Preserving Home Rule: The Text, Purpose, and Political Theory of California’s Municipal Affairs Clause

Abstract

This Comment argues that the court in Trades Council reached the right result, but the rationale of the decision was unpersuasive. The court’s current Municipal Affairs Clause doctrine, which embraces a case-by-case analysis, is unworkable as a matter of judicial review and is at odds with the text, history, and political theory of the clause itself. The court has a constitutional duty to enforce the state’s constitution as the supreme law of the state, and that duty cannot be faithfully discharged as long as the court’s analysis is governed only by broad generalities that purport to “bring a measure of certainty” to a process characterized nonetheless by “mercurial discretion.” If the court adopts an interpretation faithful to the state constitution, the result in Trades Council must be considered correct and the recent legislation designed to circumvent the state constitution must be found unconstitutional as well.