Updated: Jan 25, 2022
Judge Sutton’s Who Decides? is a gracefully written, good-natured, and open-minded book about the acceptance of pluralism in governmental processes. The book covers a broad swathe of questions concerning institutional design — legislative districts, agency powers, plural executives, selection of judges, local governments’ autonomy, among other topics. Uniting these disparate topics is the gently implicit argument that designing institutions is difficult, and reasonable people disagree about how to do it. The answer to the title’s question, ‘Who Decides?” is: fifty distinct state constitutions reaching disparate conclusions about how collective power ought to be wielded. Judge Sutton sets his task primarily as one of description, but he plainly approves of this institutional diversity.
In this comment, I will explore the power of Judge Sutton’s answer with respect to one of those institutional questions, addressed by Part IV of the book — the question of how much and what sort of power ought to be enjoyed by local governments. As Judge Sutton notes, “most government policy that affects us directly occurs at the local level” (page 321). Judge Sutton’s illustrative case studies (from New York, Missouri, Michigan, Iowa, and Ohio) also show how radically different are the levels of authority that different states confer on these local actors (pages 309-21). Is this diversity a good thing? Or should we be seeking a transnational “common law” of local government law to insure a minimally sufficient level of local autonomy throughout the nation?
If federalism is good, then one might think that localism is even better, because “the key premise of federalism is localism” in which problems are solved by “smaller government, one closer to, and thus more educated about, the problem at hand” (page 107). Local power is “federalism within federalism,” in Judge Sutton’s nicely turned phrase (page 103). So why not have “federalism all the way down,” by pushing for national standards defining a uniformly high level of local power?
The logical extension of Judge Sutton’s argument for institutional diversity is that such a question deserves a cautiously skeptical answer. The benefits of local power are too equivocal and vary too much based on state-specific conditions to justify any general nationwide presumption in favor of localism. In legal terms, this means that mostly state-specific factors – a particular state’s constitutional text, local precedent, state-specific political culture, etc. -- should determine the scope of local governments’ power. This state-specific view of local government law would take a skeptical stance towards projects like the National League of Cities’ “Principles of Home Rule,” because those Principles urge local government law divorced from any particular state’s laws or traditions.
To understand what it means to take a state-specific stance towards local government law, a little background about two different ways to “do” state constitutional law is in order. One method is to rely on a sort of national “common law” of constitutional doctrine, divorced from any state-specific constitutional text and precedent. As Judge Sutton noted in his first book on state constitutional law, 51 Imperfect Solutions, this approach was implicitly urged by Justice Brennan back in 1977 in his State Constitutions and Individual Rights. For Justice Brennan, state courts were just another arena in which to re-fight battles over rights that had been lost in the SCOTUS. State courts following this approach might cite their state constitution, but, as Justice Goodwin Liu has explained, they are really just discussing general principles about racial equality, searches and seizures, etc., without much reference to anything peculiar to their state. The idea underlying Brennan’s article was to give positions that lose at SCOTUS a place of exile where they can wait until the time is ripe for SCOTUS to revisit the issue. Judge Sutton urges greater focus on state-specific constitutional text, precedents, history, and culture. The answers discovered with this focus might never be exported to other states lacking such state-specific background: In Judge Sutton’s words, such state constitutional litigation is “winner take some” rather than winner take all.
Whatever the merits of these rival positions with respect to individual rights, the case for using state-specific sources to define a state’s constitution is much stronger with respect to collective decision-making procedures. The reason is that the benefits of local governments’ autonomy vary dramatically based on the character of a state’s political parties, political culture, population and governmental density, among other considerations. One-size-fits-all institutional rules, therefore, does little to promote any normatively attractive theory of democracy or public participation.
The difficult of designing institutional principles appropriate for the entire nation is starkly manifest with local governments. Almost every generalization about the virtues of local governmental power is contingent on factors that vary wildly along the several states.
Take the claim that local governments are “closer to the people” than either state or national governments. The accuracy of this claim depends on the media and partisan competition at each level of government. A village that lacks local newspapers, or competitive elections, is very likely to have voter low turnout and adopt policies far from the preferences of that village’s median voter. Such a village might, for instance, be dominated by a small minority of intensely interested constituents to the exclusion of the majority of residents who are renters, simply because the former have a concentrated material interest in protecting their down payment, and renters lack mediating institutions– competitive political parties, newspapers, organized interest groups, etc. – to mobilize them.
Consider also the importance of population and governmental density. In a state with geographically tiny jurisdictions or dense populations all crammed into a small space, the possibility of external costs from local regulation skyrockets. Judge Sutton illustrates this danger nicely with the saga of Linndale, Ohio, a miniscule hamlet that uses its strategic position astride an interstate highway to exact tolls on non-resident drivers in the form of speeding tickets. (Pages 309-12) New Jersey’s suburbs impose a similar cost when they zone out multi-family housing in the most densely populated state in the Union.
The Linndale saga reveals some of the risks of pushing one state’s experiments on the rest of the nation as a model of some “general principle” of localism. The Ohio supreme court blocked some of the state legislature’s efforts to get rid of Linndale’s speed trap by construing state legislation that did nothing more than overrule local laws as not sufficiently “general” under the Ohio Constitution. This limit, canonically set forth in Canton v. State, states that the Ohio legislature may not simply “grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations” but instead must actually “set forth police, sanitary, or similar regulations.” Such a limit would require the Ohio legislature to regulate speeding itself rather than merely overrule Linndale’s cash-generating ticket system.
Such a doctrine, however, seriously impedes state legislatures’ efforts to prevent local governments from inflicting egregious spillover costs on neighboring jurisdictions. Local zoning laws have created a national housing crisis by reducing housing supply. A few state legislatures – notably, California – have been trying to fix the problem by preempting overly restrictive local zoning. That sort of state veto, however, is exactly what Canton decision seems to prohibit. Given that the state legislature itself cannot practically re-zone hundreds of cities itself, Canton could do genuine mischief to housing reform efforts if exported to other states. (Indeed, the Canton decision itself struck down a state law preempting local bans on manufactured housing).
Yet the National League of Cities’ Principles of Home Rule urges the Canton test as a model for other state courts to adopt, even while acknowledging that “the Canton test is more robust than many states’ general-law requirements.” The gist of these recommendations seems to be the general idea that local power is generally good and should be promoted. As David Schleicher notes, the benefits of local power are too debatable for any such general presumption. But even if such pro-localist rules make sense in Ohio (where housing is still relatively affordable), they are senseless in California (where the state legislature is battling a housing crisis caused by cities’ restrictive zoning).
Generalizing about principles of home rule, in short, is a politically fraught business. As Judge Sutton notes while commenting on the NLC’s Principles, “the long-term neutrality of the approach and its local-customs virtues are apt to get caught up in motivated thinking about what these changes would mean for substantive policy choices” (page 325). This challenge does not mean that states cannot learn from each other’s experience. The difficulty of transcending partisan politics, however, suggests that broad generalizations about the benefits of local power are likely to be either futile (because state courts and constitution drafters will reject them) or harmful (because they do not fit the conditions in the states where they are enacted).
Fortunately, federalism means that these questions do not need any general answer. Who decides? That’s a question with an easy answer: Fifty state constitutions, the meaning and importance of which have been laid out with clarity and grace in Judge Sutton’s superb primer.