Does “Dillon” Rule?

The Tactical Civics plan to recognize, regulate, and support Militia by Ordinance on the County or municipal level, is objected to by some on the ground that localities do not have the lawful power to do it, because it violates a principle called, “Dillon’s Rule”.

In 1868, Michigan Supreme Court Chief Justice Thomas M. Cooley articulated and became the main proponent, in his Treatise on Constitutional Limitations, of the theory that the people had delegated only part of their sovereignty to the states and retained the remainder for themselves, including the inherent right to local self government. This opinion, fully consonant with the Tenth Amendment to our Constitution, was reflected in decisions of the Michigan Supreme Court.

In 1872, Judge John F. Dillon of the Federal Eighth Circuit Court of Appeals and a former Justice of the Iowa Supreme Court offered a competing theory on the legal status of local government, which has proved irresistible to totalitarian statists everywhere. In that year he published his Treatise on Municipal Corporations, in which he argued that states had absolute supremacy over cities. According to Dillon, there was no inherent right to local self-government because cities only had those powers given to them by the states. Courts in many states have applied various interpretations of what became known as “Dillon’s Rule”

Dillon’s Rule was challenged by Judge Thomas Cooley of the Michigan Supreme Court in 1871, with the ruling that municipalities possess some inherent rights of local self-government. Cooley’s Rule was followed for a short time by courts in Indiana, Iowa, Kentucky and Texas until the U.S. Supreme Court upheld Dillon’s Rule for municipal corporations in 1907 (Hunter v. City of Pittsburgh) This authority was expanded in a case styled Trenton v New Jersey in 1923, which apparently ignores the Constitutional prohibition on laws that impair the obligation of contracts.

Nonetheless, since then, its tenets have become a cornerstone of American municipal law and have been applied to municipal powers in most states:

The National League of Cities says,

“The Constitution of the United States does not mention local governments. Instead, the Tenth Amendment reserves authority-giving powers to the states.”

 Logan v. City Council of Roanoke, 275 Va. 483, 485 (Va. 2008) states,“The Dillon Rule of strict construction, providing that municipal corporations and counties possess and may exercise only those powers expressly granted by the General Assembly, powers necessarily or fairly implied from such express powers, and those powers that are essential and indispensable”

First we must notice that the National League of Cities materially misrepresents by truncation the Tenth Amendment, which in full states, “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.” (emphasis added)

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In recent years, a very similar concept called “pre-emption” has been used by Second Amendment supporters to prevent localities from restricting the possession or carrying of weapons, that is in fact protected anyway by that Second Amendment, not to mention by similar provisions of most State constitutions.

This is a cruel paradox, at best: concentrating more power in the State and further eroding local autonomy, in the name of an individual freedom. Why not simply enforce the freedom, instead of pretending to protect it by denying our right to delegate our retained or reverted powers to the locality?

Let us go back to the Constitution, disingenuously misquoted by the National League of Cities, and see what else it says that may support or oppose Dillon.

“Article IV, Section 4:

“The United States shall guarantee to every State a republican form of government.”

At the same time, it defines by its structure what that means: a government that is ordained by, exists for, and is run by the People according to just, due, and defined processes.

Our Declaration of Independence prescribes what happens when these processes go awry: We, the People directly reassume our authority.

Further, recall that even Dillon as described in Logan recognizes power in localities over matters “essential and indispensable””, and militia is the only thing our Constitution describes as “necessary”. I do not think that “essential and indispensable” is materially different from, “necessary”.

Against these bedrock facts about our rights-based system, the idea that more distant delegated authority can lawfully restrict us in taking care of local, necessary business, becomes absurd. Conflicting with fundamental principles of law, it becomes lawless.

As I often say,  the law is not simple.  It is not necessarily what is in a statute: there are many statutes that are in total desuetude, statutes regularly get repudiated by court decisions, and court decisions by new court decisions. 

True Law is what is consistent with Divine Law, what is recognized as good law by the community, and what is enforced. 

The Militia-based law-enforcement subprocess of the Tactical Civics plan proposes to keep our eyes on the Natural or Divine Law with which any valid human law must be consonant, to educate the people to use our God-given intelligence and authority over our own lives to examine and evaluate human laws on that basis, and to take up our inherent and Constitutional authority to enforce it.