The Tenth Amendment and local government.

• Author: Sullivan, Jake
• Position: Response to David J. Barron, Duke Law Journal, vol. 51, p. 377, 2001

David J. Barron, A Localist Critique of the New Federalism, 51 DUKE L.J. 377 (2001).

It is no historical accident that the "town meeting" is the dominant political metaphor of our American republic. Since the earliest settlers arrived in the New World, towns and cities have been a wellspring of popular sovereignty and civic republicanism. It is a strikingly odd textual fact, then, that localities receive no mention in the Constitution. The document does not specifically define the role that towns and cities play in the constitutional regime, nor does it explicitly preserve a sphere for local autonomy. Given this omission, Supreme Court doctrine and modern scholarship on local government articulate--or at least accept--the following principle: Localities possess no constitutional personality. Local government theorist David Barron's recent meditation on the linkages between local, state, and federal jurisdictions largely reflects the conventional wisdom, at least with regard to this specific legal formality. (1)

Barron criticizes the Court's emphasis on federalism from a localist perspective. His general argument is that the current "federalism revival" improperly ignores the various ways in which existing "centrally created legal regime[s]" limit local autonomy, (2) and the various ways in which new regimes--the commandeering systems in Printz (3) and New York, (4) for example--may counterintuitively enhance local autonomy. The Court misunderstands the effects of new federal laws, he contends, because it has not properly assessed the place of localities in a broader state and federal structure of governance. (5)

As part of his analysis, Barron tells the standard story--that cities and towns have no explicit constitutional authority to exercise powers other than those granted by the state. (6) However, he continues, "[I]t is widely perceived that, under state law, local governments enjoy a great degree of what is termed local autonomy under state law." (7) While there is no constitutional mandate for local self-determination--that is, the right of citizens to organize local government as they see fit--political realities are such that "any effort by the state to limit [local powers] is understood as a direct threat to local autonomy." (8) Once certain powers have been committed to "local control," state governments find it difficult to reassert their authority. Thus, concludes Barron, local autonomy is alive and well.

Barron's practical diagnosis may ultimately prove correct, but his rather passive defense of robust localism is cause for concern. We cannot be satisfied with his reliance on emerging state custom to conclude that local self-determination is a safe and protected principle. As a formal matter, localities can be created, destroyed, and reorganized at the whim of the state. (9) As a practical matter, many states have created annexation procedures without local consent; in fact, the issue of annexation remains hotly contested in communities around the country. (10) And as a constitutional matter, individual citizens presently possess no cognizable right to determine the scope and structure of their local government, except through their votes for the state legislature. Very few modern scholars seriously question the legal maxim that the Constitution is silent about cities. (11) Many, like Barron in this article, marginalize the self-determination concern by arguing that it does not present grave problems in practice.

A more affirmative constitutional rationale deserves consideration. This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government--without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define their local government. To defend this claim, the balance of this Comment is divided into three Parts. Part I will offer a robust vision of the Tenth Amendment, laying the groundwork for locating localism in the text of the Constitution. Part II will then link the Tenth Amendment's commands with the right to local self-determination. Part III concludes.

A caveat before proceeding: This Comment does not seek to provide a comprehensive account of local self-determination, nor a conclusive determination of the Tenth Amendment's relevance for robust localism. On offer here instead is a plausible reading of the Constitution, a brief exploration of that reading, and an invitation for further study and debate. In short, this Comment seeks to start a conversation, not to conclude one.

I

The Tenth Amendment does not specifically mention localities or local self-determination, or anything else in particular. It contains a single, sweeping pronouncement: "Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (12) This last phrase, "or to the people," is a constitutional orphan; the Supreme Court has cited the Tenth Amendment in a parade of recent federalism decisions without ever stopping to consider the potential complications posed by its final clause. Court majorities consistently ignore the reference to "the people" and enshrine the reference to the states in concluding that, at its heart, "the Tenth...