Tim Lanzendorfer has posted Originalism at Home: The Original Understanding of Ohio's Home Rule Amendment on SSRN. Here is the abstract:
Ohio’s home rule amendment has great importance today. As Ohio’s progressive cities and conservative legislature repeatedly collide on questions of policy, the courts must answer: Who wins? Or put another way, under Ohio’s home rule amendment, what inherent power do Ohio cities possess that the state cannot impede upon? As presently conceived, the answer is anything but clear. The multi-factor Canton Test is the current vehicle for resolving disputes around municipal autonomy and home rule authority, often placing the onus on the state to justify the attempted preemption of local ordinances. Based on the test’s malleable nature, its results are frequently unpredictable. But what is more, the Canton Test is untethered to the home rule amendment’s original meaning. This Essay attempts to fill a gap in the literature to clarify that original meaning.
By examining Ohio’s home rule amendment as originally understood upon adoption in 1912, the result is clear: Ohio cities possess the inherent power to create policy so long as they are not preempted by general state law of statewide applicability. This basic understanding stems not only from the beliefs of the drafters of the amendment but also that of the public at large. To reach this conclusion, this Essay starts by building off of Justice Pat DeWine’s dissent in Dayton v. State. Next, this Essay turns to examine historical sources never before explored to find the amendment’s original meaning. Ultimately, this Essay concludes that, originally understood, Ohio’s home rule amendment was expected to not disrupt the preemptive power of the state legislature. Instead, the amendment merely flipped the then existing presumption against city autonomy, enabling cities to create policy absent an explicit grant of state authority. Should the Ohio Supreme Court ever reconsider Canton, this Essay should be used as an interpretive aid to help better understand the home rule amendment’s original meaning.
