The promise of Cooley's city: traces of local constitutionalism.

• Author: Barron, David J.
• Position: 19th-century Michigan Supreme Court justice Thomas Cooley

INTRODUCTION

We do not think of local governments, such as towns and cities, as important components of the federal constitutional structure. The text of the Constitution does not mention local governments, and black-letter constitutional law formally deems them to be the mere administrative appendages of the states that "create" them.(1) This doctrinal depiction accords with a deep-seated intuition that local governments are islands of private parochialism which are likely to frustrate the effective enforcement of federal constitutional rights. Indeed, the Supreme Court's recent defense of what has sardonically been termed "our localism,"(2) in cases such as Milliken v. Bradley(3) and San Antonio Independent School District v. Rodriguez,(4) has been the subject of substantial scholarly criticism precisely because it has appeared to insulate homogeneous suburbs from judicially enforceable constitutional obligations.(5)

If the arguments against the constitutional recognition of local governmental independence are familiar, the arguments in favor of such recognition have not been fully explored.(6) This Article offers a different view of the role that local governments play in the federal constitutional framework.(7) It rejects the conception of local governments as either administrative agents of the states that "create" them or as insular forums for registering the private preferences of the persons who inhabit them. It proceeds from the contrary premise that our towns and cities are what we know them to be: important political institutions that are directly responsible for shaping the contours of "ordinary civic life in a free society."(8)

The unique public function that local governments perform in fashioning communal political life calls into question their current treatment as institutions that are no different from state environmental agencies on the one hand, or private homeowner associations on the other. Towns and cities are often the institutions that are most directly responsible for structuring political struggles over the most contentious of public questions, whether they concern the proper means of overcoming racial stratification, securing quality public education, or protecting disfavored groups from private discrimination.(9) For that reason, local governments are often uniquely well positioned to give content to the substantive constitutional principles that should inform the consideration of such public questions--better positioned in some instances, that is, than either federal or state institutions.

It is necessary to inquire, therefore, whether the Federal Constitution may be understood to protect local governments from state attempts to prevent local governments from bringing their special institutional capacities to bear in these constitutional contexts. Such an understanding would not relieve local governments of their obligations to enforce the Constitution. It would instead free local governments from state law constraints that preclude them from exercising their discretion in fulfilling those constitutional obligations.

To pursue the connection between localism and constitutionalism, the first half of this Article reviews the nineteenth-century debate over the constitutional status of local governments. It shows that Thomas Cooley, the prominent nineteenth-century treatise writer and State of Michigan Supreme Court justice, offered an important, but long-neglected response to the still dominant view that local governments are the passive creatures of their states. The now-forgotten defense of localism that Cooley put forth is worth reconsideration for two reasons. First, Cooley's subtle analysis of the role that local governments could play in the constitutional framework deserves attention simply by virtue of the care with which it was offered. Second, Cooley was a key participant in the important late nineteenth-century debate over the role of local governments in our constitutional system, a debate that has renewed relevance in an era in which localism is increasingly a key component of the national governmental framework.

Cooley's unique contribution to the debate was to link a structural defense of local governmental independence to substantive constitutional enforcement. He subscribed to a substantive constitutional vision that was hostile to public attempts to lend aid to powerful private associations, but he believed that this substantive constitutional vision could not be given life without the assistance of local political institutions. Cooley argued that local communities, by virtue of their familiarity with local needs, would play a critical extrajudicial role in securing what he termed "constitutional freedom" by forestalling state legislative efforts to favor private interests.(10) Local governments would, if provided a measure of protection from state control, give particularized meaning to the substantive constitutional value of public impartiality that Cooley believed judges were often poorly positioned to enforce. In this way, Cooley embraced localism to give life to substantive constitutional values, even as his substantive constitutional commitments defined the scope of the local governmental autonomy that he recognized.(11)

The second half of this Article turns to modern doctrine to show that it may be understood to incorporate a structural connection between substantive constitutional enforcement and local governmental independence that harkens back to the connection that Cooley drew more than a century before. In doing so, this Article reveals that, just as Cooley's defense of local constitutionalism represented something more than a crude effort to protect private-propertied interests from public politics, the modern defense of localism represents something more than a bare attempt to insulate private homeowners from constitutional obligations. By demonstrating that there is "something more" to localism than privatism, this Article argues against the tendency of modern critics of localism to embrace the state creature metaphor and thereby to confine our towns and cities to a wholly passive role in the construction of constitutional law.

To be sure, cases such as San Antonio School District and Milliken have been legitimately criticized for defending localism in order to protect a privatized conception of local political life from federal judicial intervention. Considered alone, however, these cases provide only a partial picture of the role that localism plays in current constitutional case law. This Article demonstrates that they should be read in conjunction with Washington v. Seattle School District No. 1,(12) Papasan v. Allain,(13) and Romer v. Evans,(14) in which the Supreme Court enforced public constitutional values by striking down state attempts to control the political discretion of towns and cities.

Strikingly, in each of the modern cases considered, the Court has confronted constitutional claims for positive public action: sweeping remedies to desegregate the public schools in Milliken and Seattle School District; equitable financing of public education in San Antonio School District and Papasan; and protection from private discrimination in Romer. Such claims to enforce positive constitutional rights seek intrusive judicial remedies that threaten to overwhelm political processes and to obliterate distinctions between private choices and public actions.(15) Rather than simply concluding that such claims would impermissibly extend the scope of federal judicial power,(16) however, the Court may be understood to employ localism in these cases as a structural means of giving life to positive constitutional values through the practice of local politics. By recognizing the important institutional role that local governments play in shaping community life, and by enforcing limits on the power of more central institutions to control them, the Court may be understood to have secured a means by which positive constitutional rights may be enforced.

An examination of the traces of local constitutionalism that span more than a century of constitutional thought reveals the limits of the current conception of local governments as either passive state creatures or protected private zones. Each of the standard depictions ignores the important role that the political institutions that most directly shape our public lives may play in shaping the constitutional principles that define our national identity. As a result, each depiction reflects a constricted conception of the very meaning of what Thomas Cooley termed "constitutional freedom."(17) For in the end, as Cooley argued, constitutional freedom cannot be secured simply through the judicial enforcement of limitations upon the political process or the enactment into law of the prevailing preferences of a reigning majority. Constitutional freedom can be secured only if diverse communities, organized in various towns and cities across the Nation, are encouraged (and permitted) to govern themselves in accordance with a set of common principles that they know to be more enduring than the preferences of any temporary majority.(18)

That is not to deny that there is an important substantive divergence between the defense of local constitutionalism that Cooley offered in the nineteenth century and the defense of local constitutionalism that is offered here--there clearly is. Cooley defended local governmental independence to promote a substantive constitutional vision that sought to constrain the power of government to intervene in the private market. The defense of local governmental independence that is offered here is intended to promote a substantive constitutional vision that is far more sanguine about the virtues of governmental intervention.

This divergence reflects the substantive shift in post-Lochner constitutional theory, which has rightly called into question the merits of the...