Why (and when) cities have a stake in enforcing the Constitution.

• Author: Barron, David J.
• Position: Symposium on Executive Power

ESSAY CONTENTS INTRODUCTION I. LOCKYER AND THE STANDARD TERMS OF DEBATE A. The Political and Procedural Context in Lockyer B. Invisible Cities with Broad Enforcement Powers C. Invisible Cities with Limited Enforcement Powers D. Conclusion II. LOCAL CONSTITUTIONALISM RECONSIDERED A. Local Subordination as a Basis for Local Interpretive Freedom 1. State Control Mitigates the Threat That Independent Local Constitutional Interpretation Poses to the Rule of Law 2. Section 1983 Liability as a Basis for Recognizing Local Interpretive Independence B. Local Independence as a Basis for Local Interpretive Freedom 1. Local Independence as a Source of Special Constitutional Insight 2. Local Independence and Cities' Stake in Constitutional Enforcement III. DEFINING A CITY'S STAKE IN CONSTITUTIONAL ENFORCEMENT CONCLUSION INTRODUCTION

Debates over who should interpret the Constitution usually concern the horizontal distribution of authority among the three branches of the federal government. But our nation is also separated vertically. What, then, if we consider independent constitutional interpretation from the bottom up? To do so, I focus on cities, the lowest level of government in the constitutional structure. Cities are rarely thought of as independent constitutional interpreters, no doubt because they are not mentioned in the Founding text and because they are assumed to be mere creatures of their states. In addition, the standard view is that the higher up one goes, the less passion and the more reason enters into interpretation. Thus, to the extent that cities are recognized as potential independent constitutional interpreters, their interpretations are typically considered suspect, even dangerous. (1)

There are indications, however, that a different view is gaining ground. A growing body of scholarship now emphasizes the important and constructive role that cities could play in resolving contemporary constitutional disputes. My own argument on behalf of local constitutionalism, (2) Richard Schragger's recent study of the role of the local in the "doctrine and discourse" of religious liberty, (3) and Heather Gerken's defense of dissenting through local decisionmaking (4) all identify cities as useful participants in constitutional contestation.

Cities themselves, moreover, have recently asserted their independent interpretive authority in ways that defy their stereotyped role as obstacles to constitutional enforcement. (5) The most salient recent examples involve city officials disregarding state law bans on same-sex marriage on the ground that they violate the constitutional guarantee of equality. (6) Such city/state constitutional clashes do not involve a contest for interpretive authority between political branches within a level of government. They concern the scope of vertical rather than horizontal interpretive independence.

This Essay explores this general issue through San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. (7) In doing so, I discuss in some detail the substantial and intriguing body of case law--of which Lockyer is the most significant recent decision--that deals precisely with the scope of cities' power to raise constitutional challenges against their states, (8) but which even scholars who are quite sympathetic to an expanded constitutional role for cities have thus far largely ignored.

Significantly, the debate in Lockyer--reflecting the terms of the debate within this body of law more generally--largely tracks conventional assumptions about the constitutional status of cities, portraying them alternately as invisible or dangerous. I argue that this way of thinking about cities' constitutional enforcement power is mistaken. By emphasizing the distinction between cities and states, I argue that cities are well positioned to make state and federal constitutional arguments that are aimed at expanding the scope of local policymaking discretion. Courts should thus recognize a broader range of circumstances in which city officers may appropriately decline to enforce state statutes, and, relatedly, they should reject current interpretations of state and federal law that impose general bans on cities' ability to sue their states for constitutional wrongs. (9)

At the same time, my emphasis on cities' distinctive legal status leads me to defend important limits on their independent interpretive authority. When a city's constitutional claim, if accepted, would not expand local policymaking discretion but instead bind every locality to follow a single course, then its interpretive independence from the state should be, as Justice Jackson wrote in a related context, "at its lowest ebb." (10) Cities that make such constitutional claims are not practicing local constitutionalism at all. They are attempting to take discretion away from other cities by replacing the constraints of state statutes with the constraints of the state constitution or Federal Constitution. Cities have no sufficient interest in pressing these constitutional claims--whether through refusals to enforce state statutes or suits seeking to invalidate them--and thus generally should be barred from doing so.

Indeed, for these reasons, I argue that the California Supreme Court was right to conclude in Lockyer that San Francisco could not disregard the state's same-sex marriage ban. In my view, however, the problem with San Francisco's disregard of California's marriage laws was not (as the court suggested) that its action was too localist, but rather that it was not localist enough. San Francisco was not seeking freedom from state law so that its officers could adopt a distinct, local marriage policy for San Franciscans. Instead, the city claimed that higher law required all local officers to grant, rather than deny, licenses to same-sex couples seeking to marry. Thus, while San Francisco may have seemed to strike a blow for city power when it took the Constitution into its own hands, a deeper consideration of the controversy suggests that advocates of decentralization should have little reason to cheer the city's actions.

Are these parameters for local constitutional action attractive? After all, San Francisco has long been the locus of the gay rights movement in the United States, and thus its Mayor plainly believed that the state marriage laws struck directly at the city itself in a way that other state law commands did not. Why, then, should San Francisco have been permitted to press a constitutional claim only if it would have entitled each city to decide marriage qualifications for itself? Indeed, isn't this proposed constraint fundamentally at odds with constitutionalism itself, given the Constitution's professed desire to create a more perfect union?

In defending this constraint, I am necessarily taking a position about the purposes of city power. But that is unavoidable. As I explain, one's views about the proper scope of local constitutional enforcement depend not only on one's willingness to conceive of cities as visible and constructive constitutional interpreters, but also on what one believes the proper ends of local power should be. Thus, while it may be tempting to defend local constitutionalism by conceiving of cities as critical staging grounds from which politically powerless minority groups may make themselves nationally visible (11) I suggest that cities are better viewed as sites for small-scale political contestation and problem-solving on matters that are within their capacity to resolve through the exercise of their own policymaking authority. For that reason, I favor a legal structure that would permit cities to press constitutional claims in order to make policy for themselves, but that would otherwise restrict their ability to do so.

1. LOCKYER AND THE STANDARD TERMS OF DEBATE

   The recent contest between San Francisco and California over same-sex marriage provides a useful means of exploring the scope of local constitutional enforcement. That is because each side put forth its arguments in stark fashion. The city did not argue that either the California or the United States Constitution clearly prohibited the state's ban on same-sex marriage; rather, the city defended its decision to take the Constitution into its own hands in very broad terms. These terms applied to all executive officers, from the President down, and included any instance in which they believed in good faith that a statute was unconstitutional. For its part, the California Supreme Court was no less sweeping in rejecting the city's authority to assert such a constitutional claim, suggesting that such a power could be exercised by a non-judicial actor in only the rarest of cases. Thus, a careful examination of the dispute is unusually instructive. It reveals not only the logical problems with the traditional arguments both for and against the recognition of executive constitutional review as a general matter, but also the continuing influence of the conventional assumption that cities are, constitutionally speaking, either invisible or dangerous.

   1. The Political and Procedural Context in Lockyer

      President Bush's 2004 State of the Union address touched off the local/state battle over same-sex marriage in California by endorsing a federal constitutional amendment defining marriage as being between a man and a woman. As it happened, San Francisco Mayor Gavin Newsom was in the Capitol for the President's address. (12) Upon hearing it, the Mayor resolved to use his own local executive authority to stake out a contrary constitutional view. (13) The Mayor had an opening to do so because California vests marriage-licensing authority with the clerk in local governments like San Francisco. (14) Convinced that the state constitutional requirement of equal protection prohibited the ban, Mayor Newsom wrote a letter to the San Francisco...