitutional
meaning, and the contested values of constitutionalism itself.141 It then turns
138.The varied communicative aspects of charters—speaking, as they do, to multiple
audiences—is not unique to these local “constitutions,” even if the relationships and specific
provisions involved are distinctive. State constitutions set the foundations of state government and
define the rights of state citizens but also delineate important aspects of local-government power,
structure, and function. The federal Constitution, similarly, not only governs the national
government but carries a rule allocating power between the states and the federal government—the
Supremacy Clause, U.S. CONST. art. VI, cl. 2—and has several other clauses directly relevant to the
states. The Republican Guaranty Clause, for example, addresses the form of state government and
provides the states with the right to call upon the protection of the federal government against
“domestic Violence.” U.S. CONST. art. IV, § 4. And of course, through incorporation into the
Fourteenth Amendment or directly, the individual rights provisions of the federal Constitution
constrain state (and local) government. U.S. CONST. amend. XIV, § 1.
139.17 U.S. (4 Wheat.) 316 (1819).
140.Id. at 407.
141.The central tenets of the discourse on constitutionalism, a literature that focuses on
constitutional function and meaning, are admittedly disputed, and this Part in no way attempts a
comprehensive review. Rather, it seeks to highlight certain themes in that literature that are of
particular relevance to understanding the constitutional dimensions of municipal charters,
recognizing that in so doing, the discussion inevitably flattens or oversimplifies many debates.
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to conceptions of “subconstitutionalism,” highlighting what is distinctive
about constitutions of subordinate levels of government.
A. Function, Meaning, and Value in Constitutionalism
1. What Constitutions Do—Of Constitutional Function.—To begin with a
functional perspective, constitutions paradigmatically play three essential
roles, whatever other responsibilities legal systems might imbue them with:
delineating institutional structure, channeling political process, and
constraining the state through individual rights.142 These aspects of
constitutionalism have many layers, but there is value in briefly isolating the
core of each.143
a. Structure, Form, and the Allocation of Power.—At the most basic level,
constitutions do what their name suggests: They constitute government. In
this regard, constitutions—at any level of government—function similarly to
the way that foundational documents constitute a variety of other institutions
142.Some constitutions contain positive rights, which is to say affirmative obligations on the
state legally cognizable to some degree in individual-rights terms. Our federal Constitution is
paradigmatically understood to contain no explicit affirmative rights, although nominally negative
rights have been interpreted to mandate affirmative steps by the government. The Sixth Amendment
right to the assistance of counsel recognized in Gideon v. Wainright, 372 U.S. 335 (1963), is perhaps
the best-known example, although a variety of individual “negative” rights require positive state
action. STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY DEPENDS
ON TAXES 54 (1999); cf. Brandon L. Garrett, Wealth, Equal Protection, and Due Process, 61 WM.
& MARY L. REV. 397 (2019) (exploring ways in which federal procedural rights and inequality
intersect).
State constitutions, by contrast, contain numerous explicit positive rights, including in education,
labor, social welfare, and the environment. ZACKIN, supra note 13, passim; JOHN J. DINAN, THE
AMERICAN STATE CONSTITUTIONAL TRADITION 187 (2006); Helen Hershkoff, Positive Rights and
State Constitutions: The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1135
(1999). Internationally, the modern trend is for constitutions to recognize a variety of socioeconomic
rights. See Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa, 11 CONST.
F. 123, 123 (2001) (commenting on the international trend toward socioeconomic rights).
143.A functional view of constitutionalism focuses on the consequences of constitutional law,
but the literature on constitutionalism also recognizes the interplay between form, process, and
fundamentality in constitutional law. See, e.g., Jon Elster, Forces and Mechanisms in the
Constitution-Making Process, 45 DUKE L.J. 364, 366 (1995). As Elster explains,
If we want to distinguish the constitution from other legal texts, three criteria offer
themselves. First, many countries have a set of laws collectively referred to as ‘the
constitution.’ Second, some laws may be deemed ‘constitutional’ because they regulate
matters that are in some sense more fundamental than others. And third, the
constitution may be distinguished from ordinary legislation by more stringent
amendment procedures.
Id.
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and organizations, public and private.144 Constitutions thus articulate the
specific powers of and constraints on individual offices and officers,
structuring the terms of institutional competition and cooperation within
government. This is the familiar realm of separation of powers or functions,
which also includes the overlap between and among the roles of specifically
delineated institutions and officers.145
Constitutions also paradigmatically address vertical allocation of power:
federalism or localism, as the case may be. This can include explicit or
implicit delegations of authority (upward to other levels in the constitutional
hierarchy as well as downward),146 rules of decision in cases of conflict
between levels of government,147 and other aspects of intergovernmental
relations. Relatedly, many constitutions, even if they do not explicitly
articulate a source of authority, often allude to powers reserved or not
included.148
b. Framing the Political Process.—Mark Tushnet has argued that even
more critical to constitutionalism than the basic governmental structuring
144.See generally David Ciepley, Is the U.S. Government a Corporation? The Corporate
Origins of Modern Constitutionalism, 111 AM. POL. SCI. REV. 418 (2017) (conceptualizing the
federal Constitution as a corporate charter); Eric Enlow, The Corporate Conception of the State and
the Origins of Limited Constitutional Government, 6 WASH. U. J.L. & POL’Y 1 (2001) (tracing the
corporate conception of the state in European and American legal history).
145.The federal Constitution is relatively quiet on matters of administration, alluding to various
officers but leaving the structuring of the administrative state to Congress. See E. Garrett West,
Note, Congressional Power over Office Creation, 128 YALE L.J. 166, 169 (2018) (noting that the
federal Constitution “anticipated, but did not establish, a host of . . . personnel and positions—
including ‘Heads of Departments,’ ‘Ambassadors,’ ‘Judges of the supreme Court,’ a ‘Chief Justice,’
and ‘principal Officer[s].’” (alteration in original)).State constitutions, by contrast, tend to say more
about the structure and specific functions of the elements of the executive branch. See generally
Miriam Seifter, Understanding State Agency Independence, 117 MICH. L. REV. 1537 (2019)
(discussing state constitutional institutional variety).
146.The Tenth Amendment to the federal Constitution is an example of a provision that
recognizes a reservation of power to the states and to the people, although without much clarity. See
U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.”); see also
Kathryn Abrams, Note, On Reading and Using the Tenth Amendment, 93 YALE L.J. 723 (1984)
(canvassing interpretive methods in the Tenth Amendment context).
147.As is the case with the Supremacy Clause, which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.
See U.S. CONST. art. VI, cl. 2.
148.Theoretically, some constitutions, like the federal Constitution, are understood as grants of
power from “the People” or from constituent components, such as the states in a confederation,
while other constitutions, like our state constitutions, are understood as limitations on powers
otherwise plenary in a given sovereignty.
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function—and individual rights—is the way that constitutions frame the
political process.149 Tushnet persuasively asserts that rights are often
contingent on political consensus, evolving over time, and that the most
important legal outcomes actually result from political choices rather than
Supreme Court interpretations of fundamental law.150 In this view, what
matters most about constitutional law are the choice set and constraints a
given constitution places on citizen engagement, elections, and other active
aspects of governance beyond allocating authority and protecting individual
rights. This is an important corrective to the centrality of rights and structure
in our constitutional discourse, and one need not agree with Tushnet’s
prioritization to acknowledge the critical interplay between constitutions and
political process, democratic or otherwise.151
c. Rights and the Fundamentality of Constitutional Law.—Finally and
more conceptually, a third critical function for constitutional law, as distinct
from ordinary state action, is to delineate an area of “higher” or more
fundamental lawmaking that is relatively insulated from ordinary politics.152
Individual rights are the paradigm of lawmaking that constrains state action.
Rights are placed outside normal political choice, legitimating democracy by
providing a legal mechanism to constrain its worst potential impulses.
The Framers of the federal Constitution, before the adoption of the Bill
of Rights, placed great emphasis on the interplay between structure and
individual liberty, recognizing that institutional friction was as much an
imperative of constitutional law as empowerment and direct constraints on
state action through individual rights.153 Modern constitutionalism, however,
tends to privilege a form of judicial review that empowers courts to rule on
149.See MARK TUSHNET, WHY THE CONSTITUTION MATTERS 1 (2010) (“The Constitution
matters because it provides a structure for our politics.”).
150.Id. at 1, 16.
151.Cf. CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 6 (2001)
(“[T]he central goal of a constitution is to create the preconditions for a well-functioning democratic
order, one in which citizens are genuinely able to govern themselves.”).
152.1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6–7 (1991).
153.See THE FEDERALIST NO. 84 (Alexander Hamilton) (arguing that the federal Constitution’s
structure and aims, as well as its foundation on popular consent, made it unnecessary to have a
federal bill of rights); see also Aziz Z. Huq, Standing for the Structural Constitution, 99 VA. L. REV.
1435, 1449–50 (2013) (observing that the Framers, including James Madison, Alexander Hamilton,
and James Wilson, originally thought “institutional design” would do more “to keep government in
check rather than mere individual entitlements”); Daryl J. Levinson, Rights and Votes, 121 YALE
L.J. 1286, 1293 (2012) (“Convinced that direct protection of constitutionally enumerated rights
would be futile, the Federalist Framers, led by James Madison, attempted to secure rights indirectly,
by creating a structure of government that would empower vulnerable groups to protect their
interests through the political process.”).
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the interplay between constitutional law (structural and rights-based) and
“ordinary” actions taken by the state, whether legislative or executive.154
This judicial role places the courts in the practical position of having the
final word as a formal matter (barring constitutional amendment) on the most
contentious issues of structure and rights, although views of constitutional
meaning develop over time in a dialectic between courts and the political
branches. In the short run, legislatures can override any statutory or
regulatory interpretation, but what the courts say on questions of
constitutional law—whatever theoretical possibilities exist for interbranch
interpretation or popular constitutionalism155—tends to control in our legal
culture. Eventually, however, even the most basic understanding of
constitutional doctrine can change through political and popular pressure.156
The institutional force of constitutional judicial review can recognize
and legitimate the realm of higher law, which is harder to establish and harder
to amend—outside (and indeed, explicitly constraining) ordinary politics.
For all these reasons, the product of constitutional lawmaking is understood
to be worthier of judicial respect.157 Not that this function for constitutional
law and the role of the courts in policing its boundaries are without critics. A
staple of the constitutionalism literature is concern about the antidemocratic
tendency of a body of law distanced from ordinary politics, especially
coupled with enforcement by a generally undemocratic branch empowered
to override popular preferences.158 As we will see shortly,159 counter-
majoritarian challenges to judicial review in the constitutional context are
one species of a broader critique of strong constitutionalism.
154.See supra note 98.
155.See generally LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR
CONSTITUTIONALISM AND JUDICIAL REVIEW (2004) (maintaining that the federal Constitution is
best understood as a “people’s charter,” to be interpreted by ordinary citizens and their
representatives rather than judges); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS, at x (1999) (“Constitutional theory must make sense of how people deal with the
Constitution away from the courts if it is to provide an accurate account of our constitutional
practice.”).
156.See, e.g., 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 266–94 (1998)
(explaining how new popular understandings and pivotal elections have transformed constitutional
doctrine at key moments in America’s legal and political history).
157.This recognition undergirds the reluctance of courts to decide constitutional questions
when nonconstitutional avenues of decision are available. See, e.g., Ashwander v. Tenn. Valley
Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a
constitutional question although properly presented by the record, if there is also present some other
ground upon which the case may be disposed of.”).
158.The literature on what Alexander Bickel famously coined as the counter-majoritarian
difficulty is vast, including, as Bickel himself suggested, majoritarian views of the role of
constitutional judicial review in a democratic polity. See generally ALEXANDER M. BICKEL, THE
LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962) (expressing
deep concern about the undemocratic nature of judicial review and judicial finality).
159.See infra section II(A)(3).
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2. What Constitutions Mean—Salience and Civic Identity.—As important
as the various core functions outlined above are for constitutions, these
foundational documents often play a broader role in an expressive sense.160
Constitutions not only have direct legal consequences but can also reflect a
civic community’s deep identity.161 As such, constitutions have the potential
to signal that identity to internal and external audiences, shaping political and
popular culture in ways that “ordinary” law rarely does.162
When a newly democratic South Africa chose in 1996 to include
positive rights in its constitution, the nation was not simply dryly allocating
authority between the legislature and the judiciary; it was self-consciously
enshrining a rejection of the prior apartheid regime in the country’s basic
law.163 A similar story can be told about Germany’s view of the constitutional
balance between free speech and rejection of Nazism after World War II164
or the provincial autonomy impulses behind Canada’s Notwithstanding
Clause,165 among other international examples.166
160.This is especially true in the comparative context with respect to constitutional preambles.
See, e.g., Tom Ginsburg, Nick Foti & Daniel Rockmore, “We the Peoples”: The Global Origins of
Constitutional Preambles, 46 GEO. WASH. INT’L L. REV. 305, 306 (2014). As Ginsburg, Foti, and
Rockmore explain:
Preambles often speak in the name of a distinct people, either real or fictional, who are
both the creators and subjects of the constitutional order. Frequently, preambles
recount key historical events such as the national struggle for independence. In this
sense, they constitute autobiographical narratives, legitimating specific local actions,
historical moments, and organizations. Call this the national expression thesis:
constitutions, particularly preambles, reflect local needs, idioms, and aspirations.
Id. (footnotes omitted).
161.See generally GARY JEFFREY JACOBSOHN, CONSTITUTIONAL IDENTITY (2010) (exploring
the role that constitutions play in defining, framing, and constructing a community’s identity—past,
present, and future); id. at xiii (“[C]onstitutions may be variously described in terms of the mix of
universal and particular [i.e., local] attributes that define their identities.”).
162.See Ginsburg et al., supra note 160, at 309 (noting that “constitutions are about more than
creating enforceable law; they are also supposed to express the fundamental values and aspirations
of the people and bind them together as a nation”); see also GORDON S. WOOD, THE CREATION OF
THE AMERICAN REPUBLIC 1776–1787, at 349–54 (1998) (analyzing conceptions of popular
sovereignty in early American discourse and how they influenced constitutional formation).
163.See Sunstein, Social and Economic Rights, supra note 142, at 125 (describing how South
Africa’s decision to include socioeconomic rights in its new constitution was motivated by the
country’s desire to overcome its legacy of apartheid—“to eliminate apartheid ‘root and branch’”).
164.See George Rutherglen, Theories of Free Speech, 7 OXFORD J. LEGAL STUD. 115, 116–18
(1987) (observing that postwar West Germany imposed certain limitations on free expression to
protect racial and ethnic minorities and to forestall Nazis and Communists).
165.See Calvin R. Massey, The Locus of Sovereignty: Judicial Review, Legislative Supremacy,
and Federalism in the Constitutional Traditions of Canada and the United States, 1990 DUKE L.J.
1229, 1266–72 (discussing the links between Canada’s dual cultural history—English and French—
and the Notwithstanding Clause’s provision of provincial autonomy within the Canadian federal
system).
166.Post-Cold War constitution drafting provides numerous examples of new democracies
expressly seeking to involve their citizens in the process to foster civic participation. See, e.g.,
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In this way, constitutions influence political cultures and provide a focal
point for a community’s most profound deliberations.167 Of course, there are
vital and deeply contested norms at play in moments of statutory change—as
debates over and the aftermath of society-changing statutes, such as the civil
rights laws of the 1960s and the Affordable Care Act, well evince.168 But a
constitution marks out a realm of lawmaking that in the distinctively
American culture of constitutionalism—and in many systems
internationally—has a deeper meaning.169
And echoing Tushnet, not only do constitutions shape and constrain the
doctrinal boundaries of political debate—whether through structure, speech
rights, or otherwise—but constitutional text, constitutional law, and
constitutional process also influence the range and terms of issues subject to
political debate. The national discourse over reproductive freedom during the
past half-century would have looked completely different had the Supreme
Court not ruled the way it did in Roe v. Wade.170 And perennial debates about
federalism—as well as, increasingly, localism—bespeak a political culture in
Michael G. Breen, Nepal, Federalism and Participatory Constitution-Making: Deliberative
Democracy and Divided Societies, 26 ASIAN J. POL. SCI. 410, 410 (2018) (describing how Nepal’s
elected Constituent Assembly, while drafting a new national constitution, instituted a participatory
and deliberative process aimed at achieving consensus among political actors and the public);
Rangita de Silva de Alwis, Anware Mnasri & Estee Ward, Women and the Making of the Tunisian
Constitution, 35 BERKELEY J. INT’L L. 90, 114–16 (2017) (discussing transparency and
engagement, particularly by women, in the making of Tunisia’s constitution).
167.Cf. Jacob T. Levy, Not so Novus an Ordo: Constitutions Without Social Contracts, 37 POL.
THEORY 191, 192 (2009) (“Real constitutional orders appropriate, incorporate, and channel the
histories and divisions of the societies they govern.”).
168.See WILLIAM N. ESKRIDGE JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEW
AMERICAN CONSTITUTION 7 (2010) (“Some of the nation’s entrenched governance structures and
normative commitments are derived directly from the Constitution, but most are found in
superstatutes enacted by Congress, executive-legislative partnerships, and consensus of state
legislatures.”); William N. Eskridge Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1215,
1231 (2001) (defining a category of statutes that establish new normative or institutional
frameworks that over time “stick” in public culture to broader legal effect); e.g., Civil Rights Act of
1960, Pub. L. No. 86-449, 74 Stat. 86 (1960); Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat.
56 (1963); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964); Voting Rights Act of
1965, Pub. L. No. 89-110, 79 Stat. 437 (1965); Social Security Amendments of 1965, Pub. L. No.
89-97, 79 Stat. 286 (1965); Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202,
81 Stat. 602 (1967); Fair Housing Act of 1968, Pub. L. No. 90-284, §§ 802–819, 82 Stat. 73, 81–89
(1968); Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).
169.What some see as exceptionalism in our constitutional culture is not always normatively
embraced, with some scholars raising concerns about the invocations of constitutional norms acting
as trumps to subvert political discourse. See, e.g., Serkin & Tebbe, supra note 10, at 775 (“All too
often, the Constitution functions as a blunt weapon in ordinary politics.”).
170.410 U.S. 113 (1973).
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which the structural constitution empowers certain communities and
distributes not just governmental authority but also voice.171
3. The Contested Value of Constitutions.—Finally, beyond constitutional
function and constitutional meaning is a larger debate about the values of
constitutionalism. This discourse on normative constitutionalism has many
strands, but two particularly bear mention. The first strand recognizes that
the very process of constitutional formation and reformation that brings
constitutional law outside the realm of ordinary politics—as well as the basic
institution of constitutional judicial review—is fundamentally counter-
majoritarian.172 This is not a problem for constitutions in nondemocratic legal
systems. But in legal systems founded on any version of popular sovereignty,
placing a realm of law outside democratic control sits in tension with that
popular foundation and, at a minimum, requires justification. The general,
quite reasonable response often resorts to the normative legitimating value of
rights-based protections against majority rule for groups unable to compete
fairly in the political process,173 as well as the seeming fundamentality of the
values being enforced.174 But friction from the nature of constitutional law
and judicial review in any democratic system that purports to privilege
popular sovereignty remains.
A related debate in the literature focuses more pragmatically on the
tension between the stability afforded by strong constitutionalism and the
flexibility that more frequent amendment and more “living constitutionalist”
judicial interpretation can bring. In some ways, this is a debate about the
value of pre-commitment, contrasting the benefits for governance from
notice and stability of public expectations with the risks of ossification and
democratic illegitimacy of entrenchment in the sense that present public
decisions, including constitutional-structural ones, limit future democratic
choices.175 Part of this debate reflects the particular difficulty in many
171.Cf. Heather K. Gerken, The Supreme Court, 2009 Term—Foreword: Federalism All the
Way Down, 124 HARV. L. REV. 4, 20–21 (2010) (arguing for the potential of federalism to shape
cultural and political identity through diffusing power).
172.Much of the literature on the counter-majoritarian difficulty focuses on judicial review, but
concern with reconciling constitutional supremacy with popular democracy pertains to
constitutional law more generally.
173.See generally United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (calling
for heightened judicial scrutiny when, inter alia, there might be “prejudice against discrete and
insular minorities”); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL
REVIEW (1980) (elaborating a “representation-reinforcing theory of judicial review,” which aims to
reconcile democracy with the need to protect minority rights when the political process fails).
174.See generally BICKEL, supra note 158 (grappling with the issue of identifying rights that
are truly fundamental and consequently deserving of special judicial protection).
175.Compare Ozan O. Varol, Temporary Constitutions, 102 CALIF. L. REV. 409, 411 (2014)
(“A constitution represents a powerful acknowledgement by a society of its own weaknesses and its
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systems of updating constitutional texts to reflect governing reality and the
corresponding tendency of some versions of constitutional judicial review to
valorize original understanding.
A variation on the debate about flexibility and entrenchment plays out
in terms of written versus unwritten constitutionalism.176 Although the
history is complex,177 it is generally well accepted that the early American
embrace of the written constitution marked a significant innovation in the
development of constitutionalism.178 In the literature on comparative
constitutional law, scholars regularly note that most countries have written
constitutions while others, the United Kingdom being a familiar example,
adhere to unwritten constitutional conventions.179 And it has long been
recognized that at least some of what is conventionally associated with
constitutional law stands apart from the actual text of any given constitution,
imbued by practice and tradition at times wholly divorced from the text.180
There are functional advantages to having clearly delineated
constitutional texts grounded in rule-of-law values. Written constitutions,
notwithstanding all the perennial debates over interpretation and
indeterminacy, bring relatively greater clarity to fundamental governmental
choices, foster stability in a legal system, and signal the realm of higher law
over “ordinary” state action, not only to the judiciary and other legal actors
but also to ordinary citizens and others subject to a given constitutional
ability to fall prey to pernicious majoritarian impulses. Constitutions therefore bind the hands of
future political majorities to ensure that short-term political passions do not trump society’s long-
term interests.”), with Serkin, supra note 20, at 886–88 (raising concern about entrenchment,
particularly at the local level, as an “intertemporal[]” shift in democratic power—with the present
undermining future democratic choices). See generally Levinson, supra note 10 (exploring the
interplay between intertemporal stability and constitutional design).
176.Although it is common to refer to the dichotomy between written and unwritten
constitutions in comparative terms, some scholars argue that the more appropriate distinction is
between codified and uncodified constitutions. See, e.g., ADAM TOMKINS, PUBLIC LAW 7 (2003)
(noting that “notwithstanding its allegedly unwritten nature, much (indeed, nearly all) of the
[English] constitution is written, somewhere” and asserting that “[t]he unhappily misleading phrase,
‘written constitution’ really means ‘codified constitution’”); see also Ernest A. Young, The
Constitution Outside the Constitution, 117 YALE L.J. 408, 410 (2007) (“The Magna Carta, the Bill
of Rights of 1689, the Parliament Acts of 1911 and 1949, the European Communities Act of 1972,
the Human Rights Act of 1998—these all form parts of the English constitution, and they are all
written down.” (footnotes omitted)). For present purposes, the critical point is the distinction
between a clearly delineated single document identified as a constitution and other forms of
constitutional ordering.
177.See supra section I(A)(2).
178.See Bowie, supra note 46, at 1400–01 (describing Americans’ “enthusiasm” for written
constitutionalism).
179.E.g., Elster, supra note 143, at 365.
180.See Young, supra note 176, at 410 (“[T]he American ‘constitution’ consists of a much
wider range of legal materials than the document ratified in 1789 and its subsequent amendments.”);
K. N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 12 (1934) (contending
that constitutional practice works to “legitimatize the words” in the written document).
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regime. Some commentators argue that unwritten constitutions foster more
gradual—and by dint of their ease of modification, more democratic—
political change,181 although the distinct international trend clearly favors
written constitutionalism.182 The debate thus recapitulates the larger question
of constitutional stability and popular sovereignty—with the ascendancy of
written constitutions internationally giving some sense of how that debate has
most often been resolved in the modern context.183
B. “Sub”-Constitutions and “Subconstitutionalism”
If the literature on constitutionalism usefully highlights common
functions that illuminate the value and potential of municipal charters, a
distinctive vein in constitutional law scholarship offers insights into
“subconstitutions,” which is to say constitutions of subnational political
institutions in federal systems that devolve power.184
181.Lord Woolf is one such commentator, stating:
Constitutions have to evolve to meet the needs of their citizens. A virtue of our being
one of the three developed nations that does not have a written constitution, is that our
constitution has always been capable of evolving as the needs of society change. The
evolution can be incremental in a way which would be difficult if we had a written
constitution.
See, e.g., Lord Woolf, The Rule of Law and a Change in the Constitution, 63 CAMBRIDGE L.J. 317,
318 (2004); see also Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in
American Revolutionary Thought, 30 STAN. L. REV. 843, 857 (1978) (“The [British] constitution
came to be seen less as a body of principles limiting governmental power, and more as a set of
institutions headed by a Parliament that possessed ultimate authority to change customary
arrangements by legislation.”).
182.See generally Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA.
L. REV. 1 (1998) (exploring dynamics of change in constitutionalism).
183.That written constitutionalism has become the predominant norm globally does not mean
that any given feature of American constitutional structure has been—or should be—replicated
internationally. See generally Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV.
633 (2000) (discussing and urging caution about the diffusion of U.S. structural models).
184.See Jonathan L. Marshfield, Models of Subnational Constitutionalism, 115 PENN ST. L.
REV. 1151, 1153 (2011) [hereinafter Marshfield, Models of Subnational Constitutionalism]
(defining subnational constitutionalism as “rules (both formal and informal) that protect and define
the authority of subnational units within a federal system to exercise some degree of independence
in structuring and/or limiting the political power reserved to them by the federation”); Tarr, supra
note 22 (exploring “sub-national constitutional space”); Robert F. Williams & G. Alan Tarr,
Subnational Constitutional Space: A View From the States, Provinces, Regions, Länder, and
Cantons, in FEDERALISM, SUBNATIONAL CONSTITUTIONS, AND MINORITY RIGHTS 3, 3–24
(G. Alan Tarr, Robert F. Williams & Josef Marko eds., 2004) (encouraging scholars to study
federalism not only from the vantage point of a nation’s central government but also from the
perspective of its component, subnational units); see also Cheryl Saunders, The Relationship
Between National and Subnational Constitutions, in SUBNATIONAL CONSTITUTIONAL
GOVERNANCE 23, 23–36 (Gretchen Carpenter ed., 1999) (exploring national–subnational
constitutional arrangements from a comparative constitutional standpoint).Although the literature
on subconstitutionalism in domestic legal literature is relatively sparse, there is a growing discourse
on subnational issues in international and comparative constitutional scholarship. E.g., Re-
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One essential insight of the literature on subnational constitutionalism
is that national constitutionalism inherently constrains the “range of
discretion,” or “space,” allowed to subnational institutions.185 That means, as
Jonathan Marshfield puts it, that “subnational constitutions are by definition
substantively contingent.”186 Whatever scope constitutions have, then, for
defining structure and imparting civic meaning is constrained by their
relationship with constitutional law at higher levels of government.187
Marshfield has also noted that in the dialectic between higher- and
lower-level constitutionalism, a system of subconstitutional law provides a
forum for public deliberation when national constitutions tend to be more
entrenched.188 That subconstitutions tend to be more amenable to change—
more open to public engagement—reflects the varying incentives for (and
risks pertaining to) stability at the national level and constitutional innovation
at lower levels of government.189
Tom Ginsburg and Eric Posner, moreover, have argued that
subconstitutions are likely to be weaker institutionally because the cost of
constraining public institutions declines in the shadow of what they call the
“superconstitution.”190 In their view, if the government is understood as an
agent of the people and if constitutions are understood as a method of control
by the public—reasonable, if incomplete, assumptions—then higher-level
constitutions can reduce the risks that lower-level governments will diverge
from the preferences of their communities. As a result, there will be less
pressure directly to constrain lower-level governments, and subconstitutions
will tend paradigmatically not to impose such constraints.191
One need not agree with Ginsburg and Posner’s particular agency-cost
framing to appreciate their point that in contemplating the value of—and
Exploring Subnational Constitutionalism, 6 PERSP. FEDERALISM (SPECIAL ISSUE), no. 2 (2014); see
also Jonathan L. Marshfield, Dimensions of Constitutional Change, 43 RUTGERS L.J. 593, 593
(2013) [hereinafter Marshfield, Dimensions of Constitutional Change] (reviewing
CONSTITUTIONAL DYNAMICS IN FEDERAL SYSTEMS – SUBNATIONAL PERSPECTIVES (Michael
Burgess & G. Alan Tarr eds., 2012)) (“Although comparative constitutional law has grown wildly
as a field of study in recent decades, attention is almost always placed on national constitutional law
with little mention of subnational issues.”).
185.Williams & Tarr, supra note 184, at 5.
186.Marshfield, Models of Subnational Constitutionalism, supra note 184, at 1159.
187.This pertains as well to higher-level, nonconstitutional law as to constitutional law. If a
state passes a statute that defines the scope of municipal charters, as many have, see supra section
I(B)(2), those statutory provisions take precedent over local law in the absence of state constitutional
protection for home rule, see infra section III(C)(2).
188.See Marshfield, Models of Subnational Constitutionalism, supra note 184, at 1183
(observing that in federations with static and difficult-to-amend national constitutions and without
subnational constitutionalism, public deliberation suffers).
189.Id. at 1183–84.
190.Tom Ginsburg & Eric A. Posner, Subconstitutionalism, 62 STAN. L. REV. 1583, 1584
(2010).
191.Id. at 1585–86.
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constraints on—constitutions at a lower level of governance, it is important
to focus on the interplay between lower- and higher-level legal institutions.
The choice set facing a local civic community is meaningfully different than
that facing a national community by virtue of higher-level constitutionalism
defining important baseline structural constraints and individual rights. This
insight, at a sufficiently high level of generality, is equally applicable to the
relationship between state law (which would include both constitutional and
statutory law, an important addition in this context) and the local
“subconstitutions” that charters represent.192
* * *
The literature on constitutionalism and subconstitutionalism
underscores how the specifics of public institutional structure, political
process, and individual rights in any legal system influence the meaning
attached to a given constitution and how constitutions can then feed back into
that political culture beyond any formal legal impact the document itself
might have. That is why constitutions cast shadows in many legal systems far
beyond their technical, doctrinal terms, serving as focal points for collective
meaning—for better or worse. And subconstitutions play this role in dialogue
with the constitutional law of the larger systems in which they operate. The
functional as well as dialogic expressive potential of constitutions can
resonate at the local level if municipal charters are taken seriously as
constitutions, as we shall now see.
III. On the Possibilities of Charters as Local Constitutions
Shifting from the conceptual to the normative and coming back to
charters themselves, this Part argues that elevating the role of these
instruments as local constitutions would potentially be beneficial on several
levels. The argument focuses on two aspects of constitutionalism as they
might unfold at the local level. The first involves constitutions as bulwarks
of legitimacy at a moment when the nature of local governments as
democratic polities is increasingly strained. This potential role for charters is
not predicated on the terms of any particular constitutional text but rather
reflects the function charters can play in shaping the relationship between
local governments and external legal actors, such as states and the courts.
The second, more inward-focused aspect of constitutionalism relevant
here involves the ability of charters to focus democratic deliberation,
discerning what is most critical to community identity and hence worthy of
being enshrined in a foundational text. This can be true not only of the
common core of structure and political process but also of the other aspects
192.See also Tarr, supra note 22, at 1133 (arguing that a “federal system’s constitutional
architecture [leaves ‘space’] to be filled by the constitutions of its sub-national units, even while it
sets parameters within which those units are permitted to act”).
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of higher law, including rights and community values. Charters, in this sense,
can improve governance and bolster the rule of law by rendering choices
about the structure of local governance more salient and by more generally
advancing values such as transparency and stability.
These are admittedly quite aspirational goals for municipal charters, and
one must be quite careful of overly investing in the constitutional potential
of these often-humble documents. These goals must also be read against a
backdrop of concern about the valence of empowering local governments,
with their tendency toward parochialism and exclusion, a concern that has
long been a staple of the local-government legal discourse.193 Charters will
not solve the dilemma of localism any more than any other legal instrument
but do have a role to play. Ultimately, then, there is value in coalescing a
normative vision for these texts as local constitutions even if actual practice
often falls short.194
A. Charters and Local Governments as Democratic Polities
The first potential that charters hold as local constitutions is their ability
to reinforce and legitimate the democratic nature of local governments at a
time when states are reining in the regulatory role that cities are increasingly
taking on. As this subpart argues, charters can do so by reinforcing the public,
democratic, and empowered nature of local governments in opposition to an
understanding of cities as primarily subordinate administrative arms of the
state or quasi-private service providers. This assertion of local democratic
legitimacy, in turn, can communicate to states, courts, and other audiences,
reinforcing the power of cities as polities with independent democratic
authority.195
1. The Contested Nature of Local Governments.—At core, the discourse
and jurisprudence on local legal identity are deeply ambiguous on how
exactly local governments should be understood. Although by no means
mutually exclusive in practice, three basic conceptions of the nature of local
governments tend to predominate.
The first conception sees cities and other local governments primarily
as arms of the state, or administrative units on which states draw to help
manage a geographically delineated area.196 In this view, states have plenary
193.See Nestor M. Davidson, The Dilemma of Localism in an Era of Polarization, 128 YALE
L.J. 954, 975–78 (2019) (surveying the discourse).
194.Subpart IV(A), below, will consider some avenues of law reform to align this Article’s
normative constitutional argument more closely with practice, where there is misalignment.
195.Cf. Marshfield, Models of Subnational Constitutionalism, supra note 184, at 1169
(“Perhaps the most intuitive justification for subnational constitutionalism is that it can allow for
consolidated subnational communities to achieve a degree of political self-determination.”).
196.Saiger, supra note 15, at 431.
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authority over local governments and the work of local-government officials
in ways that are not meaningfully distinct from the authority that state
legislative bodies and executive officers have over any state administrative
entity.197 If Wisconsin wants to alter the nature of the state’s Department of
Transportation, to pick one example, that would not be materially different
from the state involuntarily consolidating two suburbs into one jurisdiction
or changing the powers of Milwaukee’s mayor.
This conception of local administrative subordination to the plenary
authority of the state tends to prevail when questions of federal statutory and
constitutional law intersect with the doctrine of state–local relations. The
leading federal case articulating this view is Hunter v. City of Pittsburgh,198
a case still cited with some frequency.199 Hunter involved a Pennsylvania law
that allowed annexation of the City of Allegheny to the City of Pittsburgh
against the wishes of Allegheny’s voters. In the course of rejecting a federal
Contract Clause challenge to the merger,200 the U.S. Supreme Court
articulated what Richard Briffault has noted is “usually treated as the purest
statement of the black-letter position”201 on local legal identity:
Municipal corporations are political subdivisions of the State, created
as convenient agencies for exercising such of the governmental
powers of the State as may be entrusted to them. . . . The number,
nature and duration of the powers conferred upon these corporations
and the territory over which they shall be exercised rests in the
absolute discretion of the State. . . . The State, therefore, at its pleasure
may modify or withdraw all such powers . . . expand or contract the
territorial area, unite the whole or a part of it with another
municipality, repeal the charter and destroy the corporation. All this
may be done . . . with or without the consent of the citizens, or even
against their protest.202
In this perspective, local democracy and local political identity are entirely
subordinate to the state.203
197.Id.
198.207 U.S. 161 (1907).
199.See, e.g., Int’l Union of Operating Eng’rs Local 399 v. Vill. of Lincolnshire, 905 F.3d 995,
1008 (7th Cir. 2018), vacated, 139 S. Ct. 2692 (2019) (rejecting an argument that state plenary
power over subdivisions of the state under Hunter immunizes local regulation from federal
preemption).
200.U.S. CONST. art. I, § 10, cl. 1.
201.Briffault, Our Localism: Part I, supra note 2, at 85.
202.Hunter, 207 U.S. at 178–79.
203.As Richard Briffault has noted, despite its continuing influence in federal doctrine, Hunter
captures neither the reality of home rule, which empowers local governments as a matter of state
constitutional law in many jurisdictions, nor subsequent recognition by the Supreme Court in the
voting rights, equal protection, and other contexts of the potential of local governments to be
understood as independent democratic polities for some federal constitutional purposes. See
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The second, not entirely unrelated understanding of the nature of local
legal identity is a view of cities as essentially forms of quasi-private
corporations whose primary purpose is to provide local services. This
proprietary view generally emphasizes the functional nature of local
governments, focusing on the provision of infrastructure, public safety,
education, and other services as the heart of the proper local-government
role.204 This understanding also reflects the common early roots of local-
government bodies and private corporations in the United States.205
There is a third, perhaps most contested view of the nature of local
governments in the United States that foregrounds localities as democratic
polities. This view acknowledges the reality that local governments—at least
those of general jurisdiction, as opposed to school districts, utility districts,
and other narrow forms of local public entities206—constitute real
communities imbued with real representational rights and obligations. Local
governments have long been seen as “schoolhouses” of democracy, in
Tocqueville’s memorable imagery,207 and many of the values associated with
devolution and decentralization turn on the accountability and
responsiveness that a functioning local democracy promises.208
As to the arm-of-the-state and proprietary conceptions of local
government, a historical counter-tradition emphasizes the inherent
sovereignty of local governments, however obscured that tradition has
become in modern practice.209 The truth of the legal nature of local power
lies closer to the way David Barron has described home rule: a mottled mix
Briffault, Our Localism: Part I, supra note 2, at 86–91 (discussing Avery v. Midland County, 390
U.S. 474 (1968), and Gomillion v. Lightfoot, 364 U.S. 339 (1960), as two counterexamples to the
Hunter arm-of-the-state subsidiary legal identity conception of local governments).
204.This minimalist vision of local governments as service providers is often associated in its
purest form with the “Lakewood Plan,” after the City of Lakewood, California, where local
governments pared down to the barest services, most of which they contracted for. See generally
GARY J. MILLER, CITIES BY CONTRACT: THE POLITICS OF MUNICIPAL INCORPORATION (1981)
(discussing Lakewood Plan cities); Michelle Wilde Anderson, The New Minimal Cities, 123 YALE
L.J. 1118, 1182 (2014) (same).
205.Cf. Frug, supra note 2, at 1099–1109 (describing the conception of cities as corporations
and that conception’s effect on the distribution of power between states and cities).
206.See generally Liebmann, supra note 29 (examining local-government entities, such as
school districts and utility districts).
207.ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 68 (Arthur Goldhammer ed. &
trans., The Library of America 2004) (1835).
208.See Roderick M. Hills, Jr., Romancing the Town: Why We (Still) Need a Democratic
Defense of City Power, 113 HARV. L. REV. 2009, 2025–27 (2000) (reviewing GERALD E. FRUG,
CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS (1999)) (describing the
value of decentralization and smallness as promoting participation in public life).
209.See Carol M. Rose, The Ancient Constitution vs. The Federalist Empire: Anti-Federalism
from the Attack on “Monarchism” to Modern Localism, 84 NW. U. L. REV. 74, 94–99 (1989)
(discussing the historical tradition of inherent local sovereignty). Modern courts and commentators
tend not to think about local legal identity in terms of sovereignty, but it is a historical tradition that
echoed in the conflict over London’s charter. See supra section I(A)(1).
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of specific grants of power and constraints from the state rather than some
abstraction of local authority.210 But at a deeper level, the fundamental
identity of local governments remains contested.
2. Democratic Legitimacy, Local Power, and Charters.—Given this
ongoing ambiguity, taking charters seriously as constitutional documents can
reinforce the public identity of local governments as governments. When
local governments adopt a charter, as first-wave Progressive Era home-rule
reformers understood, that act stakes a claim to an identity as a
quintessentially public body and not just—or even primarily—an arm of the
state or a quasi-private service-providing entity.
The adoption of a charter is, of course, not dispositive in state law with
respect to any given question of local legal identity, and charters remain
subject to state override as to many issues in most jurisdictions.211 But if
understood as a genuine local constitutional text, a charter can embody the
public identity of the jurisdiction that adopts it, explicitly asserting that the
community and its governing body are a legitimate democratic polity. From
preambles that declare the democratic nature of a community,212 to the
choices about the allocation of authority that are made in charters,213 to rights
and other fundamental values reflected in charters,214 the constitutional
dimensions of a founding text reinforce that the governing body of a
community is, first and foremost, a government.215
Why does it matter that we treat local governments as governments and
that local governments intentionally assert this aspect of their identity
through the mantle of constitutional legitimacy? The body of state-and-local
government law is currently facing an inflection point in our polarized
political environment, with cities asserting regulatory ambition and states
increasingly acting to curtail those expressions of local democracy.216 From
workplace regulation to antidiscrimination law to environmental protection
to responding to emerging technology and many other policy areas, cities are
acting, and state preemption is materially narrowing the public, regulatory
210.Barron, supra note 2, at 2290–91, 2301.
211.See supra section I(B)(2).
212.See supra note 124 and accompanying text.
213.See supra text accompanying notes 114–23.
214.See supra text accompanying notes 130–34.
215.As Stephen Elkin has argued (and elaborated), there is an intellectual tradition that runs
from Tocqueville through John Stuart Mill to John Dewey that views local political institutions as
a normative site for the development of “a desirable political way of life.” STEPHEN L. ELKIN, CITY
AND REGIME IN THE AMERICAN REPUBLIC 1 (1987). In this sense, the charter is another form of
Elkin’s exemplary constitutive institutions—one that is particularly apt at the task of “join[ing] ends
and means in a commitment to be a certain sort of people.” Id. at 191.
216.See generally Briffault, supra note 14 (discussing states’ recent efforts to preempt local
governments); Scharff, supra note 14 (same); Schragger, supra note 3 (same).
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identity of local governments in many states.217 And states are also
increasingly introducing punitive measures that not only weaponize state
oversight, opening new avenues of liability for local governments and
threatening local fiscal authority, but also target individual local officials for
sanction, including potential criminal liability, in disputes with states.218
Against that backdrop, it is critical that cities reinforce their “publicness” in
the sense of being genuine polities.
Recent litigation between the City of Charlottesville and the
Commonwealth of Virginia over the city’s efforts to respond to the friction
caused by Civil War monuments in the community provides one telling
contemporary example of the jurisprudential risks of treating local
governments as administrative arms of the state or quasi-private entities. A
Virginia statute bars local governments in the state from interfering with
Civil War monuments. When five Charlottesville city council members voted
to remove statues of Robert E. Lee and Stonewall Jackson from the city’s
Emancipation Park and Justice Park, respectively, they found themselves
facing individual liability under state law. In a ruling that is currently on
appeal, the trial court held that these legislators could face that liability—
were not shielded by statutory or common-law legislative immunity—
because they were acting ultra vires and hence (in the court’s mistaken view)
not as “legislators.”219 That is not how law normally treats the legislative
processes of a legitimate democracy.220
A clear charter in a state legal system that valorized the document as a
local constitution would not necessarily solve the challenge posed by cases
like the Charlottesville monuments litigation; it might, in fact, be entirely
orthogonal to the home-rule identity crisis at the heart of that conflict. But as
an instrument reinforcing the mantle of governmentality, a charter viewed
the right way could add conceptual heft to claims about the value of local
democracy. Will adopting or elevating the role of a charter work a
fundamental, substantive change in the underlying identity of a local
government? Of course not. Having a “constitution” does not a local
sovereign make, any more than having a charter with separation of
management functions and voting rights for shareholders convert a
corporation into a public entity. But that does not mean the instrument is not
217.See Riverstone-Newell, supra note 3, at 404 (“In the past few years . . . a growing number
of state officials have sponsored and supported preemption legislation with the intent to weaken
local authority and to thwart local progressive policies.”).
218.See Briffault, supra note 14, at 2002–05 (describing “punitive preemption”).
219.Letter Ruling on Immunity and Revisiting Damages Issue at 4–5, Payne v. City of
Charlottesville, No. 17-145 (Va. Cir. Ct. June 13, 2018).
220.A coalition of city officials in Florida is currently suing the state over a similar statute that
punishes local officials for attempting to pass local legislation on gun safety. City of Weston v.
DeSantis, No. 2018-CA-0699 (Fla. Cir. Ct. July 26, 2019).
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available to be reimagined as a local embodiment of our constitutional culture
and an integral instrument of local democracy.
B. Charters as Focal Points for Democratic Deliberation
If we conceive of charters in the specific constitutional sense of the
embodiment of the public nature of a local government, that conception can
foster a related purpose for charters as a locus for democratic deliberation in
local communities.221 Like many national constitutions, particularly modern
ones,222 a charter can be a focal point for a city’s civic identity. The process
of charter adoption and amendment provides what might be considered local
“constitutional moments,” where the opportunity exists to transcend ordinary
local politics and foster deliberation about fundamental local governance
choices, local identity, and local values. If that process succeeds, it can
appropriately demarcate an area of higher law at the local level, worthy of
greater deference by states and courts, and it can potentially reinforce local
participatory values.223
1. Constitutional Moments and Community Identity.—Charters as
constitutional texts provide a distinctive forum through which to focus public
meaning, channeling community identity through discourse about what is
sufficiently fundamental to be included and what values in a community
should be reflected. Obviously, much of what goes into most charters is
technical—rarely does the heart flutter over the question of whether the
mayor or the city council gets to remove a police chief or over the public
hearings necessary for approving higher bond limitations. That said, choices
about structure can matter (even if we have relatively little data about the
connection between specific structures and policy outcomes). There is a good
argument, moreover, that at moments of local constitutional change,
communities should also consider enshrining provisions—not just rights
against the local government but also private rights, like local
antidiscrimination law—that reflect a community’s deepest values.
Much of this promise turns on the distinctiveness of constitutional
process, recognizing the value of crafting and, gingerly, modifying a
foundational text through a process that is democratic and inclusive.224 If
221.Cf. John J. Worley, Deliberative Constitutionalism, 2009 BYU L. REV. 431 (arguing for a
reconciliation between constitutionalism and deliberative democracy).
222.See supra subpart II(B).
223.Cf. Zachary Elkins, Tom Ginsburg & Justin Blount, The Citizen as Founder: Public
Participation in Constitutional Approval, 81 TEMP. L. REV. 361, 369–70 (2008) (discussing the
proposition that public participation in constitutional making “conceivably inculcates democratic
skills, habits, and values such as trust, tolerance, and efficacy—attributes that may be good in
themselves but that may also trickle up to provide system-level benefits”).
224.For pragmatic suggestions about how to approach charter process, see infra section
IV(A)(2).
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adoption and (ideally relatively infrequent) amendment225 are understood in
this light as “constitutional moments”—and the process used is elevated
above the ordinary give-and-take of local politics—then the resulting
lawmaking can be more legitimate, inclusive, and reflective of community
identity than ordinary legislation (or local executive/administrative
activity).226
Indeed, a potential hallmark of charter adoption and amendment in
political process terms is that they are citywide rather than subject to more
particular local political forces. That fact may provide some insulation from
the more dysfunctional aspects of local politics, such as aldermanic privilege
and the like.227 In the absence of local party competition, the insulation that
the charter process provides can be a useful counterbalance to normal
politics, with a citywide focus that tempers the possibility of particular groups
to logroll or exclude.228
These constitutional moments, then, can be used to clarify and enshrine
local identity, underscoring the value of localism for decentralization and
fostering interjurisdictional mobility.229 This identity, captured in a central
foundational text, can speak to multiple audiences, not only in a doctrinal
sense, such as claiming home rule or judicial deference,230 but also in the
sense of creating a forum for constitutional identity.
And why is it important to have constitutionally deliberative discourse
at the local level? Constitutional identity matters because community identity
225.Cf. Theodore C. Sorensen, The American Constitution: Basic Charter or First Draft?, 40
ARIZ. L. REV. 709, 713 (1998) (“The more you amend the Constitution, the more it seems like
ordinary legislation [and] the less it looks like a fundamental charter of government.” (alteration in
original) (quoting THEODORE C. SORENSEN, WHY I AM A DEMOCRAT 144–45 (1996))).
226.Cf. Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local
Legitimacy, 71 CALIF. L. REV. 837 (1983) (exploring local governance as a deliberative forum).
227.I thank David Schleicher for this insight.
228.This vision of insulated politics is, perhaps, an ideal possibility for charter lawmaking that
might not always be realized in practice. In a recent wave of charter revision in New York City, for
example, the New York City Council launched a Charter Revision Commission, gave it a broad
mandate to examine the entire charter (for the first time since 1989), and then advocated for charter
changes that would shift power from the mayor to the city council. See generally COREY JOHNSON,
FERNANDO CABRERA & BRAD LANDER, REPORT TO THE 2019 NEW YORK CITY CHARTER
REVISION COMMISSION (2019), http://council.nyc.gov/wp-content/uploads/2019/02/NYC-Council-
Report-to-the-2019-Charter-Revision-Commission.pdf [https://perma.cc/9CNF-A7AN] (proposing
council advise and consent for appointment of the corporation counsel, police commissioner, chair
of the City Planning Commission, chief administrative law judge, and executive directors of the
Campaign Finance Board and the Conflicts of Interest Board, as well as independent budgeting for
the comptroller and public advocate and non-negotiable budgets for the borough presidents and
community boards).
229.As much as this aspect of localism—and mobility to reinforce it—can foster community
and responsive governance, it is important to acknowledge countervailing concerns, as discussed
below. See infra section III(C)(1).
230.Although, as we will see, those are important consequences as well to a constitutionally
deliberative process. See infra section III(B)(2).
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matters. Clearer identity can reinforce local responsiveness and the values of
interlocal mobility, advancing the central value of decentralization that
sounds in pluralism and diversity. Indeed, Yishai Blank has persuasively
argued that there is expressive value in local governance—that, as he puts it,
“cities speak” and in so doing advance democratic governance,
experimentation, minority voice, and other core values of localism.231
Heather Gerken has likewise insightfully argued for the value of distributing
voice through local official channels and that “federalism all the way down”
serves to reinforce democracy and temper concentrations of power.232
Institutional pluralists generally tout the distribution of authority in a
democracy for giving voice to multiple communities,233 and that is true. But
Blank’s and Gerken’s arguments that democratic local polities play a
particularly distinctive role in this pluralist project can be bolstered by local
governments providing a focal point for public meaning. Again, charters are
not strictly necessary to do so, but given our constitutional culture, they have
great potential to advance that identity-formation-and-communication
project.234
There is a distinctively American brand of constitutionalism that
venerates the document itself in a kind of civic religion, for better or worse.235
One need not be nearly as hagiographic as popular literature can seem at
times to recognize the role of the federal Constitution as a focal point for
civic discourse. On the other hand, that is not how state constitutions tend to
function in our political system; indeed, most people seem unaware that states
even have separate constitutions.236 It is hard to imagine a scene in the
popular culture of anyone invoking a state constitution in the way the federal
231.See Yishai Blank, City Speech, 54 HARV. C.R.-C.L. L. REV. 365, 367, 370 (2019) (arguing
for constitutional protection for city speech, for reasons sounding in localism as well as reasons
central to First Amendment values).
232.See generally Gerken, supra note 171.
233.E.g., Martha Minow, The Constitution and the Subgroup Question, 71 IND. L.J. 1 (1995).
234.There is an empirical question that any claim for legal reinforcement of community identity
must acknowledge, namely which polity do people actually identify with? The answer is no doubt
idiosyncratic—some people may indeed see themselves as tightly associated with Oakland, others
with a less distinct Bay Area, and others primarily as Northern Californians, or even just
Californians. And surely many people claim more visceral allegiance to neighborhoods than they
do to a city or a suburb. To be clear, then, the argument for channeling community identity through
the mechanism of local constitutional process takes the link between political jurisdiction and that
identity as a starting point, recognizing the inherent limitations in the link.
235.See supra subpart II(B). See generally SANFORD LEVINSON, CONSTITUTIONAL FAITH 3–
53 (1988) (reflecting on the Constitution’s role in “American civil religion”).
236.See JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF
AMERICAN CONSTITUTIONAL LAW 1 (2018) (noting the absence of public discourse about state
constitutionalism).
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Constitution recurs in everything from Miranda warnings to the regular
stream of movies about foundational federal constitutional moments.237
People, however, actually seem to care to a surprising degree about their
charters compared to their state constitutions.238 Perhaps, this bimodal
approach—federal and local attention versus state inattention—actually
makes logical sense. As important as states are, practically, there is an
argument that many people tend to associate their political identity with their
nation and their local government.239
Given this centrifugal national–local identity, municipal charters can
focus communities at moments of salient change on structure and on what
aspects of a local community deserve to be enshrined in a fundamental legal
text. This is not an exercise that should be undertaken lightly nor often—
hence the constitutional dimension of the exercise—but an opportunity for
reflection and distinctive community dialogue that should not be lost.
2. Defining “Higher Law” at the Local Level.—Recognizing the
distinctive legitimacy of constitutional process underscores the potential of
that process to identify “higher law” at the local level. Once identified,
“charter law” can signal both to the states (about what deserves greatest
recognition in conflicts over state preemption) and to courts (about what local
lawmaking should be, subject to greatest deference).
If the charter process can identify a realm of “higher” lawmaking, it is
fair to ask what is or at least should be considered sufficiently fundamental
at the local level to merit inclusion in a charter through that process. There is
no simple answer, although some judicial decisions have grappled with the
237.E.g., ON THE BASIS OF SEX (Focus Features 2018); LOVING (Focus Features 2016);
DEFENDING GIDEON (The Constitution Project 2013).
238.A recent smattering of headlines—and charters are a staple of local coverage across the
country—captures the actual salience of charters fairly well: Pat Bradley, Burlington Groups Plan
Petition to Change City Charter, WAMC (Jan. 13, 2020), https://www.wamc.org/post/burlington-
groups-plan-petition-change-city-charter [https://perma.cc/DXE5-5LRG]; Bill Forry, Editorial:
Let’s Review City Charter, DORCHESTER REPORTER (Jan. 15, 2020), https://www.dotnews.com
/columns/2020/editorial-lets-review-city-charter [https://perma.cc/9M9E-YMED]; Sarah Rahal,
Fearing Being Left in the Dark, Detroiters Swarm Charter Commission Meetings, DETROIT NEWS
(Jan. 26, 2019, 7:42 PM), https://www.detroitnews.com/story/news/local/detroit-city/2019/01/26
/detroiters-swarm-charter-commission-meetings/2670215002/ [https://perma.cc/RSW3-7FZM];
Philadelphia City Council Approves Ballot Question Eliminating Gender-Specific Language from
City Charter, CBS PHILLY (Feb. 14, 2019, 10:11 PM), https://philadelphia.cbslocal.com/2019/02
/14/philadelphia-city-council-approves-ballot-question-eliminating-gender-specific-language-
from-city-charter/ [https://perma.cc/Q5NZ-NPTS].
239.Cf. Scharff, supra note 14, at 1488 (discussing ways in which the current political climate
nationalizes certain issues and also pushes the salience of political identity down to the local level).
But see Ernest A. Young, The Volk of New Jersey? State Identity, Distinctiveness, and Political
Culture in the American Federal System 17 (Feb. 24, 2015) (unpublished manuscript), https://
scholarship.law.duke.edu/faculty_scholarship/3431 [https://perma.cc/CWE9-MUV7] (arguing for
the continuing relevance of state-level political identity).
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question.240 The tradition of unwritten constitutionalism makes the positive
argument for what should constitute a local “constitution” more challenging
but still necessary. Some criteria for identifying what is “constitutional”
about charters are obvious. That the local government or the state treats the
body of law as more “fundamental” than ordinary legislation, for example,
clearly evinces constitutional status. More pragmatically, however, charter
law should primarily address structure and authority, basic elements of
political process, and constraints on local governments through individual
rights, although this last focus is less a general feature of charters than of
other constitutions.241
Constitutionally deliberate discourse, however, does not have to be
limited to questions of structural and political choice, as critical as those areas
of governance are. There are broader signals about community identity that
might be understood as “charter-worthy,” whether granting rights
particularly important to a given community or reinforcing some other
particularly salient aspect of local values. If a community, for example, wants
to signal that it is recognizing the value of immigrants, it might choose to
enshrine provisions, such as municipal identification or even voting rights for
non-citizens, in its charter.242 A community might choose that institutional
path less for any difference in legal outcome, in the event those local laws
are challenged (although they might be worthy of greater deference), but
more because in our culture, a constitutional commitment to a set of values
carries distinctive meaning.243
What is most important, ultimately, is that there be an explicit dialogue
within a community about the dividing line of fundamentality and that the
resulting demarcation be respected within the local government, the states,
and the courts. Once that area of fundamental law is demarcated, it can have
doctrinal consequences along the two main dimensions in which charters
operate: vertically and internally. As to the first dimension, marking a legal
issue as charter-worthy should have a doctrinal-signaling effect to states, not
240.See, e.g., Cheeks v. Cedlair Corp., 415 A.2d 255, 261–62 (Md. 1980) (rejecting an
attempted amendment to the Baltimore City Charter that would have established rent control as
“essentially legislative in character” and therefore not sufficiently fundamental to constitute proper
charter material).
241.Municipal charters, perhaps more so than other constitutions, rely on institutional structure
to protect individual rights, recognizing that local governments are inherently more constrained in
their range of policy discretion than other levels of government, given the limits of even the
strongest version of home rule.
242.See Jennifer Butwin, Putting Students First: Why Noncitizen Parents Should Be Allowed
to Vote in School Board Elections, 87 FORDHAM L. REV. ONLINE 49, 52 (2019) (observing that at
least twelve U.S. municipalities have enfranchised noncitizens for at least some local elections,
including Chicago, San Francisco, and ten municipalities in Maryland).
243.Local governments can enshrine values that are parochial and exclusionary as easily as
they can values that are inclusive, and it is legitimate to question whether charters should facilitate
that kind of local pluralism. This question is explored in detail below. See infra section III(C)(1).
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just in the broad sense of validating home rule but more specifically
distinguishing what is most fundamental about local law. This valence for
charter law does play out in cases that recognize a core of immunity from
states regarding how local governments structure their own government and
political process. Beyond governance choices, what a local government itself
deems fundamental to its democracy should be most clearly protected in
state–local conflicts, rather than courts searching for some indeterminate
realm of “municipal” or “local” matters in the sense that first-wave home-
rule reform suggested.244 Tying immunity to charters reinforces the core of
local authority—and empowers local governments to weigh in on defining
that core—even if courts will continue to grapple with marginal cases.245
Beyond doctrine that defines state–local conflicts, charter lawmaking
can influence how courts approach decisions internal to local governments,
as it mostly does in current practice. This is one meaning that can be read into
the raff of cases asserting the supremacy of charter law over ordinary
legislation at the local level.246 But courts can also reinforce the
fundamentality of charter law by according greater deference to the results of
charter process more generally, underscoring the hierarchy of sources of local
law that a charter implies.
3. Charters in Local Governance and the Rule of Law.—Closely related
to the process of defining higher law at the local level, charters can render
structural choices more salient and more subject to accountability, echoing
the insights of Progressive Era home-rule reform.247 This can legitimate local
governance by advancing the rule of law through the clarity, notice, and
stability that come from an appropriately framed foundational text.248 Indeed,
there is a potential cyclical benefit to a clearly defined charter that bolsters
the local rule of law because that legality, in turn, bolsters the legitimacy (and
the democratic and regulatory identity) of local governments. Certainly,
those values must be balanced against concerns about entrenchment,
244.See supra section I(A)(3).
245.In Kansas, for example, a local government can designate a local law as a “charter
ordinance,” and if the local government follows specific procedural hurdles in enacting such an
ordinance, the local law gains strengthened protection against state preemption. See KAN. CONST.
art. 12, § 5(c)(2). The specific provision states:
A charter ordinance is an ordinance which exempts a city from the whole or any part
of any enactment of the legislature as referred to in this section and which may provide
substitute and additional provisions on the same subject. Such charter ordinance shall
be so titled . . . and shall require a two-thirds vote of the members-elect of the
governing body of such city.
Id.; see also Farha v. City of Wichita, 161 P.3d 717, 723–24 (Kan. 2007) (explaining how Kansas
cities may use charter ordinances to “opt out” of state statutes with which they disagree).
246.See supra text accompanying notes 98–103.
247.See supra section I(A)(3).
248.See supra subpart II(C).
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ossification, and the antidemocratic aspects of any legal instrument that
requires extraordinary process—beyond ordinary politics—to amend or
repeal. But the governance potential of clear constitutionalism at the local
level should not be lightly dismissed.249
Improving the structure of local government can bolster what is
practically and normatively attractive about localism. For example, local
governments with better-functioning governance capacity can enhance
experimentalism by, in essence, building better laboratories of democracy.250
Similarly, more functional local governance can enhance responsiveness and
the tailoring of local policies to local preferences. To the extent that charters
enhance local power by improving the quality of local governance—an
empirical question, to be sure—they advance all the positive values of
localism. (Charters also risk reinforcing the negative aspects of localism,
about which more will be said below.251)
Looking to municipal charters to promote rule-of-law principles and
more generally advance good governance is great weight to place on a single
instrument. But there is value in reviving the linkage between charters and
governance that animated so many first-wave home-rule advocates, if for no
other reason than that charters focus conversation in a concrete way. The
point is not that there are given structural choices that are normatively or
practically necessary or superior for all situations—empirical choices that are
difficult to evaluate given how little we know about the implications of
particular local structures—but that the discourse on those structural choices
can be approached with greater intentionality, clarity, and technical input.252
C. Normative Concerns with Localism and the Limits of the
Constitutional Analogy
For all the promise that a constitutional view of municipal charters
holds, there are normative and conceptual crosscurrents auguring caution in
placing too much weight on these instruments. As this subpart discusses,
249.Understanding local governments as places of constitutional innovation, there is an
argument that, as Filippo Sabetti has noted, “the basic principles of constitutional government were
worked out in the free cities of Italy and Germany long before the Americans confronted the
problems of constitutional choice.” Filippo Sabetti, Local Roots of Constitutionalism, 33 PERSP.
POL. SCI. 70, 74 (2004) (citing HAROLD J. BERMAN, LAW AND REVOLUTION (1983)). Sabetti credits
early European city-republics with governance innovations, including mutual consent, non-
hereditary rule, limited terms of government office, and a broad commitment to “rule under
law.” Id.
250.Cf. SONENSHEIN, supra note 2, at xiii (exploring ways in which the framers of Los
Angeles’s 1999 city charter sought to improve local democracy and participation by instituting a
new system of neighborhood councils that were open to a broad range of stakeholders).
251.See infra section III(C)(1).
252.The time and place to have this discourse should be at moments of local constitutional
change. See infra section IV(A)(2).
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local power has long raised concerns about parochialism and exclusion that
complicate any efforts to bolster local democracy—concerns that have
relevance to charters. At the same time, some scholars are skeptical that the
institutions of local government actually matter in light of constraints on local
power that derive from the mobility of capital, limits on fiscal capacity, the
burdens of state oversight, and similar external forces. These two challenges
to local power and local democracy bear interrogation in the context of an
argument for the value of charters as constitutions.
Moreover, there are basic differences in the law and practice of
municipal charters that distinguish them from federal and state constitutions,
including their optional nature and the extent of state control over their
content and consequences. These limits to the constitutional analogy are
important to note as well at this juncture, although they do not ultimately
undermine the basic case for appreciating the constitutional aspects—and
potential—of charters.
1. Reinforcing Local Parochialism or Simply Irrelevant?—As noted at the
outset, the weight this Article places on charters may seem excessive, to say
the least. To break that down—and to consider some responses—one might
envision two opposing concerns at play, namely that charters do not matter
or that they matter too much. On one hand, the argument would be that
charters and what they represent structurally for governance are not
ultimately that significant given external constraints on city power and local
policy discretion (or at least uncertainty about the link between any given
structure and any resulting policy outcome). This is similar to Richard
Schragger’s argument that debates over questions such as strong-mayor/
weak-mayor models are subordinate to questions about the constrained role
of cities in our federal system.253 Legal (formal) authority and practical
capacity, Schragger underscores, are not coterminous by any means—a city
might have tremendous legal authority but be functionally constrained by a
meager tax base or be at the mercy of mobile capital.254 In this view, until
capacity and power have been altered, policy outcomes are not going to be
253.See Schragger, supra note 1, at 2545. Schragger argues:
[U]rban governance is highly constrained governance. Cities are simply not significant
wielders of power in our political and constitutional system. Thus, the city’s political
structure—whether reformed or unreformed—and the strength of the city’s mayoralty
may have little to do with city leaders’ ability to pursue desired policy outcomes. The
mayoralty is “constitutionally” weak; its power is limited by the same forces that limit
city power more generally.
Id.
254.On debates about the interplay between local legal authority and external constraints on
local governance more generally, see, for example, PAUL E. PETERSON, CITY LIMITS (1981);
RICHARD SCHRAGGER, CITY POWER: URBAN GOVERNANCE IN A GLOBAL AGE (2016).
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much different, however well designed a charter—and a structure of local
governance—might be.
On the other hand, the opposite concern would be that the institutions of
local governance, including charters, matter too much because localism itself
is an enterprise that tends to foster parochialism and exclusion. There is a
familiar litany of concerns about local empowerment reinforcing and giving
legal sanction to social and economic stratification, as well as distinctive
concerns about local governments as particularly threatening to individual
rights, whether through police misconduct, civil forfeiture, exclusionary
zoning, eminent domain abuse, or the like.255 Make local governments more
responsive, efficient, and effective in their governance, this view would hold,
and one is likely to deepen their worst tendencies.
Again, charters—and other local, legal-structural institutions—are only
a small part of these debates, but they are relevant nonetheless. On the
concern about irrelevance, it is undeniable that external constraints are real
in local governance, and caution is appropriate in overly investing in any
particular structural choice. Schragger is surely right about that. But it is also
manifestly the case that governance still matters, even if it is difficult to
establish a clear causal connection in any given instance between a structural
choice and a given policy outcome. Admittedly, improving the structure of
legal authority and the governance capacity to exercise that authority will do
little, at least directly, for any given city’s fiscal health or ability to attract
employers. But that does not mean formal authority and the institutions
through which it is exercised are irrelevant at the local level. One has to focus
on both.
The concern with the dilemma of localism is important as well, but there
are other ways to reaffirm local democracy while checking the worst excesses
of local empowerment. In other work, I have suggested that one way to
address the dilemma of localism is for the law of state–local relations to
incorporate normative concerns in discerning the metes and bounds of local
authority at the outer margins.256 Other commentators have argued that
individual rights, particularly federal equal protection,257 represent a more
appropriate constraint on local parochialism, as resting on rights might avoid
overly empowering local governments.258 And there are other ways to
constrain the worst excesses of localism without undermining the enterprise
255.See Davidson, supra note 193, at 975–78 (discussing critiques of localism).
256.Id. at 984–96.
257.U.S. CONST. amend. XIV, § 1.
258.E.g., Thomas Silverstein, Combating State Preemption Without Falling into the Local
Control Trap, 26 POVERTY & RACE (Poverty & Race Res. Action Council), Oct.–Dec. 2017, at 2,
12, http://prrac.org/newsletters/octnovdec2017.pdf [https://perma.cc/LZA4-VJCJ].
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of local democracy altogether.259 That local governments can, at times, be
parochial or exclusionary or tread on individual rights is ultimately not a
compelling argument for throwing the democratic-governance baby out with
the bathwater.
2. What Distinguishes Charters in Constitutional Terms.—Beyond the
normative crosscurrents about local power, it is important to recognize the
ways that municipal charters differ from federal and state constitutions as a
conceptual matter. There are clear limits to the constitutional analogy,
auguring for caution in placing too much weight on these instruments as well
as suggesting avenues for reform.260
To begin, charters are paradigmatically optional documents and not
strictly necessary as a formal matter to define the boundaries of local
power.261 In the American culture of constitutionalism, it is hard to imagine
a polity without a basic law as such, but local governments do, in some
instances, draw from state law to constitute their structure and form.262
Charters, even where adopted by a local political community, are
inherently limited in the power they can confer. Depending on the nature of
home rule in a state—and the issue at stake—charters may be subject to
override not only by state and federal constitutional law but also by ordinary
state legislation. This subsidiarity is also true of state constitutions under the
federal Supremacy Clause in instances where federal and state authority
overlap. But local governments are still more fundamentally understood as
creations of state law, even in their most locally empowering incarnations.263
259.Fair housing law, for example, can address discrimination at the local level, and there are
promising veins of state constitutional law, including the concept of general welfare as a constraint
on state delegation, that can be deployed to moderate localism in instances of particularly egregious
local parochialism. See generally Davidson, supra note 193.
260.These avenues are explored below. See infra subpart IV(A).
261.See supra subpart I(B).
262.Despite the presence of “local” courts in some jurisdictions, moreover, charter law is
largely interpreted in state courts, another point of distinction with state and federal constitutional
doctrine.
263.The federal government, the Supreme Court has made clear, cannot “commandeer” the
apparatus of state government. See, e.g., Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461,
1478–81 (2018). The states, by contrast, often micromanage even the most mundane details of local
governance, including city-council districting, city personnel and labor issues, and certainly the
terms of local policy discretion—with increasing vehemence today. See generally RICHARD
BRIFFAULT, NESTOR M. DAVIDSON & LAURIE REYNOLDS, THE NEW PREEMPTION READER:
LEGISLATION, CASES, AND COMMENTARY ON THE LEADING CHALLENGE IN TODAY’S STATE AND
LOCAL GOVERNMENT LAW (2019) (describing increasing conflict between local and state
governments across a range of policy issues). In all but the strongest home-rule states, validly
enacted state legislation tends to override most local authority. There are examples of strong home-
rule states that, when the adoption of a charter is coupled explicitly with the sphere of local authority,
protect charter law from state override on matters of local concern (including governmental
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Another point of divergence between charters and other constitutions is
that “charter law,” as such, is not clearly delineated as fundamental in some
jurisdictions. While not necessarily the norm, charters at times evince no
clear difference with ordinary legislation at the local level. And even where
there are documents clearly delineated as “charters,” they can be remarkably
detailed and unwieldy, obscuring their basic meaning from all but the most
devoted acolytes.264 The New York City Charter, for example, runs to
roughly 340 pages with seventy-four numbered chapters and several lettered
sections following.265
Procedurally, unlike the federal Constitution, charters can be revised
with relatively great frequency. This actually brings them closer,
comparatively speaking, to state constitutions266 and to some constitutional
cultures internationally, where political regime change often brings
fundamental constitutional change.267
structure). See, e.g., Traders Sports, Inc. v. City of San Leandro, 112 Cal. Rptr. 2d 677 (Cal. Ct.
App. 2001) (holding that a city charter provision allowing a majority city-council vote to place a
tax ordinance before voters prevails over an inconsistent state law mandating a two-thirds vote of
the local governing body before a tax ordinance can be placed on a local ballot).
264.Conversely, it is equally problematic that issues that might seem fundamental to structuring
local governance are adopted as ordinary legislation rather than in the charter.
265.See CHARTER OF NEW YORK, N.Y.
266.The federal Constitution has been amended only twenty-seven times since its adoption in
1788 (less frequently if one treats the Bill of Rights as a single constitutional moment). Even though
the last state constitutional convention was in 1984, it is generally easier to amend state
constitutions, especially in states that allow amendment by initiative or referendum. See Cain &
Noll, supra note 8, at 1520. The Constitution of Alabama, for example, has been amended nearly
800 times since it was adopted in 1901. Eduardo M. Peñalver, Restoring the Right Constitution?,
116 YALE L.J. 732, 760 n.97 (2007).
Indeed, closer to the variety evident with charters, there are many more ways to amend state
constitutions than the federal Constitution. As John Dinan has noted:
Just over one-third of the states provide for a constitutional initiative, whereby the
people can not only propose amendments by initiative petition but also approve those
same amendments in a popular referendum, without any participation of the state
legislature. In nearly one-third of the states, a referendum must be held periodically on
whether to call a constitutional revision convention. In one state, amendments can be
submitted to a popular referendum by a constitutional revision commission. Many
states permit legislatures to submit amendments to the people upon a mere majority
vote, albeit sometimes in consecutive legislative sessions.
John Dinan, Patterns of Subnational Constitutionalism in Federal Countries, 39 RUTGERS L.J. 837,
845 (2008) (citations omitted).All that said, the pace of constitutional change in the states is slowing
significantly. See G. Alan Tarr, Introduction to 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST
CENTURY 1, 2 (G. Alan Tarr & Robert F. Williams eds., 2006) (noting that while states held 144
constitutional conventions and adopted 94 new state constitutions in the nineteenth century, the
twentieth century saw only 64 conventions and 23 new constitutions, and since 1984, there have
been no constitutional conventions and only a single new constitution).
267.ZACHARY ELKINS, TOM GINSBURG & JAMES MELTON, THE ENDURANCE OF NATIONAL
CONSTITUTIONS 129 (2009) (discussing constitutional endurance and noting that comparatively, the
average life expectancy of a national constitution is nineteen years); see Thomas Ginsburg, Zachary
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The normal valence of experimentalism usually runs from the local up
to the national, but charters might be an area where the paradigmatic
“schoolhouse of democracy” could learn from a national model. There is
much to be said for the parsimony and modesty in modification evident in
the constitutionalism around the federal Constitution for stability, rule-of-law
notice value, and channeling democratic change through long-term
institutions.
In short, recognizing the limitations in the analogical comparison
between charters and other constitutions—indeed, between charters and the
broader aims of constitutionalism—can provide a roadmap for how best to
approach charters as local constitutions, as we shall now explore.
IV. A Reform Agenda for Charters
This final Part turns from the descriptive (what municipal charters are),
the conceptual (how to think about municipal-charter constitutionalism), and
the normative (what is the potential value in doing so) to the pragmatic.
Elevating the constitutional nature of charters, this Part argues, raises the
imperative for reform where actual charter practice falls short of the
normative constitutional promise of charters. This Part closes with a brief
coda, outlining a scholarly agenda moving forward that connects local
practice to the discourse of comparative constitutional law and
constitutionalism.
A. Avenues for Pragmatic Reform
The normative arguments in Part III point to some rules of thumb for
how cities and other local governments should approach the substance of and
process around charters. It is important for local governments to ensure that
these documents best serve their core purpose. In many places they do, but
there is value in coalescing some simple rules to apply to these constitutional
texts where local practice merits reform.268
1. Simple Rules for Complex Instruments.—Several related pragmatic
recommendations flow from a constitutional conception of local charters.
First and most basically, it is important in the first instance that a local polity
actually have a charter. Being able to have one requires constitutional reform
Elkins & James Melton, The Lifespan of Written Constitutions, U. CHI. L. SCH. NEWS (Oct. 15,
2009), https://www.law.uchicago.edu/news/lifespan-written-constitutions [https://perma.cc/ZV3U-
M58X] (“According to an old joke, a patron goes into a library and asks for a copy of the French
Constitution, only to be told that the library does not stock periodicals.”).
268.Reform efforts require rethinking elements of both state and local law (state law because
it sets the preconditions for charter law and local law to the extent state law empowers local choice)
as well as actual practice; it has to involve law in action and cultural change as much as technical
legal change.
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at the state level in the handful of states that fail to authorize charters.269 As
noted earlier, some states mandate charters, and many allow charters as an
optional expression of local democracy. For cities that have chosen to default
to an externally imposed (state) fundamental law, there is value in going
through the process of charter adoption.
Drawing on lessons from the literature on written constitutionalism,270
charters should be embodied in a single, clearly demarcated document rather
than a disparate collection of local (and state) statutes. This bolsters the
ability of such documents to serve as focal points and signals to internal and
external audiences regarding exactly what a community considers its
fundamental law.
Next, if the charter is to serve that function, it is critical that communities
address only “charter-worthy” issues in their charters. Defining the
appropriate realm of higher law at the local level is obviously subject to
contestation and will, of necessity, vary from community to community. Core
questions of structure and political process seem obvious candidates;
although even there, charter drafters would do well to prioritize parsimony
and resist the temptation to burden charters with ordinance-like details that
overly entrench the more prosaic aspects of structure.271 Beyond that core,
the important pragmatic point is to have a local political and legal discourse
that understands the need to filter higher law from ordinary law and
correspondingly to be wary of allowing charters to function as a procedurally
convenient avenue for prosaic lawmaking, especially where the charter is
used to circumvent ordinary process.
If those conditions adhere—which is to say there is a clearly delineated
local constitution, and it is reserved for higher lawmaking—then other legal
actors should give the charter the legal and social deference it is due. This is
true for the states that oversee local governments. It should be equally true as
a doctrinal matter for courts that review questions implicating charters. And
this deferential principle should guide the internal relationship between
“charter law” and ordinary legislation and administration at the local level,
no less than constitutional law constrains state and federal governments.
These simple rules are aspirational to be sure. And it is important to be
realistic about the capacity of many local governments—and local
communities—to approach governance with the intentionality and reflection
269.See supra section I(B)(1).
270.See supra subpart II(C).
271.Concerns about entrenchment in general and the particular risks of local entrenchment, see
generally Serkin, supra note 20, reinforce the imperative to focus charter provisions on a relatively
narrow core of particularly important structural and value-reflecting provisions. If one advantage of
constitutional law is that it is not as easily altered, that as a practical matter augurs strongly for
parsimony in the types of provisions—and the quantum of law—actually placed outside the ordinary
political process.
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900 Texas Law Review [Vol. 99:839
that this kind of reform would require. But it is essential to have in mind
something of an ideal type when evaluating current practice and some
guidelines toward which to strive when communities approach charter
questions.
2. The Importance of Local Constitutional Process.—One final
consequence of understanding charters as local constitutions is the pragmatic
focus that the framing can bring to the distinctive constitutional moment of
creation and the process for revision. If constitutionalism theory underscores
that constitutions not only operate as the legal source of structure and rights
for a polity but can also serve as a focal point for “constituting” that polity,
that understanding puts appropriate weight on the process through which
charters are adopted and amended. Simply put, how a charter is adopted (and
the constraints that law places on the process of amendment) matters for
legitimating these fundamental texts and helping them serve their most
important functions.272
Why is it important to try to mark out an area of more deliberative
politics in charter adoption and reform? For one thing, local elections
paradigmatically suffer from low voter turnout,273 and local voters tend not
to be representative of the overall makeup of their communities, skewing
older and wealthier.274 Beyond electoral politics, there have long been
concerns with unequal power dynamics at the local level. For all these
reasons, it is critical to focus on inclusion and broad involvement when
adopting and amending charters.275
272.The link between participation and the substantive form of charters has long been an
endemic problem. When St. Louis pioneered the modern home-rule city charter in the 1870s, the
State of Missouri empowered a group of property owners, the Board of Freeholders, to undertake
the task of formulating the charter. Perhaps not surprisingly, the charter they then produced strongly
protected property owners, expressly limiting citywide property taxes and entrenching a special
assessment with regard to infrastructure spending. See Barron, supra note 2, at 2296–97.
273.Davidson, supra note 1, at 626 n.291.
274.See David Schleicher, Stuck! The Law and Economics of Residential Stagnation, 127 YALE
L.J. 78, 111 (2017) (noting that homeowners and older citizens turn out at higher rates for “low-
information local elections”).
275.The National Civic League has promulgated a helpful guide on how to approach revision,
as part of its Model City Charter, entitled “Citizen-Based Government: A Process to Engage
Citizens in Charter Revision.” NAT’L CIVIC LEAGUE, GUIDE FOR CHARTER COMMISSIONS 11–14
(6th ed. 2011), https://www.nationalcivicleague.org/resources/guide-charter-commissions-2011/
[https://perma.cc/XWF9-MD5F]; see also Lisa Blomgren Bingham, Collaborative Governance:
Emerging Practices and the Incomplete Legal Framework for Public and Stakeholder Voice, 2009
J. DISP. RESOL. 269, 323 (discussing collaborative governance in the context of charter reform).
Planning theory and practice similarly emphasize both the critical importance of inclusive
participation and the perennial challenges that planners face in fostering and managing public
participation. See, e.g., Diane Day, Note, Citizen Participation in the Planning Process: An
Essentially Contested Concept?, 11 J. PLANNING LITERATURE 421, 428–30 (1997) (reviewing
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Another reason to highlight the moment of adoption and amendment of
charters is the synergy between process and substance that comes from a
distinctive avenue of lawmaking outside ordinary politics. This can have the
practical benefit of insulating, at least to some degree, “charter politics” from
the ordinary give-and-take of particular communities and sub-local interests
within a city.276 But it can also reinforce the doctrinal and cultural meaning
of the resulting lawmaking.277 That positive feedback loop—more inclusive,
transparent, and comprehensive political process leading to greater legal and
social salience for the resulting lawmaking—should be embraced.278
Finally, taking charters seriously as constitutional texts highlights the
importance of technical expertise, particularly on questions of structure.
Although the public-management and political-science evidentiary base on
any given question facing a charter commission or other public body may not
be sufficiently robust to answer any particular question—strong mayor vs.
weak mayor for a mid-size city facing post-industrial downsizing, for
example, or the relative merits of at-large versus district council elections—
there is an evidentiary base to draw on.
It is perhaps partially for this reason that the National Civic League
advocates for charters to be adopted through a process of public deliberation,
channeled through experts in a commission.279 Experts can help with that
research-to-structural-choice challenge, even if many of the choices involved
in charter adoption and amendment are ineluctably value-driven. This is not
to adopt any given structure of deliberation per se—the NCL’s or
otherwise—but to say that, particularly for the majority of local governments
scholars’ debate over the dichotomy of planning and public participation). The relationship between
planning and zoning has at times been analogized to the relationship between constitutions and
ordinary legislation, with echoes about the interplay between ordinary and extraordinary political
process and questions of democratic legitimacy and rule-of-law values. See generally Charles M.
Haar, “In Accordance with a Comprehensive Plan,” 68 HARV. L. REV. 1154 (1955) (describing
city master plans as “long-term, general outline[s] of projected development” while zoning serves
as a “tool[] . . . to implement the plan”).
276.See supra text accompanying notes 227–28.
277.This is not dissimilar to other areas of supermajoritarian process at the local level, which
are not uncommon. For example, adopting debt at the local level can require a supermajority vote
of the local legislature, John R. Brooks II, Fiscal Federalism as Risk-Sharing: The Insurance Role
of Redistributive Taxation, 68 TAX L. REV. 89, 106 (2014), and there can similarly be quasi-
constitutional process for the adoption of comprehensive plans. Cf. Theodore C. Taub,
Comprehensive Plans: The Law of the Land or Idealistic Legislation?, SP011 ALI-ABA 1175
(2008) (surveying comprehensive planning process). These are examples of the calibration of
precommitment and a process designed to raise the salience of a particular local issue outside the
ordinary channels of local politics.
278.Fostering this feedback loop is another reason to be cautious about the frequency of
revision and the risk of opening the charter process too easily, as in jurisdictions that place relatively
few practical constraints on the ability of citizens to pursue charter revision by initiative, especially
where initiative is not permitted for ordinary legislation.
279.NAT’L CIVIC LEAGUE, supra note 275, at 11–14.
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902 Texas Law Review [Vol. 99:839
for which the legislative process is a low-resourced affair, channeling advice
and expertise in ideally infrequent “constitutional moments” at the local level
can elevate not just the salience but, more importantly, the quality of the
resulting law.280
B. Coda: A Scholarly Agenda for Local Constitutions
Finally, it is worth closing with brief reflections on where the study of
municipal charters might fruitfully proceed within the discourse of local-
government law and comparative constitutionalism. Legal scholars are
increasingly engaged with questions involving the internal structure and
operations of local government, as scholars have long grappled with similar
constitutive projects at the national level.281 If the institutions of local
governance bear greater scrutiny and if charters as local constitutions present
a fruitful avenue of inquiry, as this Article has argued, where might
scholarship proceed from here?
From a local-government-law perspective, there would be great value—
for scholars as well as local officials—in deeper study of the content of
charters. This could help foster a better understanding of the link between
structure and policy at the local level. This is not, strictly speaking, a question
of charters per se, but charters bring focus to structure, and the governance
and policy implications of local structural choices bear greater examination.
A focus on the constitutional dimensions of municipal charters can
similarly foster better interdisciplinary engagement with the consequences of
form and structure at the local level. Political scientists, economists, and
public-management scholars have done important work that begins to
excavate the implications of local-government structure.282 Much more
engagement is warranted, however, particularly on the empirical
consequences—to the extent they can be discerned—of various specific
governmental-structural choices.
The recognition and elevation of charters as local constitutions can also
benefit local-government scholars and practitioners by linking local doctrine
to the broader discourse on constitutional theory and interpretation. There are
280.As discussed below, bringing greater technical sophistication to the process of charter
adoption and amendment requires greater engagement by scholars of public management and
political science. See infra subpart IV(B).
281.The institutional turn in local-government legal scholarship is a welcome development for
the potential it carries to highlight and elevate questions of internal governance and local-
government structure for the legal system.
282.See, e.g., Stephen Coate & Brian Knight, Government Form and Public Spending: Theory
and Evidence from US Municipalities, AM. ECON. J.: ECON. POL’Y, Aug. 2011, at 82 (comparing
fiscal outcomes in mayor–council versus council–manager forms of local government); Mark
Lubell, Richard C. Feiock & Edgar E. Ramirez de la Cruz, Local Institutions and the Politics of
Urban Growth, 53 AM. J. POL. SCI. 649, 658, 661 (2009) (exploring the interplay between local
institutional structure and interest-group influence).
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and have long been deep and serious conceptual and methodological debates
within the discourse of constitutionalism. Originalism versus living
constitutionalism is one leading contemporary example.283 But the discourse
is rife with others. These kinds of debates might refract differently when
applied to charters but are almost entirely absent at the local level. Courts and
scholars have not begun to probe the challenging theoretical and doctrinal
questions that might attend to interpreting charters as constitutional texts
because they have rarely taken seriously what it means to do so. That
discourse is long overdue.
Foregrounding the constitutional nature of local charters has the
potential as well to offer comparative lessons for scholars of constitutional
law.284 Constitutional scholarship is dominated by the overriding paradigm
of the federal Constitution, and there is certainly a rich literature as well on
comparative constitutionalism in the international context.285 Comparative
constitutional scholarship, however, can benefit from more fully
denaturalizing governmental structure and attending to first principles within
our own legal system. If fifty states provide some fodder for that domestic
comparative project,286 the nearly forty thousand local governments of
general jurisdiction that serve as our most immediate source of governance
can add much more.287 There can also be a fruitful dialogue between scholars
of the constitutional dimensions of American Indian sovereignty and the
implications of municipal charters.288 In short, scholarly examination of
283.See generally DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010) (surveying and
responding to debates about originalism and the concept of a living constitution).
284.Cf. Robert F. Williams, Foreword: Continuing Sophistication in Subnational
Constitutionalism, 6 PERSP. FEDERALISM, no. 2, 2014, at E-I, E-IV (“A careful study of subnational
constitutionalism also may have lessons to offer the practice and study of supernational
constitutionalism.”).
285.See generally ROUTLEDGE HANDBOOK OF CONSTITUTIONAL LAW (Mark Tushnet,
Thomas Fleiner & Cheryl Saunders eds., 2015) (collecting papers on constitutional law).
286.See supra note 13.
287.See CARMA HOGUE, U.S. CENSUS BUREAU, G12-CG-ORG, GOVERNMENT
ORGANIZATION SUMMARY REPORT: 2012, at 1 (2013) (noting 38,910 general-purpose local
governments in the United States).
288.There is much potential for comparative constitutional dialogue between scholars of
American Indian law and local-government scholars. Although beyond the scope of this Article,
there are some parallels between tribal constitutions and other “subconstitutions,” see Ginsburg &
Posner, supra note 190 (exploring “subconstitutions”), particularly state constitutions, given that
tribes, unlike local governments, have recognized sovereignty in the U.S. legal system. See United
States v. Wheeler, 435 U.S. 313, 319–23 (1978) (holding that “cities are not sovereign entities” but
that Indian tribes, on the other hand, enjoy sovereignty “of a unique and limited character”); see
also Seth Davis, The Constitution of Our Tribal Republic, 65 UCLA L. REV. 1460 (2018) (thinking
about treaties and agreements with Indian tribes in constitutional terms); Angela R. Riley, Native
Nations and the Constitution: An Inquiry Into “Extra-Constitutionality,” 130 HARV. L. REV. F. 173
(2017) (exploring the “extra”-constitutional, or “pre”-constitutional, status of Indian tribes in the
American legal and political system).
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constitutionalism from the international to the national to the tribal to the
subnational should rightly carry through all the way down to the local.289
Conclusion
Municipal charters are the forgotten constitutions of our federal system.
Charters, however, hold tremendous potential if properly understood and
framed. Charters can define the terms of local power at a moment in which
the democratic legitimacy of cities and other local governments is under
significant threat. Charters can serve as focal points for community meaning
and as a form of lawmaking buffered, at least to some extent, from the
compromises of ordinary politics. Charters can improve local governance and
reinforce the rule of law.
These are certainly aspirational goals to associate with legal instruments
that rarely intrude on the discourse of constitutionalism, and they may now
mostly be honored in the breach. But taking municipal charters seriously as
constitutions is an important exercise nonetheless, as an inroad into
understanding their potential and as a lodestar for reform. Bringing the reality
of charter law and practice closer to the potential that charters hold is well
worth the endeavor at a moment of newfound—and profound—relevance for
local governance.
289.Cf. Gerken, supra note 171 (arguing for “federalism all the way down”).
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Appendix: The Home-Rule/Charter Nexus
State Legal Approach to Charters:
mandatory/optional/by city
size/not allowed?
Imperio home rule,
legislative home rule,
or Dillon’s Rule?†
Alabama Not allowed; no provision for
home-rule charters
Dillon’s rule (applies
only to counties)
Alaska “First class” cities and boroughs
(municipalities with at least 400
residents)
Legislative
Arizona Cities with +3,500 Legislative
Arkansas Optional Imperio
California Optional Imperio
Colorado Optional Imperio
Connecticut Optional Imperio
Delaware Optional Legislative
Florida Mandatory Imperio
Georgia Mandatory Imperio
Hawaii Optional Imperio
Idaho Not allowed; no provision for
home-rule charters
Imperio
Illinois Not allowed (but home rule
adoption in cities is)
Legislative
Indiana Not allowed; no provision for
home-rule charters
Legislative
Iowa Optional Imperio
Kansas Optional Imperio
Kentucky Not allowed (only for
consolidated governments)
Legislative
Louisiana Optional Imperio
Maine Optional Imperio
Maryland Mandatory Imperio
Massachusetts Optional Legislative
Michigan Optional Imperio
Minnesota Optional Legislative
Mississippi Optional Imperio
Missouri Municipalities with +5,000 Legislative
†In this chart, “imperio” refers to systems that prioritize first-wave home-rule approaches of
discerning a realm of protected “local” or “municipal” affairs, “legislative” refers to systems that
prioritize the second-wave home-rule approach of delegating legislative authority but retaining state
preemption oversight, and “Dillon’s Rule” refers to systems without home rule. In practice, states
are rarely cleanly in one system only, often adopting aspects of various systems or applying home
rule to some but not all jurisdictions, see Paul Diller, Intrastate Preemption, 87 B.U. L. REV. 1113,
1125–27 (2007), so this chart is necessarily reductionist to a certain degree.
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Montana Optional Legislative
Nebraska Municipalities with +5,000 Legislative
Nevada Optional Dillon’s rule
New Hampshire Optional Legislative
New Jersey Optional Legislative
New Mexico Municipalities with +300 Legislative
New York Optional Imperio
North Carolina Mandatory Dillon’s rule
North Dakota Municipalities with +100 Imperio
Ohio Optional Imperio
Oklahoma Municipalities with +2,000 Legislative
Oregon Mandatory Legislative
Pennsylvania Optional Legislative
Rhode Island Mandatory Imperio
South Carolina Not allowed (state constitution
authorizes home-rule charters,
but the general assembly has not
yet passed legislation required
to implement the provision)
Imperio
South Dakota Optional Legislative
Tennessee Optional Legislative
Texas Municipalities with +5,000 Legislative
Utah Optional Imperio
Vermont Optional Dillon’s rule
Virginia Mandatory Dillon’s rule
Washington Optional Legislative
West Virginia Optional Imperio
Wisconsin Optional Imperio
Wyoming Not allowed Imperio