Home rule developed through nearly a century and a half of popular
reform aimed at devolving legal authority, leaving a legacy of detailed
constitutional provisions in many states. State courts, however, can interpret
these provisions as a relatively unconstrained instrumental and normative
exercise in constitutional common law, reflexively valorizing state authority
in the process. Home rule jurisprudence carries an irreducible element of
judicial discretion, but this Essay argues that paying insufficient attention to
constitutional text—read in the context of the reform movements that help
shape the adoption of those home rule provisions—undermines popular
sovereignty and risks ossifying the institutional flexibility of state
constitutional structure. These concerns are all the more salient at a moment
of renewed interest in home rule reform.
