The limits of localism.

• Author: Schragger, Richard C.
• Position: Gang anti-loitering law and local government

"I am thankful for boundaries. I am fond of having the lines drawn around me." (1)

INTRODUCTION

In Chicago v. Morales, (2) the Supreme Court struck down Chicago's Gang Congregation Ordinance, which barred "criminal street gang members from loitering with one another or with other persons in any public place." (3) The stated purpose of the ordinance was to wrest control of public areas from gang members who, simply by their presence, intimidated the public and established control over identifiable areas of the city, namely certain inner-city streets, sidewalks, and corners. (4) The ordinance required that police officers determine whether at least one of two or more persons present in a public place were members of a criminal street gang and whether these persons were loitering. Loitering was defined as "remain[ing] in any one place with no apparent purpose." (5) According to the Supreme Court, "the [Chicago] police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance" in a three-year period. (6)

The ordinance's defeat was, in some ways, preordained. Over twenty-five years earlier the Supreme Court had struck down similarly broad local vagrancy and loitering statutes as void for vagueness in a series of opinions culminating in Papachristou v. City of Jacksonville. (7) These decisions, combined with the earlier constitutionalization of "street law" by the Warren Court, dramatically curtailed police authority to "move along" undesirables and informally discipline disorderly conduct. (8)

Indeed, the ordinance at issue in Morales appears to be a straight-forward case of police overreaching, an uncontroversial case for Court intervention. At least according to proponents, however, the Gang Congregation Ordinance had significant support in the minority, high-crime, inner-city neighborhoods in which it was implemented. Advocates argue that these communities should have substantial autonomy to adopt norms that are responsive to local conditions. State and federal courts should defer to such norms, even when they deviate from constitutional guarantees, because local residents are in a better position to balance liberty and order in light of local circumstances.

The case has thus generated an examination of the role of rights in minority communities, and of the conflict between individual rights and community norms -- a conversation that often seems to flounder on competing definitions of rights. (9) The discussion surrounding Morales echoes other debates that appear to pit community-specific needs against constitutional norms. (10) This debate is structured as a clash between a (minority) community's efforts to solve pressing local problems and the liberal abstractions of due process imposed by (majority) outsiders, as a choice between community autonomy and paternalism. The conventional story has only two possible endings: either the wider political community respects the decisions of local people to adopt laws that are responsive to local conditions or it imposes a norm by force that the affected community does not share. The alternatives -- respect or force -- do not provide much of a choice.

This Article challenges the structure of a debate that presents only the alternatives of respect or force, autonomy or paternalism, by examining the coherence of the concept of community on which arguments on behalf of local autonomy are based. In this way, the Article reflects local government law scholarship's preoccupation with how local governance comes into being. (11) Localism depends on the creation and maintenance of smaller-than-state associations marked off in geographical space by a definable (and often, defensible) perimeter. Yet, while boundaries create citizens (or aspire to do so), they must also, by definition, create noncitizens, and therefore they are invariably destructive of the ideal of a wider community. Localism tends to sacrifice inclusion for the possibilities of citizenship. This "boundary problem" (12) of local government law can be stated as follows: The creation of a place for meaningful self-government (in space and in politics) for those inside the (metaphorical and sometimes literal) gates always affects (and often injures) those who are outside the gates. (13) The boundary problem in local government law thus is the problem of pluralism.

A central thesis of this Article is that in deciding whether a particular community's norm is entitled to respect, we are deciding both whether the community exists and who gets to be included within it. In other words, localism does not just happen. Before one can assert local autonomy in the name of community, one needs a theory of insiders and outsiders that justifies the exercise of autonomy in its name. This Article tells an alternative story of Morales: a story about how local autonomy -- and the corresponding rhetoric of community -- is deployed to instantiate a politically and geographically entitled localism in the first place.

I argue that this "boundary-creating" role of local norms can be understood by conceiving of the Gang Congregation Ordinance at issue in Morales as a form of zoning. Zoning, prosaically understood, is the primary tool of land use, a mechanism by which local governments regulate the placement and distribution of the components of our built environment. Zoning is a means by which groups can encourage uses of physical spaces that they like and discourage uses they do not like, a powerful instrument for instituting and transmitting norms of behavior spatially. Chicago's Gang Congregation Ordinance can be understood as a form of exclusionary zoning: a mechanism for discouraging uses of the public street (loitering by gang members and their associates) that many (though not all) Chicagoans apparently did not like.

Approaching Morales as a zoning case brings together two disparate bodies of legal scholarship -- criminal procedure and local government law -- both of which point toward the decentralization of norms "down" the chain of governance to neighborhoods and other local institutions. Indeed, a burgeoning call for the radical decentralization of constitutional norms down to the city, neighborhood, and even block level increasingly asserts the rights of small-scale, territorially defined jurisdictions to govern themselves. Thus, proponents of the Gang Congregation Ordinance support Chicago's inner-city neighborhoods' decision to defend themselves as do many wealthy, suburban neighborhoods: by excluding (through zoning or otherwise) undesirable uses of space, and, by extension, undesirables. The theoretical bases for local autonomy that ground the inner-city residents' claims to govern are similar to those that ground the "rights" of suburban municipalities, gated communities, homeowners associations, and business improvement districts to exclude, police, and regulate themselves.

This Article objects to grounding local autonomy in the rhetoric of community. Local norms cannot be understood outside the context of a dynamic between localities, between neighborhoods within a city, and between city and suburb. I argue for a shift from a discourse of localism, which takes territorially defined communities as a given, to a discourse of alternative localisms, which understands communities as products of contested political norms, arising simultaneously with the borders that define them. Instead of a refuge of like-minded individuals bound in a collective pursuit of the good life, community is an explicitly political body that exists in relation to (and to the exclusion of) other, equally plausible alternative communities. Instead of asking whether particular residents should be permitted to waive constitutional rights to respond to the exigencies of "their" community, we need to ask whether a particular zoning regime is a justifiable (and desirable) means for creating a community -- with all the normative force that term implies -- out of a collection of people who live next door to one another.

My intention is to undermine the naturalness with which we characterize the places where people happen to live as communities, and to question the legal power and implications of that assumption. In doing so, I want to shift the legal focus from issues about the relationship between the center and the periphery to issues about the relationship between neighboring and alternative localisms -- from questions concerning the proper exercise of vertical power, authority, and responsibility to questions concerning the proper exercise of horizontal power, authority, and responsibility.

Part I begins by placing Morales in the context of two streams of legal thought: a criminal justice literature that emphasizes the role of informal norms of behavior in controlling criminality and a local government literature that champions decentralized lawmaking in smaller-than-state settings. It then develops three accounts of community -- contractarian, deep, and dualist -- that provide the most common theoretical grounds for the robust localism that emerges at the confluence of these two streams.

Part II critically considers these accounts using Morales and three other cases reimagined in zoning terms. I argue that the Gang Congregation Ordinance is based on a land use model of controlling deviance that is prevalent throughout our metropolitan areas. The fact of zoned space introduces a spatial dimension to the generation of local norms, a dimension that localism arguments often overlook. Local norms are literally and legally boundary creating; norms are not simply the product of pre-existing communities, but are instead constitutive of them. The rules governing the terms of inclusion in and exclusion from a community form a normative wall between "us" and "them" by marking us in legal, social, and literal space as insiders or outsiders, members or nonmembers, shareholders or nonshareholders, citizens or...