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Promise of Cooley's City: Traces of Local Constitutionalism

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Promise of Cooley's City: Traces of Local Constitutionalism University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 147 JANUARY 1999 No. 3 ARTICLES THE PROMISE OF COOLEY'S CITY: TRACES OF LOCAL CONSTITUTIONALISM DAVID J. BARRONt INTRODUCTION We do not think of local governments, such as towns and cities, as im- portant components of the federal constitutional structure. The text of the Constitution does not mention local governments, and black-letter constitu- tional law formally deems them to be the mere administrative appendages of the states that "create" them.1 This doctrinal depiction accords with a deep- t Attorney-Advisor, Office of Legal Counsel. I wish to thank Juliette Kayyem, Jerome Barron, Robert Kayyem, Gerald Frug, H. Jefferson Powell, Robert Brauneis, William Treanor, Robert Delahunty, Lisa Bressman, Daniel Halberstam, and Marty Lederman. The views expressed in this article do not represent those of either the Office of Legal Counsel or the Department of Justice. I See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978) (upholding a state statute giving extraterritorial force to a municipal ordinance on the grounds that political (487) 488 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 147:487 seated intuition that local governments are islands of private parochialism which are likely to frustrate the effective enforcement of federal constitu- tional rights. Indeed, the Supreme Court's recent defense of what has sar- donically been termed "our localism,"'2 in cases such as Milliken v. Bradley3 and San Antonio Independent School District v. Rodriguez,4 has been the subdivisions such as cities and counties are created by the state and that states have "extraordinarily wide latitude ... in creating various types of political subdivisions and conferring authority upon them"); Williams v. Mayor & City Council, 289 U.S. 36, 40 (1933) ("A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the federal Constitution which it may invoke in opposition to the will of its creator."); City of Newark v. New Jersey, 262 U.S. 192, 196 (1923) ("The regulation of municipalities is a matter peculiarly within the domain of the State."); City of Trenton v. New Jersey, 262 U.S. 182, 187 (1923) (maintaining that "[a] municipality is merely a department of the State, and the State may withold, grant or withdraw powers and privileges as it sees fit"); Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907) (stating that "[m]unicipal corporations are political subdivisions of the State ....Neither their charters, nor any law conferring governmental powers... constitutes a contract with the State within the meaning of the Federal Constitution"); New Orleans v. New Orleans Water Works Co., 142 U.S. 79, 89-90 (1891) (holding that a municipality may not invoke the Fourteenth Amendment in a suit alleging that a state statute impaired the obligation of a contract); Commissioners of Laramie County v. Commissioners of Albany County, 92 U.S. 307, 312 (1875) (affirming the state's power to diminish or enlarge the area of a county). The Supreme Court has recognized that local governments are important political institutions in the course of recognizing individual rights of participation in the local governmental political process. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 335-60 (1972) (striking down a durational residence requirement for voting); Hunter v. Erickson, 393 U.S. 385, 392-93 (1969) (striking down a city charter amendment making it more difficult to enact an anti-race discrimination ordinance by limiting the authority of the city council); Avery v. Midland County, 390 U.S. 474, 476 (1968) (extending the "one person, one vote" principle to local governments). These cases, however, did not recognize rights of local governments against states, or even rights of local governments to protect individuals from states. See generally Frank I. Michelman, Conceptions of Democracy in American ConstitutionalArgument: Voting Rights, 41 FLA. L. REV. 443, 488-89 (1989) (noting that the Supreme Court has embraced only a right to political participation on an equal basis with other citizens in one's jurisdiction, not a "fundamental" right to political self-government at the local level). 2 Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 COLuM. L. REv. 1, 1 (1990) [hereinafter Briffault, Our Localism Part1] (arguing that local governments possess considerable power, despite widely held suppositions to the contrary); Richard Briffault, Our Localism: Part lI-Localism and Legal Theory, 90 COLUM. L. REV. 346, 346 (1990) [hereinafter Briffault, Our Localism Part I] (offering a critical analysis of the political and economic arguments for local governmental autonomy). 3 418 U.S. 717 (1974) (striking down a federal district court decree requiring interdistrict busing to remedy school segregation). 4 411 U.S. 1 (1973) (upholding a state school fimancing system against an equal protection challenge); see also Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 268-71 (1977) (upholding a municipality's denial of a rezoning application against an equal protection challenge); City of Eastlake v. Forest City Enters., 426 U.S. 668, 672-79 (1976) (upholding a local zoning referendum); Rizzo v. Goode, 423 U.S. 362, 373-81 (1976) (striking down a federal district court decree requiring a local police department to develop guidelines for handling citizen complaints of police misconduct); Warth v. Seldin, 422 U.S. 490, 498-517 (1975) (denying standing in a challenge to a local zoning policy); Village of 1999] LOCAL CONSTITUTIONALISM subject of substantial scholarly criticism precisely because it has appeared to insulate homogeneous suburbs from judicially enforceable constitutional 5 obligations. If the arguments against the constitutional recognition of local govern- mental independence are familiar, the arguments in favor of such recogni- tion have not been fully explored. 6 This Article offers a different view of the role that local governments play in the federal constitutional frame- work. It rejects the conception of local governments as either administra- Belle Terre v. Boraas, 416 U.S. 1, 7-9 (1974) (upholding a local decision to prohibit group homes); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388-97 (1926) (upholding local zoning power). 5 See Briffault, Our Localism PartI, supra note 2, at 85-111 (discussing local autonomy and federal constitutional law); Briffault, Our Localism Part 1H, supra note 2, at 382-92 (arguing that a "suburban model" has contributed to the Court's deference to local autonomy); Richard Thompson Ford, The Boundaries of Race: PoliticalGeography in Legal Analysis, 107 HARV. L. REV. 1843, 1860-85 (1994) (arguing that the Supreme Court's local government decisions have perpetuated racial segregation); Jerry Frug, Decentering Decentralization, 60 U. CHI. L. REV. 253, 263-73 (1993) [hereinafter Frug, Decentering] (criticizing the Court's preference for suburban interests); Lawrence Gene Sager, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest City Enters., Inc., 91 HARV. L. REv. 1373, 1418-23 (1978) (arguing that the Court's reluctance to review local zoning decisions jeopardizes "substantial constitutional values"); Joan C. Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 WIS. L. REv. 83, 105-11 (noting the Court's use of Jeffersonian rhetoric favoring local sovereignty in San Antonio School District and Milliken); see also Joseph P. Viteritti & Gerald J. Russello, Community and American Federalism: Images Romantic and Real, 4 VA. J. Soc. POL'Y & L. 683, 687 (1997) (questioning the assumption that "refocusing politics down to the community level will lead to a form of governance that is more public- spirited and less susceptible to the forces of self-interest"). 6 Those scholars who have focused on the state/local relationship, and who have argued for increased local power, have not rooted their arguments in constitutional law. They have based their pleas for greater local autonomy on more general contentions about legal and political theory as well as notions of democratic self-government generally. See, e.g., Ford, supra note 5, at 1908-09 (arguing that local autonomy sustains participatory democracy and fosters diverse communities); Gerald E. Frug, The City as a Legal Concept, 93 HARv. L. REv. 1057, 1067-73 (1980) [hereinafter Frug, The City as a Legal Concept] (arguing that "city powerlessness" undermines freedom); Jerry Frug, The Geographyof Community, 48 STAN. L. REV. 1047, 1107 (1996) [hereinafter Frug, The Geography of Community] (advocating the "allocat[ion of] local entitlements through an inter-local negotiation rather than through state law"). To the extent that these scholars have considered how localism operates within constitutional law, they, too, are quite hostile to the Court's defense of localism and therefore show a surprising solicitude for reforms that would make existing local governmental institutions less central than they presently are. See Ford, supra note 5, at 1909 ("I propose semi-autonomous local governments with permeable boundaries."); Frug, Decentering, supra note 5, at 323 ("[W]e have to stop building local governmental law on residency and on the importance of local jurisdictional boundaries."). They therefore pay relatively little attention to how local governments might perform an affirmative, structural
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