Chicago Law Review
Copyright (c) 1993 University of Chicago
University of Chicago Law Review
60 U. Chi. L. Rev. 253
LENGTH: 49125 words
ARTICLE: Decentering Decentralization
Jerry Frug +
+ Professor of Law, Harvard University. (c) 1993 by Jerry Frug. Thanks to Betsy
Bartholet, Nathaniel Berman, Thad Davis, David Kennedy, Matt Kramer, Frank
Michelman, David Nino, and Todd Rakoff for their helpful comments and
assistance. This Article -- the first I have published without the benefit of
her comments -- was written in memory of, and is dedicated to, my wife, Mary
... Local government law has denied cities the power to confront their
problems in their own way. ... The Centered Subject in Local Government Law
... Local government law, having endowed localities with the subjectivity of
the centered subject, can just as readily decenter that subjectivity. ...
Current local government law has rejected this understanding of local identity
in its treatment of exclusionary zoning. ... The literature of the situated
subject suggests that endowing localities with a decentered subjectivity
requires much more than the court order in
Mt. Laurel. To overcome exclusionary zoning, current local government law -- other than
Mt. Laurel -- has to be recognized, and rejected, both as a social policy and as a
contribution to the construction of personal identity. ... This would involve
moving beyond giving content to the self as other-directed, as selfish, or as
partly both. ... The Postmodern Subject as Local Government Law ... To frame
local government law in terms of the postmodern subject, we must locate it in
this ageographical city. ... A local government law founded on the postmodern
subject has a chance of doing so. ... Both reject the centered subject's focus
on boundary lines, an emphasis that so far has dominated thinking about local
government law. ...
[*253] The fear of making the national government the predominant power in the
country is as old as America.
n1 But in the late twentieth century many people think that there is no
alternative. Genuine decentralization of power, the traditional argument runs,
is no longer possible. The world is too complex, local resources too
inadequate, local power too threatening to minorities, the country's problems
too interconnected to rely on local decisionmaking. If most government
decisionmaking were decentralized today, cities would selfishly seek to evade
responsibility for problems ranging from the disposal of toxic waste to the
location of centers for the homeless ("Not In My Backyard"). They would attempt to enhance the prosperity of their own residents even if
their actions threatened the national economy. They would invade the rights of
their most powerless citizens. And they would be unable even to address
problems that cut across local boundaries -- such as the environment
[*254] and transportation -- let alone pay for the necessary programs.
Decentralization of political power is therefore either an impossible dream --
nostalgia for a past long since overtaken by events -- or a nightmare that
would quickly undermine the country's power and efficiency.
In this Article I reject this traditional understanding of decentralized power
in America. The traditional account attributes to localities the power of
self-assertion associated in our liberal culture with an autonomous individual.
It presents localities as being able to do whatever they want: they can act in
their own self-interest, cooperate with others on their own terms, and cause
harm to those who disagree with them. The political term for this form of
n2 Indeed, these days the same term is often used to describe the extent to which
individuals, as well as nations, can define and implement their own
self-interest ("consumer sovereignty"). The traditional version of decentralization envisions cities as sovereign in
this sense: they are entitled to be selfish, like consumers, on a collective
rather than an individual basis.
The problem with the traditional account of decentralization lies in this
understanding of local power. By modeling cities on the autonomous individual
and the nation-state, the traditional account ascribes to all three entities
the same kind of subjectivity. All three, in the words of postmodern theory,
have a centered sense of self. All three define themselves as radically
separate from others, all three discover their desires by looking within
[*255] and all three have a core of self-interest with which they can be in touch.
n4 The traditional account thus seeks to decenter power without questioning --
without decentering -- the kind of subject that exercises that power. The
subjectivity associated with the nation-state is simply recentered, moved from
the national government to the localities.
Not surprisingly, the possibility of decentralizing power becomes severely
limited when it is based on a sovereign subjectivity that is transplanted but
not transformed. No one could trust such an entity to exercise unsupervised
power. It presents too much danger to outsiders and to its own members. Indeed,
as Foucault suggests, fear of sovereign power is so common that it is routinely
converted into a subjected sovereignty, a sovereignty limited by some other
Humanism [has] invented a whole series of subjected sovereignties: the soul
(ruling the body, but subjected to God), consciousness (sovereign in a context
of judgment, but subjected to the necessities of truth), the individual (a
titular control of personal rights subjected to the laws of nature and
society), basic freedom (sovereignty within, but accepting the demands of an
outside world and
"aligned with destiny").
[*256] Decentralized localities have a similarly subjected sovereignty: they can
exercise power, but they are simultaneously subject to the power of the state.
Of course, the notion of subjected sovereignty has always allowed some degree
of decentralized power. Indeed, although suburbs, like cities, are subject to
state control, many suburbs have profited greatly from the positive
associations with the notion of sovereignty. They have separated themselves
from the city and promoted their own self-interest regardless of the impact on
n6 As a result, millions of people have escaped city problems by crossing the
boundary between city and suburb. Major American cities, on the other hand,
have largely suffered from the negative associations with the notion of
sovereignty. Local government law has denied cities the power to confront their
problems in their own way. City policies dealing with the exodus of local
businesses and unemployment, for example, have been treated as undermining the
national economy; city policies on crime, homelessness, and racism have been
treated as threatening the rights of citizens.
n7 This combination of suburban power and city powerlessness has had disastrous
consequences for American life. It has segregated many of America's
metropolitan areas into
"two nations": rich and poor, white and black, expanding and contracting.
n8 By dividing prosperous suburbs from decaying inner cities, it has denied the
poor access to jobs and increased interracial inequality.
n9 And, in the process, it has destroyed millions of acres of natural beauty and
"cliche conformity as far as the eye can see."
[*257] decentralizing genuine power to both cities and suburbs seems inconceivable --
and undesirable -- as long as decentralization is understood in the traditional
Proponents of decentralization, however, need not attribute to cities the
subjectivity of the centered self. In my view, the values of decentralization
-- the freedom gained from the ability to participate in the basic societal
decisions that affect one's life, the creativity generated by the capacity to
experiment in solving public problems and to tailor possible solutions to local
needs, and the energy derived from democratic forms of organization
n11 -- are better defended by basing decentralization on alternative theories of
the subject. In this Article, I redefine decentralization of power by building
on the vast literature of critique of the centered subject,
[*258] a literature that has focused primarily on the individual rather than on
collective entities such as cities.
n13 I offer below a brief introduction to this critique; this introduction is
designed to serve as a contrasting background to the ensuing account of the
decisive role that the notion of the centered subject now plays in the
structure of local government law. Then, in Parts II and III, I analyze two
alternative versions of local government law, both organized in terms of a
decentered subject. In these sections, I address not only how the definition of
city power would change under a revised local government law, but also the ways
in which a legal doctrine based on the concept of a decentered self would
transform the institutional structure of decentralized power in America.
I. THE CENTERED SUBJECT
A. An Initial Account of the Critique of the Centered Subject
One way to understand the critique of the centered subject is to recognize that
describing one's own sense of self -- describing oneself, even
to oneself -- is a creative process. Identifying the self requires the invention
of a narrative: the selection, editing, and unifying of countless aspects of
memory and desire. It requires the transformation of the multiplicity of one's
life into a single account -- more accurately, into a series of accounts, since
the attempt to establish one's identity has elements of both the synchronic
(identity at any particular moment) and the diachronic (continuity over time).
n14 As Nietzsche says in
The Will to Power,
"the 'subject' is only a fiction."
"is not something given, it is
[*259] something added and invented and projected behind what there is."
A considerable controversy now exists in the literature over this addition,
invention, and projection of a
"self." Some find its source in culture,
n17 others in political power,
n18 still others in language.
n19 Whichever explanation is adopted, however, all those who describe the
decentered self see it as contestable, amenable to the multiple
interpretations. Although identity is usually defined in terms of sameness, it
is constructed out of a series of differences: the difference between the
aspects of life that one attributes to the self and the aspects that one
associates with the actions of others;
[*260] the difference between the self as described in the present and as seen in the
past; the difference between the parts of oneself accepted into the narrative
and those rejected; the difference between the describing self and the self
being described. The creation of these differences cannot produce a centered
subject because neither the interpreter nor the materials being interpreted has
a fixed meaning. This is not just a problem of articulation. Determining how to
express oneself and not just the demands of the culture, defining a sphere in
which personal behavior is not subservient to political power, deciding how to
give meaning to one's life -- these are questions about how to become a person,
how to form one's character. But the
"self" who must answer these questions is being challenged by them: the consciousness
of the answerer is what is being questioned. Trying to live in a way that is
different from, rather than controlled by, cultural or political commands --
like trying to give meaning to a self read as a
"text" -- thus demands more than just continuous effort. It requires endless
interpretation, and it is never possible to know for sure what to interpret or
who is doing the interpreting. The Arabian poet, Sama Ma'ari, has described a
version of this sense of self by saying:
"Identities are highly complex, tension filled, contradictory, and inconsistent
entities. Only the one who claims to have a simple, definite, and clear-cut
identity has an identity problem."
This brief account of the critique of the centered subject does not begin to
capture the complexities of the topic, but it might nevertheless be adequate to
introduce the related problem of group identity. The critique of the centered
subject is more familiar when it is applied to groups rather than the self.
Treating individuals as a group plainly requires selecting, editing, and
unifying disparate elements -- the creation of a sameness out of a multitude of
differences. Consider any group to which you belong. It does not matter whether
the group is defined in terms of geography, race, ethnicity, gender, sexual
preference, politics, or some other criteria. Defining what the group has in
common and what distinguishes it from outsiders is always a contestable matter
of interpretation. To say that one
"is" an Asian American or a transvestite or a Democrat or a man or a Texan never
means that one's self-image can be captured by any of these labels. It is
common to feel both inside and outside these group identifications
simultaneously. In part this is because each of these labels has meanings
imposed by outsiders that a self-identified
[*261] group member might reject: being called a queer from someone in a passing car
does not have the same meaning as the feeling of identification with Queer
But there is no single group identity from an insider perspective either. Since
everyone is a member of many groups, any particular group label falsifies to
the extent it suggests a sameness within the group. A group identity has to be
forged out of differences that divide the group; it never simply exists. Every
group member recognizes the problem of uniting all Asian Americans or
transvestites or Democrats or men or Texans behind any single cause. But the
multiplicity of group identifications also allows some group members to dispute
the legitimacy of others' claim to membership: to some Asian Americans, an
American from Sri Lanka is not a
"real" Asian American; to some Texans, an Asian American is not a
"real" Texan; to some men, a transvestite is not a
"real" man; to some Democrats, Paul Tsongas is not a
"real" Democrat. As Barbara Johnson observes,
"difference disliked is identity affirmed."
This critique of the coherence of collective identity, often called
"anti-essentialism," has been elaborated extensively in literature denying that there is a core
identity to being black
n23 or being
[*262] a woman
n24 or being gay.
n25 The argument applies equally to groups such as cities. Territorial boundaries
circumscribe a very diverse group of people. For major American cities, this is
obvious enough: race, ethnicity, class, politics, gender, sexual preference,
and neighborhood, among other sources of identity, fracture the city in a
multitude of ways. But suburbs are also not homogeneous.
n26 Although some city differences (such as class) may not exist in some suburbs,
others plainly do. Concerns about politics, gender, sexual preference, and
neighborhood -- let alone the economy and the ozone layer -- do not stop at the
suburban border. Clearly, some suburban residents identify less with their
neighbors than with people from the city who share their race or ethnicity or
some other source of their identity. Other suburban residents are ambivalent
about their locality: happy to have escaped the city and anxious to escape
suburban boredom. Besides, most suburban residents have never even met each
other. A suburb, like a city, is no more than an
"imagined community": it consists of people who have only an image of their connection with each
n27 This image
[*263] is a
"is not something given, it is something added and invented and projected behind
what there is."
B. The Centered Subject in Local Government Law
Nevertheless, American law defines cities as centered subjects. Richard
Briffault's mammoth article surveying the field calls this conception of local
"localism." He defines localism as
"a belief that land-use regulation, schools, and tax policy ought to be
controlled locally, with the interests of local residents as the exclusive
desideratum of local decision makers."
n29 Localism, he adds:
reifies local borders, using invisible municipal boundary lines to delimit the
range of local concern and the proper subjects of local compassion and treating
the creation and maintenance of local borders as a basic right. . . . Local
borders, once created, reinforce local identification, become a focus of
sentiment and symbolism and create a powerful legal bulwark for the
preservation of local interests.
This definition of localism contains all the ingredients of a centered subject:
boundary lines separate one subject from another, each subject looks only
within to determine its interests, and
"preservation of local interests" is a meaningful goal. Localism treats each city as an individual entity, with
no inter-city relationships considered necessary. The only relevant
governmental decisionmakers are the cities and the state. Because the state has
power to regulate the undesirable external effects of city actions -- like
those of autonomous individuals -- cities are allowed to act, whenever
permitted by state law, as if they had no neighbors.
Professor Briffault contends that localism has empowered suburbs in America
while it has disadvantaged cities. Relying on the examples of exclusionary
n32 school financing,
n33 and protection against annexation,
n34 he asserts that courts and legislatures
[*264] have protected suburbs', but not cities', ability to shape their own social
and economic development by defining local interests narrowly. Courts and
legislatures, he argues, have made
"the central function of local government" the protection of
"the home and family -- enabling residents to raise their children in 'decent'
surroundings, servicing home and family needs and insulating home and family
from undesirable changes in the surrounding area."
n35 This focus, he says, has led
"to an association of the locality with individual autonomy."
Three cases illustrate Professor Briffault's concept of localism. In
Village of Belle Terre v Boraas,
n37 the United States Supreme Court rejected a challenge to a local zoning
ordinance that prohibited a group of unrelated university students from sharing
a house in the village. Justice Douglas, writing for the Court, asserted that
"[a] quiet place where yards are wide, people few, and motor vehicles restricted" are legitimate
"in a land-use project addressed to family needs."
n38 Rejecting the contention that the ordinance injured fundamental rights,
Justice Douglas held instead that
"the police power . . . 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."
Buse v Smith,
n40 the Supreme Court of Wisconsin declared invalid a school financing plan that
equalized revenues by reallocating money from property-rich districts to
property-poor districts. Asserting that taxes are legitimate only for the uses
of the government levying them, the court held that it violated the state
constitution to take money raised in one district and spend it in another.
n41 Finally, in
Town of Lockport v Citizens for Community Action,
n42 the United States Supreme Court deemed it constitutional in annexation or
consolidation decisions to have a dual ballot box system -- one that required a
majority of city and of non-city voters, counted separately, to approve the
measure -- even though such a system frustrated the will of a majority of the
area taken as a whole. States,
[*265] the Court reasoned, can legitimately recognize
"the discrete interests that such local governmental units may have
Joan Williams argues that this preference for suburban rather than urban
interests protects not home and family but property values.
n44 The United States Supreme Court's cases dealing with zoning and school
financing, she contends, have
"served to protect private property (the taxpayer's wallet or the suburban
enclave) against redistributive intrusions . . . ."
n45 She could easily have said the same thing about protection against annexation.
Indeed, both Professor Briffault and Professor Williams could offer their
theories to explain a wide variety of cases that defend suburban localism.
Either theory might explain, for example, the United States Supreme Court's
Milliken v Bradley
n46 of an area-wide school desegregation plan, thereby immunizing the suburbs from
having to participate in the effort to desegregate Detroit's schools.
Professor Williams's emphasis on property has the added advantage, however, of
being equally applicable to cases that defend local autonomy without making a
city/suburb distinction. Many recent Supreme Court decisions suggest that
cities can best empower themselves by acting just like property owners. In
National League of Cities v Usery,
n47 for example, the Supreme Court held that Congress did not have the power to
"freedom to structure integral operations in areas of traditional governmental
"undoubted" example of such a function, the Court reasoned, was the ability to determine
the wages and
[*266] hours of their employees
n49 -- a function that can with equal justification be viewed as an
"undoubted" example of the rights of property owners. Similarly, in
White v Massachusetts Council of Construction Employers,
n50 the Supreme Court held that Boston's policy of requiring its contractors to
hire city residents was not invalid under the dormant Commerce Clause because
the city was acting as a
"market participant" rather than a
"market regulator." The typical
"market participant," of course, is a property owner. In a later case dealing with facts like those
White, the Court rejected the market participant/market regulator distinction for
the Privileges and Immunities Clause.
n51 Nevertheless, it suggested that deference to local decisionmaking even under
that Clause would be particularly appropriate when a locality
"is merely setting conditions on the expenditure of funds it controls"
n52 -- another reference to traditional actions of property owners. And only last
term, in a case limiting freedom of speech at airports, the Court held that
"where the government is acting as a proprietor, . . . rather than acting as
lawmaker with the power to regulate or license, its action will not be
subjected to the heightened review to which its actions as a lawmaker may be
In addition to
"home and family" and
"property," a third possibility could explain the judicial and legislative defense of
localism: the concept of community. Consider, for example, Chief Justice
Burger's defense of a suburb's decision to ban nude dancing:
The residents of this small enclave chose to maintain their town as a placid,
"bedroom" community of a few thousand people. To that end, they passed an admittedly
broad regulation prohibiting certain forms of entertainment. Because I believe
that a community of people are -- within limits -- masters of their own
environment, I would hold that, as applied, the ordinance is valid. . . .
Citizens should be free to choose to shape their community so that it embodies
their conception of the
"decent life." This will sometimes mean deciding that certain
[*267] forms of activity -- factories, gas stations, sports stadia, bookstores, and
surely live nude shows -- will not be allowed.
This invocation of community relies on the romantic, touchy-feely image
commonly associated with the term. It evokes the idealized feeling of
belongingness, oneness, solidarity, and affective connection imagined to have
existed in a traditional, face-to-face village -- in sociological terms,
Gemeinschaft (community) rather than
n55 Like the invocation of home and family, the
Gemeinschaft image is reserved for the suburbs.
n56 It is invoked in the school financing
n57 and annexation
n58 contexts, as well as in efforts to control local character by zoning out
n59 As Laurence Tribe suggests, this notion of community provides another
explanation for the result in
Village of Belle Terre v Boraas.
All three justifications for the defense of localism -- home and family,
property, and community -- have one thing in common: they all are based on the
notion of the centered subject. Each explanation is presented as a coherent way
to locate the subjectivity of individual suburban residents. Home and family,
property, and community are values that individuals can call their own. Indeed,
they are values so important that they can unite all individuals
[*268] within a locality, thereby making it appropriate to think of them as a single,
unified group. These values give content to the
"imagined community" of the suburb, enabling it to have a legal personality, an identity, a unicity.
References to these values in local government law, in sum, suppress the
deconstructive critique to which each has been subjected elsewhere in the legal
system. The blissful notion of home and family omits any reference to divorce,
child-abuse, work/family conflicts, violence against women, and the like -- a
mainstay of the study of family law.
n61 The concept of property invoked is the pre-modern notion of absolute dominion
over external objects ("thing-ownership"),
n62 which the modern
"bundle-of-rights" conception has so fractured that many, like Thomas Grey, speak of
"the disintegration of property."
n63 The concept of community represses not only conflicts generated by issues of
race, gender, and the like, but also those generated by individualism and
instrumentalism -- in other words, the entire modern critique of unity
(summarized in the idea of
n64 Of course, combining all three idealized values produces a familiar centered
subject, one ably captured by Norman Rockwell in the 1950s. But local
government law is one of the few places in the legal system in which this
picture is still presented as truth.
So far, my discussion of the centered subject in local government law has
focused on cases in which courts or legislatures have given power to localities
-- particularly suburbs. Much of local government law, however, consists of
doctrines designed to limit local power. These doctrines rely on a different
notion of the centered subject, not the
"localism" associated with the autonomous individual but the idea of sovereignty
associated with the state. The most common image associated with the fear of
local sovereignty is that of tyranny of the majority, epitomized in the modern
Brown v Board of Education.
n66 Because local governments,
[*269] like states, threaten the rights of minorities, the Fourteenth Amendment
limits their ability to deal with issues of race,
n69 and property.
n70 Indeed, in an American tradition that dates back to Federalist 10, cities are
seen as even more threatening to minorities than states because they are
n71 Thus, unlike states, they are absolutely liable under
§ 1983 for violating their citizens' rights.
n72 And they have been subjected to virtually unlimited control by state
governments; cities are treated under local government law as mere
"creatures of the state."
The doctrines that curb local governmental authority invoke the protection of
home and family, property, and community as reasons for restraining local
power, not as reasons for sustaining it. A city's land-use laws can jeopardize
people's control over their own homes.
n74 Its zoning laws can prohibit members of the same family from living together.
n75 Its regulatory activity can threaten to redistribute wealth
n76 and even undermine the national economy by favoring its own residents over the
interests of national commerce.
n77 Its condemnation of land can destroy an intact neighborhood community,
n78 and its regulation of campaign financing can undermine
"the practice of persons sharing common views banding together to achieve a
n79 Although these dangers can arise in either cities or suburbs, they are more
commonly associated with cities. Cities are often thought of as smaller
versions of states and of the federal government -- as just another layer of
government -- while suburbs have been more successful in associating
[*270] themselves with the protection, rather than the regulation, of the private
sphere of home and family, property, and community. Moreover, to the extent
that cities are envisioned as populated by the poor and by racial and ethnic
minorities, they are seen more readily than are middle-class suburbs as
vehicles for the irrational or greedy or merely self-interested appetite of the
masses. Fear of the tyranny of the majority may have taken the place of the
ancient fear of the King,
n80 but collective tyranny is still treated, like the King's tyranny, as if it
were the exercise of the passions and power of an uncontrollable and
unpredictable sovereign subject.
"What is a majority, in its collective capacity," Tocqueville asks,
"if not an individual with opinions, and usually with interests, contrary to
those of another individual, called the minority?"
Sovereignty, however, is not the only version of the centered subject invoked
to limit local government power. Sometimes cities are envisioned, and
regulated, like property owners. Both property owners and cities can be defined
in terms of territory, organized to advance
"parochial interests," and be understood as having a concrete self-interest to promote. Consider, for
example, the reason advanced by the Supreme Court in
Community Communications Co. v Boulder
n82 for denying cities the exemption from the antitrust laws that the states enjoy
Parker v Brown
Cities are not themselves sovereign; they do not receive all the federal
deference of the States that create them.
Parker's limitation of the exemption to
"official action directed by a state," is consistent with the fact that the States' subdivisions generally have not
been treated as equivalents of the States themselves. In light of the serious
economic dislocation which could result if cities were free to place their own
parochial interests above the Nation's economic goals reflected in the
anti-trust laws, we are especially unwilling to presume that Congress intended
to exclude anticompetitive municipal action from their reach.
This reasoning imagines cities to be more like self-interested autonomous
individuals than like states. As Justice Rehnquist observed in dissent, such a
connection was necessary before cities,
[*271] unlike states, could be seen as engaging in the kind of anti-competitive
activity that the antitrust laws were designed to prevent.
n85 Other cases similarly connect the dangers involved in allowing cities and
"to place their own parochial interests" above the public interest. In
Matthews v Bay Head Improvement Association,
n86 for example, the Supreme Court of New Jersey held that a property owners'
association, like a city, could not exclude non-residents from equal access to
the local beach. The court reasoned that the impact on non-residents was
identical regardless of whether the non-residents were excluded by the
association or by a municipality.
The fear of local government power, whether understood in terms of sovereignty
or property, thus shares with the celebration of localism the identification of
decentralized power with a centered subject. In an earlier article, I argued
that the fear of local power exceeded the celebration of its virtues and that
local government law should allocate more power to cities.
n88 Professor Briffault has criticized my thesis, arguing correctly that my
analysis understated the amount of power that suburbs currently exercise in
n89 But Professor Briffault's article is itself an extended argument for greater
centralization. He rejects suburban power, and the ideology of localism on
which it is based, because it
"perpetuates interpersonal as well as interlocal economic and social
n90 He calls instead for an increase in the power of states.
n91 Professor Briffault would like to preserve some role for localities, but both
cities and suburbs would become even more powerless if his proposal were
I do not think that the solution to the problem of social and economic
inequality lies in the rejection of decentralization. As I have argued
elsewhere at length, I think decentralization is worth defending: states could
never engender the kind of democratic participation in public affairs that is
possible on a local basis.
n92 Although Professor Briffault has properly identified the problems
[*272] with current judicial and legislative deference to suburban self-in-terest, he
does not confront the equally serious problems engendered by cities' inability
to be self-governing. Yet the problems of suburban self-interest and of cities'
incapacity to be self-governing have the same source: the terms
"self-governing" both rely on the same concept of the self. To decentralize power, we need to
decenter this centered subject.
C. Decentering the Subject in Local Government Law
In American law, cities are creatures of the state: they have only the power
states give them, power that states can modify or withdraw at will.
n93 In the words of the treatise-writer, John Dillon, a city is subservient to the
"which breathed into it the breath of life."
n94 It should be clear, then, that states can create localities with any
subjectivity they please. Even people who cannot help thinking of individuals
or the nation-state as having a
"natural" subjectivity must recognize that there is nothing natural about the
subjectivity currently attributed to localities. Local government law, having
endowed localities with the subjectivity of the centered subject, can just as
readily decenter that subjectivity.
The problem is to figure out how to do that. It would be paradoxical for me to
try now to nail down exactly what a decentered subjectivity for a locality
would look like. Doing so would entail giving the decentered subject a specific
content -- in other words, it would require finding a center for the decentered
subject. The literature about the decentered subject does more than merely
reject such a notion of a stable identity for the self. It provides many
different notions about what a decentered self is. I suggest below two
different ideas for a new subjectivity for localities in local government law:
the situated self and the postmodern self. But these ideas are my own
creations, based loosely on a literature with an astonishing variety of ideas
about decentered subjectivity.
n95 Countless other candidates for local government subjectivity can be imagined.
[*273] This multiplicity of possibilities for a city's subjectivity is not a problem
that needs to be overcome; we do not need one test for cities' subjectivity.
Indeed, I do not think that legal scholarship -- or courts -- could ever find
such a single standard, let alone one that others could simply implement. Of
necessity, readers will interpret any notion of subjectivity that I propose,
like any legal doctrine, in a variety of ways. Some readers may find my two
ideas to be indistinguishable; others may find them to be totally inconsistent
with each other; still others may prefer different ideas based on some other
version of the decentered subject. In this Article, I hope to stimulate the
production of these multiple readings, as well as the production of concrete
suggestions about how to redefine what local governments are and what they can
do. I advance below what I consider utopian proposals for doctrinal and
institutional change: they are utopian because they represent modifications in
the current structure of local government law so minor that many readers will
consider them insufficient to transform our cities and suburbs and, at the same
time, so radical that they will strike other readers as inconceivable.
n96 My aim is to help reframe local government law not by offering classic policy
proposals -- I draft no statutes and offer no tests for courts to apply -- but
by encouraging others to react against my suggestions and thereby to generate
their own ideas about how to revise the current entitlements of local
II. THE SITUATED SUBJECT
One way of decentering the subjectivity of localities would be to build on the
literature that emphasizes that the self is formed only through a relationship
with others. As Kenneth Gergen puts it,
"it is not individual 'I's who create relationships, but relationships that
create the sense of 'I'."
n98 This insight has stimulated a wide variety of communitarians, civic
republicans, and feminists, among others. It would be impossible here to survey
this extensive literature or even to summarize the work of a single writer to
whom I am referring. I do think, however, that it is important to
[*274] take a brief look at the kinds of claims made by people who write in these
traditions before turning to the changes I propose in local government law
A. A Glimpse at the Literature
Michael Sandel, Charles Taylor, and Michael Walzer are examples of those often
n99 Sandel describes what he calls a situated or
"constitutive conception" of the self.
To say that the members of a society are bound by a sense of community is not
simply to say that a great many of them profess communitarian sentiments and
pursue communitarian aims, but rather that they conceive their identity -- the
subject and not just the object of their feelings and aspirations -- as defined
to some extent by the community of which they are a part. For them, community
describes not just what they
have as fellow citizens but also what they
are, not a relationship they choose (as in a voluntary association) but an
attachment they discover, not merely an attribute but a constituent of their
In the same vein, Charles Taylor asserts that
"our identity is always partly defined in conversation with others or through
the common understanding which underlies the practices of our society."
n101 Taylor argues that the
"autonomous individual" himself is a social construct:
"the free individual of the West is only what he is by virtue of the whole
society and civilization which brought him to be and which nourishes him."
n102 If so, the autonomous individual has to be interested in others, not as a
matter of sentimentality or altruism but as a matter of self-interest.
"Since the free individual can only maintain his identity within a
society/culture of a certain kind, he has to be concerned about the shape of
[*275] as a whole."
n104 Indeed, Michael Walzer contends, every-one -- liberal or communitarian -- has
to recognize the collective contribution to the constitution of the self. What
people disagree about, in his view,
"is not the constitution of the self but the connection of constituted selves,
the pattern of social relations."
As Walzer suggests, the recognition that the self is a product of human
relationships does not endow the self with any particular identity.
n106 Quite the contrary: the multiple possibilities for human relationship produce
multiple possibilities for the self. Liberalism, according to Walzer, is a
theory of relationship
"which has voluntary association at its center and which understands
voluntariness as the right of rupture or withdrawal."
n107 Civic republicanism, by contrast, seeks to promote a different kind of human
relationship and, thereby, to encourage a different kind of self-development.
n108 Frank Michelman describes this conception in terms of dialogue. The republican
concept of the subject, he says,
contemplates . . . a self whose identity and freedom consist, in part, in its
capacity for reflexively critical reconsideration of the ends and commitments
that it already has and that make it who it is. Such a self necessarily obtains
its self-critical resources from, and tests its current understandings against,
understandings from beyond its own pre-critical life and experience, which is
to say communicatively, by reaching for the perspectives of other and different
For Michelman and others who write in the republican tradition, this conception
of the self transforms the meaning of the idea that
"we are free only insofar as we are self-governing."
n110 The term
"self-government" becomes a collective, not an individual, activity:
"self-cognition and ensuing self-legislation must . . . be socially
[*276] situated; norms must be formed through public dialogue and expressed as public
n111 Self-government, in other words, is the work of politics.
"In the strongest version of republicanism," Michelman says,
"political engagement is considered a positive human good because the self is
understood as partially constituted by, or as coming to itself through, such
n112 Michelman quotes Hannah Pitkin:
"Only in public life can we jointly, as a community, exercise the human capacity
to 'think what we are doing,' and take charge of the history in which we are
all constantly engaged by drift and inadvertence."
n113 Although Michelman does not embrace Pitkin's strong claim for the importance
of politics, he, like others, defines republicanism in terms of the central
importance of citizenship to human flourishing.
Other writers do not accept this republican emphasis on -- or definition of --
politics. For example, although Roberto Unger defines the self in terms of
n115 his focus is on people's emotional connection with each other -- their
"experience of mutual longing"
n116 -- together with their skepticism that any
"particular framework of society and culture can give full expression to the
opportunities of practical or passionate connection."
n117 This combined emphasis on personal encounters and cultural skepticism, which
he calls the
n118 has led Unger to investigate the paradoxes of empowerment: how can we connect
with others on whom we so depend yet who make us so vulnerable?
n119 And how can we break out of the social and cultural contexts
[*277] that both define us as people and yet confine our ability for practical,
passionate, and cognitive empowerment? In a series of books, Unger has explored
these questions of personal and social connection in a wide variety of
contexts: the nature of human passions, the organization of work, the structure
of the economy, and the future of social theory, to name but a few.
"To satisfy our longing for acceptance and recognition, to be intimately assured
that we have a place in the world, and to be freed by this assurance for a life
of action and encounter," Unger writes,
"we must open ourselves to personal attachments and communal engagements whose
terms we cannot predefine and whose course we cannot control."
n121 For Unger, personal and social transformation thus requires an understanding
and revision of contexts considerably broader than the political sphere as the
republican tradition defines it.
A number of strands of feminism also embrace a version of the situated self. No
doubt the most famous example is Carol Gilligan's
In a Different Voice.
n122 Writing about theories of moral development, Gilligan draws a contrast
"between a self defined through separation and a self delineated through
connection, between a self measured against an abstract ideal of perfection and
a self assessed through particular activities of care."
n123 For Gilligan,
"the ideal of care is . . . an activity of relationship, of seeing and
responding to need, taking care of the world by sustaining the web of
connection so that no one is left alone."
n124 Defining the link between this notion of care and gender -- indeed, defining
Gilligan's own link between the two -- is, to put it mildly, a matter of
n125 But Gilligan's book, at the very least, insists that a relationship-centered
version of the self is an alternative to the traditional individualist
conception of the highest form of moral development.
"My own work," she writes,
"indicates that the inclusion of women's experience brings to developmental
[*278] a new perspective on relationships that changes the basic constructs of
interpretation. The concept of identity expands to include the experience of
Finally -- to offer one last example -- Martha Minow has argued that we should
not consider legal reasoning the product of a centered subject, let alone the
product of no subject at all. She insists that there is no such thing as
"impartiality is the guise partiality takes to seal bias against exposure."
n127 But, she continues, recognizing one's own partiality is not enough. It allows
people either to ignore the experience of others or to appropriate others'
experience into their own understanding of the world. We must do more -- we
must learn to
"take the perspective of another."
I must acknowledge and struggle against my partiality by making an effort to
understand your reality and what it means for my own. I need to stop seeking
certainty and acknowledge the complexity of our shared and colliding realities,
as well as the tragic impossibility of all prevailing at once. It is this
complexity that constitutes our reciprocal realities, and it is the conflict
between our realities that constitutes us, whether we engage in it overtly or
submerge it under a dominant view.
Minow contends that by exploring our own stereotypes, welcoming anomalies,
trying to understand how others understand, and constructing new bases for
n130 individuals -- even judges
n131 -- can begin to confront people's differences.
n132 Minow's emphasis, in short, is less on political or social transformation than
on the transformation of consciousness. She seeks to change how people think.
[*279] B. The Situated Subject as Local Government Law
The writers to whom I have just referred certainly do not form a single school
of thought; indeed, they are likely to find it odd that I have grouped them
together. But collectively, along with many others I have not mentioned,
n134 they could be a source of ideas for a local government law based on a notion
of the situated self. I explore some of these ideas below through two doctrinal
examples: the laws dealing with exclusionary zoning and condominium conversion.
Before turning to these examples, however, it is important to begin to
understand localities as situated subjects. The easiest way to do so is to
focus on the relationship between America's cities and their suburbs; in this
context, the mutually constitutive nature of municipalities seems virtually
"Every true suburb," in Robert Fishman's words,
"is the outcome of two opposing forces, an attraction toward the opportunities
of the great city and a simultaneous repulsion against urban life."
n136 The suburbs would not be what they are without this love/hate relationship
with the city: if the recent, extraordinary American migration to the suburbs
were fully successful and the central city ceased to exist altogether, the
character of the suburbs would be radically different. There would, for
example, be no place for those excluded by exclusionary zoning to live except
The identity of the modern city has been equally affected by the presence of
its suburbs. Although cities existed before suburbs, the current social and
economic problems of the modern city are, in part, the result of what has
happened beyond the city (to use the literal definition of the word
n137 ). This too can be illustrated by the impact on city life of exclusionary
zoning: if no suburb excluded the poor or people of color, the nature of cities
would be radically different. And there are countless other illustrations of
the fact that the relationship between cities and suburbs is
"not a relationship they choose (as in a voluntary association) . . . but a
constituent of their identity."
n138 Localities cause unemployment by attracting businesses from neighboring
cities; they generate pollution that harms their neighbors as well as
themselves; they zone for office complexes and shopping malls that change the
lives of employees and customers in other towns; they educate people who move
elsewhere in the area; they enact crime control policies that victimize people
who live across the border.
n139 This section builds on the recognition of the inextricable entanglement
between cities and suburbs.
Current local government law has rejected this understanding of local identity
in its treatment of exclusionary zoning. The United States Supreme Court and
most state courts have allowed localities to decide their zoning policies in
the interests of their own residents with little regard to their effect on
n140 Residents who desire to make their suburb into what Gregory Weiher has called
"theme park" --
"a place of escape, a place where worries and cares must remain outside the gate"
n141 -- are entitled to do so as long as they do not intentionally discriminate on
the basis of race
n142 and meet other minimal requirements.
n143 The impact on America of this aspect of local government law has been
profound: as Weiher argues, the recognition of the legitimacy of jurisdictional
boundaries has been a critical ingredient in the fragmentation of
[*281] America's metropolitan areas. It has fostered not only the suburbs' ability to
exclude potential residents but also their ability to recruit them: in a
country where people frequently move, racial, ethnic, and class segregation can
survive only if there are clear indications where
"the right" kind of people live.
Indeed, local government law's centered conception of suburban identity has
done more than promote segregation: it has fostered a suburban consciousness
that has become part of the identity of millions of Americans. This suburban
consciousness combines the felt legitimacy of suburban separation with an
acceptance of the benefits of race and class privilege. Not only does the
city/suburb line often divide whites from blacks, but boundaries between
suburbs also separate racial and ethnic groups, as well as the
upper-middle-class from the middle-class and working-class.
n145 Indeed, fears of racial and class integration, desires to protect
"home and family, property, and community," and allegiance to suburban separateness define and reinforce each other. As a
result, many people would feel personally threatened by a loss of the
effectiveness of suburban boundary lines; the interdependence associated with a
recognition of the situated nature of the self would be understood as opening
them to vulnerability.
Geographic boundaries have helped organize America's metropolitan areas in
terms of gender roles as well. Suburban consciousness emphasizes boundaries not
only between city and suburb but also between houses and between people. It
fosters what M.P. Baumgartner calls a
"moral minimalism": an avoidance of conflict, an emphasis on privacy and separation, and
distanced social ties.
n147 To put the matter in Carol Gilligan's terms, if the centered subjectivity of
the suburb were an attribute of a person, that person would be gendered male:
men and women may perceive danger in different social situations and construe
danger in different ways -- men seeing danger more often in close personal
affiliation than in achievement and construing danger to arise from intimacy,
[*282] perceiving danger in impersonal achievement situations and construing danger
to result from competitive success. The danger men describe in their stories of
intimacy is a danger of entrapment or betrayal, because caught in a smothering
relationship or humiliated by rejection and deceit. In contrast, the danger
women portray in their tales of achievement is a danger of isolation, a fear
that in standing out or being set apart by success, they will be left alone.
Of course, since both men and women can have suburban consciousness, we need
not read Gilligan as suggesting that there is a single male or female reaction
to relationships. We can understand her notions of relationship as gendered
cultural stereotypes: separateness, self-interest, and competitiveness are
commonly imagined as masculine, while openness, caring and vulnerability are
treated as feminine.
An opposite gendered understanding of the city/suburb distinction is also
possible. The suburbs can be understood not as male but as an extended women's
"sorority house with kids" as William Whyte called them in the 1950s.
n150 The classic suburb has been the domain of the domestic virtues associated with
the role of the mother in the traditional nuclear family; the traditional
father, but not the traditional mother, commutes to the city to work.
n151 Indeed, by making it more difficult for women to combine family life with
working outside the home, the suburbs have contributed to the creation of the
cult of domesticity. Of
[*283] course, this reading of the suburbs can be combined with the Gilliganesque
reading rather than understood as its opposite: the cult of domesticity can
itself be seen as male.
n152 But no matter which reading is adopted, it should be clear that confronting
the issue of exclusionary zoning will challenge not only separation by race and
class but also the ways in which our forms of urban life have built upon, and
allocated, gender roles.
One court has already taken a step toward recognizing the interdependence
between suburb and city in the exclusionary zoning context. In the well known
Southern Burlington County NAACP v Township of Mt. Laurel,
n153 the Supreme Court of New Jersey refused to allow localities to base their land
use policy solely on the desires of local residents. Condemning the social
consequences caused by the suburbs' effort to exclude the poor, the court held
that every municipality in its zoning policy had to afford an opportunity for
low and moderate income housing
"at least to the extent of the municipality's fair share of the present and
prospective regional need therefor."
n154 On the question of
"whose general welfare must be served . . . in the field of land use regulation," the court stated:
Frequently the decisions in this state . . . have spoken only in terms of the
interest of the enacting municipality, so that it has been thought, at least in
some quarters, that such was the only welfare requiring consideration. It is,
of course, true that many cases have dealt only with regulations having little,
if any, outside impact where the local decision is ordinarily entitled to
prevail. However, it is fundamental and not to be forgotten that the zoning
power is a police power of the state and the local authority is acting only as
a delegate of that power and is restricted in the same manner as is the state.
So, when regulation does have a substantial external impact, the welfare of the
state's citizens beyond the borders of the particular
[*284] municipality cannot be disregarded and must be recognized and served.
The extent to which
Mt. Laurel's notion of municipal legislation rejects the conception of the centered self
is, of course, a matter of interpretation. One certainly can read the court's
opinion as retaining the insider/outsider framework of the centered subject.
The opinion allows cities to continue to serve the interest of the people who
live within city boundaries unless there is a
"substantial external impact" on outsiders. Thus the court might simply be requiring localities to pay
attention to the injuries that self-interested activity causes others -- in a
way analogous to tort law or Mill's
n156 -- rather than changing the conception of the municipal self. In Sandel's
Mt. Laurel can be read as requiring localities to change merely the object and not the
subject of their feelings and aspirations.
But it is also possible to read the opinion as recognizing, in the context of
exclusionary zoning, the regional construction of local identity. A locality's
zoning policy, the court might be saying, affects not only its own identity but
also the identity of other cities within the region. Suburban exclusiveness is
dependent on the neighboring cities' refusal to exclude; some places have to be
open for others to be closed. And just as the identity of the excluding suburb
is enabled by its neighbors' openness, their identity as less
"exclusive" is created by the exclusion. In Weiher's words,
"one can only meaningfully speak of the type of people that live in a certain
area because at the same time implicit reference is made to all of those people
do not live there."
n158 Under this reading,
Mt. Laurel requires localities to accept a fair share of regional needs for low and
moderate income housing not out of sympathy or altruism but out of the
recognition that they are defined by, and define, others.
It should not be surprising that cities in New Jersey might have found such a
change of perspective hard to pull off. Since they had previously acted as
centered subjects -- and were still permitted
[*285] to exercise that subjectivity in all contexts other than exclusionary zoning
-- it would be quite an accomplishment for cities to rethink their identity in
response to a court order on a single topic. And, as we have seen, the case can
be read as not even demanding such a rethinking. As a result, the subsequent
history in New Jersey of the
Mt. Laurel litigation -- one that led to greater centralization of zoning decisions
n160 -- could readily have been anticipated. The localities' subjectivity remained
unchanged and, as centered subjects, they had to be forced to behave
The literature of the situated subject suggests that endowing localities with a
decentered subjectivity requires much more than the court order in
Mt. Laurel. To overcome exclusionary zoning, current local government law -- other than
n161 -- has to be recognized, and rejected, both as a social policy and as a
contribution to the construction of personal identity. Current law, having
fragmented the metropolitan area,
n162 is perpetuated by the kind of person this fragmentation has nurtured. The
problem with implementing
Mt. Laurel or similar reforms is the power of this status quo. A central government's
attempt to change it would strike the people who benefit from it as an
astonishing invasion of their personal freedom.
n163 Yet it is unlikely that those who profit from current law will undo it
themselves. How, then, can centered subjects ever come to embrace a vision of
themselves as decentered, as interdependent?
One way to answer this question would build on the civic republican emphasis on
the political construction of identity. It
[*286] would take seriously my earlier quotation from Hannah Pitkin:
"only in public life can we jointly, as a community, exercise the human capacity
to 'think what we are doing,' and take charge of the history in which we are
all constantly engaged by drift and inadvertence."
Mt. Laurel's impact was limited by its strategy of treating every city as an individual
decisionmaker required to confront regional needs by itself as a matter of
thought. From a republican perspective, understanding the mutually constitutive
impact of zoning decisions instead requires inter-city dialogue.
"Feelings and ideas are renewed, the heart enlarged, and the understanding
developed," Tocqueville observed,
"only by the reciprocal action of men one upon another."
n165 If so, zoning policies should be worked out not centrally or by each
municipality alone but through regional negotiations.
To establish such inter-city negotiations, institutional innovations are
necessary; I discuss these in Section C below. But as republican writings
emphasize, the success of inter-city negotiations will depend on the
entitlements of the participants, the organization of the discussion, and the
consequences not only of agreement but of failure to agree.
n166 The self may be formed through dialogue, but the dialogue will not change its
participants if they can simply walk away because they do not like the deal.
Not only is the experience of interdependence a prerequisite to doctrinal
change but, paradoxically, doctrinal change is a prerequisite to creating the
experience of interdependence.
n167 To eliminate exclusionary zoning and the consciousness that supports it, legal
doctrine must recognize and break through this paradoxical structure. One
ingredient in doing so, as Unger recommends, is expanding and developing
existing alternative exclusionary zoning doctrines, such as the test expounded
n168 Another ingredient, however, is to expose and build upon the decentered nature
not just of the doctrine but of the suburban residents for whose benefit
exclusionary zoning persists. Suburban residents not only disagree with each
[*287] on issues of race, class, gender, sexual orientation, the environment,
population growth (and so forth), but they feel conflict themselves over these
issues. Suburban self-protection might be undermined, therefore, by organizing
regional negotiations not in terms of the suburb/city divide but in terms of
the divisions that exist
within both the suburbs and the city. In order to examine this strategy, I need to
introduce a second local government law doctrine, the law of condominium
Many cities have enacted legislation designed to limit the ability of landlords
to convert rental housing into condominiums. This kind of legislation and
exclusionary zoning raise comparable issues. Both restrict an owner's ability
to control his property, and both do so in order to preserve an existing
community by excluding outsiders. Exclusionary zoning enables suburbs to
exclude the poor; condominium conversion legislation is an effort to protect
low-in-come neighborhoods from
n170 Indeed, condominium conversion legislation is one of the principal vehicles
cities use for preserving neighborhood character.
n171 One could therefore imagine both being permitted (any community can control
its own character) or both being forbidden (no community can exercise the right
[*288] to exclude). As it turns out, however, suburban exclusion is easier to
accomplish than urban exclusion because current local government law's
treatment of condominium conversion legislation is radically different from its
treatment of exclusionary zoning.
Courts have taken the need to protect the rights of property owners from
excessive governmental regulation much more seriously when dealing with
condominium conversion legislation than when dealing with exclusionary zoning.
n172 In Massachusetts, for example, the Supreme Judicial Court has invoked several
local government law doctrines to limit cities' power to prevent the conversion
of rental housing. Although the Massachusetts state constitution allows cities
to exercise home rule, the Supreme Judicial Court has held that the home rule
power does not include the ability to pass condominium conversion legislation.
Regulating the landlord/tenant relationship, the court has reasoned, falls
within the exception to cities' home rule power that prevents them from
"private or civil law."
n173 Unable to use their home rule power, Massachusetts cities must therefore seek
specific state authorization to pass condominium conversion legislation. Under
Dillon's Rule, however, specific grants of authority to cities are narrowly
[*289] construed; accordingly, the court has held many specific state authorizations
insufficient to permit condominium conversion legislation.
n174 These condominium conversion cases, in short, exemplify the aspect of local
government law that curbs city power thought to invade the rights of
n175 just as most exclusionary zoning cases exemplify the aspect of local
government law that enhances suburban power. Moreover, the exclusionary zoning
cases do not help cities: city residents cannot challenge city zoning laws that
gentrification on the grounds that they exclude the poor.
n176 As a result, those with enough money can profit from both doctrines: they can
isolate themselves in the suburbs or buy up inner city neighborhoods through
Examining exclusionary zoning and condominium conversion law together does more
than simply provide yet another example of the social policy local government
law now embraces. It can help us break out of the cliched vision of open cities
and closed suburbs often imagined in the context of exclusionary zoning. The
effort to pass condominium conversion legislation demonstrates that the
instinct for exclusion is not limited to the suburbs. Feelings of race and
class privilege, desires to protect
"home and family, property, and community," and allegiance to separateness exist on both sides of the city/suburb
boundary. Many blacks fear the weakening of the city/suburb line as an attack
on the political power they have gained in central cities,
n177 and many residents of ethnic neighborhoods fear integration as a destruction
of their community. The prevention of
gentrification, like exclusionary zoning, enables people
[*290] to preserve comparatively homogeneous communities and advances the interests
that the members of the community have in common. City and suburban residents
thus have similar reasons to protect territorial identity: racial pride,
feelings of community, fear of outsiders, and preference for their own way of
life over that lived on the other side of the border.
Examining exclusionary zoning and condominium conversion law together also
helps demonstrate that some people on both sides of the border want to move to
the other side. Some city residents may see the suburbs as a means of escape,
but some suburban residents want to escape to the city as well.
Gentrification, like the move to the suburbs, reflects the desire for a better life. Moreover,
exclusionary zoning limits the ability to escape in both directions. It
prevents the poor from moving to the suburbs, and it contributes to the decay
of the inner cities that restricts the possibilities for
gentrification. Like the urban poor, suburban residents who would prefer to live across the
border often can not find an acceptable place to live. A different local
government law could enable greater mobility in both directions, a mobility
that even some who would not move would like to encourage.
Gentrification brings an increase in the tax base and spending in the city;
n179 integration brings values of diversity that some suburbanites favor. Of
course, these feelings of openness to newcomers exist alongside the desire to
exclude them that I have already mentioned, just as the urge to locate
elsewhere co-exists with the feeling of comfort associated with staying put.
This conflict between the desires to exclude others and to integrate with
others replicates the structure of identity formation described in the
n180 Local government law could help undermine the power of suburban consciousness
[*291] inter-local negotiations to highlight these contradictory instincts. Many
different people could bring these conflicts into regional negotiations,
because there are a multitude of ways that the fight over closure and openness
occurs within both suburbs and cities. There are advocates of race
consciousness and proponents of racial integration; residents who prefer
stability and residents who prefer growth; property owners who want to preserve
the existing community and property owners who want to profit from development
gentrification; people who fear the dangers of city life and people who love living in cities;
parents who feel that the suburbs are
"a great place to raise a family" and kids who consider the suburbs vacuous; women who feel trapped by living in
the suburbs and women who feel protected by living there; activists seeking to
rid their neighborhood of
"undesirables" and the undesirables themselves.
n181 The conflicting instincts of inclusion and exclusion can also be brought into
the negotiations by ensuring the participation of different suburbs and city
neighborhoods. Although suburbs sometimes collectively define themselves in
contrast to the city, the competition between them, their division along class
lines, and their desire to distinguish themselves from each other prevent them
from having a single unified interest. Differences among city neighborhoods --
"the neighborhoods" and downtown -- deny the city a single identity as well.
As I will argue in Section C, institutional innovations are indispensable to
structuring inter-city negotiations in terms of these conflicts. But the
entitlement system of municipalities under the laws of exclusionary zoning and
condominium conversion must also be changed. The instincts for inclusion and
exclusion both have to be embraced by local government law. The extent of
inclusion and exclusion have to become the result of inter-city bargaining, not
the product of entitlements brought to the bargaining table. Those who want to
move to a neighborhood should not face community-imposed obstacles to doing so
(the community should have no right to exclude them). But the ability to
maintain a relatively homogeneous community should also not be forbidden (there
should be no right to be included).
n182 If suburbs and city neighborhoods
[*292] are denied a legal right to exclude, they will be sufficiently vulnerable that
they are likely to be anxious to make a deal rather than to walk away. And if
the formation of relatively homogeneous communities remains a possibility,
people seeking inclusion will want to make a deal as well: they will want to
find a way actually to move to the community, a prospect that, as the history
Mt. Laurel suggests, is by no means easy to achieve.
n183 Not only would the extent of acceptable exclusion become negotiable but the
negotiations could also face up to the kinds of questions local government law
now does not even have on the agenda. Would the reallocation of resources from
suburb to city or neighborhood to neighborhood be preferable to changing
n184 Where will the excluded people go?
As Unger's work suggests, transformation of America's metropolitan areas and of
the forms of personal identity that they nurture will require more than
adopting this republican strategy of changing the structure and rules of
political dialogue about exclusion.
n185 Local government law intersects with the rest of the legal system in a
multitude of ways; transformative change requires modifying the entitlements
not only of localities but of the people who live within them. Restrictions on
condominium conversion legislation, for example, give property owners
considerable leeway to gentrify, while lack of protection for suburban property
owners who want to develop low and moderate income housing give the suburbs
substantial power to exclude.
n186 Altering these legal rules could thus affect the outcome of negotiations over
both urban and suburban exclusion. Similarly, those displaced by condominium
conversion and exclusionary zoning currently have little legal protection and
therefore would not be taken seriously in a negotiation process. The post-war
gentrification efforts known as urban renewal
[*293] gestured toward a recognition of the costs imposed on those displaced,
n187 but reinforcement of that recognition could transform the negotiation process.
So might changing the entitlements of other possible participants in the
negotiations: city neighborhoods opposed to
"downtown" interests, women who want to ameliorate the work/family conflict by living
near their work, people who prefer race consciousness to racial integration,
people others label
It is not possible to list here the rule changes that would further the
negotiation process; answers are likely to vary from locality to locality. Only
experience will teach us how any particular modification works in any specific
context. But an extensive transformation of the legal system will no doubt be
necessary. It would be a mistake to reject such a transformation as improper
social engineering. Current law is itself social engineering. Not just local
government law but federal support of highways linking suburb and city, federal
guarantees of housing loans, federal income tax deductions for mortgage
interest, and federal support for urban renewal -- among many other government
policies -- have helped create our current modern metropolitan areas.
n189 The issue facing us is not whether the legal system will promote one form of
metropolitan area over alternatives; that is unavoidable. The issue is deciding
which one to promote.
[*294] Reform of exclusionary zoning and condominium conversion law is only one step
in such an effort. The
Mt. Laurel court was mistaken when it treated some local regulations as having
"little, if any, outside impact."
n190 This statement perpetuates the pretense that local government law's embrace of
centered subjectivity reflects a real inside/outside distinction, with
exclusionary zoning simply an exception to this general rule. Fully confronting
the impact of the current fragmentation of our metropolitan areas requires
abandoning this pretense: it requires recognizing that every local decision --
from schools to sanitation, from housing policy to transportation policy, from
gun control to pollution control -- affects outsiders. Localities need to
recognize across the board that their identity is
"defined to some extent by the community of which they are a part."
C. The Institutional Implications of Situated Subjectivity
To build local government law on the notion of situated subjectivity, we need
to organize local institutions, as well as legal doctrine, in terms of
inter-local relationships. By allocating power principally to individual cities
or the state, current local government law treats as irrelevant the fact that
localities are situated within a region. Legal decisionmaking therefore
oscillates between increasing the centralized power of the state government and
empowering localities in a way that affects their neighbors without the
neighbors' participation in the decisionmaking process. It is time to create
Of course, many states have already created public authorities to deal with
specific issues on a regional basis (such as transportation, natural resources,
and parks) and, in a few parts of the country, regional governments have
assumed a considerable share of local political power.
n192 But neither of these regional forms fosters
[*295] inter-local relationships; each simply replaces the city's version of the
centered subject with its own. Public authorities centralize power in a
corporate-style bureaucracy. They are structured more like businesses than like
government: their managers are appointed not elected, they are exempted from
many limits placed on governmental entities, their authority is defended in
terms of expertise, and they replace rather than involve local democratic
n193 Regional governments, by contrast, centralize power in yet another form of
sovereignty. They are sub-state governments with qualities intermediate between
those of the state and cities: like the state, they can exercise power across
the region; like cities, they are subservient to state power.
n194 Although both of these entities decrease the authority of city governments,
neither transforms the subjectivity of the region's localities in any way.
New forms of regional organization have to be created to foster a situated
conception of local identity. One possibility would be to decentralize
authority from the federal and state governments to localities under a system
of rules established by a regional legislature authorized to allocate
entitlements to the area's cities and suburbs. The purpose of such a regional
legislature would not be to act as a regional government or ape the powers of
the state. Instead, it would be a democratic version of the idea of regional
planning embodied in federal legislation of the 1960s and 1970s.
n195 These federal statutes sought to inject a regional voice into local
decisionmaking by requiring local decisions to be consistent with a regional
plan; Congress hoped that such a requirement would overcome the selfish pursuit
of local self-interest by forcing each locality to consider the impact of their
actions on the region as a whole.
[*296] But the effect of these federal statutes was limited. They made regional
considerations relevant only in the context of allocating federal grants; they
created as many different regional planning agencies as there were subject
matters to plan for; they concentrated on requiring agencies to prepare a
written plan rather than on an ongoing process of regional negotiations; and
they relied on existing political boundaries in the organization of the
regional planning process. Nevertheless, the germ of the idea was sound. The
object was not to have regional bodies replace local decisionmaking but to
require localities, when making their decisions, to take the interests of other
localities within the region into account.
As just mentioned, the task of the regional legislature would be to perform one
specific function of the state legislature (and the state courts): the
allocation of entitlements to local governments. An example of such an
allocation is the articulation of standards -- such as the
Mt. Laurel standard -- that describe the extent to which localities must accommodate the
interest of others in the region when they decide their land-use policies.
n196 But there are also countless other entitlement issues facing local governments
-- What portion of the funds derived from the property tax can a locality use
solely for its own schools? Can a locality exclude a facility the region needs
(a waste dump)? What incentives can a locality offer a business in a
neighboring jurisdiction to move across the border? Are stricter gun control
laws more appropriate in one area of the region than elsewhere? Current local
government law has clearly established that the kinds of entitlement questions
I have just proposed cannot be distinguished
"in principle" from substantive local decisionmaking.
n197 One could frame every issue as an entitlement question and thereby eliminate
city decisionmaking altogether (and frame every issue as suitable for local
resolution and thereby eliminate regional decisionmaking altogether). What,
then, is the distinction that I am making between the entitlement allocation
function of a regional legislature and a regional government?
The answer to this question must be found not in an analytical distinction
between entitlement allocation and governance but
[*297] in the way the regional legislature is organized. The regional legislature
itself (and not the courts or the cities) should have the power to determine
which questions it (rather than the localities) can decide,
n198 but the legislature should be structured to encourage its members not to
exercise power themselves but to turn the legislature into a forum for
inter-local negotiations about how to decentralize power.
n199 The best chance of doing so, in my view, lies in electing representatives from
neighborhoods rather than from the city or the suburbs. By organizing the
legislature on the basis of the subdivisions of the city and the suburbs to
which people feel most attached, its members would be sufficiently connected to
their communities that they would be under constant pressure to decentralize
power. But they could not achieve such a goal without convincing fellow
legislators that decentralization was a good idea. The members of the
legislature would thus regularly experience the conflict between attachment to
their neighborhood and the pull of the larger community, a conflict that
parallels the struggle between the attachment to the self and to others
embodied in the notion of the situated self. The contradictory pulls of the
situated self -- between particularism and universalism, between immanence and
n200 -- would thereby become the structure of decisionmaking about decentralizing
power. To be sure, additional institutional innovations might well be necessary
to prevent legislators from becoming so enamored of their own power that they
attempt to transform the regional legislature into a regional government.
Requiring legislators to appear regularly before neighborhood meetings to
report on legislative activity, allowing those at the meeting to vote on the
kinds of compromises that the legislators are authorized to make, enabling
neighborhood residents to control legislative salaries and perks, establishing
term limits for those serving in the legislature -- ideas such as these, from
[*298] as varied as the history of New England towns and Marx's analysis of the Paris
Commune, suggest that regional legislatures can be organized to frustrate the
dynamic of centralization.
n201 Localities will not be able to get everything they want from such a structure,
but they are likely to be able to gain more power than they now have or than
they would have if they ceded authority to a regional (or state) government.
A blizzard of issues is raised by this proposal that need further work. Current
interpretations of the Equal Protection Clause limit the ability to adopt
neighborhood lines precisely.
n202 Neighborhood representation might be inadequate to foster enough conflict
between the desire for decentralization and the need for coordination; it might
be necessary to have a wider variety of people from both sides of the
city/suburb border in the legislature.
n203 Perhaps each neighborhood should be represented by more than one individual
(by adopting a form of proportional representation) so that different factions
within the neighborhood can say what the neighborhood stands for. My purpose at
the moment is not to resolve all these issues but simply to persuade you that a
regional legislature organized by neighborhood could foster the situated
identity of local governments: it could enable the rules under which localities
operate to be decided collectively by the localities themselves.
Once cities and suburbs learn, through battles in the regional legislature,
what the regional impact of their decisions are, they can begin to internalize
this perspective. They can improve their
"capacity for reflexively critical reconsideration . . . by reaching for the
perspectives of other and different persons."
n204 Considerable authority could then be delegated to cities, suburbs and
neighborhoods; the review (and potential review) by the regional legislature
would help overcome the fear of the centered subject that has limited the
possibility of decentralizing power in America. There surely would no longer be
much reason to prefer state over local decisionmaking. Regions are as diverse
as states, and they therefore can serve the purpose of protection against
parochialism usually advanced for state power.
n205 Moreover, little democratic participation in
their decisionmaking is possible because of the size of most states (and of most
state legislative districts). Indeed, many regions in America cross state
boundaries, and state decisionmaking is likely to increase the fragmentation of
metropolitan regions rather than solve it. Decentralizing power to cities,
suburbs, and neighborhoods thus seems a far better alternative than state
decisionmaking, as long as regional views are incorporated into their
Other mechanisms exist that might also foster a situated identity for
localities. Although a regional legislature can lay down rules about local
entitlements, case-by-case applications of these rules are necessary as well.
One could therefore create a citizen group of (say) 100 people to serve for a
stated period of time as public representatives to evaluate the localities'
performance of this task; the group could be chosen from the metropolitan area
by lot, rather than by election or through interest group representation, to
ensure that its members were a microcosm of the region.
n206 Once constituted, the group could be authorized, for example, to judge
disputed instances of exclusion (how many centers of the homeless are
appropriate in this neighborhood?) or extra-territorial effects (what
restrictions on pollution are necessary before rezoning for industrial
development?). One way to understand this proposal is to see it as an expanded
and modified form of the jury: as with jury service, citizens would be expected
to devote a portion of their time to public policy decisionmaking.
n207 Like jurors, these public representatives would listen to and evaluate expert
[*300] and would apply legal rules to the facts as they found them. And the regional
legislature would retain the authority to ensure that they kept within this
mandate. But, as Tocqueville emphasized, it is important to see juries as
political institutions, not just as vehicles for deciding issues.
Juries invest each citizen with a sort of magisterial office; they make all men
feel that they have duties toward society and that they take a share in its
government. By making men pay attention to things other than their own affairs,
they combat that individual selfishness which is like rust in society.
If so, the institution of the jury is too important to be limited to deciding
questions raised by civil or criminal trials. The need to experience the
opposite pulls of community and self can become a vehicle for involving
ordinary citizens in the experience of local democratic decisionmaking. The
more rapid the turnover of this citizen group and the greater the number of
issues decided by this process, the more widespread this learning experience
A council of mayors from the region's cities and towns might also be a helpful
forum for discussing regional needs and priorities. Given the radical
differences in the population of the different jurisdictions, it would be a
mistake to give such a council decisionmaking power. Nevertheless, even as an
advisory body, a council of mayors can inform individual localities about
inter-local needs and thereby speed the process of internalizing these needs
into city decisionmaking. This experience of forming a city agenda in
discussion with neighboring city leaders might also redirect a city's energy.
If, for example, the mayors could agree on a plan of decentralization, they
could be an effective lobbying force in the regional legislature. But in order
to agree they would have to confront their differences. Like the other
institutional forms suggested here (and many others that might be proposed),
the council of mayors is based on a strategy about how to build unity out of
differences: a sense of situated identity is more likely to be formed by small
groups living near each other than by the actions of a central government.
[*301] D. Beyond the Situated Subject
I think that local government law -- and the chances for effective
decentralization of power -- would be vastly improved if localities were
treated as situated subjects. Accomplishing such a change would take an
extraordinary amount of political effort and doctrinal innovation -- as much
as, perhaps more than, it is sensible to expect. Yet the situated self is but
one of the possibilities for basing local government law on a decentered
subject, and it is one that, at least for me, has significant problems. Two
interrelated difficulties seem worth mentioning here: romanticism and hedging.
Much of the literature of the situated self suffers from an overly romantic
view of human connection. Somehow, it suggests, we will all recognize our
connection with each other. Last paragraphs of articles and books written in
this tradition are a place to look for this sentiment. Here's Minow:
"By taking difference into account, we can overcome our pretended indifference
to difference, and people our worlds with those who can surprise and enrich one
n209 And Sandel:
"when politics goes well, we can know a good in common that we cannot know alone."
n210 And Unger:
"If someone were to ask us why we want to live in the present in this way, we
should answer: first, because this is the kind of being we really are and,
second, because by living in this fashion we empower ourselves individually and
n211 These quotations are examples of romanticism not just in the popular sense of
sentimentality but in the sense associated with pre-modernist
Largely from the nineteenth century, we have inherited a
romanticist view of the self, one that attributes to each person characteristics of
personal depth: passion, soul, creativity, and moral fiber. This vocabulary is
essential to the formation of deeply committed relations, dedicated
friendships, and life purposes.
And, one might add, the same vocabulary is essential to optimism about
inter-city negotiations as well.
The hedging problem can be seen in the literature's use of phrases like
"partly" when defining the relationship between self and others. For example, Charles
Taylor says that
"our identity is
partly defined in conversation with others."
n213 Sandel argues that
"community . . . describes not just a feeling but a mode of self-understanding
partly constitutive of the agent's identity."
n214 And Michelman describes
"a self whose identity and freedom consist,
in part, in its capacity for reflexively critical reconsideration . . . ."
n215 For me, this kind of hedging raises an irresistible question: how much is
partly? If the individual self is divided between a
"real" self and an other-created self, how much is allocated to each part? The
connection between the literature's answer to this question and its romanticism
seems clear. Writers in the tradition of the situated self think that a lot of
the self can be recognized as other-created; skeptics disagree.
These two problems exist not only in the writers I have just mentioned but in
my own work in this tradition as well, such as in the previous section of this
Article. When I write in this tradition, it feels inescapable to be optimistic
about inter-personal or inter-local dialogue -- why else would one be trying to
further it? Hedging seems equally unavoidable. The extent of people's ability
to relate to each other is unknowable -- it has to be worked out in practice.
It is not surprising, therefore, that much of the criticism of the concept of
the situated self is based on these two problems. Critics first attack the
romanticism of the situated self: people, they suggest, are more selfish than
those who write in the tradition think. People are likely to have different
n216 and to be willing to sacrifice the rights of others,
n217 particularly those of minorities.
n218 Besides, some add, no one wants to talk as much as would be necessary to
engage in all that dialogue.
n219 The critics then seize on the hedging to re-describe human nature, reducing
the degree of romanticism to whatever extent they see fit and substituting
[*303] self-interest in its place. As a conclusion, many of these critics end up
embracing some version of the centered self.
It bothers me that my criticism of the concept of the situated self shares as
much as it does with that of these critics. Readers of this Article could well
find the criticism of romanticism and hedging so compelling that they would
reject my entire discussion of the situated self in local government law and
end up back where we started. My reaction to my own (and others') romanticism
and hedging, however, is the opposite of that of the critics. Instead of
attempting to recenter the self in something more
"realistically" selfish, it seems to me that the alternative is to decenter the self more than
those who espouse the situated self, let alone their critics, propose.
Romanticism and hedging stem from the fact that the situated self is only
partly decentered. First of all, a portion of the self seems not to be
constituted by others at all. This is the self-defining self that the critics
seize upon and emphasize. Moreover, the situated self as a whole remains
relatively identifiable, relatively centered. The world seems to be composed of
the self and others, with the question being how the two should relate to each
"other" seem to have identifiable content both within the definition of the situated
self and within the definition of a person's relationships with outsiders.
After all, how else could one tell that the self was
"in part" constituted by two different ingredients? And why else would the goal be both
romantic (bringing the two ingredients together) and hedged (bringing them
together to the extent possible)?
One way to reject simultaneously the romanticism and hedging of the situated
self and the critics' retreat to the centered subject, then, would be to adopt
a more fully decentered conception of self. This would involve moving beyond
giving content to the self as other-directed, as selfish, or as partly both. In
the local government context, it would mean a rejection of the organization of
local government law in terms of suburb vs. city, us vs. them, inside vs.
outside, self vs. other. It would, in short, require us to replace the
relatively decentered position of the situated subject with a postmodern sense
[*304] III. THE POSTMODERN SUBJECT
A. A Glimpse at the Literature
An enormous literature extends the critique of the centered subject beyond the
notion of the situated self. Considerable differences exist within this
literature among aspects labeled poststructuralist, postmodernist, feminist,
and critical race theory.
n221 As in Part II, I intend not to survey the work of even a single proponent of
any of these strands. Moreover, here, as there, the writers I mention do not
add up to a single school of thought; on the contrary, they often not only have
different objectives but criticize each other.
n222 Once again, I seek merely to suggest the kinds of ideas that those who write
in these traditions advance, all of which readers could make a source of
innovation in local government law and only a few of which I have room to
discuss below. In Part II, I described the situated subject in terms of a
relationship between self and other; here my sketch of the postmodern subject
will be presented in terms of a critique of both of these ingredients -- a
critique of both
Let us start with a look at the self. Exponents of the situated subject use the
"self" to refer to the individual taken as a whole, although the term could also be
used to mean only that part of the situated subject that is self-defining
rather than constituted in relationship with others. For the critics of the
situated self (and perhaps some proponents as well), this self-defining aspect
of the self is the
"real" self -- the core component that distinguishes an individual from outsiders.
For the postmodern subject, there is no
[*305] such core component. On the contrary, the more one tries to nail down what
this core is, the more one realizes that the core is empty, that what seems to
be a core is an absence rather than the very center of the self. The postmodern
subject has no self that can be separated from otherness.
There are many ways that this postmodern conception of the subject has been
articulated, including (among others) psychoanalytic, poststructuralist, and
feminist approaches. One ingredient in the psychoanalytic literature,
n223 for example, focuses on the gap that exists, before the acquisition of
language, between the fragmented and confused sensations that an infant
experiences and a coherent sense of self. An infant desires the focus and
coordination of a unified identity, but that is just what s/he lacks. The only
way for the infant to forge a coherent self out of an experience of a swarm of
objects, fantasies, and sensations is to identify with something -- like
her/his image in the mirror -- other than the self.
desire to be (an) I, if I
desire myself, it must, following elementary logic, be because I am not it. . . .
[The] foundation of identity . . . does not exist within me: it is elsewhere,
in this other."
n224 But achieving a feeling of oneness with this other -- and thus filling this
lack of self -- can never be accomplished.
The mirror image can no more be assimilated than can any of those other
privileged objects [that might fulfill the infant's desire], yet the subject
defines itself entirely in relation to it. As a consequence of the irreducible
distance which separates the subject from its ideal reflection, it entertains a
profoundly ambivalent relationship to that reflection. It loves the coherent
identity which the mirror provides. However, because the image remains external
to it, it also hates that image.
[*306] Because the mirror image is a fiction that one can only misrecognize as
(one)self -- because one can never
be such a self -- narcissistic desire is permanent, unsatisfiable, abyssal.
Poststructuralists, along with many who follow a psychoanalytic approach, add
to this picture the acquisition of language.
"add" is the wrong word because the pre-verbal stage of life can only be understood
through, and is transformed by, language.
n227 The personal pronoun
I, like the mirror image, holds out an unattainable promise of unity.
I represents all that a person is. But, at the same time,
I is a word that, like all words, comes from outside and is subject to a
structure of language that the individual neither invents nor controls. The
I participates in an endless, shifting chain of meaning; what it seeks to
"is never absolutely present outside a system of differences."
n228 As Emile Benveniste points out, the word
I is defined in contrast to the word
I only when I am speaking to someone who will be a
you in my address."
n229 Moreover, the meanings of these two words are not only opposite but
reversible; the referent of
I shifts from speaker to speaker depending on who is doing the speaking. In
"I is nothing but the one who says
Nevertheless, people constitute themselves as subjects through use of such a
"is defined not by the feeling which everyone experiences of being himself (this
feeling, to the degree that it can be taken note of, is only a reflection) but
as the psychic unity that transcends the totality of the actual experiences it
assembles and that makes the permanence of the consciousness."
n231 This assembling of the totality of experience -- this forming and transmitting
of experience through the word
I -- is
"the self." Yet, as each speaker uses the word
express himself, . . . the interior 'thing' he claims to 'translate' is itself no more than a
ready-made lexicon, whose words can be explained only through other words, and
this ad infinitum."
n232 Use of the word
I to represent
[*307] the self thus opens an unbridgeable gap between language and referent, symbol
and reality, meaning and being -- unbridgeable because the
"being" of subjectivity are available to us only through language.
n233 And, in language, the word
I can be used by everyone and has an ever-shifting referent:
"I is nothing but the one who says
Judith Butler's brilliant book,
n235 extends this postmodern conception of the subject to gender, a fundamental
aspect of identity (and the body). By understanding the
"self" as a fantasy, Butler argues, one can recognize that the acts, gestures, and
desires associated with gender do not express an already existing interior
essence. People have no interior essence. Instead these acts, gestures and
desires are attempts to act out -- to inscribe on the surface of the body -- an
idealized, publicly created image of what gender is.
In what sense . . . is gender an act? As in other ritual social dramas, the
action of gender requires a performance that is
repeated. This repetition is at once a reenactment and reexperiencing of a set of
meanings already socially established; and it is the mundane and ritualized
form of their legitimation. Although there are individual bodies that enact
these significations by becoming stylized into gendered modes, this
"action" is a public action. These are temporal and collective dimensions to these
actions, and their public character is not inconsequential; indeed, the
performance is effected with the strategic aim of maintaining gender within its
binary frame -- an aim that cannot be attributed to a subject, but, rather,
must be understood to found and consolidate the subject.
[*308] Butler suggests that the constructed nature of gender can best be understood
by examining such overt gender performances as drag and cross-dressing.
n237 Dissecting these performances allows us to recognize the performative nature
of all gendered identities while, at the same time, exposing possibilities for
reconfiguration, rede-ployment, and opposition to existing gender norms.
Butler's invocation of the socially constructed nature of the gender system
brings us to the second aspect of the postmodern subject, its critique not of
"self" but of
"other." The critique to which I am referring
n238 examines the
"postmodern condition" -- the experience of living in a world without a core sense of self. The
situated subject, as sketched above, longs for interconnection with others:
s/he seeks the experience of collective unity no matter how difficult (even
impossible) it is to achieve. The postmodern subject, by contrast, denies
her/himself this solace, this nostalgia for the unattainable, this hope of
bringing the mysterious hidden core of the self to the surface and sharing it
n239 For the postmodern subject, relationship with others -- and with the world at
large -- is an experience not of consensus, totality, or oneness but of
Here, for example, is Jean-Francois Lyotard's description of the postmodern
self does not amount to much, but no self is an island; each exists in a fabric of
relations that is now more complex and mobile than ever before. Young or old,
man or woman, rich or poor, a person is always located at
"nodal points" of specific communication circuits, however tiny these may be. Or better: one
is always located at a post through which various kinds of messages pass. No
one, not even the least privileged among us, is ever entirely powerless over
the messages that traverse and position him at the post of sender, addressee,
or referent. One's mobility in relation to these language game effects
(language games, of course, are what this is all about) is tolerable, at least
within certain limits (and the limits are vague) . . . . It may even be said
that the system can and must encourage such movement to the extent that it
combats its own entropy;
[*309] the novelty of an unexpected
"move," with its correlative displacement of a partner or group of partners, can
supply the system with that increased performativity it forever demands and
This quotation from Lyotard provides a contrasting language to that associated
with the situated subject: communication circuits rather than community,
language games rather than inter-subjectivity, moves in a system rather than
There are dozens of attempts such as Lyotard's to characterize the postmodern
experience. Some writers use the word
"pastiche" to describe the experience of recognizing the endless connotations and
references invoked by one's own activity.
n241 Everyone knows that his or her actions are understandable only because they
can be compared to actions already taken by others; the postmodern subject
bases her/his presentation of self on this recognition of inter-textuality and
n242 In the postmodern world there are no originals, only copies.
n243 (Umberto Eco's oft-quoted postmodern reading of the phrase
"I love you madly" -- reproduced in the foot-note -- illustrates this phenomenon.)
n244 The term
"schizophrenia" is also widely used in the postmodern literature. For example, Baudrillard
says at the end of
The Ecstasy of Communication:
With communication and information, with the immanent promiscuity of all these
networks, with their continual connections,
[*310] we are now in a new form of schizophrenia. . . . The schizo is bereft of every
scene, open to everything in spite of himself, living in the greatest
confusion. . . . What characterizes him is less the loss of the real, the light
years of estrangement from the real, the pathos of distance and radical
separation, as is commonly said: but, very much to the contrary, the absolute
proximity, the total instantaneity of things, the feeling of no defense, no
retreat. It is the end of interiority and intimacy, the overexposure and
transparence of the world which traverses him without obstacle. He can no
longer produce the limits of his own being, can no longer play nor stage
himself, can no longer produce himself as mirror. He is now only a pure screen,
a switching center for all the networks of influence.
Finally -- to offer one last example -- Brian McHale argues that living in a
postmodern world raises not the kind of epistemological questions that might be
asked by a situated subject ("How can I interpret this world of which I am a part? And what am I in it?") but ontological questions ("Which world is this? What is to be done in it? Which of my selves is to do it?
. . . What happens when different kinds of world are placed in confrontation,
or when boundaries between worlds are violated?").
n246 The appropriate literary genre for postmodern literature, he concludes, is not
the mystery (as it might be for the situated subject) but science fiction.
How can a person affect -- intervene in -- a world understood in terms of
communication circuits, language games, moves in a system, pastiche,
schizophrenia, science fiction? How can there be individual action without a
"self?" From the perspective of a situated subject (like a centered subject),
individual action is located in the self, and political effectiveness depends
on winning others over. For a postmodern subject, by contrast, a situated
subject's efforts to build a community does not express her/his inner self but
reenacts a performance, a game, a role in a publicly created system. The domain
of politics, Michel Foucault argues, lies in examining
[*311] and challenging the ways in which such a performance, game, or system creates
the notion of the individual.
The systematic dissociation of identity . . . is necessary because this rather
weak identity, which we attempt to support and to unify under a mask, is in
itself only a parody: it is plural; countless spirits dispute its possession;
numerous systems intersect and compete. . . . [What is required] is to reveal
the heterogeneous systems which, masked by the self, inhibit the formation of
any form of identity.
No viewpoint allows us to examine current forms of identity by stepping outside
them; the power of the heterogeneous systems that form our identities is not an
outside force that individuals might resist as an act of will. On the contrary,
one of the prime effects of power [is] that certain bodies, certain gestures,
certain discourses, certain desires come to be identified and constituted as
individuals. The individual . . . is not the
vis-a-vis of power . . . . The individual is an effect of power, and at the same time,
or precisely to the extent to which it is that effect, it is the element of its
Foucault argues that
"we have to promote new forms of subjectivity through the refusal of this kind
of individuality which has been imposed on us for several centuries."
n250 Yet such an effort always has the potential of backfiring: it might reproduce,
rather than subvert, the kind of identity that one is seeking to contest.
n251 In Lyotard's words,
"the system can and must encourage such movement . . . [to] increase [the]
performativity it forever demands and consumes."
[*312] Whether despite or because of these difficulties, many scholars, such as
postmodern feminists and critical race theorists, are currently trying to
subvert reigning notions of identity. Thus Angela Harris, citing the work of
bell hooks, Patricia Williams, and Zora Neale Hurston, has argued that black
women -- not uniquely but in poignant and striking ways -- have articulated a
multiple consciousness, an experience not of
"a single inner self (much less one that is essentially gendered), but many
"We are not born with a 'self,'" Harris says,
"but rather are composed of a welter of partial, sometimes contradictory, or
even antithetical 'selves.'"
n254 Harris relies on this sense of multiple identity to question dominant
conceptions of the subject in feminist theory. Patricia Williams, bell hooks,
and Kwame Anthony Appiah, among others, have used a related strategy to
challenge the prevailing notions of race.
n255 I now turn, in a similar fashion, to an attempt to subvert the centered
subjectivity of local government law.
B. The Postmodern Subject as Local Government Law
A postmodern conception of local government law must start with a postmodern
conception of localities. Part II's version of local government law was based
on the notion that cities and suburbs are interrelated rather than separate,
independent entities, and it therefore treated those who live in one
jurisdiction as constituted, in part, by actions taken by those who live in
others. The postmodern version sketched here rejects both Part II's emphasis on
residency as the focal point of a person's relationship to the metropolitan
area and the city/suburb distinction itself. Instead of envisioning people as
located on one side or the other of a city/suburb line, it builds on the idea
"young or old, man or woman,
[*313] rich or poor, a person is always located at 'nodal points' of specific
n256 spread throughout the area.
The city/suburb distinction is often used to contrast two images: a congested,
dangerous, deteriorating inner city and a quiet, prosperous, residential
n257 Such a picture misrepresents life in contemporary American metropolitan areas.
Parts of America's cities are certainly characterized by congestion, poverty
and urban decay, but so are many suburbs.
n258 Indeed, these suburbs are often worse off than inner cities because their
property values are so low that they cannot afford even the limited social
services that cities offer their poorest residents. Similarly, if we think of a
suburb as a homogeneous residential area dominated by well-kept single family
houses set in yards,
"almost all large cities," as Robert Fishman has noted,
"have suburbs . . . within their borders."
[*314] These residential areas within cities (Riverdale in New York, West Roxbury in
Boston, Chestnut Hill in Philadelphia, Chevy Chase D.C. in Washington,
Sauganash in Chicago, Palmer Woods in Detroit, River Oaks in Houston, Sea Cliff
in San Francisco) are indistinguishable from neighborhoods on the other side of
the city line. Moreover, people of color live in both kinds of neighborhoods.
n260 One-third of African Americans live in middle class suburbs;
n261 in some suburbs a majority of residents are African Americans, Chinese, or
n262 To be sure, lines of race divide American metropolitan areas as sharply as the
Berlin Wall formerly divided Berlin and the green line divided Beirut. But
these racial lines are more often found within cities and between suburbs than
along the city/suburb boundary (East 96th Street and Howard Beach in New York,
South Side and Bridgeport in Chicago, Roxbury and South Boston in Boston,
Compton/Watts and the Westside in Los Angeles).
n263 Finally, it is not just the middle-class
[*315] and the underclass who live on both sides of the border: there are
working-class suburbs just as there are working-class neighborhoods within
The other characteristic that has traditionally been associated with cities --
a central business district with offices and stores -- similarly describes
suburbs as well as cities.
"Most large metropolitan areas have ten to thirty urban cores, the downtown
being just one of them."
n266 Two-thirds of American offices are currently located outside of city
n267 Tyson's Corner, Virginia has more office space than downtown Miami;
n268 Southfield, Michigan has more office space than Detroit.
"By 1980, 38 percent of the nation's workers commuted to their jobs from
suburb-to-suburb, while only half as many made the stereotypical suburb-to-city
n270 Moreover, shopping malls have not only brought the density and feel of city
commercial life to the suburbs but suburban stores now outsell their city
n271 Some of these suburban malls are as big as city downtowns. (On Route 202 in
King of Prussia, Pennsylvania, the sign reads:
[*316] FOUR LEFTS.")
n272 The aggregation of restaurants, entertainment, shopping, and pedestrian
walkways in suburban shopping malls has, in fact, so captured the image of
America's commercial life that cities have begun to restructure their own
commercial areas by copying them (Quincy Market in Boston; the Inner Harbor in
Baltimore; Watertower Place in Chicago; the Skyways in Minneapolis; Ghirardelli
Square in San Francisco; pedestrian zones everywhere).
In sum, in the words of the urban historian James Vance,
"today it is hard to draw a significant concrete distinction between a Clayton
and a St. Louis."
n274 Except, of course, that most of us have never heard of Clayton. The only
difference between St. Louis and Clayton is a legal distinction -- local
government law treats these two parts of the same region as separate and
n275 Indeed, during the course of my argument that the city/suburb distinction no
longer describes American metropolitan areas, I have repeatedly invoked this
legal distinction myself. I have used the words
"suburb" to refer to one side or the other of the invisible line that marks the
legally-recognized boundary between them. My use of these terms has masked the
pluralism and heterogeneity on both sides of the line. The terms thus have had
the characteristics of the term
I in the creation of subjectivity: the unity that
"suburb" has assembled has been a unity of (legal) language. As Foucault suggests, use
of this language is the exercise of power: the current identities of cities and
"an effect of power, and at the same time, or precisely to the extent to which .
. . [they are] that effect . . . [they
[*317] are] the element of its articulation."
n276 To promote an alternative to this form of power, we must start by recognizing
the arbitrariness of the city/suburb lines that now fracture America's
metropolitan areas. We must look at our metropolitan areas anew, without
focusing on the legally recognized borders between localities.
Most Americans who live in these areas already disregard jurisdictional
boundaries. Instead of sharply dividing city and suburb, residents create their
own idea of the region in which they live by organizing it in terms of the
places they know.
n277 They think nothing of crossing city lines for child care, work, shopping,
recreation, entertainment, visiting friends, and the like. Their relevant space
"defined by the locations they can conveniently reach in their cars."
n278 They often do not even know the name of the town where the mall they shop in
is located; all they need to know is the name of the mall. Areas that do have
names are commonly identified in a way that ignores local government
boundaries: Route 128 in Massachusetts, Silicon Valley in Northern California,
King of Prussia in Eastern Pennsylvania, the Galleria in Houston, Tyson's
Corner in Virginia.
n279 Other areas both in the city and the suburbs -- even some close by -- are so
unfamiliar that people get lost if they try to go there. The metropolitan area
as a whole is a hodgepodge of elements -- shopping/office/hotel complexes,
strip shopping malls, industrial parks, office buildings, department stores,
neighborhoods, subdivisions, condominium communities -- that is
"impossible to comprehend,"
n281 For many Americans the symbol of this contemporary form of metropolis is Los
Angeles. And, as Joel Garreau reports,
"every single American city that is growing, is growing in the fashion of Los
Angeles, with multiple urban cores."
[*318] This reference to Los Angeles suggests more than simply the absence of a
n283 Los Angeles symbolizes another feature of contemporary urban life as well:
issues of ethnicity, race, and class cross-cut America's metropolitan areas
without stopping at jurisdictional borders. Los Angeles has aptly been labeled
the capital of the third world: immigrants from El Salvador, Guatemala, Mexico,
the Philippines, Korea, Thailand, Vietnam, Iran, India, Pakistan, Armenia,
Russia, and Israel (among other places) have formed communities in the area in
both the city and the suburbs.
n284 Similar communities are being created across America. This influx of
immigrants has not merely changed the character of the neighborhoods where the
immigrants reside. As in Los Angeles, many immigrants do business in the
region's poorest neighborhoods (Korean and Latino stores in African American
neighborhoods); others work in minimum-wage jobs in the area's
shopping/office/hotel complexes; still others spend most of their time in the
region's fanciest neighborhoods because they have come to serve as the
indispensable maids and babysitters for the upper-middle-class.
n285 Los Angeles is also famous these days as the site of recent riots and of gang
warfare in its South Central neighborhoods. Fears of this kind of urban unrest
and gang violence have increased throughout the country,
n286 and the proximity between the neighborhoods where the civil unrest and
violence have occurred (or threaten to occur) and other neighborhoods has
increased with the extent of this fear. Neighborhoods close by were once
virtually forgotten ("no one lives in Detroit," someone who lived in a nearby suburb once informed me);
n287 now, they seem all too close.
[*319] As early as 1923, Frank Lloyd Wright declared that
"the big city is no longer modern."
n288 He was right: as Garreau points out,
"we have not built a single old-style downtown from raw dirt in seventy-five
n289 It is harder to realize -- but it is also true -- that the suburban era, the
era of lawns and cul-de-sacs, has reached its end as well.
n290 Now, as Michael Sorkin argues, people live in
"a wholly new kind of city, a city without a place attached to it," one that Sorkin calls the
n291 Sorkin uses the term to describe the pastiche of highways, skyscrapers, malls,
housing developments, and chain stores -- the endless urban landscape of copies
without an original -- that constitute the place-bites (the spatial equivalent
of sound-bites) of modern America. These place-bites can be combined in an
infinite variety of ways, each of which makes equal sense, to represent the
metropolitan area. The ageographical city, Sorkin suggests, is the urban form
of the 800-number: the area code for no-place-in-particular.
n292 To frame local government law in terms of the postmodern subject, we must
locate it in this ageographical city.
Local government law, however, now gives priority to a single place-bite within
the metropolitan area: the place where people
[*320] live. Indeed, residency has always been at the center of local government
law's conception of people's relationship to the space around them.
n293 Perhaps this emphasis on residency was justifiable when, once upon a time,
home, work, family, friends, market, past, present, and future were (so we
imagine) linked together in one community. But these days some people do not
even live at their place of residence: students who spend full-time
out-of-state, people who are serving in the military, and business-people who
are assigned abroad are all residents of the town they are never in. And those
who do live in the area are not found solely at home. Most people spend most of
their day in other parts of the region. If the neighborhood where people work
deteriorates or their mall closes down, it would affect their lives just as
much as an event three blocks away from their residence. In an era when people
often do not even know the names of neighbors who live a block away, a person's
territorial identity should not be reduced to his or her address.
By locating people in their houses or apartments, local government law
romanticizes the home as a haven in a heartless world.
n294 But in contemporary America one's place of residence provides
"no defense, no retreat . . . . The overexposure and transparence of the world
which traverses . . . [people] without obstacle"
n295 leaves only a weak sense of
"home." The ageographical city is, in other words, the urban form not just of the
800-number but also of the 700-number -- the telephone number that is yours
regardless of where you live. The average American moves twelve times in a
n296 I was born and went to school in Berkeley, California; I met and married my
wife (who was from St. Joseph, Missouri) in Washington, D.C.; our son was born
in New York City; our daughter was born in Philadelphia; most recent family
vacations have been taken in the same house in Westport, Massachusetts; I now
live in Cambridge, Massachusetts. Where am I from? Where are you from? Most
people recognize that the millions of new immigrants in our metropolitan areas
are fractured by attachments to their country of origin, their current
neighborhood, the place where they work, and the place where they hope to move
[*321] home" in none of these locations. But in the age of the jet plane, the modem, the
fax machine, satellite disks, and USA Today, it is not just recent immigrants
who feel more linked to areas far away than close to home.
n297 Someone in the upper-middle-class in Boston is likely to be more connected to,
and know more about, midtown Manhattan than Medford.
Of course, many people still feel an attachment to their neighborhood.
Sometimes this attachment is linked with commonalities of race, ethnicity, or
class; sometimes it is attributed to the fact that a family has lived in the
same community for generations; sometimes it is expressed in terms of
maintaining property values; sometimes it is expressed as a negative --
residents feel trapped, by poverty and exclusion, in an area from which they
cannot escape. But local government law has never given legal protection to
neighborhoods. On the contrary, recent developments in local government law
have presided over the destruction of many neighborhoods to which people have
n298 In the 1960s and 1970s, some reformers sought to recenter local government
law's sense of place from the city or suburb to the neighborhood.
n299 They wanted neighborhood to play the role for territorial identity that
biology has played for racial and gender identity -- to be the common core that
unites the group. But a postmodern reading suggests that, like the reliance on
biology (and like the mirror image of the self),
n300 the concept of neighborhood provides no stable basis for either personal or
The image of neighborhood conjures up the ideal of community, but it is a
fantasy community -- a (comm)unity that is never achievable. One can succeed in
maintaining an inside/outside distinction
[*322] that delimits a neighborhood only by failing to see people who are there but
do not fit in. Property owners who own property in the area but rent it to
others, workers who spend more hours in the area than residents, residents
whose violence or addiction threaten neighborhood stability, the homeless who
live on the street, part-time residents who spend much of the year elsewhere,
"live in," undocumented aliens living with family members -- which of these are included
in the sense of
"neighborhood?" Some local people have always been treated as outside the definition of the
n301 while outsiders have often been included as community members.
n302 Even the definition of a neighborhood is contestable: people who have lived in
a neighborhood for years often disagree about its borders.
n303 Attachment to a neighborhood, like the maintenance of the gender system, is a
"ritual social drama . . . a performance that . . . is at once a reenactment
and reexperiencing of a set of meanings already socially established . . . [a
performance that] is effected with the strategic aim of maintaining . . . [the
neighborhood] within its binary [inside/outside] frame."
n304 Such a performance is constantly jeopardized by aspects of the ageographical
city that people in the area cannot avoid or even find attractive.
[*323] To replace our current legal conception of localities with one that embraces
the ageographical city, we have to stop building local government law on
residency and on the importance of local jurisdictional boundaries. We must
treat people not as located solely in one jurisdiction but as
"switching center[s] for all the networks of influence"
n305 within the region that affect their lives. Under current law, residency within
city limits determines people's legal rights on issues ranging from voting to
their entitlement to participate in government programs. And the location of
property within city limits determines who pays for these government programs
through the property tax, still the predominant source of local government
n306 To illustrate how embracing the postmodern subject would transform local
government law, I turn to a discussion of two specific local government
doctrines: one dealing with residency (eligibility for government services) and
one with the property tax (school financing).
Many local services are now available only to the people inside specified
jurisdictional borders. School attendance requires living within the school
district; police and fire protection stop at the city line; city hospitals
n307 One justification offered for these policies analogizes local government
services to property rights: only those who pay for services are entitled to
receive them. This seems to be the rationale, for example, of
Buse v Smith:
n308 locally-raised money should be spent locally, not on outsiders. But those who
pay for local services are not the same people as those eligible to receive
them. Non-residents who own property in the city pay the property tax, but they
cannot send their children to city schools or use city hospitals.
n309 On the other hand, residents who own no property and therefore do not pay
[*324] taxes (at least directly) can use city services. Moreover, many city services
are supported by state and federal as well as locally-generated revenue. Yet
residency remains a qualification for services no matter where the funding
comes from. The reason that services are allocated only to residents is not the
source of financing but the equation of residency and decentralization: local
control means control by residents.
A local government law organized in terms of the postmodern subject would
recognize that the maids who clean the residents' houses, the grocery store
family that provides their milk, and the consumers who drive to the area to
shop are also connected to a neighborhood. Even Justice Rehnquist, in
Holt Civic Club v City of Tuscaloosa,
n311 has acknowledged that decisions made by city residents have an impact on
nonresidents whether or not the non-residents enter the city.
The granting of building permits for high rise apartments, industrial plants,
and the like on the city's fringe unavoidably contributes to problems of
traffic congestion, school districting, and law enforcement immediately outside
the city. A rate change in the city's sales or ad valorem tax could well have a
significant impact on retailers and property values in areas bordering the
city. The condemnation of real property on the city's edge for construction of
a municipal garbage dump or waste treatment plant would have obvious
implications for neighboring nonresidents. Indeed, the indirect
extraterritorial effects of many purely internal municipal actions could
conceivably have a heavier impact on surrounding environs than . . . direct
regulation . . . ."
To be sure, Justice Rehnquist used this analysis to defend a residency
requirement, not to attack it.
"No one," he concluded,
"would suggest that nonresidents likely to be affected by this sort of municipal
action have a constitutional right to participate in the political processes
bringing it about."
n313 Well, I'm suggesting something of this sort, albeit not on constitutional
grounds. In the ageographical city, residency within invisible boundary lines
should not determine who can use schools, hospitals, addiction treatment
[*325] or the like. Local services should be open to all local people. The problem is
to decide who they are and how to do so; some possibilities are discussed
below, in Section C.
Building local government law on a postmodern subjectivity would similarly
transform local government financing. At present, only property located within
jurisdictional boundaries is subject to tax, and only people who live within
the same boundaries benefit from the tax. School financing provides the best
known example of the impact of this inside/outside distinction. The Texas
Supreme Court's description of the effect of jurisdictional wealth differences
in that state is illustrative:
Because of the disparities in district property wealth, spending per student
varies widely, ranging from $ 2,112 to $ 19,333. Under the existing system, an
average of $ 2,000 more per year is spent on each of the 150,000 students in
the wealthiest districts than is spent on the 150,000 students in the poorest
districts. The lower expenditures in the property-poor districts are not the
result of lack of tax effort. Generally, the property-rich districts can tax
low and spend high while the property-poor districts must tax high merely to
spend low. In 1985-86, local tax rates ranged from $ .09 to $ 1.55 per $ 100
valuation. The 100 poorest districts had an average rate of 74.5 cents and
spent an average of $ 2,978 per student. The 100 wealthiest districts had an
average tax rate of 47 cents and spent an average of $ 7,233.
In the celebrated case of
San Antonio Independent School District v Rodriguez, the United States Supreme Court rejected an argument that disparities such as
these violated the Equal Protection Clause on the grounds that a property-based
system enhanced local control, which it defined in classic centered-subject
n315 State supreme courts, by contrast, have been divided on the question whether
property-based school financing systems violated state constitutions.
n316 But even those state courts that have
[*326] held school financing systems unconstitutional have continued to recognize the
importance of boundary lines. The Texas Supreme Court, for example, has made
clear that its decision to invalidate the state's school financing system does
not require localities to educate people who live outside their borders. And,
the court indicated, once the state adds enough money to the system to ensure
that there is an efficient system of public schools throughout the state,
school districts will be able to supplement the education of their residents
through locally raised property taxes.
n317 Other state courts have similarly permitted this kind of local
supplementation, thereby perpetuating the idea that the property located inside
jurisdictional borders exists for the benefit of residents.
By defining the tax base in terms of the property found within a jurisdiction
and by defining the beneficiaries of the tax base in terms of residency, local
government law creates and intensifies inequality within the metropolitan area.
n319 It's no accident that the
[*327] locations of major sources of tax revenue, such as large suburban malls and
office complexes, are often at some distance from the locations where the
revenue is most needed. Localities within the region compete for these sources
of revenue, just as they compete for the ability to exclude those who need
n320 But it is not necessary to organize the imposition and the dispersion of the
property tax in terms of jurisdictional lines. Nor is it necessary to treat
taxes on sales or income -- taxes often paid by people who are not residents --
as benefiting only residents. The current mismatch between the ability to raise
revenue and the need for the money would be alleviated by a local government
law that embraced the postmodern subject. Again, the critical issue (discussed
below) is determining how best to do so.
It should be clear by now, I hope, that the transformation of local government
law envisioned in this section would be dramatic. Almost no local government
law issue would remain unaffected. To date only a few local government services
-- such as beaches -- have been required to be open to residents and
n321 and property-based tax schemes have been invalidated only in the area of
school financing. But it is no more justifiable, in my view, for the quality of
police protection, hospitals, or welfare programs to vary with district wealth
than it is for the quality of the schools. And the ability to support social
programs in innovative ways should, like the power to raise taxes, not depend
on where developers choose to put their office complexes. Some localities, for
example, now condition zoning approvals for office buildings on the developers'
agreement to subsidize low and moderate income housing -- a practice known as
n322 But they can do so only if they can attract the developer, and developers have
an incentive to shop around for a jurisdiction not interested in imposing such
an exaction. If, however, an exaction could be imposed for the benefit of the
region's poor wherever the development is located,
[*328] more such exactions would be possible and, as a result, more low and moderate
income housing could be generated.
In the interest of preserving a national economy, courts have long invoked the
dormant Commerce Clause to prevent cities from favoring their own residents
n324 But court decisions relying on the Commerce Clause have simply invalidated
local ordinances; they have not created a basis for a regional system of
revenue-sharing and service-entitlement. A local government law founded on the
postmodern subject has a chance of doing so. To be sure, as Justice Brennan
Holt, a decision not to build local government law on local boundary lines and
residency challenges our basic conception of what it means to be a political
"At the heart of our basic conception of a 'political community,'" Justice Brennan asserted,
"is the notion of a reciprocal relationship between the process of government
and those who subject themselves to that process by choosing to live within the
area of its authoritative application."
n325 Indeed, building local government law in terms of the ageographical city
raises the question of what decentralization means. To whom would power be
decentralized if not to people defined within local boundaries? And where would
people participate in the democratic process if not at their place of residence?
C. The Institutional Implications of Postmodern Subjectivity
Many who write in the postmodernist tradition would consider it a very odd idea
to try to build an institutional structure on postmodern subjectivity. After
all, the postmodern subject, as described above, resists legal and
institutional forms. S/he seeks to escape established structures through
"subversive repetition," irony, and play, not to create them.
n326 Nevertheless, given the account of contemporary American metropolitan areas
just advanced, there are very practical reasons to try to figure out how
localities can best be endowed with this kind of subjectivity. Many of
America's giant shopping malls and office complexes are private businesses
located in areas where few people live. What is the role
[*329] of democracy in places like these? If we can't democratize Tyson's Corner or
King of Prussia -- when so many American downtowns have been superseded by
developments of this kind -- a vast amount of American life will never be
subject to popular participation and control.
n327 And the disjunction between the locations where America's commercial and
business life is growing and the centers of population is just an example of
the urgent need to reconsider the mix of place-bites that constitute America's
urban areas. In countless ways, the current mix combines, yet separates, areas
of crushing poverty and elaborate wealth. If increasing the power of America's
poor suburbs and inner cities to tax their own residents is unlikely to help
them improve the lives of their citizens, and if the notion of the situated
subject is too romantic or idealistic to affect the current city/suburb
structure, perhaps postmodern theory is our most promising source of ideas for
changing the present-day allocation of power in metropolitan areas.
One way postmodern subjectivity might be introduced into local government law
is through a modification of the regional legislature proposed in Part II.
There, the regional legislature was imagined in terms of the representation of
neighborhoods, with each neighborhood defined by residency. If, however, as
argued above, people have multiple attachments to the metropolitan area,
including attachments to places where they shop or work (like Tyson's Corner or
King of Prussia), a different system of representation might be better.
Consider a plan, for example, in which everyone gets five votes that they can
cast in whatever local elections they feel affect their interest ("local" still being defined by the traditional territorial boundaries of city, suburb,
or neighborhood). They can define their interests differently in different
elections, and any form of connection that they think expresses an aspect of
themselves at the moment will be treated as adequate. Under such an electoral
system, mayors, city council members, and neighborhood representatives in the
regional legislature would have a constituency made up not only of residents
but of workers, shoppers, property owners in neighboring jurisdictions, the
homeless, and so forth. People are unlikely to vote in a jurisdiction they do
not care about, but there are a host of possible motives for voting (racial
integration, racial solidarity, redistribution of wealth, desire for
gentrification, etc.). Indeed, there is no reason to think that the
[*330] constituency would be limited solely to those who live in the region. These
days, as I have already argued, people feel connected to areas far away as well
as close to home. Puerto Ricans in New York, therefore, may want to vote not
only in New York but in San Juan; of course, if they do, that would leave them
one less vote for local elections in the New York region.
n328 On the other hand, the voting system might also mimic the idea of proportional
representation by allowing someone to cast all five votes in one locality if
that is where her/his attachments are felt to be.
What exactly would happen under such a electoral allocation is hard to say:
indeed its unpredictability might be felt to reproduce the sense of
"vertigo" that life in metropolitan areas is now said to induce.
n330 All we know for sure is that members of the regional legislature, elected in
such a manner, would allocate entitlements (as proposed in Part II) for
decentralized decisionmaking by officials elected in the same manner. It seems
likely, however, that the property tax generated by giant shopping malls and
office complexes will be allocated more broadly than simply to those who live
within the borders where they are located. Indeed, the rules for the allocation
of all property taxes by the regional legislature could easily have a better
chance of meeting the needs of people throughout the metropolitan area than
negotiations between the city and the suburbs (defined in terms of residency).
The attempt to limit services to those
"inside" an area is also likely to be rethought and, perhaps, replaced with another
form of allocation. Most importantly, such an electoral scheme would radically
change the idea of what a neighborhood or suburb or city is -- of who is
included in a reference to such a locality. The
"self" in the phrase local self-interest would become a gesture toward an unknown and
[*331] Still, the change would not be quite as radical as it might at first appear.
The idea that Puerto Ricans who live outside of San Juan have an interest in
being represented in its governance is not mine. Attempts have already been
made to recognize their interests in the organization of San Juan's municipal
n331 Even the Supreme Court recognized, in
Kramer v Union Free School District,
n332 that those who vote in school board elections could not be limited to people
who own or lease property in the area, their spouses, and the parents or
guardians of the children who attend the schools. Many others, the court
reasoned, have a direct and distinct interest in school decisions:
"senior citizens and others living with children or relatives; clergy, military
personnel, and others who live on tax-exempt property; boarders and lodgers;
parents who neither own nor lease qualifying property and whose children are
too young to attend school; parents who neither own nor lease qualifying
property and whose children attend private schools."
n333 But why stop there? Many more -- including many non-residents the Court did
not consider -- are just as interested: teachers and staff who work at the
school; parents who would like to send their children to the school system if
they weren't excluded by residency requirements; parents who are sending their
children to schools with fewer resources; citizens who believe in school
n334 Of course, adding this group to the list of residents that
[*332] the Court did include would make the school's constituency very uncertain and
unstable. But school constituencies are already uncertain and unstable:
residents are constantly moving in and out. In our mobile society, the notion
of residency has provided an ever-shifting referent for the population of
school districts, neighborhoods, and cities; in fact, reliance on residency has
demonstrated that a fixed population is unnecessary to define a political
constituency. Constituencies are defined tautologically: a locality includes
whoever is defined by its rules of inclusion. And there is no reason to
interpret the Constitution as requiring the rule of inclusion to be residency.
A local government law based on a postmodern subjectivity also need not respect
the current territorial boundaries of cities and towns, as has so far been
assumed. Even now the residents of America's metropolitan areas live in a
multitude of legally-defined jurisdictions with different borders: the areas
defined by school districts, transportation districts, redevelopment
authorities, park districts, and the like often differ not only from city
borders but from each other.
n336 Currently, however, each of these governmental agencies reproduces the model
of the centered subject adopted by cities: special districts and public
authorities serve those defined by
their borders. Thus the experience of the loss of boundaries that might have been
produced by the multiple definitions of each citizen's location within the
metropolitan area has been eclipsed by the reassuring sense that one's location
is defined by the purpose of each territorial definition (the fact that you're
in the same Congressional
[*333] district as someone else doesn't mean that your kids can go to her school).
Endowing localities with a postmodern subjectivity would replace this
comforting feeling with an intensified experience of geographic dissonance.
Bringing even just the current multiplicity of boundaries to consciousness can
help undermine the boundary-fixation that characterizes so much of present-day
local government law.
One form this consciousness-raising could take would be to increase the level
of popular participation in the multitude of territorially-defined governmental
bodies that now exist within a metropolitan area. At present their bureaucratic
structure renders the differences among their boundary definitions virtually
invisible; only insiders pay much attention to how the area is divided up. If,
however, members of the public worked together on education, parks,
transportation, and similar issues, they would begin to recognize the
uncertainties of defining who counts as part of their community. Moreover, this
experience need not be confined to currently existing agencies. Often it would
be better to set up a series of temporary task forces -- ad-hoc organizations
-- created to solve specific problems and disbanded after the task is
completed. The temporary character of these task forces would make it easier
for people to participate than in permanent organizations. And the task forces
could divide up the region in new ways to examine aspects of metropolitan life
now largely left untouched: the need for better working conditions in offices
(a region of buildings), the need for health and retirement benefits for people
who work in others' houses (a region of domestic workers), the need for
childcare facilities (a region of kids), the need for consumer protection (a
region of shoppers). I have discussed proposals for participation and
"adhocracy" such as these in greater detail elsewhere.
n337 At the moment I am raising them simply as examples of ways to provoke in the
minds of local residents the kind of questions associated with the postmodern
subject ("Which world is this? What is to be done in it? Which of my selves is to do it?
. . . What happens when different kinds of world are placed in confrontation,
or when boundaries between worlds are violated?").
Another form that postmodern subjectivity in local government law might take
would question not whom the locality includes but the kinds of functions it
performs. So far, the discussion of localities has referred only to the
traditional tasks of municipal
[*334] governments, such as zoning, condominium conversion, school financing, and
allocation of public services. But this limited view of the role of local
government is by no means necessary. David Osborne and Ted Gaebler, for
example, have sought to
"reinvent government" on a model of entrepreneurial activity.
n339 Localities, they argue, should see themselves as profit-oriented
market-innovators and entrepreneurs, not as regulators and lawmakers. They
should serve as catalysts for economic development, foster community-run
organizations, and organize their own activities to increase worker
participation. I have made similar proposals for this kind of change myself.
n340 But my ideas, like theirs, treated local territorial boundaries as given. I
now think it would be better to combine these ideas with the other proposals
advanced in this section, spreading their risks and benefits across the region
rather than having each locality undertake entrepreneurial activities as a
separate entity (defined in terms of residency). But whether organized locally
or inter-locally, these proposals illustrate one more way to destabilize the
identity of localities: Osborne and Gaebler (and I) make the application of the
public/private distinction to local governments impossible.
D. Beyond the Postmodern Subject
Building a local government law on postmodern subjectivity would help transform
America's metropolitan areas into
"switching center[s] for all . . . [their] networks of influence."
n341 Not only boundaries but the sense of community they engender would disappear.
For some people, such an
"end of interiority and intimacy"
n342 would be precisely the problem with these proposals. The last kind of future
they hope to promote is the world of the ageographical city. They therefore
would look, in many possible directions, for something beyond the postmodern
subject. I would like to address here only one of the possible beyonds: beyond
the postmodern subject might lie the situated subject.
I argued earlier that the situated subject suffers from romanticism and
n343 The postmodern subject, by contrast, suffers
[*335] from a lack of romanticism and from relentlessness. Postmodernists and the
ageographical city seem to lack an ingredient many people find essential: the
feel of human connection. The postmodernists' relentless irony and
self-conscious, playful presentation of self often come across as inauthentic;
their concentration on appearances -- their rejection of the modernist search
for a truth beneath the surface
n344 -- undermines others' experience of being in touch with who the person really
is. The postmodern city feels similarly cold and distant: the disbelief in
neighborhood cohesion, let alone that of the city and the suburb, renders not
only inter-group but intra-group relations hard to understand. Being connected
everywhere seems the equivalent of being connected nowhere (and to no one): not
we becomes a word with no particular meaning.
Indeed, viewed from the perspective of a situated subject, postmodern
subjectivity shares all too much with centered subjectivity. Centered subjects
also seem distant, cold, and lacking in human connection; their inability to
relate to others may be attributed to self-interest rather than lack of
authenticity, but the two positions may nevertheless be experienced as
indistinguishable. Postmodern local government law might even be thought to
offer less of a sense of connection than current law: at least it allows for a
within local boundary lines. Of course, the problem with current local government law
is that its view of community is too truncated; it divides communities and
people by creating too many boundaries. Postmodern local government law divides
communities and people by creating too few boundaries.
n345 Both the centered and postmodern forms of subjectivity thus lack just what the
situated subject wants most: the capacity to nurture a sense of community. To
promote the idea of community, then, one needs to move beyond not only the
centered subject but the postmodern subject as well.
Of course, a postmodernist response to this critique could easily link the
situated subject's longing for community with the centered subject's longing
for self: both hunger for the same thing -- an
[*336] (unachievable) sense of wholeness and togetherness.
n346 Postmodernists have a different idea of community, one more in tune with the
feel of Los Angeles or Las Vegas or Disneyland than of small town America or a
n347 To a postmodernist, it is the situated subject who seems indistinguishable
from the centered subject. Both are so earnest, so obsessively focused on
fulfilling some personal mission. Neither could possibly understand (what some
postmodernists might think of as) the real reason behind this section's reform
of local government law: neither would think it relevant, let alone decisive,
that it would be so much
fun to have an electoral system with everyone having five votes usable where ever
s/he likes. The earnest, focused, serious form of politics of the situated
subject, like that of the centered subject, demands a more inspired goal. And
it requires more than can possibly be known in advance about the results of
political activity. The postmodern subject might well prefer the devastating
politics of laughter.
This Article has advanced a third reading of the relationship among the three
subjectivities: it has presented the situated subject and the postmodern
subject as alternatives to the notion of the centered subject. Both reject the
centered subject's focus on boundary lines, an emphasis that so far has
dominated thinking about local government law. Both refuse to treat cities as
if they are individual units that have a relationship only with the state; both
seek instead to build a form of metropolitan life in which people across the
region learn to recognize, and make policy on the basis of, their interactions
with each other. At the same time, both are post-integration visions of
America. Of course, integration remains possible, but it is no longer a master
goal. Either version of
[*337] regional negotiations allows people to form their own communities (defined by
notions of race, ethnicity, class, sexual orientation, gender, or whatever);
it's just that they cannot do so without confronting people in other
communities -- as well as dissidents in their own communities -- whose lives
they affect. Above all, both alternatives reject the current social policy of
current local government law and the form of consciousness that it fosters, one
that has fragmented our metropolitan areas into areas of privilege and want, us
vs. them. The kind of metropolitan life that either version would foster no
doubt differs. But in both cases decentralization means the ability to
participate actively in the basic societal decisions that affect one's life,
n348 not the ability to mimic state or national power on the local level.
I will not -- cannot -- resolve the choice between the situated and the
postmodern subject. I am very attracted to both views. After all, why else
would I have written this Article? To me the two positions may be
irreconcilable but they are indispensable. In the language of the situated
subject, they replicate the contradictory experience of community: the desire
for connection with others and the desire for the feel of the modern
metropolis. In the language of the postmodern subject, they allow me to live
out contradictory versions of (my)self. Indeed, readers who prefer the situated
self are likely to have found my presentation of that position too
n349 while those more in tune with the postmodern self could easily have found the
presentation of that idea too earnest.
n350 Of course it would be very odd, here at the end of this long article about the
decentered subject, for me to try to center myself in one or the other of these
versions. Besides, there is no need for me to do so. These two models of
subjectivity do not
exist: they are my own creations. It would be ridiculous to imagine being forced to
make a choice between them -- or to imagine that there are not thousands of
other choices as well. The purpose of this Article is not to spell out a policy
that others simply might implement. Readers have to make the text their own.
n351 If this effort has been successful, it will be because it would have persuaded
you to engage with me (too situated a phrase? how about: because
[*338] it can become an object for you to play with) in the reinvention of our
In the center of Fedora, that gray stone metropolis, stands a metal building
with a crystal globe in every room. Looking into each globe, you see a blue
city, the model of a different Fedora. These are the forms the city could have
taken if, for one reason or another, it had not become what we see today. In
every age someone, looking at Fedora as it was, imagined a way of making it the
ideal city, but while he constructed his miniature model, Fedora was already no
longer the same as before, and what had been until yesterday a possible future
became only a toy in a glass globe.
The building with the globes is now Fedora's museum: every inhabitant visits
it, chooses the city that corresponds to his desires, contemplates it,
imagining his reflection in the medusa pond that would have collected the
waters of the canal (if it had not been dried up), the view from the high
canopied box along the avenue reserved for elephants (now banished from the
city), the fun of sliding down the spiral, twisting minaret (which never found
a pedestal from which to rise).
On the map of your empire, O Great Khan, there must be room both for the big,
stone Fedora and the little Fedoras in glass globes. Not because they are all
equally real, but because all are only assumptions. The one contains what is
accepted as necessary when it is not yet so; the other, what is imagined as
possible and, a moment later, is possible no longer.
n1 See, for example, Federalist 17 (Hamilton) in J.R. Pole,
The American Constitution: For and Against 164 (Hill
& Wang, 1987). For an evaluation of these fears, see Michael W. McConnell,
Federalism: Evaluating the Founders' Design,
54 U Chi L Rev 1484 (1987).
n2 The sovereign is
"above or superior to all others . . . holding the position of ruler."
Webster's New World Dictionary of American English 1283 (Simon and Schuster, 3d ed, 1988).
n3 For extensive analysis of this picture of decentralization, see Richard
Our Localism: Part I -- The Structure of Local Government Law,
90 Colum L Rev 1 (1990); Richard Briffault,
Our Localism: Part II -- Localism and Legal Theory,
90 Colum L Rev 346 (1990); Gordon L. Clark,
Judges and the Cities 60-81 (Chicago, 1985). Briffault himself envisions decentralization in these
terms. See, for example, his definition of power,
90 Colum L Rev at 112; his view of inter-local cooperation, id at 433; and his definition of
localism, id at 444. Paul Peterson, in his influential book,
City Limits, explicitly rejects the nation-state model for cities, Paul E. Peterson,
City Limits 3 (Chicago, 1981), but he also adopts the traditional model of
decentralization. He treats cities as self-interested sovereigns -- just like
nation-states -- while, at the same time, he argues that, unlike nation-states,
they have a limited capacity to engage in certain types of activity. Peterson's
traditional approach is apparent, for example, in his acceptance of the
conventional suburb/city divide. Compare id at 104-06 with text accompanying
notes 257-73. For an extended attempt to square this traditional concept of
decentralization with the need to protect individuals from discrimination on
the basis of geographical location, see Gerald L. Neuman,
Territorial Discrimination, Equal Protection, and Self-Determination,
135 U Pa L Rev 261 (1987).
n4 Although this definition of the centered subject is my own, it is designed to
reflect a commonly articulated conception of the self. To cite but one example,
Michael Sandel includes the following in his account of the Kantian conception
of the self:
The subject is the something 'back there', antecedent to any particular
experience, that unifies our diverse perceptions and holds them together in a
single consciousness. It provides the principle of unity without which our
self-perceptions would be nothing more than a stream of disconnected and
ever-changing representations, the perceptions of no one. And while we cannot
grasp this principle empirically, we must presume its validity if we are to
make sense of self-knowledge at all.
Michael J. Sandel,
Liberalism and the Limits of Justice 8 (Cambridge, 1982). Sandel is describing what I am calling the centered
subject -- the concept of self as self-presence. See also Jacques Derrida,
Structure, Sign, and Play in the Discourse of the Human Sciences, in
Writing and Difference 278, 278-82 (Chicago, 1978). A number of authors have argued that Sandel is
mistaken when he asserts that contemporary liberals, such as John Rawls, rely
on such a conception of the self. See, for example, Richard Rorty,
Objectivity, Relativism and Truth: Philosophical Papers Volume I 184-89 (Cambridge, 1991); Amy Gutmann,
Communitarian Critics of Liberalism, 14 Phil and Pub Affairs 308 (1985). See also text accompanying notes 106-08.
Even if these critics are right -- even if no one has ever actually fully
embraced the concept of a radically separate subject -- references to such an
autonomous subject are certainly a familiar part of our political and moral
discourse. This conception has had a particularly powerful impact on local
n5 Michel Foucault,
Language, Counter-Memory, Practice 221 (Cornell, 1977).
n6 See Briffault,
90 Colum L Rev at 356-92 (cited in note 3).
City of Oakland v Oakland Raiders, 174 Cal 3d 414, 220 Cal Rptr 153, cert denied
478 US 1007 (1985); (business relocation);
United Bldg. & Constr. Trades Council v Mayor and Council, 465 US 208, 218-21 (1984) (unemployment);
Dwyer v Farrell, 193 Conn 7, 475 A2d 257, 260-61 (1984) (crime);
Seawall Associates v City of New York, 74 NY2d 92, 542 NE2d 1059, 1060-61 (1989) (homelessness);
R.A.V. v City of St. Paul, 112 S Ct 2538, 2547-50 (1992) (racism).
n8 The phrase
"two nations," associated in the nineteenth century with Disraeli, see Benjamin Disraeli,
Sybil: or The Two Nations (Mayflower, 1927), has been adopted by many analysts of modern America. See,
for example, Robert Fishman,
Bourgeois Utopias: The Rise and Fall of Suburbia 198-205 (Basic Books, 1987); Andrew Hacker,
Two Nations: Black and White, Separate, Hostile, Unequal (Charles Scribner's Sons, 1992). For an analysis of the impact of residential
segregation on American life, see Robert B. Reich,
The Work of Nations: Preparing Ourselves for 21st-Century Capitalism 268-81 (Knopf, 1991).
"Tell me someone's zip code and I can predict what they eat, drink, and drive --
even think." Id at 277.
n9 See, for example, William Julius Wilson,
The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago, 1987).
n10 Ada Louise Huxtable,
An Alternative to
"Slurbs," in Louis H. Masotti and Jeffrey K. Hadden, eds,
Suburbia in Transition 185, 187 (NY Times Co., 1974). See generally Fishman
Bourgeois Utopias at 198-205 (cited in note 8); Kenneth T. Jackson,
Crabgrass Frontier: The Suburbanization of The United States, 246-82 (Oxford, 1985); Jon C. Teaford,
The Rough Road to Renaissance: Urban Revitalization in America, 1940-1985 (Johns Hopkins, 1990); Jon C. Teaford,
City and Suburb: The Political Fragmentation of Metropolitan America, 1850-1970 (Johns Hopkins, 1979).
n11 I elaborate on and defend these values in Jerry Frug,
40 U Toronto L J 559 (1990), and Gerald E. Frug,
The City as a Legal Concept,
93 Harv L Rev 1057, 1067-73 (1980).
n12 Much of twentieth-century thought belongs in this footnote, although
historians of the critique usually begin their account of it with references
either to Hegel or to Nietzsche. See, for example, Carolyn J. Dean,
The Self and Its Pleasures: Bataille, Lacan, and the History of the Decentered
Subject 4 (Cornell, 1992) (Hegel); Arthur Kroker,
The Possessed Individual: Technology and the French Postmodern 7 (St. Martin's, 1992) (Nietzsche). Suffice it to say here that I include in
my idea of the critique of the centered subject those labeled communitarians,
see, for example, Charles Taylor,
Atomism, in 2
Philosophical Papers: Philosophy, and the Human Sciences 187, 209 (Cambridge, 1985); Sandel,
Liberalism and the Limits of Justice (cited in note 4); and Michael Walzer,
The Communitarian Critique of Liberalism, 18 Political Theory 6 (1990); critical race theorists, see, for example,
Kwame Anthony Appiah,
In My Father's House: Africa in the Philosophy of Culture (Oxford, 1992); bell hooks,
Yearning: Race, Gender, and Cultural Politics (South End Press, 1990); Patricia J. Williams,
The Alchemy of Race and Rights: Diary of a Law Professor (Harvard, 1991); critical theorists, see, for example, Theodor Adorno,
Subject and Object, in Andrew Arato and Eike Gebhardt, eds,
The Essential Frankfurt School Reader 497 (Urizen, 1982); Seyla Benhabib,
Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Routledge, 1992); Jurgen Habermas,
The Theory of Communicative Action (Beacon Press, 1981); feminists, see, for example, Mary Joe Frug,
Postmodern Legal Feminism (Routledge, 1992); Martha Minow,
Making All the Difference: Inclusion, Exclusion, and American Law (Cornell, 1990); Toril Moi, ed,
French Feminist Thought: A Reader (Basil Blackwell, 1987); postmodernists, see, for example, Jean Baudrillard,
Simulations (Semiotext, 1983); Charles Jencks, ed,
The Post-Modern Reader (St. Martin's Press, 1992); Jean-Francois Lyotard,
The Postmodern Condition: A Report on Knowledge (Minnesota, 1984); psychoanalysts and anti-psychoanalysts, see, for example,
The Freudian Subject (Stanford, 1988); Gilles Deleuze and Felix Guattari,
Anti-Oedipus: Capitalism and Schizophrenia (Minnesota, 1983); Jacques Lacan,
Ecrits: A Selection (W.W. Norton, 1977); and structuralists and poststructuralists, see, for
example, Roland Barthes,
Image, Music, Text (Hill
& Wang, 1977); Foucault,
Language, Counter-Memory, Practice (cited in note 5); Derrida,
Writing and Difference (cited in note 4). The literature in the law reviews is also becoming quite
extensive. See, for example, James Boyle,
Is Subjectivity Possible? The Postmodern Subject in Legal Theory,
62 U Colo L Rev 489 (1991); Drucilla Cornell,
Toward a Modern/Postmodern Reconstruction of Ethics,
133 U Pa L Rev 291 (1985); Angela P. Harris,
Race and Essentialism in Feminist Legal Theory,
42 Stan L Rev 581 (1990); David Kennedy,
63 Tex L Rev 1377 (1985); Martha Minow,
Identities, 3 Yale J L
& Humanities 97 (1991); Pierre Schlag,
The Problem of the Subject,
69 Tex L Rev 1627 (1991); Steven L. Winter,
Indeterminacy and Incommensurability in Constitutional Law,
78 Cal L Rev 1443 (1990); and all the articles in
For Mary Joe Frug: A Symposium on Feminist Critical Legal Studies and
Postmodernism -- Part Two: The Politics of Gender Identity,
26 New Eng L Rev 1173, 1173-1537 (1992).
n13 But see works cited at notes 23-25.
n14 See Mark C. Taylor,
Erring: A Postmodern A/theology 48 (Chicago, 1984). One way to understand the creative nature of
self-description is to analyze how the narrative form itself affects what is
included and excluded in any account of the self. See generally Hayden White,
The Content of the Form: Narrative Discourse and Historical Representation (Johns Hopkins, 1987); W.J.T. Mitchell, ed,
On Narrative (Chicago, 1981).
n15 Friedrich Nietzsche,
The Will to Power
§ 370 at 199 (Random House, Kaufman trans, 1967).
§ 481 at 267.
n17 The human infant becomes a
"self," a being capable of speech and action, only by learning to interact in a human
community. The self becomes an individual in that it becomes a
"social" being capable of language, interaction and cognition. The identity of the self
is constituted by a narrative unity, which integrates what
"I" can do, have done and will accomplish with what you expect of
"me," interpret my acts and intentions to mean, wish for me in the future, etc. The
Enlightenment conception of the disembodied cogito no less than the empiricist
illusion of a substance-like self cannot do justice to those contingent
processes of socialization through which an infant becomes a person, acquires
language and reason, develops a sense of justice and autonomy, and becomes
capable of projecting a narrative into the world of which she is not only the
author but the actor as well.
Situating the Self at 5 (cited in note 12).
n18 The individual is not to be conceived as a sort of elementary nucleus, a
primitive atom, a multiple and inert material on which power comes to fasten or
against which it happens to strike, and in so doing subdues or crushes
individuals. In fact, it is already one of the prime effects of power that
certain bodies, certain gestures, certain discourses, certain desires, come to
be identified and constituted as individuals. The individual, that is, is not
vis-a-vis of power; it is, I believe, one of its prime effects. The individual is an
effect of power, and at the same time, or precisely to the extent to which it
is that effect, it is the element of its articulation. The individual which
power has constituted is at the same time its vehicle.
Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 98 (Pantheon, 1980).
n19 All psychological categories (the ego, the individual, the person) derive from
the illusion of substantial identity. But this illusion goes back basically to
a superstition that deceives not only common sense but also philosophers --
namely, the belief in language and, more precisely, in the truth of grammatical
categories. It was grammar (the structure of subject and predicate) that
inspired Descartes' certainty that
"I" is the subject of
"think," whereas it is rather the thoughts that come to
"me": at bottom, faith in grammar simply conveys the will to be the cause of one's
thoughts. The subject, the self, the individual are just so many false
concepts, since they transform into substances the fictitious unities having at
the start only a linguistic reality.
Nietzsche and Metaphysical Language, in David Allison, ed,
The New Nietzsche: Contemporary Styles of Interpretation 17-18 (1977), as quoted in Judith Butler,
Gender Trouble: Feminism and The Subversion of Identity 20-21 (Routledge, 1990).
n20 Quoted in Kenneth Gergen,
The Saturated Self: Dilemmas of Identity in Contemporary Life 155 (Basic Books, 1991).
n21 Quite often when we say
"subject position" we reduce it to a kind of confessional attitudinizing. We say,
"I'm white, I'm black, I'm a mulatto/a, I am male, I'm bourgeois." A subject position is not, in fact, a confessional self-description either in
praise or in dis-praise. . . . It is because the position of the subject
can be assigned . . . [and]
"assigned" means, I think, that it can and must become a sign; not for the person who
speaks, but for the person who listens, not for the person who writes, who can
say what she likes about who she is, but for the person who reads. When, in
fact, the responsible reader reads the sign that is the subject position of the
speaker or the writer, it becomes the sign, let us say, of an ethno-politics,
of a psychosexual reality, of an institutional position, and this is not under
the control of the person who speaks. She cannot diagnose herself; we are given
over to our readers.
Gayatri Chakravorty Spivak,
A Response to
"The difference within: Feminism and critical theory," in Elizabeth Meese and Alice Parker, eds,
The Difference Within: Feminism and Critical Theory 207, 208 (John Benjamins, 1989), as quoted in Barbara Johnson,
The Alchemy of Style and Law, in Austin Sarat, ed,
The Rhetoric of Law (forthcoming 1993). For a similar point, see Williams,
Alchemy at 10 (cited in note 12).
n22 Barbara Johnson,
A World of Difference 178 (Johns Hopkins, 1987).
n23 See, for example, Appiah,
In My Father's House at 28-46, 173-80 (cited in note 12); Regina Austin,
"The Black Community," Its Lawbreakers, and A Politics of Identification,
65 S Cal L Rev 1769 (1992); Kimberle Crenshaw,
Demarginalizing the Intersection of Race and Sex,
1989 U Chi Legal F 139; Richard T. Ford,
Urban Space and the Color Line: The Consequences of Demarcation and
Disorientation in the Postmodern Metropolis,
9 Harv Blackletter J 117, 120-26 (1992); Harris,
42 Stan L Rev 581 (cited in note 12); bell hooks,
Yearning at 15-31 (cited in note 12); Williams,
Alchemy (cited in note 12).
A fortiori, collective nouns like
"Asian Americans" -- nouns grouping people with a host of different origins and characteristics
-- do not refer to a core identity. See, for example, Yehudi O. Webster,
The Racialization of America 118-19 (St. Martin's, 1992) ("The term Hispanics, then, settles uneasily within assessments of Hispanic
appearance, nature of surname, country of origin, knowledge of Spanish, and
self-identification."); Earl Shorris,
Latinos: A Biography of the People 62-64 (Norton, 1992); Sucheng Chan,
Asian Americans: An Interpretive History xvi (Twayne, 1991).
n24 See, for example, Butler,
Gender Trouble (cited in note 19); Judith Butler and Joan W. Scott, eds,
Feminists Theorize the Political (Routledge, 1992); Drucilla Cornell,
Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (Routledge, 1991); Mary Joe Frug,
Postmodern Legal Feminism (cited in note 12); Minow,
Making All the Difference (cited in note 12); Moi,
French Feminist Thought (cited in note 12); Elizabeth V. Spelman,
Inessential Woman: Problems of Exclusion in Feminist Thought (Beacon, 1988). See generally
The Essential Difference: Another Look at Essentialism, 1 differences (Summer 1989) (volume containing seven articles on this topic).
See also Joan C. Williams,
Dissolving the Sameness/Difference Debate: A Post-Modern Path Beyond
Essentialism in Feminist and Critical Race Theory,
1991 Duke L J 296.
n25 See, for example, Dan Danielsen,
Representing Identities: Legal Treatment of Pregnancy and Homosexuality,
26 New Eng L Rev 1453, 1504-05 (1992); David M. Halperin,
One Hundred Years of Homosexuality (Routledge, 1990); Darrell Yates Rist,
Are Homosexuals Born That Way?: Sex on the Brain, The Nation 424-29 (October 19, 1992); and Eve Kosofsky Sedgwick,
Epistemology of the Closet (California, 1990). See generally
Queer Theory: Lesbian and Gay Sexualities, 3 differences (Summer 1991) (volume containing eight articles on this topic).
See also John L. Peterson,
Black Men and Their Same-Sex Desires and Behaviors, in Gilbert Herdt, ed,
Gay Culture in America: Essays From the Field 147, 153-54 (Beacon, 1992) (distinguishing
"black gays" and
n26 See, for example, Mark Baldassare,
Trouble in Paradise: The Suburban Transformation in America 1-45 (Columbia, 1986). See also notes 257-64 and accompanying text.
n27 Benedict Anderson,
Imagined Communities: Reflections on the Origin and Spread of Nationalism 15 (Verso, 1983) (defining a nation).
Will to Power
§ 370 at 199,
§ 481 at 267 (cited in note 15).
90 Colum L Rev at 444 (cited in note 3).
Id at 444-45.
n31 The classic way of limiting the external effects of city actions has been
enabling them to exercise home rule only on purely local (or purely municipal)
matters and requiring specific state delegation of power for any other city
activity. See id at 8-14; Gerald E. Frug,
Local Government Law 56-127 (West, 1988).
90 Colum L Rev at 39-58, 101-09, 366-74 (cited in note 3).
Id at 18-39, 99-101.
Id at 77-81, 109-11.
n35 Id at 382.
n36 Id at 444.
416 US 1 (1974), discussed in Briffault,
90 Colum L Rev at 383 (cited in note 3).
Belle Terre, 416 US at 9.
74 Wis 2d 550, 247 NW2d 141 (1976), discussed in Briffault,
90 Colum L Rev at 29-30 (cited in note 3).
247 NW2d at 152-55.
430 US 259, 271-73 (1977), discussed in Briffault,
90 Colum L Rev at 109 (cited in note 3).
430 US at 269.
n44 Joan C. Williams,
The Constitutional Vulnerability of American Local Government: The Politics of
City Status in American Law,
1986 Wis L Rev 83, 105-20. For an extended sociological analysis of cities in terms of urban property
relations, see John R. Logan and Harvey L. Molotch,
Urban Fortunes: The Political Economy of Place (California, 1987).
1986 Wis L Rev at 119 (cited in note 44). From this perspective, exclusionary zoning is no more than
the extension to localities of the traditional right of property owners to
exclude outsiders. See Frug,
Local Government Law at 485 (cited in note 31). And cases like
Salyer Land Co. v Tulare Lake Basin Water Storage District, 410 US 719 (1973), which upheld a statute that limited to property owners the ability to vote for
directors of a water district, are simply overt examples of the policy local
government generally implements. See Williams,
1986 Wis L Rev at 117.
418 US 717, 752-53 (1974), discussed in Williams,
1986 Wis L Rev at 110-11 (cited in note 44), and in Briffault,
90 Colum L Rev at 94-96 (cited in note 3).
426 US 833 (1976).
National League of Cities has, of course, been overruled by
Garcia v San Antonio Metropolitan Transit Authority, 469 US 528, 546-47 (1985), but the even more recent case of
New York v United States, 112 S Ct 2408, 2427-29 (1992), suggests that aspects of
National League of Cities might someday be resurrected. Joan Williams discusses
National League of Cities in
1986 Wis L Rev at 113 (cited in note 44).
426 US at 852.
Id at 845.
460 US 204, 206-08, 214-15 (1983).
United Bldg. & Constr. Trades Council of Camden County v Mayor and Council, 465 US 208, 219-20 (1984).
Id at 223. For an analysis of
White, United Bldg.
& Constr., and
National League of Cities, see Gerald E. Frug,
Property and Power: Hartog on the Legal History of New York City, 1984 Am Bar Found Res J 673, 681-87.
International Soc. for Krishna Consciousness, Inc. v Lee, 112 S Ct 2701, 2705 (1992).
Schad v Mount Ephraim, 452 US 61, 85, 87 (1981) (Burger dissenting). See generally Robert Chesler,
Imagery of Community, Ideology of Authority: The Moral Reasoning of Chief
18 Harv CR-CL L Rev 457, 465-66 (1983) (criticizing Chief Justice Burger for using the concept of community to
overide the rights of the minorities).
n55 Ferdinand Tonnies,
Community and Society (Gemeinschaft and Gesellschaft) (Transaction, 1988). Compare Benhabib,
Situating the Self at 76-82 (cited in note 12) (contrasting two versions of community).
n56 For an example of the use of such an image, see Hadley Arkes,
The Philosopher in the City: The Moral Dimension of Urban Politics 320-26 (Princeton, 1981).
"Unless a local community, through its school board, has some control over the
purse, there can be little real feeling in the community that the schools are
in fact local schools . . . ."
San Antonio Independent School District v Rodriguez, 411 US 1, 53 n 109 (1973) (citation omitted).
"The fact that the residents of the annexing city and the residents of the area
to be annexed formed sufficiently different constituencies with sufficiently
different interests could be readily perceived. The fact of impending union
alone would not so merge them into one community of interest as
constitutionally to require that their votes be aggregated in any referendum to
Town of Lockport v Citizens for Community Action, 430 US 259, 271 (1977).
n59 The city of Renton
"has sought to make some areas available for adult theaters and their patrons,
while at the same time preserving the quality of life in the community at large
by preventing those theaters from locating in other areas. This, after all, is
the essence of zoning."
Renton v Playtime Theatres, Inc., 475 US 41, 54 (1986). See generally Laurence H. Tribe,
American Constitutional Law
§ 12-16 at 908-10 (Foundation, 2d ed, 1988).
American Constitutional Law
§ 15-17 at 1400-09. See text accompanying notes 37-39 for a description of the
n61 See, for example, Mary Joe Frug,
Women and the Law 308-553 (Foundation, 1992).
n62 Thomas C. Grey,
The Disintegration of Property, in J. Roland Pennock and John W. Chapman, eds,
Property: Nomos XXII 69, 73 (New York, 1980); Duncan Kennedy,
The Structure of Blackstone's Commentaries,
28 Buff L Rev 205, 318-20 (1979).
The Disintegration of Property at 73-74 (cited in note 62). See also Tribe,
American Constitutional Law
§ 9-7 at 607 (cited in note 59) ("The Problematic Nature of Property").
n64 See, for example, Iris Marion Young,
The Ideal of Community and the Politics of Difference, in Linda J. Nicholson, ed,
Feminism/Postmodernism 300 (Routledge, 1990). See also Briffault,
90 Colum L Rev at 412-15 (cited in note 3).
n65 But not the only one. See, for example,
Bowers v Hardwick, 478 US 186 (1986).
347 US 483 (1954).
n67 See, for example,
City of Richmond v J.A. Croson Co., 488 US 469, 486-508 (1989).
n68 See, for example,
R.A.V. v City of St. Paul, 112 S Ct 2538, 2547-50 (1992).
n69 See, for example,
Lee v Weisman, 112 S Ct 2649, 2655-61 (1992).
n70 See, for example,
First English Evangelical Lutheran Church v Los Angeles County, 482 US 304, 314-22 (1987).
n71 Federalist 10 (Madison) in J.R. Pole,
American Constitution at 150 (cited in note 1);
Croson, 488 US at 523-24 (Scalia concurring in the judgment).
42 USC § 1983 (1988);
Monell v Department of Social Services, 436 US 658, 690 (1978);
Owen v City of Independence, 445 US 622, 646-48 (1980);
Will v Michigan Department of State Police, 491 US 58, 70 (1989).
n73 See Frug,
93 Harv L Rev at 1062-67 (cited in note 11).
n74 See, for example,
First Lutheran Church, 482 US at 306-07 (county ordinance prohibited persons from constructing, reconstructing, or
enlarging any building or structure in a flood protection area).
Moore v City of East Cleveland, 431 US 494, 495-96 (1977).
n76 See Williams,
1986 Wis L Rev at 119 (cited in note 44).
Dean Milk Co. v Madison, 340 US 349, 350-53 (1951);
City of Oakland v Oakland Raiders, 174 Cal App 3d 414, 220 Cal Rptr 153, 158 (1985).
Poletown Neighborhood Council v City of Detroit, 410 Mich 616, 304 NW2d 455, 457 (1981).
Citizens Against Rent Control v City of Berkeley, 454 US 290, 294 (1981).
Power/Knowledge at 94 (cited in note 18).
n81 Alexis de Tocqueville,
Democracy in America 251 (Doubleday, 1969).
455 US 40 (1982).
317 US 341 (1943).
Community Communications, 455 US at 50-51, quoting
City of Lafayette v Louisiana Power & Light Co., 435 US 389, 412-13 (1978).
n85 Id at 69-71 (Rehnquist dissenting).
95 NJ 306, 471 A2d 355 (1984).
Id at 365-69.
93 Harv L Rev at 1069-70 (cited in note 11).
n89 See Briffault,
90 Colum L Rev at 346-56 (cited in note 3).
Id at 438.
n91 Id at 447-54.
n92 See Frug,
93 Harv L Rev at 1067-73 (cited in note 11); Frug,
40 U Toronto L J at 574-79 (cited in note 11); Gerald Frug,
Empowering Cities in a Federal System, 19 Urban L 553 (1987).
n93 See Frug,
93 Harv L Rev at 1062-67 (cited in note 11);
Hunter v Pittsburgh, 207 US 161, 178-79 (1907).
n94 John F. Dillon,
Treatise on the Law of Municipal Corporations
§ 39 at 83 n 1 (James Cockcroft, 1872).
n95 See note 12. See also Jacques Derrida,
"Eating Well," or the Calculation of the Subject: An Interview with Jacques Derrida, in Eduardo Cadava, Peter Connor, and Jean-Luc Nancy, eds,
Who Comes After the Subject? 96, 102 (Routledge, 1991) (suggesting that the critique of the subject has
addressed multiple targets because there is no single idea of The Subject to
n96 Karl Mannheim,
Ideology and Utopia 173-84 (Harcourt, Brace, 1946).
n97 Compare Roland Barthes,
Image, Music, Text at 163 (cited in note 12) ("We know that today post-serial music has radically altered the role of the
'interpreter', who is called on to be in some sort the co-author of the score,
completing it rather than giving it 'expression'. The Text is very much a score
of this new kind: it asks of the reader a practical collaboration.").
The Saturated Self at 157 (cited in note 20).
n99 None of these labels (here or elsewhere in this article) should be taken very
seriously. The same people are often grouped in different ways. Seyla Benhabib
labels the three people mentioned here -- along with Alasdair MacIntyre --
communitarians; Stephen Gardbaum calls them communitarians as well, but he
considers Sandel and MacIntrye
"civic republicans" and Walzer a
"liberal." Compare Benhabib,
Situating the Self at 2 (cited in note 12), with Stephen Gardbaum,
Law, Politics and the Claims of Community,
90 Mich L Rev 685, 697-701, 723-30 (1992).
Liberalism and the Limits of Justice at 150 (cited in note 4).
Philosophy and the Human Sciences at 209 (cited in note 12).
n102 Id at 206. See also id at 205-06; Walzer, 18 Political Theory at 15 (cited in
n103 See, for example, Charles Taylor,
Cross-Purposes: The Liberal-Communitarian Debate, in Nancy L. Rosenblum, ed,
Liberalism and the Moral Life 159, 160-63 (Harvard, 1989) (commenting on Sandel).
Philosophy and the Human Sciences at 207 (cited in note 12).
n105 Walzer, 18 Political Theory at 21 (cited in note 12). See also Michael Walzer,
Three Paths in Moral Philosophy, in
Interpretation and Social Criticism 1, 3-32 (Harvard, 1987).
n106 See generally, Gardbaum,
90 Mich L Rev 685 (cited in note 99).
n107 Walzer, 18 Political Theory at 21 (cited in note 12).
n108 For references to the civic republican literature, see, for example, Mark
A Civic Republican Justification for the Bureaucratic State,
105 Harv L Rev 1511, 1514 n 10 (1992); Richard H. Fallon, Jr.,
What is Republicanism, and Is It Worth Reviving?,
102 Harv L Rev 1695, 1695 nn 2, 4 (1989); Frank I. Michelman,
97 Yale L J 1493, 1494-95 nn 3-5 (1988).
97 Yale L J at 1528. See also Frank Michelman,
Personal But Not Split: Radin Versus Rorty,
63 S Cal L Rev 1783, 1788-90 (1990); Frank I. Michelman,
The Supreme Court, 1985 Term, Forward: Traces of Self-Government,
100 Harv L Rev 4, 26-33 (1986).
100 Harv L Rev at 26 (cited in note 109).
Id at 27. See
id at 26-37; Michelman,
97 Yale L J at 1503-05 (cited in note 108); Cass R. Sunstein,
Beyond the Republican Revival,
97 Yale L J 1539, 1548 (1988) ("collective self-determination").
97 Yale L J at 1503 (cited in note 108).
Id at 1504, quoting Hannah Fenichel Pitkin,
Justice: On Relating Private and Public, 9 Political Theory 327, 344 (1981). See also J.G.A. Pocock,
Virtues, Rights, and Manners: A Model for Historians of Political Thought, 9 Political Theory, 353, 355 (1981) ("classical republicanism . . . entails the affirmation that
homo is naturally a citizen and most fully himself when living in
97 Yale L J at 1504 (cited in note 108). See also Sunstein,
97 Yale L J at 1555-58 (cited in note 111); Fallon,
102 Harv L Rev at 1697 (cited in note 108).
"The self is defined by the totality of its relations with other beings . . . .
We are our relations . . . . If one could imagine a situation in which no one
treated a person or had ever treated him as a human being with a self, then in
that situation he would have no self." Roberto Mangabeira Unger,
Knowledge and Politics 216 (Free Press, 1975).
n116 Roberto Mangabeira Unger,
Passion: An Essay on Personality 22 (Free Press, 1984).
n117 Id at 37.
n118 Id at 24.
Knowledge and Politics at 215 (cited in note 115). See also Unger,
Passion at 20-22, 71-76 (cited in note 116). For an exploration of the differences
between Unger's analyses in
Knowledge and Politics and
Passion, see Cornell,
133 U Pa L Rev at 327-58 (cited in note 12).
n120 See Roberto Mangabeira Unger,
Politics: A Work in Constructive Social Theory (Cambridge, 1987); Roberto Mangabeira Unger,
The Critical Legal Studies Movement (Harvard, 1986); Unger,
Passion (cited in note 116); Unger,
Knowledge and Politics (cited in note 115).
Passion at 20 (cited in note 116).
n122 Carol Gilligan,
In a Different Voice (Harvard, 1982).
n123 Id at 35.
n124 Id at 62.
n125 See, for example, Mary Joe Frug,
Postmodern Legal Feminism at 30-49 (cited in note 12); Benhabib,
Situating the Self at 178-98 (cited in note 12).
Different Voice at 173 (cited in note 122). For Gilligan's influence in legal scholarship,
see, for example, Mary Joe Frug,
Postmodern Legal Feminism at 166 n 40 (cited in note 12) (a sample of works that use and cite Gilligan's
n127 Martha Minow,
The Supreme Court, 1986 Term, Forward: Justice Engendered,
101 Harv L Rev 10, 75 (1987).
Id at 82.
Id at 76.
Id at 79-81.
Id at 81-95.
n132 See generally Minow,
Making All the Difference (cited in note 12).
n133 See, for example, Minow,
101 Harv L Rev at 15 (cited in note 127) ("Once we see that any point of view, including one's own,
is a point of view, we will realize that every difference we see is seen in
relation to something already assumed as the starting point. Then we can expose
for debate what the starting points should be. The task for judges is to
identify vantage points, to learn how to adopt contrasting vantage points, and
to decide which vantage points to embrace in given circumstances.");
id at 72 ("These dilemmas . . . become less paralyzing if you try to break out of unstated
assumptions and take the perspective of the person you have called 'different.'").
n134 See, for example, Cornell,
Beyond Accommodation (cited in note 24); Benhabib,
Situating the Self (cited in note 12); and Habermas,
Communicative Action (cited in note 12)).
n135 The indispensable books on the history of suburbanization in the United States
Bourgeois Utopias (cited in note 8); and Jackson,
Crabgrass Frontier (cited in note 10). An insightful, if short, theoretical account that defines
cities as inseparable from the network of other cities with which they are
connected (and thereby contrasts them with states) can be found in Gilles
Deleuze and Felix Guattari,
A Thousand Plateaus: Capitalism and Schizophrenia 432-34 (Minnesota, 1987).
Bourgeois Utopias at 26 (cited in note 8).
n137 Id at 5.
Liberalism and the Limits of Justice at 150 (cited in note 4). See text accompanying note 100 for a larger quote.
n139 If a locality's crime control policies are too strict, criminals are given an
incentive to engage in crime elsewhere; if its policies are too lax, criminals
from elsewhere are kept in business -- they have an extra place where they
supplement their income. For other examples of inter-local effects, see text
accompanying notes 307-20.
n140 See, for example,
Cadoux v Planning & Zoning Comm'n, 162 Conn 425, 294 A2d 582, 583-84 (1972);
MacNeil v Town of Avon, 386 Mass 339, 435 NE2d 1043, 1044-46 (1982);
Village of Arlington Heights v Metropolitan Housing Development Corp., 429 US 252, 268-71 (1977);
Warth v Seldin, 422 US 490, 502-14 (1975);
James v Valtierra, 402 US 137, 138-43 (1971). For a review of decisions such as these, see Briffault,
90 Colum L Rev at 39-48, 101-09 (cited in note 3), and the works cited in Frug,
Local Government Law at 485 n 1 (cited in note 31).
n141 Gregory R. Weiher,
The Fractured Metropolis: Political Fragmentation and Metropolitan Segregation 188 (SUNY, 1991). A considerable literature exists on the relationship between
cities and theme parks. See, for example, Michael Sorkin, ed,
Variations on a Theme Park: The New American City and the End of Public Space (Hill
& Wang, 1992); Ada Louise Huxtable,
The Unreal America, 39 NY Rev Books 24 (Dec 3, 1992).
Arlington Heights, 429 US at 264-68;
Valtierra, 402 US at 141-42.
n143 Most state courts give considerable deference to local zoning decisions,
upholding them as long as they are reasonable; even activist state courts tend
to focus not on exclusionary zoning as such but on whether a particular site
should be rezoned. See Briffault,
90 Colum L Rev at 42-48 (cited in note 3) (reviewing state cases).
Fractured Metropolis at 167-70 (cited in note 141).
n145 See, for example, Weiher,
Fractured Metropolis at 8-10 (cited in note 141); Fishman,
Bourgeois Utopias at 26, 82, 119 (cited in note 8).
n146 For a thoughtful study -- and critique -- of the modern fear of exposure and
the role it has played in the development of cities, see Richard Sennett,
The Conscience of the Eye: The Design and Social Life of Cities (Knopf, 1990).
n147 M.P. Baumgartner,
The Moral Order of a Suburb 10-13 (Oxford, 1988). See also Jackson,
Crabgrass Frontier at 272-74 (cited in note 10); Sennett,
Conscience of the Eye (cited in note 146).
Different Voice at 42 (cited in note 122).
n149 See, for example, Mary Joe Frug,
Postmodern Legal Feminism at 111-24 (cited in note 12). Baumgartner argues that, in the suburbs, the
"ethic of care" is largely replaced by indifference. Baumgartner,
Moral Order of a Suburb at 133 (cited in note 147). Other approaches also identify suburbs as male.
Women disproportionately live in cities not suburbs, see Jo Freeman,
Women and Urban Policy, in Catharine R. Stimpson, Elsa Dixler, Martha J. Nelson, and Kathryn B.
Women and the American City 1, 2-10 (Chicago, 1981), and sociological studies suggest that women prosper
more in cities than in suburbs. See, for example, Gerda R. Wekerle,
Women in the Urban Environment, in id at 185, 195, citing William Michelson,
Environmental Choice, Human Behavior and Residential Satisfaction (Oxford, 1977) ("after a move to suburbia women feel more alone and more isolated. In contrast,
when families move to a downtown apartment a woman gains the most: her travel
time declines and the family makes greater use of the public and cultural
facilities of the city").
n150 William H. Whyte, Jr.,
The Organization Man 280 (Simon
& Schuster, 1956). See Susan Saegert,
Masculine Cities and Feminine Suburbs: Polarized Ideas, Contradictory Realities, in Stimpson, et al,
Women and the American City 93 (cited in note 149).
n151 See, for example, Saegert,
Masculine Cities, in Stimpson, et al,
Women and the American City (cited in note 149). Fishman,
Bourgeois Utopias at 34, 190-91 (cited in note 8).
n152 For an argument about the relationship between the formation of suburbs and
patriarchy, see Ann R. Markusen,
City Spatial Structure, Women's Household Work, and National Urban Policy, in Stimpson, et al,
Women and the American City 20 (cited in note 149). For an argument about the effect of the increase in
the number of working women on urban policy, see Elizabeth A. Roistacher and
Janet Spratlin Young,
Working Women and City Structure: Implication of the Subtle Revolution, in id at 217. For a general account of the impact of the public/private
distinction on women, see Jean Bethke Elshtain,
Public Man/Private Woman: Women in Social and Political Thought (Princeton, 1981).
67 NJ 151, 336 A2d 713 (1975) (Mt. Laurel I);
92 NJ 158, 456 A2d 390 (1983) (Mt. Laurel II).
Mt. Laurel I, 336 A2d at 724.
n155 Id at 726.
n156 John Stuart Mill,
On Liberty, in Mary Warnock, ed,
Utilitarianism 126, 212-14 (Fontana, 1962).
Liberalism and the Limits of Justice at 150 (cited in note 4).
Fractured Metropolis at 167 (cited in note 141).
n159 Compare Minow,
101 Harv L Rev at 77-79 (cited in note 127) ("The plea for judges to engage with perspectives that challenge their own is not
a call for sympathy or empathy. . . . We can learn to identify with others. . .
. This goal demands a continual process of taking stock of the barriers we
erect out of self-interest.").
Hills Development Co. v Bernards Township in Somerset County, 103 NJ 1, 510 A2d 621, 632-34 (1986).
n161 A few other state courts have also recognized the importance of regional
considerations in zoning matters. See, for example,
Associated Home Builders of Greater Eastbay, Inc. v City of Livermore, 18 Cal 3d 582, 135 Cal Rptr 41, 557 P2d 473, 483-90 (1976);
Bristow v City of Woodhaven, 35 Mich App 205, 192 NW2d 322, 324-30 (1971);
Surrick v Zoning Hearing Bd., 476 Pa 182, 382 A2d 105, 107-12 (1977);
Britton v Town of Chester, 134 NH 434, 595 A2d 492, 496 (1991);
Berenson v Town of New Castle, 38 NY2d 102, 378 NYS2d 672, 341 NE2d 236, 242 (1975).
n162 For an extended analysis of the impact of local boundaries on metropolitan
development, see Weiher,
Fractured Metropolis (cited in note 141).
n163 Professor Briffault proposes state intervention as the solution to
metropolitan fragmentation, see Briffault
90 Colum L Rev at 447-54 (cited in note 3), but he does not confront the power of the opposition to
such an intervention. He simply recommends that the
"ideology of localism . . . be jettisoned."
Id at 454. But ideologies cannot just be
"jettisoned." Neither state policy nor suburban consciousness is easy to change, as the
difficulties in implementing
Mt. Laurel demonstrate. Professor Briffault's failure to suggest how a centrally-imposed
rejection of the ideology of localism might occur or why it might work is, in
my view, a major defect in his recommendation that we rely on state power to
transform our metropolitan areas.
97 Yale L J at 1504 (cited in note 108), quoting Pitkin, 9 Political Theory at 344 (cited in note
113). See note 113 and accompanying text.
Democracy in America at 515 (cited in note 81).
n166 See, for example, Benhabib,
Situating the Self at 95-113 (cited in note 12). For an analogous communitarian argument, see
Joel F. Handler,
Law and The Search for Community 143-61 (Pennsylvania, 1990).
n167 For further exploration of this paradox, see Frug,
19 Urban Law 553 (cited in note 92).
Critical Legal Studies Movement at 57-90 (cited in note 120) (elaborating such a methodology in terms of
n169 Unger offers two additional strategies for decentralization. The first would
give a locality a
"conditional right to opt out of the norms established by higher authorities," with the condition ensuring that those affected, after the opting out occurs,
"stand in a relation of relative equality." Roberto Mangabeira Unger,
False Necessity: Anti-Necessitarian Social Theory in the Service of Radical
Democracy 475 (Cambridge, 1987). Unger's second proposal would delegate power to
localities as long as the power could
"be prevented from serving to build up a local citadel of hierarchy" by (for example)
"ad hoc supervisory boards, special rights of challenge and appeal, and the
practice of transferring authority or resources to overlapping and competing
bodies." Id at 476. Unger's proposals are very sketchy; they certainly are worth
further exploration. But neither of them decenters the notion of membership in
a decentralized community -- the strategy I explore below.
n170 See Note,
Displacement in Gentrifying Neighborhoods: Regulating Condominium Conversion
Through Municipal Land Use Controls,
63 BU L Rev 955, 956 (1983). For academic assessments of the impact of
gentrification, see Kathryn P. Nelson,
Gentrification and Distressed Cities: An Assessment of Trends in Intrametropolitan Migration (Wisconsin, 1988); James Geoffrey Durham and Dean E. Sheldon III,
Mitigating the Effects of Private Revitalization on Housing for the Poor,
70 Marq L Rev 1 (1986); J. John Palen and Bruce London, eds,
Gentrification, Displacement and Neighborhood Revitalization (SUNY, 1984). For community residents' own accounts of
gentrification, see Joseph Barry and John Derevlany, eds,
Yuppies Invade My House at Dinnertime (Big River, 1987).
n171 Another is rent control. See Note,
Reassessing Rent Control: Its Economic Impact in a Gentrifying Housing Market,
101 Harv L Rev 1835 (1988). See also
Nordlinger v Hahn, 112 S Ct 2326, 2333 (1992) ("The State has a legitimate interest in local neighborhood preservation,
continuity, and stability. [
Euclid v Ambler Realty Co., 272 US 365 (1926)]. The State therefore legitimately can decide to structure its tax system to
discourage rapid turnover in ownership of homes and businesses, for example, in
order to inhibit displacement of lower income families by the forces of
gentrification or of established, 'mom-and-pop' business by newer chain operations.").
n172 Deference to local discretion in zoning has been commonplace in American law
Ambler Realty, 272 US 365. The statement in the text -- describing this deference as a concession to
government regulation of private enterprise -- is the conventional reading.
See, for example,
Penn Central Transportation Co. v New York City, 438 US 104, 125 (1978). But the opposite story can also be told:
Zoning originated as early as 1880 in Modesto, California, where it had been
used to remove Chinese laundries: a particularly apt beginning, since
thereafter one of its principal functions was to safeguard property values by
excluding undesirable land uses and undesirable neighbours. And . . . the city
that took the lead in the zoning movement from 1913 on, New York City, was
impelled to do so by the complaints of Manhattan retailers who, complaining
that industrial incursions were threatening their profits, appealed loudly to
"every man who owns a home or rents an apartment"; the city's Commission on Building Heights accepted their argument that zoning
"greater safety and security in investment." And the historic 1926 Supreme Court decision,
Euclid v. Ambler, which confirmed the general validity of zoning, seems to have accepted Alfred
Bettman's argument that its point was to enhance property values. The point at
issue, significantly, was whether land should be zoned industrial or
Cities of Tomorrow: An Intellectual History of Urban Planning and Design in the
Twentieth Century 292-93 (Basil Blackwell, 1988) (citations omitted). Under this alternative
reading, permitting zoning and preventing condominium conversion are two
aspects of the same policy -- one that favors the rights of property owners.
See note 45 and accompanying text; Frug,
93 Harv L Rev at 1101-09 (cited in note 11). Compare
Nordlinger, 112 S Ct at 2333.
Marshal House, Inc. v Rent Review and Grievance Board of Brookline, 357 Mass 709, 260 NE2d 200, 205-07 (1970). See also
Bannerman v City of Fall River, 391 Mass 328, 461 NE2d 793, 794-96 (1984).
Steinbergh v Rent Control Board of Cambridge, 406 Mass 147, 546 NE2d 169, 171-74 (1989);
Greater Boston Real Estate Bd. v Boston, 397 Mass 870, 494 NE2d 1301, 1304-06 (1986). But see
Grace v Town of Brookline, 379 Mass 43, 399 NE2d 1038, 1042-45 (1979) (upholding amendments to a town's by-laws that restricted the ability of
condominium owners to evict tenants);
Flynn v Cambridge, 383 Mass 152, 418 NE2d 335, 337-39 (1981) (upholding an ordinance regulating eviction from and condominium conversion of
housing subject to rent control).
n175 The Massachusetts cases are not unusual. Other state courts have also
invalidated local efforts to restrict condominium conversions. See, for
City of West Hollywood v Beverly Towers, 52 Cal 3d 1184, 805 P2d 329, 331-35 (1991);
City of Miami Beach v Rocio Corp., 404 S2d 1066, 1069-71 (Fla App 1981);
Rockville Grosvenor, Inc. v Montgomery County, 289 Md 74, 422 A2d 353, 360-67 (1980);
Hampshire House Sponsor Corp. v Fort Lee, 172 NJ Super 426, 412 A2d 816, 819-21 (1979).
Asian Americans for Equality v Koch, 72 NY2d 121, 531 NYS2d 782, 527 NE2d 265, 268-73 (1988). See also Case Comment, Asian Americans for Equality v. Koch,
102 Harv L Rev 1092 (1989).
n177 See Comment,
Black Neighborhoods Becoming Black Cities: Group Empowerment, Local Control and
the Implications of Being Darker Than Brown,
23 Harv CR-CL L Rev 415 (1988) (urging black communities to pursue incorporation and separation rather than
integration in order to promote their needs).
n178 For an analysis of neighborhood efforts on both sides of the city/suburb
border to oppose human service facilities and low income housing (as well as
hazardous waste facilities and landfill sites), see Michael Dear,
Understanding and Overcoming the NIMBY Syndrome, 58 J Am Planning Ass'n 288 (Summer 1992).
gentrification" is concisely argued in William H. Whyte,
City: Rediscovering the Center 325-30 (Doubleday, 1988).
The implicit assumption of the
gentrification concept is that the chief threat to housing for the poor is the improvement of
neighborhoods. The problem is the opposite. The chief threat is the
deterioration of neighborhoods. The poor are not being hurt by middle-class
investment. They are being hurt by disinvestment -- by landlords and owners who
let buildings go to rot, who walk away from them, who torch them.
Id at 328. See also Note,
63 BU L Rev at 955 (cited in note 170).
n180 See text accompanying note 119; Unger,
Knowledge and Politics 284-89 (cited in note 115) ("The Dilemmas of Communitarian Politics").
n181 See, for example, Gary Peller,
1990 Duke L J 758 (contrasting integrationist and race-conscious perspectives); works cited in
notes 147-52 and accompanying text; Whyte,
City at 156-64 (cited in note 179) (on
"The Undesirables"); Austin,
65 S Cal L Rev 1769 (cited in note 23) (analyzing attitudes toward black lawbreakers); Hall,
Cities of Tomorrow at 297-304 (cited in note 172) ("Suburbia: The Great Debate").
n182 There are a variety of ways to bring this legal regime about. One could create
a privilege to move to a community by not allowing the community to stop (by
zoning or otherwise) a sale of property within the community to an outsider.
One could simultaneously create a privilege (but not a right) of exclusion by
giving an outsider no right to move to a community if no one within the
community were willing to sell to him. For the definition of the terms
privilege, right, and no-right, see Wesley Newcomb Hohfeld,
Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,
23 Yale L J 16, 32-44 (1913).
n183 See, for example, Robert Hanley,
Affordable Housing in Jersey Is Still an Elusive Goal, NY Times B1 (Oct 24, 1988).
n184 The New Jersey Fair Housing Act, which transfers authority over compliance
Mt. Laurel from the courts to a Council on Affordable Housing, allows municipalities to
enter into a contract by which a city can, in exchange for money, transfer up
to 50% of its fair housing obligations to another city.
NJ Stat Ann § 52:27D-312 (West 1991).
Critical Legal Studies Movement (cited in note 120); Unger,
Politics (cited in note 120).
n186 See text accompanying notes 153-76.
n187 Uniform Relocation Assistance and Real Property Acquisition Policies Act of
42 USC § 4601 (1992); Demonstration Cities and Metropolitan Development Act of 1966,
42 USC §§ 3301, 3307 (1992); Housing Act of 1949, 81st Cong, 1st Sess, ch 338 (1949). For an
assessment of these statutes, see U.S. Department of Housing and Urban
Displacement Report (Feb 1979). For a history of urban renewal efforts, see Teaford,
Urban Revitalization at 107-62, 214-17 (cited in note 10).
n188 See note 181 and accompanying text.
n189 Peter Hall argues that there were four principal foundations for the suburban
boom: new roads, zoning, government-guaranteed mortgages, and the baby boom.
The 1956 Federal-Aid Highway Act ("the greatest public-works programme in the history of the world") was, he contends, the principal spur to the new roads; and federally insured
mortgages, pursuant to the National Housing Act, fostered suburban development
by revolutionizing the way the nation's residential housing market was
financed. Moreover, federal policies for evaluating mortgage applications not
only favored the suburbs but discriminated against racial minorities. See Hall,
Cities of Tomorrow at 291-94 (cited in note 172). For a history of the federal government's
anti-urban bias and of the ways in which its mortgage-guarantee program helped
segregate metropolitan areas along the lines of race, see Jackson,
Crabgrass Frontier at 190-218 (cited in note 10). Kenneth Jackson adds to Hall's list the
importance of federal mortgage deductions. Id at 293-94. The federal urban
renewal policies of the 1950s and 1960s also accelerated suburban prosperity
and urban decline. See Teaford,
Urban Revitalization at 214-17 (cited in note 10). In sum, there would be no suburbs, in the form
in which we know them, without these federal initiatives and the zoning
policies discussed in the text.
336 A2d at 726. See text accompanying note 155 for a larger quote.
Liberalism and the Limits of Justice at 150 (cited in note 4). See text accompanying note 100 for a larger quote.
n192 On regional public authorities, see, for example, Briffault,
90 Colum L Rev at 375-78 (cited in note 3); Robert A. Caro,
The Power Broker 614-36 (Vintage, 1975); Comment,
An Analysis of Authorities: Traditional and Multicounty,
71 Mich L Rev 1376 (1973). On regional governments, see, for example, Note,
It's Time to Create a Bay Area Regional Government,
42 Hastings L J 1103 (1991); C. James Owen and York Willburn,
Governing Metropolitan Indianapolis: The Politics of Unigov (California, 1985); James F. Horan and G. Thomas Taylor, Jr.,
Experiments in Metropolitan Government (Praeger, 1977); Note,
The Urban County: A Study of New Approaches to Local Government in Metropolitan
73 Harv L Rev 526 (1960). For a history of attempts to assert regional control over cities and suburbs,
City and Suburb (cited in note 10).
n193 See, for example,
Municipal Building Authority v Lowder, 711 P2d 273, 277-80 (Utah 1985);
Ball v James, 451 US 355, 362-72 (1981);
Salyer Land Co. v Tulare Lake Basin Water Storage District, 410 US 719, 728-29 (1973); Comment,
71 Mich L Rev at 1429 (cited in note 192).
n194 See, for example,
City of Miami v Metropolitan Dade County, 407 S2d 243, 244-45 (Fla App 1981);
Metropolitan Dade County v City of Miami, 396 S2d 144, 146-48 (Fla 1980).
n195 For example, National Health Planning and Resources Development Act of 1974,
Pub L No 93-641, 88 Stat 2225, 2232-35, codified at
42 USC §§ 201 et seq (1982), repealed by Pub L No 99-660, 100 Stat 3799 (1986); Housing and
Urban Development Act of 1968, Pub L No 90-448, 82 Stat 476, 526-32, codified
42 USC §§ 1401 et seq (1970), repealed by the Omnibus Budget Reconciliation Act of 1981
§ 313, Pub L No 97-35, 95 Stat 398 (1981); Comprehensive Health Planning and
Public Health Services Amendments of 1966, Pub L 89-749, 80 Stat 1180, 1180-90,
42 USC § 246 (1992); Public Works and Economic Development Act of 1965, Pub L No 89-136, 79
Stat 552, 564-69, repealed by the Omnibus Budget Reconciliation Act of 1981
§ 1821(a), Pub L No 97-35, 95 Stat 766 (1981). See David C. Ranney,
Planning and Politics in the Metropolis 80-83 (Merrill, 1969).
n196 See text accompanying notes 153-55.
n197 See, for example,
Garcia v San Antonio Metropolitan Transit Authority, 469 US 528 (1985) (rejecting the
"traditional governmental functions" standard for state regulatory immunity);
City of La Grande v Public Employes Retirement Board, 281 Or 137, 576 P2d 1204, 1212-15 (1978) (rejecting judicial interest balancing as a way to protect local autonomy).
n198 This is the position of both
Garcia, 469 US 528, and
La Grande, 576 P2d 1204.
n199 Justice Blackmun asserted in
Garcia, 469 US at 547-55, that Congress was organized to represent the interest of states and that it
operated as a forum for inter-state dialogue. This is the classic image of how
legislatures work: legislators are elected locally to ensure that the
legislature is a collectivity of local voices. There is, however, considerable
doubt that Congress -- particularly since the adoption of the Seventeenth
Amendment (electing senators by popular vote rather than by the state
legislatures) -- actually represents the interest of states as such. And there
is absolutely no evidence -- given the lack of correspondence between
Congressional districts and city lines -- that Congress represents
city interests or that it operates as a form of inter-city dialogue (and
federal/city relationships were the precise issue in
Garcia). Decentralization of power, in my view, requires transforming Justice
Blackmun's assertions about how representative democracy works into fact.
n200 See Unger,
Knowledge and Politics at 284-89 (cited in note 115).
n201 In the eighteenth century, New England towns successfully wrested power from a
domineering state government by requiring representatives to be local
residents, establishing a town mandate instructing the representative on how to
vote on specific issues, instituting annual elections, controlling the
representatives' salary, and using the legislative journal as an instrument of
surveillance of legislators' activities. Michael Zuckerman,
Peaceable Kingdoms 19-28 (Norton, 1970). Marx suggested a remarkably similar structure for the
Paris Commune. Karl Marx,
The Civil War in France, in Robert Tucker, ed,
The Marx-Engels Reader 526, 554-57 (Norton, 1972).
Avery v Midland County, 390 US 474 (1968), imposed on local governments the
"one person, one vote" requirement first articulated for states in
Reynolds v Sims, 377 US 533 (1964). And
Board of Estimate v Morris, 489 US 688 (1989), has made it clear that this requirement does not permit a substantial
variation from strict equality because of neighborhood feeling or history. To
be sure, regional planning agencies have been organized without respecting the
"one person, one vote" principle, and this structure has been declared constitutional on the grounds
that planning agencies are not elective bodies and do not exercise governmental
Education/Instruction, Inc. v Moore, 503 F2d 1187, 1189 (2d Cir 1974). These defenses, however, would not be available to regional legislatures as I
envision them. Thus, unless Justice Harlan's dissent in
Avery were to become law -- a dissent explicitly based on the need for flexibility
in creating regional governmental institutions,
390 US at 493-94 -- drawing of neighborhood boundaries will require considerable care.
n203 See text accompanying notes 180-81.
97 Yale L J at 1528 (cited in note 108). See text accompanying note 109 for a larger quote.
n205 See, for example, Briffault,
90 Colum L Rev at 446-54 (cited in note 3).
n206 Similar mechanisms are explored in Frug,
40 U Toronto L J at 570-73 (cited in note 11).
n207 Of course, such a system would have to establish a method of dealing with
excuses and exemptions from service, problems that have plagued the jury
system. As experience with the jury has demonstrated, the greater the
loopholes, the less representative the public process.
Democracy in America at 274 (cited in note 81).
101 Harv L Rev at 95 (cited in note 127).
Liberalism and the Limits of Justice at 183 (cited in note 4).
Passion at 88-89 (cited in note 116).
The Saturated Self at 6 (cited in note 20).
Philosophy and the Human Sciences (cited in note 12) (emphasis added). See text accompanying note 101 for a
Liberalism and the Limits of Justice at 150 (cited in note 4) (emphasis added and subtracted). See also
id at 62, 179-83. The qualification can also be found in Sandel's other work:
"certain of our roles are
partly constitutive of the persons we are . . . ." Michael J. Sandel,
Liberalism and Its Critics 5 (NYU, 1984) (emphasis added).
97 Yale L J at 1528 (cited in note 108) (emphasis added). See text accompanying note 109 for a
n216 See, for example, Kathleen M. Sullivan,
97 Yale L J 1713, 1722 (1988).
n217 See, for example, Fallon,
102 Harv L Rev at 1698-99, 1729-33 (cited in note 108).
n218 See, for example, Derrick Bell and Preeta Bansal,
The Republican Revival and Racial Politics,
97 Yale L J 1609 (1988).
n219 See, for example, Michael Walzer,
A Day in the Life of a Socialist Citizen, in
Radical Principles: Reflections of an Unreconstructed Democrat 128 (Basic, 1980).
n220 See, for example, Sullivan,
97 Yale L J at 1714, 1719-23 (cited in note 216) (arguing for fostering voluntary groups); Fallon,
102 Harv L Rev at 1725-30 (cited in note 108) (evaluating Michelman's version of republicanism in terms
of its effect on private autonomy); Bell and Bansal,
97 Yale L J at 1609, 1619-21 (cited in note 218) (suggesting a sharp black/white distinction in evaluating
n221 See Jane Caplan,
Postmodernism, Poststructuralism, and Deconstruction: Notes for Historians, 22 Central European History 260, 262 (Sep/Dec 1989) ("postmodernism, poststructuralism, and deconstruction are not interchangeable
synonyms"); Andreas Huyssen,
After the Great Divide: Modernism, Mass Culture, Postmodernism 207-16 (Indiana, 1986) (arguing that poststructuralism is modernist not
postmodernist); Kwame Anthony Appiah,
Is the Post- in Postmodernism the Post- in Postcolonial?, 17 Critical Inquiry 336 (Winter 1991); bell hooks,
Postmodern Blackness, in
Yearning 23, 23-31 (cited in note 12) (comparing radical black subjectivity with
postmodernist forms of identity); Mary Joe Frug,
Postmodern Legal Feminism at 10, 53-54, 113-14, 125-27 (cited in note 12) (offering a definition of
postmodern feminism). Compare Hal Foster,
Re: Post, in Brian Wallis, ed,
Art After Modernism: Rethinking Representation 189, 189-96 (Godine, 1984) ("To an extent . . . the postmodernist line retraces the poststructuralist line .
. . ." Id at 194). For other examples of poststructuralism, postmodernism, feminism
and critical race theory, see note 12.
n222 The works that I cite below are part of a series of debates rather than a
collective, coherent position. For example, to adopt Matthew Kramer's
terminology, poststructuralists tend to discuss metaphysical questions (they
investigate the nature of any possible world) while postmodernists investigate
mundane questions (they are culture critics, investigating the current state of
our own society). See Matthew H. Kramer,
God, Greed, and Flesh: Saint Paul, Thomas Hobbes, and the Nature/Nurture Debate, 30 S J Phil 51, 51 (1992).
n223 See, for example, Borch-Jacobsen,
Freudian Subject (cited in note 12); Lacan,
Ecrits at 1-7 (cited in note 12); Julia Kristeva,
Desire in Language: A Semiotic Approach to Literature and Art 271-91 (Columbia, 1980). Helpful secondary literature includes Kaja Silverman,
The Subject of Semiotics 132-93 (Oxford, 1983) (on Freud and Lacan); Fredric Jameson,
Imaginary and Symbolic in Lacan: Marxism, Psychoanalytic Criticism, and the
Problem of the Subject, in Shoshana Felman, ed,
Literature and Psychoanalysis: The Question of Reading: Otherwise 338, 338-95 (Johns Hopkins, 1977) (on Lacan); Jane Gallop,
Reading Lacan (Cornell, 1985); Elizabeth Grosz,
Sexual Subversions: Three French Feminists 39-69 (Allen and Unwin, 1989) (on Kristeva).
n224 Mikkel Borch-Jacobsen,
The Freudian Subject, from Politics to Ethics, in Eduardo Cadava, Peter Connor and Jean-Luc Nancy, eds,
Who Comes After the Subject? 61, 66 (Routledge, 1991).
Subject of Semiotics at 158 (cited in note 223).
n226 See, for example, Roland Barthes,
The Rustle of Language (Hill
& Wang, 1986); Jacques Derrida,
Writing and Difference at 278 (cited in note 4); Michel Foucault,
The Order of Things: An Archaeology of the Human Sciences (Random House, 1970); Julia Kristeva,
The System and the Speaking Subject, in Toril Moi, ed,
The Kristeva Reader 24, 24-33 (Columbia, 1986); Lacan,
Ecrits at 146-75 (cited in note 12).
n227 See Jameson,
Imaginary and Symbolic in Felman,
Literature at 378 (cited in note 223).
Writing and Difference at 280 (cited in note 4).
n229 Emile Benveniste,
Problems in General Linguistics 224 (Miami, 1971).
Rustle of Language at 51 (cited in note 226).
Problems at 224 (cited in note 229).
Rustle of Language at 53 (cited in note 226).
Problems at 224 (cited in note 229); Martin Heidegger,
Letter on Humanism, in David Farrell Krell, ed,
Basic Writings from Being and Time
(1927) to The Task of Thinking
(1964) 193 (Harper
& Row, 1977) ("Language is the house of Being. In its home man dwells.").
Rustle of Language at 51 (cited in note 226).
Gender Trouble (cited in note 19).
n236 Id at 140. For a more extended version of Butler's argument, see id at 134-49.
Mikkel Borch-Jacobsen makes a more general argument:
Desire has no object, at least not before some mediator -- teacher, friend,
books, fashion, culture, etc. -- intervenes to tell it what is desirable. Thus
we must not imagine some essential bond between desire and its object: the
desire for an object is a desire-effect; it is
induced, or at least secondary, with respect to the imitation -- the mimesis -- of the
desire of others. . . . Mimesis informs desire, directs it, and, more broadly
speaking, incites it.
Freudian Subject at 26-27 (cited in note 12).
Gender Trouble at 136-39 (cited in note 19). See generally, Marjorie Garber,
Vested Interests: Cross-Dressing
& Cultural Anxiety (Routledge, 1992).
n238 An alternative conception of
"other" is that it is someone else's self. One form of the critique of
"other," therefore, would simply repeat what was just said about
I and apply it to
n239 See Lyotard,
Postmodern Condition at 81 (cited in note 12).
n240 Id at 15.
n241 See, for example, Fredric Jameson,
Postmodernism, or, The Cultural Logic of Late Capitalism 16-25 (Duke, 1991).
n242 According to Fredric Jameson, pastiche is like parody except that it is blank
parody, without a satiric impulse:
"the imitation of dead styles, speech through all the masks and voices stored up
in the imaginary museum of a now global culture." Id at 18. For an alternative view of pastiche -- and of associated ideas such
as kitsch and retro fashion -- see Celeste Olalquiaga,
Megalopolis: Contemporary Cultural Sensibilities (Minnesota, 1992). See also Erving Goffman,
The Presentation of Self in Everyday Life (Doubleday, 1959).
n243 See Rosalind E. Kraus,
The Originality of the Avant-Garde, in
The Originality of the Avant-Garde and Other Modernist Myths 151 (MIT, 1985).
n244 I think of the postmodern attitude as that of a man who loves a very
cultivated woman and knows he cannot say to her,
"I love you madly," because he knows that she knows (and that she knows that he knows) that these
words have already been written by Barbara Cartland. Still, there is a
solution. He can say,
"As Barbara Cartland would put it, I love you madly." At this point, having avoided false innocence, having said clearly that it is
no longer possible to speak innocently, he will nevertheless have said what he
wanted to say to the woman: that he loves her, but he loves her in an age of
Postscript to The Name of the Rose 67 (Harcourt Brace Jovanovich, 1983). One place Eco's story is quoted is in
The Post-Modern Reader at 73-74 (cited in note 12); I now quote it again, saying what I have to say
by continuing the chain of quotations.
n245 Jean Baudrillard,
The Ecstasy of Communication, in Hal Foster, ed,
The Anti-Aesthetic: Essays on Postmodern Culture 126, 132-33 (Bay, 1983). The term
"schizophrenia" is also used (albeit differently) by Jameson,
Postmodernism at 25-31 (cited in note 241) (embracing the view that schizophrenia is a
breakdown in the signifying chain).
n246 Brian McHale,
Postmodernist Fiction 9-10 (Methuen, 1987).
n247 Id at 16.
Language, Counter-Memory, Practice at 161-62 (cited in note 5).
Power/Knowledge at 98 (cited in note 18).
n250 Michel Foucault,
The Subject and Power, in Hubert L. Dreyfus and Paul Rabinow,
Michel Foucault: Beyond Structuralism and Hermeneutics 208, 216 (Chicago, 1982). In Judith Butler's words,
"the critical task is [ ] to locate strategies of subversive repetition enabled
by [ ] constructions [of identity], to affirm the local possibilities of
intervention through participating in precisely those practices of repetition
that constitute identity and, therefore, present the immanent possibility of
contesting them." Butler,
Gender Trouble at 147 (cited in note 19).
n251 The postmodern subject cannot avoid the well-known irony that purposive action
often promotes just what it seeks to undermine. See Jon Elster,
Sour Grapes: Studies in the Subversion of Rationality (Cambridge, 1983); Joel Garreau,
Edge City: Life on the New Frontier 42 (Doubleday, 1991) ("The Law of Unintended Consequences").
Postmodern Condition at 15 (cited in note 12). See text accompanying note 240 for a larger quote.
42 Stan L Rev at 608 (cited in note 12), citing bell hooks,
Talking Back: Thinking Feminist, Thinking Black (South End, 1989); Patricia Williams,
On Being the Object of Property, 14 Signs 5 (1988); and Zora Neale Houston,
How It Feels to Be Colored Me, in Alice Walker, ed,
I Love Myself When I Am Laughing 152 (Feminist, 1979).
42 Stan L Rev at 584 (cited in note 12).
n255 See, for example, Williams,
Alchemy at 9-10 (cited in note 12):
A man with whom I used to work once told me that I made too much of my race.
"After all," he said,
"I don't even think of you as black." Yet sometime later, when another black woman became engaged in an ultimately
unsuccessful tenure battle, he confided to me that he wished the school could
find more blacks like me. I felt myself slip in and out of shadow, as I became
nonblack for purposes of inclusion and black for purposes of exclusion; I felt
the boundaries of my very body manipulated, casually inscribed by definitional
demarcations that did not refer to me.
See also bell hooks,
Yearning at 15-40 (cited in note 12); Appiah,
In My Father's House at 28-46, 173-80 (cited in note 12).
Postmodern Condition at 15 (cited in note 12). See text accompanying note 240 for a larger quote.
n257 See, for example, James Q. Wilson,
The Contradictions of an Advanced Capitalist State, Forbes 110 (Sep 14, 1992) ("The inner city has always been a haven for criminals who could take advantage
of its anonymity, disorder and low-cost housing. . . . What produced the good
life for individuals did not produce it for cities. The reason is that
prosperity enabled people to move to the kinds of towns Americans have always
wanted to live in -- small, quiet and nice."). Although Professor Briffault recognizes that this imagery does not reflect
American life, see Briffault,
90 Colum L Rev at 353 (cited in note 3), he nonetheless builds his argument on this structure. See,
id at 354 (making a homogeneity/diversity distinction);
id at 439 (making a work/residence distinction). Others simply take a city/suburb
distinction for granted. See, for example, Thomas M. Stanback, Jr.,
The New Suburbanization: Challenge to the Central City 1-2 (Westview, 1991); Peterson,
City Limits at 104 (cited in note 3); Arkes,
Philosopher in the City at 320-26 (cited in note 56).
n258 Pierre deVise, of Roosevelt University, has recently completed a study
Shifts in the Geography of Wealth and Poverty in Suburban America: 1979 to 1989 (1992) (on file with U Chi L Rev). His analysis of the 1990 Census lists the
following as the ten poorest suburbs in the nation:
|Low||Per Capita||Metro Area|
|1||Ford Heights, IL||4,660||Chicago|
|2||Alorton, IL||4,846||St. Louis|
|4||Florence-Graham, CA||5,407||Los Angeles|
|5||Kinloch, MO||5,569||St. Louis|
|6||Coachella, CA||5,760||Los Angeles|
|7||Cudahy, CA||5,935||Los Angeles|
|8||Bell Gardens, CA||6,125||Los Angeles|
See id at 21. All but one of these suburbs is more than 90% black and/or
Hispanic (Bell Gardens is 87.5% Hispanic). See also John McCormick and Peter
The Other Suburbia, Newsweek 22 (Jun 26, 1989).
Bourgeois Utopias at 6 (cited in note 8). See also Garreau,
Edge City at 149 (cited in note 251); David R. Contosta,
Suburb in the City: Chestnut Hill, Philadelphia, 1850-1990 (Ohio State, 1992). Indeed, if we think of suburbanization as
"creating the appearance of nonurbanized space," cities are becoming suburbanized while suburbs are becoming urbanized. Joseph
Suburbanization of Center City, 87 The Geographical Rev 325, 326 (Jul 1988).
n260 There are prosperous black neighborhoods both within the city (Baldwin Hills
in Los Angeles, South Shore in Chicago, West Mount Airy in Philadelphia) and
outside the city limits (Rolling Oaks in Dade County, Brook Glenn near Atlanta,
Prince George's County near Washington, D.C.). Garreau,
Edge City at 143-78 (cited in note 251) (on Atlanta); David J. Dent,
The New Black Suburbs, NY Times Mag 18, 20 (Jun 14, 1992) (on Prince George's County). And, as just
noted, there are poor black neighborhoods in the suburbs as well as in the
cities. See deVise,
Shifts (cited in note 258). The same diversity exists for Hispanics: there are
prosperous (Laurel Heights in San Antonio, the Coronado area in El Paso) and
poor (Los Jardines in San Antonio, the downtown area in El Paso) Hispanic
neighborhoods inside the same city. CACI Marketing Systems,
Source Book of ZIP Code Demographics 317-18 C-D, 324 C-D (CACI, Census ed, 1992). And there are prosperous and poor Hispanic
neighborhoods in the suburbs as well. Denise Hamilton,
The Changing Face of the San Gabriel Valley, LA Times J1, col 2 (Oct 25, 1992) (11 of the 34 cities and unincorporated
communities in the San Gabriel Valley, near Los Angeles, have Hispanic
Shifts (cited in note 258).
Edge City at 150 (cited in note 251); Dent, NY Times Mag at 20 (cited in note 260).
n262 For example, Prince George's County near Washington; Brook Glen, Panola Mill,
and Wyndham Park near Atlanta; Alorton near St. Louis; and Ford Heights near
Chicago are majority African American. Dent, NY Times Mag at 20 (cited in note
Shifts at 21 (cited in note 258). Monterey Park, California is majority Chinese. Mike
City of Quartz: Excavating the Future in Los Angeles 207 (Verso, 1990). And, like many other suburbs, see CACI,
Source Book at 317-18 C-D, 324 C-D (cited in note 260), Pomona and East Los Angeles, California are majority
Latino. Hamilton, LA Times at J1, col 2 (cited in note 260); deVise,
Shifts at 21 (cited in note 258).
n263 See Ford,
9 Harv Blackletter J at 139-45 (cited in note 23); Paul Virilio,
The Over-exposed City, in Jonathan Crary, et al, eds,
Zone 1/2: The Contemporary City 15 (Urzone, 1986) (Zone is a series of books published irregularly by Urzone, Inc. of New York City
and distributed by the Johns Hopkins University Press, Baltimore, Maryland.).
n264 See, for example, Bennett M. Berger,
Working-Class Suburb: A Study of Auto Workers in Suburbia (California, 1960) (about Richmond, California).
n265 Joel Garreau has invented a new term,
"Edge City," to describe areas, overwhelmingly residential or rural 30 years ago, which now
are single-end destinations for jobs, shopping, and entertainment. To qualify
as an Edge City, Garreau insists that the area have at least five million
square feet of office space, at least 600,000 square feet of retail space, and
a population that increases during the work day ("more jobs than bedrooms"). Garreau,
Edge City at 6-7, 425 (cited in note 251). For a list of more than a hundred such Edge
Cities in suburbs across the nation, see id at 425-39. See also Robert Fishman,
America's New City: Megalopolis Unbound, 14 Wilson Q 24 (Winter 1990) (arguing that suburbs are becoming more and more
similar to traditional cities).
n266 Christopher Leinberger,
Business Flees to the Urban Fringe, The Nation 10, 11 (Jul 6, 1992).
Edge City at 5 (cited in note 251). Indeed, there is even an increasing number of vacant
office buildings in the suburbs, as corporate headquarters move on or cut back.
See Thomas Lueck,
Vacated Corporate Headquarters Scatter the Suburban Landscape, NY Times A1 (Dec 7, 1992).
n268 Fishman, 14 Wilson Q at 28 (cited in note 265).
n269 James E. Vance, Jr.,
The Continuing City: Urban Morphology in Western Civilization 506 (Johns Hopkins, 1990).
n270 Fishman, 14 Wilson Q at 27 (cited in note 265).
n271 US Bureau of Census,
1987 Census of Retail Trade: Special Report Series, Selected Statistics Table 5 (GPO, Jan 1991). Nationwide percentages in 1987 were 37% central city,
45% suburban. But in many major metropolitan areas the disparity is even
greater (Boston: 31.6% city, 68.4% suburban; New York: 36.3% city, 63.7%
suburban; Chicago: 32.6% city, 67.4% suburban; Los Angeles: 37.8% city, 62.2%
Edge City at 7 (cited in note 251). See also Eric Hubler,
Four Million Square Feet of Mall, NY Times sec 5, p 33 (Oct 25, 1992) (on the Mall of America in Bloomington,
n273 See Margaret Crawford,
The World in a Shopping Mall, in Sorkin,
Variations on a Theme Park 3, 22-30 (cited in note 141); Trevor Body,
Underground and Overhead: Building the Analogous City, in Sorkin, ed,
Variations on a Theme Park at 123, 136 (cited in note 141) (on Minneapolis skyways); Hall,
Cities of Tomorrow at 350 (cited in note 172) (on the influence of James Rouse on American
cities). Even city cultural life is increasingly suburban, not urban, in style.
See, for example, Edward Rothstein,
Cities March to Different Drummers, NY Times, H28, col 4 (Nov 15, 1992) ("Concert halls . . . are increasingly catering to suburban audiences; the halls
also seem irrelevant to their surrounding, largely black, communities.").
Continuing City at 508 (cited in note 269). Clayton is the county seat of St. Louis County
which surrounds, but does not include, the city. Id at 484.
n275 See Weiher,
Fractured Metropolis at 47-50 (cited in note 141). See also text accompanying notes 140-46.
Power/Knowledge at 98 (cited in note 18). See text accompanying note 249 for a larger quote.
n277 See generally, Kevin Lynch,
The Image of the City (MIT, 1960).
Bourgeois Utopias at 185 (cited in note 8); Jackson,
Crabgrass Frontier at 246-71 (cited in note 10) ("The Drive-in Culture of Contemporary America"). Compare Fishman,
Bourgeois Utopias at 192 ("a fully developed highway grid eliminates the primacy of the central business
district"), with Jackson,
Crabgrass Frontier at 270 ("motorcars . . . created the demand for more highways, which in turn increased
the need for more vehicles, and so on ad infinitum"), with David Rieff,
Los Angeles: Capital of the Third World 37 (Touchstone, 1991) (freeways are
"the place where [Angelenos] spend the two calmest and most rewarding hours of
their daily lives").
n279 See, for example, Langdon Winner,
Silicon Valley Mystery House, in Sorkin, ed,
Variations on a Theme Park 31, 31-60 (cited in note 141).
Bourgeois Utopias at 203 (cited in note 8).
Edge City at 8 (cited in note 251).
n282 Id at 3 (emphasis deleted).
n283 The literature on Los Angeles is immense and growing. See, for example, Davis,
City of Quartz (cited in note 262); Rieff,
Capital of the Third World (cited in note 278); Edward W. Soja,
Postmodern Geographies: The Reassertion of Space in Critical Theory 190-248 (Verso, 1989); Kevin Starr,
Inventing the Dream: California Through the Progressive Era (Oxford, 1985).
Capital of the Third World at 114-47 (cited in note 278). In the Los Angeles school district alone 82
languages are spoken. Id at 105. See also Hamilton, LA Times at J1 (cited in
note 260); Jack Miles,
Blacks v. Browns; African Americans and Latinos, The Atlantic 41 (Oct 1992); Bill Stall,
Assembly Elections 46th District: Diversity Highlights
"The Ellis Island of California," LA Times B1 (May 14, 1991).
n285 See Rieff,
Capital of the Third World at 81-93 (cited in note 278).
n286 See, for example, John Ellement,
More Deadly Violence in Boston, Boston Globe B1 (Oct 8, 1992) (second gang-related murder in a week in
n287 See also Rieff,
Capital of the Third World at 171-72 (cited in note 278) ("everyone in L.A. is writing a script"); Sara Rimer,
Los Angeles Journal: A Crowded Bus that
"Nobody Rides," NY Times, A10 (Jul 7, 1992) ("nobody rides the bus" in Los Angeles) (reporting that 1.3 million passengers use buses daily).
n288 Quoted in Fishman, 14 Wilson Q at 26 (cited in note 265).
Edge City at 25 (cited in note 251).
n290 See Fishman,
Bourgeois Utopias at 182-207 (cited in note 8); Jackson,
Crabgrass Frontier at 296-305 (cited in note 10). Robert Fishman sees the lawn as the classic
The front lawn is not family space, and family members rarely venture out into
it except to maintain it. It belongs, rather, to the community. The lawns, in
conjunction with the roadside trees, create the illusion of a park. . . . The
lawn is the owner's principle contribution to the suburban landscape -- the
piece of the
"park" he keeps up himself. At the same time the lawn is also a private space, which
no casual sidewalk passerby can make his own. It insulates the house while
helping to create the green world of the landscape. Not surprisingly, lawn
maintenance is considered a civic duty at least as important as any other form
of morality. The lawn thus maintains that balance of the public and the private
which is the essence of the mature suburban style.
Bougeois Utopias at 146-47 (cited in note 8). Kenneth Jackson offers, instead, the winding lane:
Just as the grid was ideal for the row house, the undulating pattern was best
suited to the suburban cottage . . . [A] gentle turn was indicative of the
pastoral and bucolic pace of the home rather than the busy and efficient system
of the office or factory. . . . The image of the bending road -- not a short
cut, not a thoroughfare, not a commercial strip, not a numbered street -- was
part and parcel of the suburban ideal. It offered the aesthetic order of
unified design rather than the mechanistic order imposed by grid subdivision.
Crabgrass Frontier at 76 (cited in note 10). For an analysis of the impact of the grid on city
life, see Sennett,
Conscience of the Eye at 46-62, 214-24 (cited in note 146).
n291 Sorkin, ed,
Variations on a Theme Park at xi (cited in note 141).
n293 Even cases like
Mt. Laurel still retain the idea that residents, and only residents, constitute a city's
population. See text accompanying notes 153-60.
n294 The phrase is Christopher Lasch's. See Christopher Lasch,
Haven in a Heartless World: The Family Besieged (Basic, 1977).
Ecstasy of Communication at 133 (cited in note 245). See text accompanying note 245 for a larger quote.
n296 Renee Loth,
Mustering Up to Move, Boston Globe Mag 10 (Aug 11, 1991).
n297 See Virilio,
Zone 1/2 at 23 (cited in note 263) ("With the intense acceleration of telecommunications, the old city disappears,
only to give birth to a new form of concentration: the concentration of
residentialization without residence, in which property lines, enclosures and
partitions are no longer the result of permanent physical obstacles but of
interruption of an emission or of an
electronic shadow zone which mimics sunshine and the shadows of buildings.").
Poletown Neighborhood Council v City of Detroit, 410 Mich 616, 304 NW2d 455 (1981); Caro,
The Power Broker at 850-77 (cited in note 192); Jane Jacobs,
The Death and Life of Great American Cities (Random House, 1961).
n299 See, for example, David Morris and Karl Hess,
Neighborhood Power: The New Localism (Beacon, 1975); Milton Kotler,
Neighborhood Government: The Local Foundations of Political Life (Bobbs-Merrill, 1969).
n300 For a critique of biological essentialism, see, for example, Appiah,
In My Father's House at 28-46 (cited in note 12) (race); Butler,
Gender Trouble at 1-34 (cited in note 19) (gender); Rist, The Nation 424 (cited in note 25)
(sexual orientation). For a critique of the mirror image of the self, see text
accompanying notes 223-50; Richard Rorty,
Philosophy and the Mirror of Nature (Princeton, 1979).
n301 For a discussion of examples -- such as Athenian metics and European guest
workers -- see Michael Walzer,
Spheres of Justice: A Defense of Pluralism and Equality 52-61 (Basic, 1983).
n302 The classical city included as citizens people who lived part-time, or even
continuously, outside the walls. The process of periodically collecting all
citizens into the city -- called
"synoecism" -- was understood as building an intimate tie between city and countryside.
Continuing City at 57, 73 (cited in note 269). Even today cities frequently exercise power
over people who live outside city borders, although now these outsiders are not
citizens. See Comment,
The Constitutionality of the Exercise of Extraterritorial Powers by
45 U Chi L Rev 151 (1977); Frank S. Sengstock,
Extraterritorial Powers in the Metropolitan Area (Michigan, 1962); Russell Webber Maddox,
Extraterritorial Powers of Municipalities in the United States (Oregon State, 1955). The practice of regulating outsiders without treating
them as citizens was held constitutional in
Holt Civic Club v City of Tuscaloosa, 439 US 60, 65-75 (1978). Finally, some residents of ethnic neighborhoods might consider friends and
relatives who live elsewhere to be part of their community. For example,
Koreans might be included as part of Koreatown simply on the grounds of their
ethnicity -- despite the fact that a majority of the residents of Koreatown, at
least in Los Angeles, are Latino. Miles, The Atlantic at 52 (cited in note 284).
n303 See, for example, Weiher,
Fractured Metropolis at 44 (cited in note 141). The definition of a neighborhood may expand or
contract depending on who is asking. When challenged by a rival gangbanger, a
person's neighborhood might be defined in terms of a block; when asked by
someone from Manhattan Beach, the neighborhood might be thought of as
"Compton"; when asked by a New Yorker
"where are you from?" s/he might well respond
Gender Trouble at 140 (cited in note 19). See text accompanying note 236 for a larger quote.
Ecstasy of Communication at 133 (cited in note 245). See text accompanying note 245 for a larger quote.
Holt, the Court, in holding extraterritorial regulation constitutional, emphasized
that the city did not seek to impose a property tax on property located outside
439 US at 72-73 n 8.
n307 See, for example,
Martinez v Bynum, 461 US 321, 325-33 (1983) (schools);
Baldwin v Fish and Game Commission, 436 US 371, 378-91 (1978) (hunting);
McCarthy v Philadelphia Civil Service Commission, 424 US 645 (1976) (public employment);
Memorial Hospital v Maricopa County, 415 US 250, 255, 267 (1974) (hospitals). See generally Neuman,
135 U Pa L Rev at 267-70, 301-09 (cited in note 3). Of course services do not have to be limited to residents;
when state law permits, some cities allow non-residents to use their services
for a fee.
247 NW2d 141, 150-52 (Wis 1976). See text accompanying notes 40-41.
n309 Similarly, non-residents who commute into the city to work pay the income tax,
and non-residents who are consumers pay the sales tax, but those payments also
do not allow these taxpayers to use city services.
n310 See, for example,
Martinez v Bynum, 461 US at 328-30.
439 US 60 (1978).
Id at 69. For a reading of Justice Rehnquist's opinion from the perspective of the
situated self, see Frank I. Michelman,
Conceptions of Democracy in American Constitutional Argument: Voting Rights,
41 Fla L Rev 443, 472-80 (1989).
439 US at 69.
Edgewood Independent School District v Kirby, 777 SW2d 391, 392-93 (Tex 1989).
n315 In part, local control means . . . the freedom to devote more money to the
education of one's children. Equally important, however, is the opportunity it
offers for participation in the decisionmaking process that determines how
those local tax dollars will be spent. Each locality is free to tailor local
programs to local needs.
411 US 1, 49-50 (1973). The school district under attack in
Rodriguez was the same as the one challenged in
Kirby, the Edgewood Independent School District.
n316 Cases that have declared school financing systems unconstitutional include
DuPree v Alma School District No 30, 279 Ark 340, 651 SW2d 90, 91-92 (1983);
Serrano v Priest, 5 Cal 3d 584, 96 Cal Rptr 601, 487 P2d 1241 (1971);
Horton v Meskill, 172 Conn 615, 376 A2d 359, 374-75 (1977);
Rose v Council for Better Educ., 790 SW2d 186 (Ky 1989);
Helena Elementary School v State, 236 Mont 44, 769 P2d 684 (1989);
Abbott v Burke, 119 NJ 287, 575 A2d 359 (1990);
Carrollton-Farmers Branch Independent School District v Edgewood Independent School District, 826 SW2d 489, 500-14 (Tex 1992);
Seattle School District No 1 v State, 90 Wash 2d 476, 585 P2d 71, 76-77 (1978);
Pauley v Kelly, 162 W Va 672, 255 SE2d 859 (1979);
Washakie County School District v Herschler, 606 P2d 310 (Wyo 1980). Those that have rejected constitutional challenges include
Shofstall v Hollins, 110 Ariz 88, 515 P2d 590 (1973);
Lujan v Colorado State Bd. of Educ., 649 P2d 1005 (Colo 1982);
Thompson v Engelking, 96 Idaho 793, 537 P2d 635 (1975);
Hornbeck v Somerset County Bd. of Education, 295 Md 597, 458 A2d 758 (1983);
Board of Education, Levittown Union Free School Dist. v Nyquist, 57 NY2d 27, 453 NYS2d 643, 439 NE2d 359 (1982);
Board of Education v Walter, 58 Ohio St 2d 368, 390 NE2d 813 (1979);
Fair School Finance Council v State, 746 P2d 1135 (Okla 1987);
Olsen v State, 276 Or 9, 554 P2d 139 (1976);
Danson v Casey, 484 Pa 415, 399 A2d 360 (1979);
Kukor v Grover, 148 Wis 2d 469, 436 NW2d 568 (1989). The literature on school financing is enormous. See, for example, the works
collected in Annotation,
Validity of Basing Public School Financing System on Local Property Taxes,
41 ALR3d 1220 (1972), and in Frug,
Local Government Law at 522-23 (cited in note 31). See also Neuman,
135 U Pa L Rev at 372-82 (cited in note 3); Richard Briffault,
The Role of Local Control in School Finance Reform,
24 Conn L Rev 773 (1992).
Edgewood Independent School District v Kirby, 1991 Tex LEXIS 21 *5,
34 Tex Sup J 368 (Feb 25, 1991).
n318 See, for example,
Rose, 790 SW2d at 211-12;
Abbott, 575 A2d at 410;
Helena Elementary School District, 769 P2d at 690-91. Even district power equalizing -- the influential proposal for school finance
reform advanced by John E. Coons, William H. Clune III, and Stephen D. Sugarman
Private Wealth and Public Education 200-42 (Harvard, 1970) -- continued to allow residency to play a central
ingredient in public school financing. See Briffault,
24 Conn L Rev at 776 (cited in note 316).
n319 See Christopher Alexander,
A City is Not a Tree, 1/2 Zone 129, 144 (1986). Compare Felicity Barringer,
Hire City Poor in the Suburbs, a Report Urges, NY Times D18 (Dec 4, 1992) (discussing Urban Institute report urging
subsidized transportation between city and suburb), with Catherine Sullivan,
Mayor Decries Post Mall Plan, New Haven Register 1 (Nov 10, 1992) (New Haven struggling against the
expansion of suburban mall).
n320 See generally Logan and Molotch,
Urban Fortunes (cited in note 44).
Matthews v Bay Head Improvement Association, 95 NJ 306, 471 A2d 355, 360-66 (1984).
n322 See, for example, Stewart E. Sterk,
Competition Among Municipalities as a Constraint on Land Use Exactions,
45 Vand L Rev 831 (1992); Vicki Been,
"Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional
91 Colum L Rev 473 (1991); James E. Frank and Robert M. Rhodes, eds,
Development Exactions (Planners, 1987).
n323 Of course, a developer might seek to shop among regions until he finds one
that would not impose such an exaction. But regions could protect themselves
from such an exercise of power through inter-regional cooperation. See Frug,
19 Urban Law 553 (cited in note 92).
n324 See, for example,
Dean Milk Co. v City of Madison, 340 US 349, 354-56 (1951).
Holt Civic Club, 439 US at 82 (Brennan dissenting).
n326 See note 250 and accompanying text.
Edge City at 200 (cited in note 251).
n328 A postmodern subjectivity provides regions with no more definite a boundary
than cities or suburbs. Nevertheless, as long as voting areas remain defined in
territorial terms, I suspect that most votes in local elections will be cast by
voters within their own metropolitan area. Occasional local issues (gay rights)
may well attract voters from around the country, but interest in most local
issues is likely to remain local.
n329 For an analysis of this form of proportional representation as well as others,
The Constitutional Imperative of Proportional Representation,
94 Yale L J 163 (1984). For a discussion of the impact of
"proportionate interest representation" on black electoral success, see Lani Guinier,
The Triumph of Tokenism: The Voting Rights Act and the Theory of Black
89 Mich L Rev 1077 (1991). For an argument that lottery voting would be preferable to proportional
representation, see Note,
Choosing Representatives by Lottery Voting,
93 Yale L J 1283 (1984) (Akhil Amar was the student author).
n330 See text accompanying note 281.
Ortiz v Hernandez Colon, 385 F Supp 111, 113-14 (D PR 1974), vacated as moot,
429 US 1031 (1977).
Ortiz held the voting scheme unconstitutional, but a principal defect of the scheme
was that the people who were to represent the non-residents of San Juan were
not elected but were appointed by the Governor (only those living in Puerto
Rico were to be represented).
Id at 118-19.
395 US 621 (1969).
Id at 630.
Fumarolo v Chicago Board of Ed., 142 Ill 2d 54, 566 NE2d 1283 (1990), the Supreme Court of Illinois held unconstitutional the Chicago School Reform
Act, which had created ten-member local school councils for each grammar and
high school in the Chicago public school system. The elected members of the
councils, which had significant powers over school policy, included six parents
of currently enrolled students elected by the parents, two area residents
elected by the area residents, and two teachers elected by the school staff.
Kramer, 395 US 621, the court held that, by giving parents the decisive voice in school policy,
the Reform Act unconstitutionally diluted the interest of other potential
"The Act plainly gives certain voters who may have little or no interest in the
local school a weighted vote,
e.g., a parent who has left the family and has no significant contact with or
interest in the child, the community or its local school, while significantly
limiting the weight of the vote of a section of the community that may have a
strong interest in the school,
e.g., property owners concerned with the value of their property and families with
children of preschool age."
566 NE2d at 1300. This reasoning is not only in considerable tension with the argument for local
control advanced in
Rodriguez, 411 US at 49-50, (see note 315 and accompanying text), but would undermine the rationale for
any residency-controlled school system once the arbitrariness of the
resident/non-resident distinction is recognized.
n335 Although a residency requirement is constitutionally permissible, see Tribe,
American Constitutional Law
§ 13-12 at 1088-91 (cited in note 59), it does not follow that limiting the
franchise to residents is constitutionally required. After all, including
non-residents in the voting pool would still allow all eligible voters to have
an equal (one person, one vote) voice in the electoral process. Thus a
locality's decision to include summer residents in the franchise has been held
Glisson v Mayor of Savannah Beach, 346 F2d 135, 136-37 (5th Cir 1965), although the decision was made before
Avery v Midland County, 390 US 474 (1968), applied the
"one person, one vote" standard to localities (but after
Reynolds v Sims, 377 US 533 (1964), established the
"one person, one vote" constitutional standard). Compare
Brown v Board of Commissioners of the City of Chattanooga, 722 F Supp 380, 397-400 (E D Tenn 1989) (agreeing with
Glisson but rejecting Chattanooga's inclusion of non-resident property owners in the
city franchise on the grounds that its definition of property owners was
unacceptable). See also
Bjornestad v Hulse, 229 Cal App 3d 1568, 281 Cal Rptr 548 (1991) (approving non-resident voting in the election of a water district's board of
directors, and reviewing earlier cases approving the inclusion of town
residents in the voting pool for county school officials).
n336 See, for example, US Bureau of Census,
Governmental Organization, 1 Census of Governments x-xiii (1982); works cited in note 192.
n337 Frug, 40 Toronto L J at 577-79 (cited in note 11).
Postmodernist Fiction at 9-10 (cited in note 246).
n339 David Osborne and Ted Gaebler,
Reinventing Government: How the Entrepreneurial Spirit is Transforming the
Public Sector (Addison-Wesley, 1992).
n340 See Frug,
40 U Toronto L J at 563-66 (cited in note 11); Frug, 1984 Am Bar Found Res J at 687-91 (cited in note
93 Harv L Rev at 1128, 1150 (cited in note 11).
Ecstasy of Communication at 133 (cited in note 245). See text accompanying note 245 for a larger quote.
n343 See text accompanying notes 209-20.
n344 See, for example, Jameson,
Postmodernism at 6-16 (cited in note 241).
n345 For an analysis of the importance of congestion, landmarks, and a sense of
place in urban life, see Lynch,
Image of the City (cited in note 277); Whyte,
City (cited in note 179). For a discussion of Los Angeles in these terms, see
Image of the City at 32-43 (cited in note 277); Fishman,
Bourgeois Utopias at 155-81 (cited in note 8) (Los Angeles has
"its own novel form: decentralized congestion," id at 157).
n346 For example, Michael Sandel argues for the situated self when he discusses
individuals, but he uses the language of the centered subject when he argues
for local control for communities. See Michael J. Sandel,
Democrats and Community: A Public Philosophy for American Liberalism, New Republic 20 (Feb 22, 1988).
n347 For efforts to articulate a postmodern idea of community, see Sennett,
Conscience of the Eye (cited in note 146); Jean-Luc Nancy,
The Inoperative Community (Minnesota, 1991); Miami Theory Collective, ed,
Community at Loose Ends (Minnesota, 1991); Drucilla Cornell,
The Poststructuralist Challenge to the Ideal of Community,
8 Cardozo L Rev 989 (1987); Ernesto Laclau and Chantal Mouffe,
Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (Verso, 1985). For the literature on Los Angeles, see works cited in note 283.
On Las Vegas, see, Robert Venturi, Denise Scott Brown, and Steven Izenour,
Learning From Las Vegas (MIT, 1977). On Disneyland -- a central image in postmodern writing -- see,
for example, Baudrillard,
Simulations at 23-26 (cited in note 12); Michael Sorkin,
See You in Disneyland, in Sorkin, ed,
Variations on a Theme Park at 205 (cited in note 141). For an alternative reading of Disneyland --
offering it as an example of the coherence of a Western urban identity -- see
John M. Findlay,
Magic Lands: Western Cityscapes and American Culture After 1940 52-116 (California, 1992).
n348 Gerald E. Frug,
Cities and Homeowners Associations: A Reply,
130 U Pa L Rev 1589, 1599 (1982); Frug,
93 Harv L Rev at 1068 (cited in note 11).
n349 For example, in my emphasis on the differences within, not between, cities and
suburbs. See text accompanying note 181.
n350 See, for example, Section III.C.
n351 See Jerry Frug,
Argument as Character,
40 Stan L Rev 869 (1988).
n352 Italo Calvino,
Invisible Cities 32-33 (Harcourt, 1974).
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes