Are Cities Creatures of the State? Home Rule,State Preemption,and the Contest over Local Governance

In the first half of 2025, more than 800 state preemption bills were introduced. ¹ State preemption, or the authority of state legislatures to invalidate and overrule local ordinances, has long been a feature of the United States’ federalist government. Yet, the tension between state authority and local power has heightened in recent years, reflecting a heightened polarization in American politics, the demographic sorting of “blue states” and red rural areas, and the stubborn recurrence of perennial hard problems like taxes, wages, safety, and placing infrastructure. ²

The Texas state legislature, for example, struck down local ordinances in Austin and Dallas that guaranteed rest breaks for construction and gig workers, part of a broader wave of states blocking local efforts to raise wages, institute paid leave programs, and regulate gig work. ³ By contrast, California used preemption in a different register, overriding restrictive local zoning rules to permit multi-family housing and accessory dwelling units, what some scholars have called the “antithesis” to localism. ⁴ These examples point in opposite directions. Preemption can limit local protections, but it can also dismantle local exclusions. However, both cases underscore an intensifying conflict over legitimate local governance, as preemption has struck down or modified local rules ranging from voting, minimum wages, and gun regulation to housing, rent control, paid sick leave, and plastic bags. ⁵

The conflict between local autonomy and state authority is not new. As Robert Dahl wrote in his seminal analysis of city governance, rooting authority in the democratic claim of “we, the people,” rests entirely on who is included in that self-determining “we.” ⁶ Cities, states, and nations encompass a different “we.” Yet, the recent surge in state preemption, and countervailing calls for stronger local power suggests it is worth reexamining the broader historical context in which this fight evolved. ⁷ This History Note returns to late nineteenth-century debates from which early calls for local “home rule” emerged and argues that the current contest between state and local power cannot be fully understood without grappling with the fractured visions of home rule that divided urban reformers more than a century ago.

One context in which this question came to a head was through land-use disputes arising over railroad expansion. Cities and towns did not have to wholeheartedly agree with Henry Thoreau when he warned that “We do not ride on the railroad; it rides upon us” to attempt to curb railroad rights-of-way. To the frustration of railroad corporations, whose dominance over the nation’s infrastructure the popular press depicted in “colossal” terms (Figure 1), municipal ordinances often tried to slow train speeds at crossings, require safety gates, or levy taxes on railroad property. It was in this climate that Judge John Forrest Dillon, a justice on the Iowa Supreme Court in the 1860s, struck down municipal attempts to regulate railroads. Cities, he reasoned, were “creatures of the state” with no inherent sovereignty; they instead “derive their powers and rights wholly from the [state] legislature. It breathes into them the breath of life. . . . As it creates, so may it destroy. If it may destroy, it may abridge and control.” ⁸ This ruling became known as “Dillon’s Rule” and set a durable legal precedent for state legal supremacy, empowering them to curb what would be called self-determination in some contexts, and NIMBYism in others.

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Figure 1.

Joseph Ferdinant Keppler, “The modern colossus of (rail) roads,” New York: Keppler & Schwarzmann, 1879. Illustration shows William Henry Vanderbilt, president of the New York Central Railroad and several other railroads, astride the nation’s rail lines. Library of Congress Prints and Photographs Division Washington, D.C. 20540, Call no, AP101.P7 1879 (Case X).

Yet preemption carried different stakes in the Reconstruction-era South. Recent scholarship has emphasized how in reaction to experiments in local self-governance led by newly enfranchised Black communities and Northern reformers, white conservatives appealed to centralized state power to disempower Black voters and freeze experiments in township-style self-governance. ⁹ The first exercises of the franchise were celebrated in the popular press as landmark acts of democratic participation (Figure 2), and preemption was an instrument for reversing it.

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Figure 2.

Alfred R. Waud, “The First Vote,” Harper’s Weekly, November 16, 1867. Black men in the dress of various professions queue to cast ballots following the Reconstruction Acts. Library of Congress Prints and Photographs Division, LC-DIG-ppmsca-37947.

This dual history of preemption as a tool for securing statewide economic development against local resistance and as an instrument for curbing democratic experiments in racial equality highlights the doctrine’s flexibility. The arena in which local autonomy was most widely debated was that of the late nineteenth-century’s rapidly growing metropolises, where population growth outstripped housing supply, sewage infrastructure, and institutional capacity. Plagued by machine politics, precarious municipal finances, and unsanitary living conditions, cities were as one commentator proclaimed, “the one conspicuous failure of the United States.” ¹⁰ Popular illustrations of the period captured the triangulated struggle, depicting cities fighting simultaneously against local corruption and state legislative interference in pursuit of home rule (Figure 3). The scale of these crises galvanized a range of responses, many of which targeted reforming the relationship between state and municipal government as a pressing need and an opportunity for experimentation. ¹¹

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Figure 3.

“Father Knickerbocker’s Next Job,” Puck, August 28, 1895. The symbolic figure of New York City ejects a “Hayseed Legislator” whose hat scatters papers labeled “Anti Local Option” and “Anti Home Rule Laws.” The caption reads: “He got rid of Tammany rule, and now, if he gets rid of hayseed rule, he will be ready for home rule.” The image shows a late nineteenth-century triangulated governance contest among machinecorruption (Tammany Hall boss Richard Croker sits on the ground), state legislative overreach, and municipal self-governance. Library of Congress Prints and Photographs Division, LC-DIG-ppmsca-28936.

Legal scholar David Barron has reconstructed at least three competing rationales that circulated in late nineteenth-century “home rule” debates. Conservatives conceived of local power in negative terms, shielding private property from state interference. ¹² Progressive reformers emphasized the need to wrest municipal government from captured state legislatures and place it in the hands of local experts who could support “the people of each city to work out their own salvation,” as one contemporary put it. ¹³ This view allowed for cities to develop their own administrative capacity through in Woodrow Wilson’s words “reorganizing decentralization.” ¹⁴ Other urban reformers took the more radical view of cities as engines of social change, captured in works by Richard Ely, Frederic Howe, or Delos Wilcox who argued that local policies deciding street rights of way or electric lighting grids must be understood as political decisions. ¹⁵ Yet, each stance did not claim local autonomy as an abstract good, but conceptualized government power as a contested tool to be used in the service of substantive ends.

That historical reminder is important because casting local governments as progressive innovators and states as reactionary obstacles obscures a more complex record. During the Civil Rights era, preemption was wielded as a progressive tool for advancing racial equity. ¹⁶ Brown v. Board of Education preempted school board control over segregation and fair housing statues outlawed exclusionary zoning and rental ordinances. ¹⁷ It is true that the strategies used to advance racial equity were swiftly adapted by corporate actors such as tobacco companies and the National Rifle Association to roll back local smoking bans or gun restrictions. In these instances, the sway of private economic power over the “public interest” illuminates the malleability of preemption. Rather than seeing it as a policy or doctrine with fixed normative content, we might instead consider it as a tool deployed by whoever can control the state legislature.

Recently, the terrain of preemption has shifted yet again. State legislatures increasingly wield preemption to block municipal labor standards and strike down local labor protections that municipalities have defended as necessary measures in the absence of coordinated federal responses to economic or technological disruption. ¹⁸ St. Louis and Kansas City raised their minimum wages; Charlotte enacted equal rights protections. ¹⁹ These measures were swiftly nullified by state statutes. In Colorado, however, advocates succeeded in repealing state preemption so that Denver could enacted a higher minimum wage to reflect metropolitan prices.

Yet Colorado’s successful campaign against labor preemption soon expanded from the specific to the abstract. Advocates began by fighting for paid leave and higher wages but ultimately recast their struggle as one for local power itself. As one campaigner put it, “Give the power to elected officials who are closest to those who are in pain . . .. [Tell State] Legislator, get out of the way, and give [local officials] the power to do their job.” ²⁰ This sentiment echoes the National League of Cities’ recent call for “Home Rule for the 21st Century.” ²¹

But the history of preemption should give pause to celebrations of “home rule” as a political end in itself in the context of US federalism. One of the most active contemporary frontiers of this contest is the preemption of local land-use control over renewable energy siting. Across the country, thousands of localities have adopted ordinances restricting wind and solar projects, posing significant obstacles to meeting clean energy targets. ²² In New York a statewide audit showed the pace of permitting new projects was lagging far behind the state’s renewable energy goals. And so, the state made a dramatic departure from traditional local land-use control by vesting final decision-making authority in a centralized, state-level Office of Renewable Energy Siting and nullifying local veto power. ²³ Yet, the state coupled preemption with a mandate for host community benefit programs, requiring developers to provide direct benefits to towns and counties.

Even in the nineteenth century, home rule advocates recognized that curbing the power of some municipalities could be necessary to defend the rights of others or to advance urgent collective goals. The challenge of building renewable energy infrastructure may well fall within that lineage. Benefits programs are imperfect and have been criticized as transactional rather than participatory and vulnerable to capture by local elites. ²⁴ However, New York’s experiment illustrates an approach that treats neither local autonomy nor state supremacy as absolutes. As Frederick Howe observed in 1906, the city was an “experiment-station” for democracy. ²⁵ Today the experimentation may lie as much in the relationship between state and local authority as in either level alone. At the same time, a century of commentators has stressed that power is not abstract, but a means to substantive ends. The challenge today, as then, is not to balance abstract discussions of autonomy to the pragmatic context in which it is exercised, to what ends, and how a balance between state and local authority can be struck.