Collective individualism: deconstructing the legal city.

AuthorPoindexter, Georgette C.

INTRODUCTION

  1. REVEALED PREFERENCE FOR THE SUBURBS

    TRANSFORMED INTO STYLISTIC FACT

    1. Economic Motivation for Suburban Shift

    2. Political/Legal Motivation for Suburban Shift

    3. Social Motivation for Suburban Shift

    4. Suburban Shift as Self-Definition in the Creation

    of the Collective Individual

  2. THE MOLDING OF POLITICAL POWER AROUND THE COLLECTIVE INDIVIDUAL

    1. Housing vs. Schools--Gautreaux,

      Milliken and Their Progeny

    2. Annexation and Other Manipulations of

      Municipal Boundaries

    3. Local Governments and Voting Rights

  3. THE COLLECTIVE INDIVIDUAL AND MORAL HYPERNORMS

    1. The Legal Ability to Exclude

    2. Limitations on the Ability to Exclude

    1. Necessity of State Action

    2. Abandoning the State Action Requirement

    3. Limits on State Intervention

  4. THE STRUGGLE TO RESTRUCTURE LOCAL GOVERNMENT

    1. The Neighborhood as a Political Entity

    2. Constructing the Political Neighborhood

  5. POLITICAL REALITY AND SOCIAL JUSTICE

    1. Paradox of a Collective Choice Democracy

      1. The Individual Within the Political Neighborhood

      2. The Individual Within the Region

    2. Dissatisfaction with the Status Quo

  6. CONCLUSION

    The true meaning of the word "City" has been almost entirely lost by

    the moderns, most of whom think that a Town and a City are identical,

    and that to be a Burgess is the same thing as to be a Citizen. They do

    not know that houses may make a town, but that only citizens can make

    a City.

    --Rousseau(1)

    INTRODUCTION

    The dialogue begun by Professor Gerald Frug(2) and taken up in many subsequent articles,(3) invites us to construct the Legal City. In these works the city as a legal entity is viewed either vis-a-vis its inhabitants or in relation to higher forms of government. The emphasis has been on the law's role in justifying, defending and criticizing existing local government.

    I propose that we deconstruct the Legal City and view the existence of the city, in fact all of local government, as a manifestation of revealed choice based on the collective individualism of its citizens. I define collective individualism as spatially delineated individual expressions of self that are aggregated into community definition. Instead of beginning with a legal structure--local government--to explain economic results (such as income disparities between cities and suburbs), we need to begin with economic realities (such as people searching for their ideal local community), and craft legal structures to support these realities. We need to validate consumers' individualism and revealed choice by dissolving legal impediments to the full and free expression of their choice.

    Economic, legal and social agendas compel the deconstruction of the Legal City. On the legal front, municipal government is, and historically has been, of uncertain status.(4) Its status is indeterminate due, in no small part, to competing and diametrically opposed views of the source of local legal power. Is the city autonomous or a mere arm of the state? Until we peel back the layers of doctrine imposed by these conflicting ideas of municipal government to expose the true nature of local government power--which, I submit, is premised on the power of the collective individual--the legal status of the city will continue to flounder.

    Deconstruction of the Legal City is further necessitated by harsh economic reality. Problems of poverty, crime and social welfare of urban centers continue to occupy the domestic agenda of the United States. However, as the population (most notably the middle-income population) shifts away from the city to the suburbs, the economic ability to rectify city-centered problems often lies in the hands of those people least likely to live in the city.(5) Increasingly, regional economic power has moved to the suburbs while regional social problems have remained in the city. The result is a seemingly never-ending search for legal methods that permit city leaders to tap suburban wallets to solve inner city problems.

    Finally, we must confront the problem of determining the social morality of a political community, such as a city. In a nation founded and premised upon an exaltation of heterogeneity, is there room for validation of homogeneity? Deconstruction of the Legal City based on collective individualism may push counter to the almost sacrosanct social goals of racial and ethnic integration(6) and inclusionary zoning.(7) Although a frank discussion of the legitimacy of these goals may be politically difficult, blind acceptance of these goals without debate produces a political structure with the weakest of normative underpinnings. The moral goals of the creation of a political community should not be assumed.

    The starting point for deconstruction is a critical examination of demographic facts. The massive middle class shift to the suburbs and away from the city is a most certain reality. Calls for regional governance, once in vogue,(8) have reappeared.(9) However, whether due to myopia or to calculated disregard for the reality of America's shift to the suburbs, advocates of regionalism fail to see the obvious: America's middle class has left the city for the suburbs. This exodus exhibits a revealed preference for life outside the city. Suburbanites view calls for regional government as thinly veiled ruses for sucking them (and their wallets) back into the system from which they fled. Regional government does not question whether the present system of local government meets the needs of modern political society. In fact, it does just the opposite. Although regional government may respond to problems of transportation and revenue sharing, it does not respond to the critical need for an economic, political or social basis for creation of a political community.

    Instead of fighting the strong current of revealed consumer preference, we should use that preference as the basis for empowering local government. That which strengthens revealed choice will be implemented. That which impedes the quest for individualism will be discarded. Instead of attempting to convince those who have left the city (both businesses and residents) that it is in their best interest to care about the city that they left behind, the law should validate their locational decisions by strengthening the independence of individual communities. A region's citizens cannot be melted into one big regional pot without ignoring the differing mixes of taxes, services and social desires of individuals within the region.

    This argument, however, is not a wholesale adoption of Charles Tiebout's theory of public choice.(10) The fragmentation of local government produces significant externalities that cannot be assumed away. Just as calls for regionalism are myopic, sole reliance on individual choice ignores the accompanying externalities. Acknowledging the middle-class move to the suburbs as a revealed preference does not help solve the problem of poverty left behind in the cities. For that we must fashion a mechanism that internalizes the externalities.

    I propose that the Legal City be dismantled in two stages. First, remove the barriers to expression of individual choice to allow all residents the opportunity to create the community that they desire. Neighborhoods would be free to secede from their existing jurisdiction without externally imposed limitations so as to form the community that they seek. It is here that we must confront the social and moral limitations on community selection. To what extent should a community be allowed to "define" itself? Is economic segregation permissible but racial and ethnic discrimination impermissible? The answer lies in the discovery of community hypernorms that will serve as the moral compass for community formation. Hypernorms are those normative values so fundamental to human existence that they have universal application.

    There will, however, be people who have neither the political savvy nor the economic independence to declare their freedom from City Hall. By default, and by choice, some neighborhoods will remain within the geographic and political boundaries of what was once the "city." To address the externalities associated with such legal dissection, the second part of the deconstruction sets up an intermediate tier of local government to engage solely in wealth redistribution. Such a redistribution would be region-wide--not the more commonly feared suburb-to-city flow of money.

    Part I of this Article introduces the concept of American consumers' revealed preference for the suburbs. It explores the stylized fact that Americans, in general, prefer the suburbs to the city. This Part explores the reasons why suburbs are growing in population while the central cities are shrinking. Part II discusses the ways in which the present system of local government law affects this revealed preference of community choice by building walls between the city and its suburbs while simultaneously rejecting local attempts at economic and political isolation. In Part III, the moral and normative bases of community are analyzed to shape a working model of community values. Part IV synthesizes the preceding discussion by exploring ways to restructure American local government in an attempt to combine a validation of collective individualism with a legitimate normative base, while creating a wealth redistribution plan that would benefit the entire region. Part V concludes the discussion by fitting the new model within the confines of political reality and social justice.

  7. REVEALED PREFERENCE TRANSFORMED INTO STYLIZED FACT

    Do what you may, there is no true power among men except in the free

    union of their will.

    --Alexis de Tocqueville(11)

    The shift of America's population away from the city and to the suburbs is a stylized fact.(12) Although it is beyond the scope of this discussion to prove this fact statistically, some numbers are in order to convince the nonbeliever. In 1940, over one-half of Americans lived in rural areas; more than twice as many lived in...

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