The radical possibility of limited community-based interpretation of the Constitution.

• Author: Rosen, Mark D.
• Position: Self-governance

INTRODUCTION

There always have been within the United States insular communities with norms radically different from those of general society. To preserve their way of life, many of these communities have sought literally to govern themselves as independent entities so as to be as free as possible from the influences of larger American society. Examples include the Oneidas, the Hopedales, the Mormons, Native Americans, the Rajneeesh, (1) and, perhaps, today's militia movement. (2) Scholars from across the political spectrum have argued that, as a normative matter, foundational commitments require that American society grant extensive powers of self-governance to at least some of these insular communities. (3) This Article asks the following question: As a doctrinal matter, what is the maximum room American constitutional law leaves for such communities to run their lives?

This Article identifies heretofore unnoticed flexibility in our country's federal system by showing that the scope of permissible political autonomy at one subfederal level of government is larger than is commonly thought. This finding is germane even to those who do not believe that the normative questions concerning whether and to what extent insular communities should be permitted to run their own lives have been fully answered, for the conviction that the Constitution bars the exercise of extensive governmental powers by insular communities may account for the limited scholarly attention that has been paid to these underlying normative questions. With the understanding that accommodating these communities' needs is constitutionally possible, other scholars may revisit these issues.

Understanding how much room for self-governance is available under contemporary law requires careful analysis of two possible routes to self-governance: private ordering (through involuntary associations or contract) and public ordering (by creating a new local government). There are several fundamental differences between these two options. (4) On the one hand, privately ordered groups might be said to have more freedom insofar as they are not ordinarily subject to constitutional limitations. (5) On the other hand, private ordering has two important drawbacks vis-a-vis public ordering. First, groups that opt for private ordering do not enjoy the power to norm-shape and coerce via law--a profound handicap for those communities that believe law has unique socializing powers. (6) Second, whereas private ordering typically only adds obligations onto society's laws, (7) public ordering may grant the political community immunity from some of general society's regulations, (8) increasing the extent to which the community can run its own life.

Whether private or public ordering ultimately holds out greater promise vis-a-vis self-governance thus turns on two considerations. First, what are the range of powers a group can exercise under each? Second, what are the group's particular needs? (9) This Article helps to answer the first question by clarifying the scope of public power. It is part of a larger project that considers the maximal powers of self-governance that can be exercised by communities in the United States. (10)

Although the primary limits on the exercise of public power are constitutional, this Article is not a restatement of ordinary constitutional doctrines. Instead, it asks whether there are special constitutional limitations that may be operative when insular groups seek to exercise public power to govern themselves. In an earlier article, I suggested an affirmative answer to this question: ordinary federal and state courts may vary the application of constitutional standards as they are applied to insular groups, allowing such communities more options in the exercise of public power than ordinary state and local governments enjoy, (11) This Article examines an even more radical approach to the modulation of constitutional limitations with respect to insular communities. Rather than relying on federal and state courts to modify the application of constitutional principles to insular groups, Congress may empower the communities themselves to authoritatively construe designated provisions of the Constitution insofar as the provisions apply to them, subject to only modest limitations. This would reduce (although certainly not eliminate) the most important competitive advantage of private ordering over public ordering; insular communities that opt for public ordering may be made immune from constitutional limitations as construed by ordinary federal and state courts, and may be subject instead to the good faith determinations of their own community's courts of what limitations such constitutional provisions impose on them.

I recognize that at first glance (and perhaps even second or third) this might appear to be a doubly problematic solution. Many people would say, I imagine, that it would be best not to give insular groups extensive powers of self-governance, and that if we do, we should be sure to keep tight control over them. But sometimes our larger commitments as a society lead us to tolerate activities we do not like; flag burning and permitting the Nazis to march in Skokie are prime examples. (12) There is a similar normative claim here: foundational commitments may demand that our society give significant powers of self-governance to insular communities that are willing to live in accordance with certain limitations. (13) As stipulated above, I will assume for present purposes that the reader either agrees with this, or that she has suspended judgment about the normative question so as to explore the scope of self-governance that our constitutional order potentially can accord such communities.

The mechanism for self-governance proposed and explored here--the delegation of circumscribed interpretive authority of select provisions of the Constitution to a limited number of "community-based courts"--is not as unique as it might at first sound. In fact, it is very similar to the powers exercised by Native Americans in Indian country. (14) As explained in this Article, each tribe's courts are authorized to provide their own interpretations of "due process," "equal protection," "search and seizure," and the like, with no review from federal courts in virtually all cases. As a result, due process means one thing in Chicago, another in the 25,000 square miles of Navajo land, and yet something else on the Nisqually reservation.

Elsewhere I have analyzed the many benefits of the regime of community-based courts in Indian country. (15) To quickly summarize, the regime permits the creation of unique doctrines and governmental institutions that support Indian culture, and the avoidance of doctrines and institutions that actively undermine it. (16) Yet as the regime sustains cultural heterogeneity, it simultaneously helps to create a common nationwide culture insofar as all tribes are interpreting the shared text of American constitutional principles. Indeed, the tribes have deeply assimilated Anglo-constitutional principles even as they have given them unique constructions that reflect and support Indian culture. (17)

More generally, allowing diverse communities the opportunity to authoritatively construe a shared text holds out the possibility of creating commonality without commanding homogeneity. It is a method for simultaneously coordinating a diverse citizenry and championing heterogeneity. (18) It is an approach that is consonant with one of the federal system's chief objectives of uniting without snuffing out difference.

The mechanism for self-government developed in this Article shows that these benefits could be achieved on behalf of non-Indian communities as well. There would be important differences, however, between community-based courts and the tribal courts. Most importantly, the law the tribes interpret is statutory rather than constitutional; the Constitution does not apply to Indian tribes, and the "due process" and other limitations on tribal governments that are construed by tribal courts derive from a statute--the so-called Indian Civil Rights Act. (19) Yet the tribal experience is still highly instructive. This is because, as this Article shows, the Constitution permits Congress to create community-based courts for non-Indian communities that would be empowered to provide their own interpretations of select federal constitutional provisions, subject to only limited constraints, without review from federal or state courts. Tribal courts accordingly provide a suggestive glimpse of how a regime of multiple authoritative interpreters of constitutional language functions. The encouraging results in Indian country suggest that similar benefits might be obtained for other insular communities.

This Article proceeds in four parts. Part I explains the law that has created a regime of multiple authoritative interpreters in Indian country. It then identifies the potential benefits and costs of the tribal regime of multiple authoritative interpreters, and summarizes the findings of an extensive empirical study of tribal case law interpreting the Indian Civil Rights Act. The study shows that the tribal court regime has brought about significant benefits at reasonable costs.

Part II explains how a similar regime of community-based courts could be created on behalf of non-Indian communities. Creating community-based courts for non-Indian communities implicates a variety of constitutional considerations that are not applicable to tribal courts. The Article accordingly examines Congress's powers to strip jurisdiction from state and federal courts, including the Supreme Court, which requires careful analysis of due process, Article III jurisprudence, habeas corpus doctrine, and the Exceptions Clause. Also necessary is an evaluation of congressional powers in relation to federal lands, which calls into question the Property Clause, because...