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?