What is Federalism?

I’m going to start a series of posts on what I think will be my next article.  It’s entitled “Towards a Federal Constitutional Right to Local Government.”  (I’ve never written an article that starts with “towards,” but I think the law professor code requires me to at some point.)

The idea of this paper is that there is a large gap between the rhetoric and the reality of federalism.  The rhetoric is that state and local governments are equivalent.  This is also the federal constitutional rule.  Municipal and county governments are creatures of state law. If the state decides to abolish your town tomorrow, you have no substantive federal right to prevent that. This means that the only real protection for intrastate federalism in our system is public opinion (though some states guarantee municipal government protection in their state constitutions).

In reality, though, there is a substantial difference between state and local government.  Many people identify more strongly with their city than they do with their state.  And many of the issues that touch us most directly involve local decisions based on local taxes.  Fire protection, policing, schools, and sanitation, are regulated by state and federal law, but for the most part they are left to the discretion of local officials.  Moreover, there are strong expectations (such as where you buy a house) built around this autonomy.

My question is whether this distinction between form and function suggests that we should give federal constitutional recognition to a right of local government under the Tenth Amendment reserves the rights of the states and of the people. I first got interested in this problem when I was writing about Huey Long’s regime in Louisiana.  To eliminate opposition to his authority, Long eliminated towns with critical mayors or converted local patronage into state patronage. (Margaret Thatcher did the same thing when she didn’t like what the Mayor of London was saying about her.) Long’s centralization of power was challenged under state law, but there was no justiciable federal claim that could be made.  Now under the formal view of federalism, this is perfectly OK.  States have the right to structure their internal governance any way they want, and we should let them experiment.  But if you think that local government represents an important structural check on state government, then what Long did was definitely not OK.

One final thought.  All of the benefits of federalism apply with equal force within large and diverse states (California, New York, Texas, Illinois, Florida, and so on.)  In that context, though, we are content to say that political safeguards are sufficient to protect local interests.  At the federal level, though, we do not say that.  Courts play a modest, though notable, role in protecting state autonomy from federal intrusion.  What justifies this difference?

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8 Responses

  1. Joe says:

    Concerns for emergency manager laws come to mind

    http://maddowblog.msnbc.msn.com/_news/2011/12/08/9311633-michigans-emergency-manager-law-disenfranchises-african-americans?lite

    Federal courts play a modest role because the Constitution sets up a federal scheme in which states and the federal government have certain roles to play. Protecting “local interests” is not as clearly addressed though juries provisions are one way they are.

    As to Gov. Long, the power of patronage has been limited under later case law under 1A principles. The power of local self-government, including mini-declarations of independence (such as Dorr’s Rebellion in Rhode Island) raises various interesting thoughts of the reach of republican government etc.

  2. Michael Teter says:

    This should make for an interesting article, Gerard. As an initial take, I’m wondering whether federal recognition of a right to local government might interfere with states’ rights. After all, in the example you gave about Huey Long, federal recognition of a right to local government would have limited the state’s ability to do what it wanted with regard to centralizing state authority. Do you anticipate any problem relying on the Tenth Amendment as a source of this local right that results in imposing limits on state power?

  3. Sam Bagenstos says:

    I wonder what you think of David Barron’s take on these issues in his Penn Law Review piece from a dozen years ago. Or Feeley & Rubin in their federalism book of a few years back. Both seem quite relevant to your project.

  4. Gerard Magliocca says:

    Sam,

    Thanks for mentioning these. They are in my stack of summer reading!

  5. nidefatt says:

    The jury is not related to local government, it is related to a guarantee that decisions will be made by one’s cohort. This is, as has been stated over and over, a check on all the branches of government, directly, by the people. As simple as the vote. A vote which the Constitution does NOT guarantee.

    You stretch the Constitution too far, and you are conflating a check, based on a millennium old understanding of juries from Solon and Athens, with local government. The Constitution has no position on local government directly, though it was clearly born from the concept that a local government would compete with county and state an whatever else. Whether you can bind that understanding into say the due process clause is dubious to say the least. Fact is, you have a massive hurdle trying to get past current Supreme court precedent declaring that the truly local is not of national concern. While that ruling may not have been a direct comment on the concept of local government’s protection, certainly the idea that the Constitution reaches into a State and dictates protections of local government DOES breach that wall.

  6. Brett Bellmore says:

    I see no contradiction between saying that what Long did wasn’t ok, and saying that it, none the less, was not a federal matter. If federalism means anything, it means that some concerns of real importance are properly matters for the states. Saying that they are state concerns does not diminish their importance.

  7. Kirsten says:

    I think you have some distinguished fellow-travellers who might help motivate the project. Hannah Arendt, for example, often lamented the failure of the US constitution to accord independent constitutional status to localities. Jefferson also identified this as a major deficiency of the US constitution.

  8. Justin says:

    If you find yourself persuaded by Richard Briffault’s point that wealthy suburban towns benefit the most from local autonomy while large and poor cities are so financially intertwined with the state that formal legal autonomy does not protect them, then arguing for a federal protection of local autonomy would be to consciously advocate increasing the inequality between wealthy suburbs and poor core cities. It seems like this might be in tension with other, more established, federal constitutional aims, such as equal protection.