Two traditional—and inconsistent—attitudes toward cities coexist in American thought. On the one hand, cities are places to be feared. They are prime locations for vice, crime, and alienation; they frequently advance their own parochial interests over the welfare of the states and the nation as a whole; they all too often allow an entrenched majority to threaten the rights of minorities. Thus James Madison, in The Federalist, no. 10, argued that local democracies were “spectacles of turbulence and contention … incompatible with personal security and rights of property.” Only by “extend[ing] the sphere” of political power to the nation, he contended, could the danger to liberty posed by localism be cured.
Cities, however, are also seen as a source of human vitality and as a vehicle for the exercise of freedom. The concentration of people within cities unleashes an unmatched amount of creative energy and innovation; city policies serve as laboratories for social and economic experiments that benefit the rest of the country; local governments alone are close enough to their constituents to permit popular participation in governmental decision making. Alexis de Tocqueville, in Democracy in America (1835), contended that “the strength of free nations resides in the local community. Local institutions are to liberty what primary schools are to science; they bring it within people's reach, they teach people how to use and enjoy it.”
The legal status of American municipal corporations (a term describing the legal form adopted by cities) reflects both of these inconsistent attitudes, but the negative image of cities predominates. Apprehensions about the nature of city life, about city parochialism, and about city invasion of minority rights have led to a host of limitations on local governmental power. The most important of these is that cities cannot adopt policies simply because city residents favor them. Cities can only exercise powers that have been delegated to them by the states, and the scope of such a delegation has traditionally been narrowly construed. Since the late nineteenth century, a number of American cities, in an attempt to overcome restrictive interpretations of city power, have been given general authority to exercise local self‐government under “home rule” charters. But even the power of home rule cities is limited. Home rule cities can usually legislate only on matters that are local in scope, and today fewer and fewer subjects are of only local concern. Home rule cities are also often prohibited from legislating in specific areas, such as enacting “private” or “civil” law.
Not only must city actions be undertaken pursuant to a power delegated by the state but any such action can be modified or reversed if the state or the federal government decides to do so. Cities have long sought federal constitutional protection from the exercise of this state and federal power to reverse city policies. But in 1907 the Supreme Court decisively rejected the attempt to impose constitutional limits on state power over cities in Hunter v. Pittsburgh:
Municipal corporations are political subdivisions of the State created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. … The State, therefore, at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or part with another municipality, repeal the charter and destroy the corporation. … In all these respects the State is supreme, and its legislative body, conforming its actions to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. (pp. 178–179)
This extensive state power over cities has resulted in a wide variety of controls on city activity. The most important are state‐imposed restrictions on the ability of cities to raise revenue. Cities can only impose taxes that are authorized by the state, and even these taxes are subject to state‐defined limits. Strict controls have also been placed on city borrowing and profit‐making activities. Moreover, a host of other city policies, ranging from attempts to combat homelessness to efforts to control pollution, have at one time or another been preempted by contrary state decisions. Without effective state constitutional restrictions on state legislative power—which are rare—cities have no power to resist state policies with which they disagree or state mandates that city money be spent for state purposes.
Cities, like states, have been subjected to a vast array of federal controls in recent years as well. Since the 1970s, both city and state officials have become liable to federal criminal prosecution under an expansive interpretation of federal laws dealing with bribery, mail fraud, and extortion. Even federal laws that are inapplicable to states have been applied to cities. Cities, unlike states, are subject to federal antitrust laws. And although the Fourteenth Amendment's prohibitions on the abuse of governmental power applies equally to cities and states, cities, unlike states, have no immunity under the Eleventh Amendment from being sued in federal court and, unlike states, are liable for damages under Title 42, section 1983 of the U.S. Code for constitutional violations (see Sovereign Immunity).
Despite these pervasive limits on city power, the Supreme Court in recent years has often extolled the value of “local control.” When faced with an equal protection challenge to school financing systems that made the amount of money available for education depend on district wealth, the Court, in San Antonio Independent School District v. Rodriguez (1973), argued that the locally financed education systems were justified because of the importance of local control of education. “Local control,” the Court said, “is not only vital to continued public support of the schools, but is of overriding importance from an educational standpoint as well” (p. 49). In refusing to permit an interdistrict remedy to desegregate Detroit's school system in Milliken v. Bradley (1974), the Court again stressed the importance of the autonomy of suburban school systems, contending that “no single tradition in public education is more deeply rooted than local control over the operation of schools” (p. 741). (see Segregation, De Facto.) Similarly, the Court has refused to invalidate locally imposed exclusionary zoning ordinances despite their impact on the ability of low and moderate income people to find adequate housing, holding that the zoning ordinances are unconstitutional only if they are motivated by intentional racial discrimination (Village of Arlington Heights v. Metropolitan Housing Development Corp, 1977; see also Housing Discrimination).
The Court's defense of local autonomy is also frequently expressed in cases upholding cities' attempts to preserve their character. Thus cities have been given considerable leeway to establish rules prohibiting unrelated adults from living together in a single house. “The police power,” the Court said in Village of Belle Terre v. Boraas (1974), “is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people” (p. 9). An equally deferential attitude has permitted cities to use zoning laws to concentrate or disperse “adult” movie theaters and book stores. “A city's interest in attempting to preserve the quality of urban life,” the Court stated in City of Renton v. Playtime Theatres (1986), “is one that must be accorded high respect” (p. 50).
There are many possible explanations for the Supreme Court's defense of local control in the desegregation, school financing, exclusionary zoning, and community character contexts despite its rejection of similar arguments when cities have asserted a right of local self‐government immune from state or federal control. One commentator has argued that the Supreme Court, like state legislatures, has deferred to local autonomy in cases in which suburban communities have sought to protect family values from problems associated with the inner city but has allowed strict controls over central cities' regulatory authority. Another commentator has suggested that Supreme Court cases defending local autonomy as well as legal doctrines subjecting cities to state and federal control are efforts to protect private property rights. Deference to suburban autonomy is one way to protect the interests of private property owners, and invalidating city regulation of private business is another.
A third explanation of the divided attitude toward local authority is also possible. Judges, like most of us, are ambivalent about city power. They see much in cities that they fear and much that they admire. What is feared and what is admired, however, seem inextricable. Perhaps the explanation of the division within legal thought about city power, then, lies in the division within the predominant vision of cities: cities embody both our fears and our hopes for the future of American democracy.
See also Police Power; Takings Clause.
Bibliography
- David J. Barron, Reclaiming Home Rule,
Harvard Law Review 116 (2003): 2255–2386. - Richard Briffault, Our Localism,
Columbia Law Review 90 (1990): 1–115, 346–454. - Gerald E. Frug,
City Making: Building Communities without Building Walls (1990). - Joan Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law,
Wisconsin Law Review (1986): 83–153
— Gerald E. Frug
