University of Pennsylvania Law Review
Copyright (c) The Trustees of The University of Pennsylvania 1997.
University of Pennsylvania
145 U. Pa. L. Rev. 607
LENGTH: 33200 words
ARTICLE: COLLECTIVE INDIVIDUALISM: DECONSTRUCTING THE LEGAL CITY
Georgette C. Poindexter *
* Citibank Term Assistant Professor of Real Estate and Legal Studies, Wharton
School, University of Pennsylvania; Assistant Professor of Law, University of
Pennsylvania Law School. Thanks to the Annenberg Dubois Policy Fellowship and
to the Wharton Real Estate Center for financial support of this research. The
author thanks Regina Austin, Richard Briffault, Tom Dunfee, Susan Friewald,
Peter Linneman, Ken Shropshire and Bill Tyson for their very helpful comments
on an earlier draft. Thanks also to the participants in the Legal Studies/Real
Estate Brown Bag discussions. Thanks to
Jerry Frug and Alan Strudler for helpful discussions on this project. Of course, any
errors remaining are solely mine.
... The emphasis has been on the law's role in justifying, defending and
criticizing existing local government. ... Such a redistribution would be
region-wide - not the more commonly feared suburb-to-city flow of money. ...
When a consumer chooses among an array of local government choices she makes
more than a political or economic choice. ... In the same vein, a municipality
cannot secede if such a secession abridges a citizen's fundamental rights. ...
For societal good, the individual choice of racial prejudice must be sacrificed
insofar as it becomes the collective behavior of housing discrimination. ...
The insistence on preserving present local boundary lines to define local
government is, in fact, more arbitrary and circular than reliance on
self-definition. ... The externalities of secession are not internalized and
will be borne by those outside the new political neighborhood. ... If mutual
advantage and reciprocity in society convince the well-off to participate in a
regional wealth redistribution scheme (or at least justify such participation),
why not merely impose this requirement within the present state of local
government? Why should we tear down the present state and rebuild along the
parameters of a political neighborhood? Or, alternatively, if there is such a
societal cooperative requirement, why not erase all local boundaries and meld
into one big regional government? ...
The true meaning of the word
"City" has been almost entirely lost by the moderns, most of whom think that a Town
and a City are identical, and that to be a Burgess is the same thing as to be a
Citizen. They do not know that houses may make a town, but that only citizens
can make a City.
The dialogue begun by Professor Gerald Frug
n2 and taken up in many subsequent articles,
n3 invites us to construct the Legal City. In
[*609] these works the city as a legal entity is viewed either vis-a-vis its
inhabitants or in relation to higher forms of government. The emphasis has been
on the law's role in justifying, defending and criticizing existing local
I propose that we deconstruct the Legal City and view the existence of the
city, in fact all of local government, as a manifestation of revealed choice
based on the collective individualism of its citizens. I define collective
individualism as spatially delineated individual expressions of self that are
aggregated into community definition. Instead of beginning with a legal
structure - local government - to explain economic results (such as income
disparities between cities and suburbs), we need to begin with economic
realities (such as people searching for their ideal local community), and craft
legal structures to support these realities. We need to validate consumers'
individualism and revealed choice by dissolving legal impediments to the full
and free expression of their choice.
Economic, legal and social agendas compel the deconstruction of the Legal
City. On the legal front, municipal government is, and historically has been,
of uncertain status.
n4 Its status is indeterminate due, in no small part, to competing and
diametrically opposed views of the source of local legal power. Is the city
autonomous or a mere arm of the state? Until we peel back the layers of
doctrine imposed by these conflicting ideas of municipal government to expose
the true nature of local government power - which, I submit, is premised on the
power of the collective individual - the legal status of the city will continue
Deconstruction of the Legal City is further necessitated by harsh economic
reality. Problems of poverty, crime and social welfare of urban centers
continue to occupy the domestic agenda of the United States. However, as the
population (most notably the middle-income population) shifts away from the
city to the suburbs, the economic ability to rectify city-centered problems
often lies in the hands of those people least likely to live in the city.
n5 Increasingly, regional economic power has moved to the suburbs while regional
social problems have remained in the city. The result is a seemingly
never-ending search for
[*610] legal methods that permit city leaders to tap suburban wallets to solve inner
Finally, we must confront the problem of determining the social morality of a
political community, such as a city. In a nation founded and premised upon an
exaltation of heterogeneity, is there room for validation of homogeneity?
Deconstruction of the Legal City based on collective individualism may push
counter to the almost sacrosanct social goals of racial and ethnic integration
n6 and inclusionary zoning.
n7 Although a frank discussion of the legitimacy of these goals may be
politically difficult, blind acceptance of these goals without debate produces
a political structure with the weakest of normative underpinnings. The moral
goals of the creation of a political community should not be assumed.
The starting point for deconstruction is a critical examination of demographic
facts. The massive middle class shift to the suburbs and away from the city is
a most certain reality. Calls for regional governance, once in vogue,
n8 have reappeared.
n9 However, whether due to myopia or to calculated disregard for the reality of
America's shift to the suburbs, advocates of regionalism fail to see the
obvious: America's middle class has left the city for the suburbs. This exodus
exhibits a revealed preference for life outside the city. Suburbanites view
calls for regional government as thinly veiled ruses for sucking them (and
their wallets) back into the system from which they fled. Regional government
does not question whether the present system of local government meets the
needs of modern political society. In fact, it does just the opposite. Although
regional government may respond to problems of transportation and revenue
sharing, it does not respond to the critical
[*611] need for an economic, political or social basis for creation of a political
Instead of fighting the strong current of revealed consumer preference, we
should use that preference as the basis for empowering local government. That
which strengthens revealed choice will be implemented. That which impedes the
quest for individualism will be discarded. Instead of attempting to convince
those who have left the city (both businesses and residents) that it is in
their best interest to care about the city that they left behind, the law
should validate their locational decisions by strengthening the independence of
individual communities. A region's citizens cannot be melted into one big
regional pot without ignoring the differing mixes of taxes, services and social
desires of individuals within the region.
This argument, however, is not a wholesale adoption of Charles Tiebout's
theory of public choice.
n10 The fragmentation of local government produces significant externalities that
cannot be assumed away. Just as calls for regionalism are myopic, sole reliance
on individual choice ignores the accompanying externalities. Acknowledging the
middle-class move to the suburbs as a revealed preference does not help solve
the problem of poverty left behind in the cities. For that we must fashion a
mechanism that internalizes the externalities.
I propose that the Legal City be dismantled in two stages. First, remove the
barriers to expression of individual choice to allow all residents the
opportunity to create the community that they desire. Neighborhoods would be
free to secede from their existing jurisdiction without externally imposed
limitations so as to form the community that they seek. It is here that we must
confront the social and moral limitations on community selection. To what
extent should a community be allowed to
"define" itself? Is economic segregation permissible but racial and ethnic
discrimination impermissible? The answer lies in the discovery of community
hypernorms that will serve as the moral compass for community formation.
Hypernorms are those normative values so fundamental to human existence that
they have universal application.
There will, however, be people who have neither the political savvy nor the
economic independence to declare their freedom from City Hall. By default, and
by choice, some neighborhoods will remain
[*612] within the geographic and political boundaries of what was once the
"city." To address the externalities associated with such legal dissection, the second
part of the deconstruction sets up an intermediate tier of local government to
engage solely in wealth redistribution. Such a redistribution would be
region-wide - not the more commonly feared suburb-to-city flow of money.
Part I of this Article introduces the concept of American consumers' revealed
preference for the suburbs. It explores the stylized fact that Americans, in
general, prefer the suburbs to the city. This Part explores the reasons why
suburbs are growing in population while the central cities are shrinking. Part
II discusses the ways in which the present system of local government law
affects this revealed preference of community choice by building walls between
the city and its suburbs while simultaneously rejecting local attempts at
economic and political isolation. In Part III, the moral and normative bases of
community are analyzed to shape a working model of community values. Part IV
synthesizes the preceding discussion by exploring ways to restructure American
local government in an attempt to combine a validation of collective
individualism with a legitimate normative base, while creating a wealth
redistribution plan that would benefit the entire region. Part V concludes the
discussion by fitting the new model within the confines of political reality
and social justice.
Revealed Preference Transformed into Stylized Fact
Do what you may, there is no true power among men except in the free union of
- Alexis de Tocqueville
The shift of America's population away from the city and to the suburbs is a
n12 Although it is beyond the scope of this discussion
[*613] to prove this fact statistically, some numbers are in order to convince the
nonbeliever. In 1940, over one-half of Americans lived in rural areas; more
than twice as many lived in the central cities of metropolitan areas as lived
in the suburbs.
n13 By 1970, the suburbs had surged ahead and, for the first time, had a greater
population than either the cities or rural areas.
n14 The suburban steam engine continues to roll. We have entered the
"suburban century" in politics,
n15 when almost half of the American population now lives in the suburbs.
Relative loss of population to the suburbs is not solely a problem of the
nation's largest cities. Overall population density in America's 522 central
cities has declined from 5,873 persons per square mile in 1950 to 2,937 persons
per square mile in 1990.
n16 In 1950, there were thirty-eight cities with population density greater than
10,000 or more persons per square mile. By 1990, there were only fifteen cities
that were that dense.
If the nonbeliever is still not convinced of the stylized fact of America's
move to the suburbs, a quick check of regional dominance should persuade her.
In the 1950s, fifty-seven percent of people residing in major metropolitan
areas lived in the central city and forty-three percent lived in the suburbs.
n18 By 1990, however, the city's share of the metropolitan population plummeted to
thirty-seven percent and the suburban share increased to sixty-three percent.
Although the shift away from the city to the suburbs can easily be seen
statistically, understanding the economic, political, legal and social
ramifications requires a more in-depth analysis. Statistics describe how the
population shifts; what is missing is the why.
An economic explanation for the shift to the suburbs follows from
[*614] the work of Charles Tiebout.
n20 Simply stated, the Tiebout hypothesis contends that a consumer searches within
the region for the municipality that best satisfies her optimal mix of services
n21 Just as a consumer chooses between supermarkets based on service and price, so
does she choose among municipalities. Spatial mobility - the ability to move
one's residence - provides the local public-goods corollary to the
"There is no way in which the consumer can avoid revealing his preferences in a
Although perhaps valid in other situations, criticisms of the Tiebout model
(such as informational barriers, assumption of cost-neutral choice and absence
of racial/ethnic barriers)
n24 are inapplicable in the present context. Application of the Tiebout hypothesis
here only requires comparison between the city and its suburbs - not among
suburbs themselves. Individual suburbs are fungible in a city-versus-suburbs
decision tree. Reduction of the decision tree to two branches, however, should
not obliterate the impact of local government fragmentation on revealed choice.
Although our consumer is choosing between the city and suburbs, her choice is
enhanced by the existence of
[*615] several varied local governments from which she may pick.
Empirical data, in fact, bear out the Tiebout hypothesis. Consumers do choose
between the city and the suburbs based upon a bundle of taxes and services.
Middle-class migration between the city and the suburbs is significantly
related to two salient differences between city and suburbs: (1) taxes and (2)
spending for education.
n26 In effect, a consumer's move to the suburbs is a revealed preference for that
community's bundle of goods and services. To place this theory in context, the
movement to the suburbs shows that consumers are not buying what the city has
to offer. Being rational economic customers, they are buying the product that
best serves their needs; that product just happens to be located in the
suburbs. Suburban governments compete for citizens who contribute more in taxes
than they consume in services to maintain this competitive advantage.
Revealed preference is premised upon consumers' rational choice between
alternatives, a choice that is based on welfare maximization. Paul Samuelson's
"Weak Axiom of Revealed Preference" states that
"if an individual selects batch one over batch two, he does not at the same time
select two over one."
n27 In other words, selection of one location is a rejection of all other
locations. In choosing a location, the consumer reveals her preference for that
n28 This choice, though, is made
[*616] as a result of consumers' attempts to maximize wealth.
n29 It is fundamental that, if given a choice, a consumer
"selects the alternative which yields the greatest welfare."
The economic explanation presents the consumer with a choice between living in
the city and living in the suburbs. Leaving aside the myriad of choices among
suburbs, the consumer will compare the economic advantages and disadvantages of
the suburbs with those of the city in an attempt to maximize her wealth.
Because cities are generally burdened with higher taxes, older infrastructure
and weaker services (especially public education), the rational (and
economically independent) consumer will choose the suburbs.
The political impetus for the move to the suburbs may be the desire to have a
meaningful voice in participatory democracy. A citizen must count herself as a
consensual member of the community if democracy, based on majority rule, is
truly to exist. As Rousseau stated:
The undertakings which bind us to the Commonwealth are obligatory only because
they are mutual.... For how can the general will be always right, and how can
all constantly will the happiness of each, if every single individual does not
include himself in that word each, so that in voting for the general interest
he may feel that he is voting for his own?
To borrow Hannah Arendt's idea of freedom, local government responds to a
"to participate actively in the basic societal
[*617] decisions that affect one's life."
n33 At the risk of
"mobilizing resonant Jeffersonian imagery,"
n34 the need to find meaningful participation in the political process underlies
the very existence of a democratic government.
n35 The smaller the political community, the more likely a resident will see an
impact of her political voice. Furthermore, the greater impact a resident feels
her voice has, the more likely she will be to use it.
In her desire to have an impact, a consumer looks for a government where her
political voice will not be drowned in a sea of dissent. She seeks smaller and
more homogeneous political communities. At some point, the size of local
governments may dip below the minimum size capable of providing all the
n37 Size of community, however, is not only an outcome of the consumer's choice,
but also a factor in that choice. A consumer looks for political impact, but
there is also an implicit willingness to trade personal political power for the
desired mix of services.
Political motivations, however, go beyond a romantic view of participatory
democracy. A real division of governmental power throughout communities in the
"may contribute to the fundamental objectives of a modern democratic state" including
"liberty, equality and welfare."
n38 Some commentators contend that smaller governments
[*618] function more efficiently.
n39 The benefit for the consumer, though, is not solely an economic consideration.
In her quest for the ideal government, a consumer considers the manner in which
government functions. She looks for a government where the decisions will be
predictable and orderly. Instead of the normative
"should" inquiry of democratic ideals and political participation, the consumer's
functional analysis focuses on the instrumental
Such a functional analysis of local government is certainly not new.
n40 Functional analysis, however, permits us to analyze local government choice
not only as choice between political goals but also as choice between political
systems. Governmental structure is not an incidental by-product of local
government. Just as procedural and substantive law are crucial to litigation,
so too are structure and policy central to choice of a political community. Is
the structure removed from the people (e.g., strong mayor)? Is power diffuse
(e.g., weak mayor with strong local council)? The mode of government is as
important as the manner.
The political impetus behind the shift to the suburbs can thus be traced to
the search for a meaningful voice in the political process. The consumer can
feel the importance of her voice satisfying the desire for political impact and
participation. Furthermore, the functional structure of the government matters.
In contrast to the hulking bureaucracy of many large city governments, suburban
governments are smaller and, perhaps, more personal. The political explanation
for the shift to the suburbs rests on the consumer's pursuit of these two goals.
Scholars cite many social factors behind the move to the suburbs,
[*619] including racial strife,
n41 housing styles,
n42 proximity to work via new interstate highways
n43 and government-subsidized mortgages.
n44 These social motivations inject the serendipity of human nature and
personality into our discussion. When a consumer chooses among an array of
local government choices she makes more than a political or economic choice.
The consumer chooses a lifestyle and gives in to the natural human tendency
toward social factionalization. David Hume, the Scottish philosopher, discussed
the natural tendency for humans to separate into factions:
"Men have such a propensity to divide into personal factions that the smallest
appearance of real difference will produce them."
The social consequence of choice is that communities
"possess[ ] a moral as well as a physical organization, and these two mutually
interact in characteristic ways to mold and modify [each other]."
n46 If community
[*620] is our
"bulwark against all sorts of alien influences, a sort of security perimeter,"
n47 then our revealed choice is as much about where we want to be as where we do
not want to be.
Why, socially, have Americans chosen the suburbs? The quick answer is tied to
n49 Social relations are inevitably correlated with spatial relations.
n50 Because spatial relations in this country have historically been limited by
race and ethnicity,
n51 social motivations are imbued with the patina of racial/ethnic exclusion.
Hence, a superficial discussion of social motivation leaves much to be desired.
Social motivation can imply an element of exclusion that is quite unsettling in
a society purportedly striving toward pluralism.
However, the quick answer is not necessarily the complete answer. Although
certainly neither denying nor discounting America's history of racial and
ethnic housing discrimination,
n52 I submit that our analysis cannot stop at
"white flight." Historically, planners and architects attempted to create communities built
upon strengthening social relationships.
n53 The ascent of the neotraditional planning movement, with its shared open space
and front porches, signals a desire to reconnect
[*621] with our surroundings.
The move to the suburbs is an attempt to find a comfortable social situation.
n55 Call it the
"good life" or the
"clean life," people are looking for the house with the yard in a safe neighborhood.
n56 Parents' concern for the health and safety of their children motivates them to
move to the suburbs. As one urban planner has noted:
Children are like the canaries in the coal mine: an indicator species of urban
health. Children are small and vulnerable and need to be protected. If a city
lacks children, then it is because parents have assessed the environment and
have decided...to remove to a safer place. But where parents won't raise
children, we might all hesitate to live, for such a place presents an
environment uncomfortable, noisy, and dangerous.
Suburban Shift as Self-Definition in the Creation of the Collective Individual
Community choice, then, depends on: (1) affordable services; (2) a government
in which an individual has a voice and that functions according to expectation;
and (3) a community in which the consumer feels socially comfortable. In
effect, revealed preference is intimately bound up with the search for self.
Our economic, political and social motivations for seeking community are all
related to finding geographic and spatial harmony with ourselves. We need to
connect with our surroundings in order to validate and secure ourselves. The
sociocentric side of our development requires that we belong to a community,
[*622] while our egocentric side demands that this community conform with our
definition of self.
n58 Although there may be a tendency to use government at all levels to define the
n59 local governments, through the existence of choice, allow for the fullest
expression of self.
A word of caution is in order. We should be careful not to confuse the
community's definition of the individual with the individual's definition of
n61 Community definition is the sum of the aggregate individual self-definitions.
It changes with the residents of the community. As the community attracts
residents, these individuals define the community.
n62 Only by first analyzing the process of individual self-definition can we then
explore that of community self-definition. The power of definition rests with
the individual; the community is but a reflection of its residents'
Professor Briffault argues that localism exists when
"the interests of local residents [are] the exclusive desideratum of local
n63 He further states that localism
"leads to an association of the locality
[*623] with individual autonomy."
n64 These definitions put the relevance of the distinction between individual and
community decisionmaking into focus. The
"community," standing alone, is powerless. It derives its power from the individuals who
reside within it.
n65 Hence, the community is a collective individual. The power and limitations of
the collective individual constitute the power of the community.
The idea of the community as a collective individual rejects the top-down
definition of an inhabitant through her community. For example, during common
cocktail chit-chat we often pose the question: Where do you live? The response
to the question (city or suburbs, rich neighborhood or poor) defines the
respondent. We rarely discover if the individual really is rich or poor; we
simply make assumptions based upon her residence. This spatial definition of
the individual also occurs in government policymaking. For example, the federal
government through its agency, The Home Owners' Loan Corporation, red lined
"Red lining" describes the arbitrary denial of loans in certain neighborhoods on the basis
of assumptions about the quality of the neighborhood rather than the
creditworthiness of the applicant or the nature of the property.
n66 Although loan applicants may have been creditworthy, banks and federal
agencies made assumptions about them based upon their neighborhood, preventing
Viewing the community as a collective individual, by contrast, is a bottom-up
approach. The community is an agglomeration of individuals. Self-definition of
individual inhabitants comes first. The sum of these self-definitions then
defines the community. Collective individualism questions our assumption that
spatial identity is a proxy for individual identity. To be sure, since people
search for themselves in their community, there will continue to be some
overlap between community and individual definitions. However, freedom from the
strictures of spatial identity allows us to rethink the basis of local
government power. Instead of asking what is the power of the community, we need
to ask what is the power of the individual, for the power of the collective
individual is the power of the community.
The Molding of Political Power Around the Collective Individual
As Cato concluded every speech with the words, Carthago delenda est, so do I
every opinion, with the injunction
"divide the counties into wards."
"politics of [local government] boundary creation are uniquely American."
n69 In the United States, local governments control the delineation of boundaries.
n70 In contrast,
"in the United Kingdom, communities wishing to incorporate must petition an
agency of national government."
n71 Alexis de Tocqueville traced this desire for decentralized government to our
historical pre-Revolutionary equality among citizens.
n72 In a society where revolution is preceded by a relatively egalitarian state,
there is a desire for more decentralized government. In contrast, people who
have had to struggle for equality prefer a centralized government because a
strong central government prevents
[*625] a transfer of power to the elite.
The fracturing of local government is a basic concept in American government.
Indeed, since the time of the Founding Fathers there has been a search for the
optimally sized government for the American people. Because of this distrust of
centralized government, Jefferson sought
"not to trust it all to one, but to divide it among the many, distributing to
everyone exactly the functions he is competent to."
n74 Jefferson's goal was to
"dissolve[ ] [government] into the unity of society....[by] republicanism,
decentralization, and specialization."
n75 In an attempt to bring government to the people, Jefferson's political wards
would form a direct attachment between citizens and their governments and would
"attach [the citizen] by his strongest feelings to the independence of his
country, and its republican constitution."
The present fractured state of local government, then, should come as no
surprise. Its creation was not happenstance,
n77 but rather a deliberate attempt to empower the individual. Perhaps the
question of the validity of such fracturing can be explained by exploring the
notion that local government, while seeking to protect the individual from the
state is, in fact, itself created by the state. Professor Frug calls this
relationship among localities, individuals and the state the
"principal puzzle confronted by liberal theorists":
"Cities were partly creations of the state, yet they were also partly creations
of the individuals who lived
[*626] within them."
n79 The tension in empowering local government is that such power is always at the
will of the state, not at the will of the people as a romantic Jeffersonian
view presumes. Where local government has been empowered, it has been by action
of the state.
However, we cannot simply rely on the notion that
"municipal corporations are political subdivisions of the State, created as
convenient agencies for exercising such of the governmental powers of the State
as may be entrusted to them."
n81 Municipalities are more than governmental units. Local governments, by
creating easily recognizable boundaries within a region, serve as proxies for
socioeconomic status, race, lifestyle. They are no more mere subdivisions of
the state than children are mere subdivisions of their parents. Admittedly, in
both instances the superior being has the ability to force the inferior being
to act against the inferior's wishes. The inferior being, however, still
possesses its own identity independent of the superior being.
The law sometimes chooses to hang municipal power on this independent spirit
of local governments. In areas where individuality is encouraged, local
governments are empowered. These are the areas such as
"home and family" and
n82 where a distinct local identity is formulated.
n83 This identity, in turn, distinguishes one locale from
[*627] another, even though they are in the same state.
"Political boundaries are manifestations of the widespread recognition of place,
a spatial unit with its own identity, separate and recognizable from other
The independence of local government, however, is not unlimited. Local
governments - themselves distinct political entities - coexist with other local
governments in the region and the state.
n85 Furthermore, although the state law respects the independence of local
government, it limits this independence when it conflicts with state goals. The
tension between the independence of local government and state intrusions upon
that independence parallels the tension between the independence of individuals
and state intrusions upon individual autonomy.
In order to gain a clearer understanding of the power of local governments we
should compare instances in which the courts have upheld the independence of
local government with those in which courts have disregarded local government
boundaries. Polar definitions or concepts are of little value when attempting
to find a practical, workable solution. To state that localism
"leads to an association of the locality with individual autonomy"
n87 does not determine at what point autonomy works for the good of all. Likewise,
"Dillon's Rule," which states that local governments have only those powers that are
[*628] granted by constitution or statute, or that arise by implication from an
express grant of power,
n88 gives no guidance as to the breadth and depth of such power. By comparing
instances of state power respecting local autonomy and individuality with
examples of state power suppressing such individuality, we begin to cut a finer
definition of the power of local governments and their place in political
n89 I will examine three areas in which this tension has existed: 1) imposition of
inter-local remedies, 2) manipulation of municipal boundaries, and 3) voting
Housing vs. Schools: Gautreaux, Milliken and Their Progeny
Both housing and schools invoke notions of community spirit, home and family.
If the power of local boundaries were centered solely on a Rockwellian ideal,
then local boundaries would be respected in both areas. The state, however, has
a clear interest in both housing and schools that could trample local
boundaries in both instances. How, then, have the courts treated the existence
of local boundaries in these two situations?
Hills v. Gautreaux
n90 and Milliken v. Bradley
n91 addressed the racial and economic externalities brought about by
"white flight" from the city to the suburbs. In Gautreaux, black tenants and applicants for
Chicago public housing claimed that the Chicago Housing Authority ("CHA") and the United States Department of Housing and Urban Development ("HUD") were guilty of racial discrimination in public housing. They sought a
metropolitan-wide remedy to the discriminatory placement of public housing
n92 In Milliken, parents of black school children in Detroit claimed that the
Detroit public school system was racially segregated. They likewise sought a
[*629] to open suburban schools to city children.
n93 In Gautreaux, the United States Supreme Court held that a metropolitan-wide
remedy was appropriate.
n94 In Milliken, the Court ruled that such a remedy was inappropriate.
The divergent remedies applied in these two cases are not grounded in whether
local boundaries may be ignored when someone's constitutional rights have been
infringed. Both cases clearly held that local boundaries
"may be bridged where there has been a constitutional violation"
n96 and that such lines are
"not sacrosanct and if they conflict with the Fourteenth Amendment federal
courts have a duty to prescribe appropriate remedies."
n97 Rather, the difference lay in who committed the constitutional violation and
to whom the remedy was addressed.
In the housing case, the defendants (HUD and CHA) created the racial
n99 In response, the Court ordered HUD and CHA to disregard local boundaries.
n100 In the education case, the Court found no evidence that the suburban school
district defendants had created the racial discrimination.
n101 As a result, the Court declined to approve a metropolitan-wide remedy
"that would reach beyond the limits of the city of Detroit to correct a
constitutional violation found to have occurred solely within that city."
Note that even though the state of Michigan controlled the school districts,
the Milliken Court rejected the reasoning of the Court of Appeals
[*630] that such control, coupled with de jure acts of discrimination by the state of
Michigan, was enough to warrant implementation of a metropolitan-wide remedy.
n103 The Court required an interdistrict violation to justify an interdistrict
remedy. As the Court stated in Gautreaux:
The District Court's desegregation order in Milliken was held to be an
impermissible remedy not because it envisioned relief against a wrongdoer
extending beyond the city in which the violation occurred but because it
contemplated a judicial decree restructuring the operation of local
governmental entities that were not implicated in any constitutional violation.
This principle that discriminatory acts control the availability of a regional
remedy remains the bright-line rule. Where school district boundaries are drawn
for the purpose of
"aiding and implementing" racial segregation, an interdistrict remedy may be imposed.
n105 In addition, courts will uphold voluntary desegregation agreements that cross
school district boundaries.
n106 However, the constitutional violation will not be inferred; there must be
proof of such violation.
n107 In its most recent ruling on this subject, the Supreme Court held that
"white flight" does not rise to the level of a constitutional violation that will mandate
[*631] an interdistrict remedy.
The distinctions made are clearer if we view local governments as extensions
of the individual. As de Tocqueville noted:
"the township, taken as a whole, and in relation to the central government is
only an individual ...."
n109 The power of local government is no more and no less than the collective power
of the individuals residing in that municipality. The recognition of local
boundaries is premised upon the recognition of the rights of the individual. In
Milliken I, the Court declined to grant a remedy that would force action by
individuals (the suburban school districts) who had committed no constitutional
violations. An individual who has not committed any wrong should not be made to
remedy the wrongs of others.
n110 In contrast, in Gautreaux, the Court ordered the party who had committed the
constitutional violation to remedy the violation. There was no requirement that
non-violating individuals (the suburban municipalities) take affirmative
Annexation and Other Manipulations of Municipal Boundaries
The ability to reify or to mutate municipal boundaries upon the will of the
people is the ultimate form of self-definition. Legal limitations on such
change parallel legal limitations on the ability of the individual to define
herself within both government and society. For example, annexation, with
limited exceptions, can occur only with the consent of those residing in the
area to be annexed.
n112 Just as one individual cannot force another into marriage, one municipality
cannot force another into a merger without consent. The requirement of
voluntary annexation is rooted in principles of self-determination and
[*632] This power of self-determination, however, is only effective as against other
municipalities. Beginning with Hunter v. City of Pittsburgh
n114 and moving forward,
n115 the state has had the power, at its pleasure, to
"expand or contract the territorial area, unite the whole or a part of it with
another municipality, repeal the charter and destroy the corporation."
n116 The municipality's rights as against those of other municipalities are
coextensive with the rights that one individual has against another. A
municipality's rights as against the state (or as against the federal
government) extend only as far as an individual's rights against the state (or
federal government). Like an individual who has no constitutional right to live
in a particular local jurisdiction,
n117 a municipal government has no right to exist if the state decides otherwise.
Furthermore, just as private parties cannot contract to violate the
fundamental rights of another,
n119 two municipalities cannot consolidate with impunity in a way that abridges an
individual's fundamental rights.
n120 The clearest example of a violation of fundamental rights in
[*633] this context is dilution of voting power.
n121 Although not all expansions of municipal borders that dilute the voting power
of particular groups are prohibited, such dilution must be addressed and
n122 To summarize, the rights of the municipality as against the state and federal
government extend no further than the rights of the individual as against the
In the same vein, a municipality cannot secede if such a secession abridges a
citizen's fundamental rights. For example, courts have consistently blocked
racially motivated secession attempts that were undertaken in response to
court-enforced school desegregation efforts.
n123 More recently, the federal judiciary has reiterated its willingness to strike
down a secession bid even if a facially neutral reason is given for the
"the doors to Federal court will be wide open should the political process
ultimately work an unconstitutionally discriminatory result."
n124 The self-determination of local government can go no further
[*634] than that of the individual.
Local Governments and Voting Rights
The law also limits local government self-determination in the context of
disproportionate voting schemes. A local jurisdiction has no
"right" to function as a voting district. The existence of a local boundary will be
disregarded if recognition will result in dilution of voting power.
n125 Furthermore, the Equal Protection Clause requires population equality between
voting districts even in local government elections.
n126 If population deviation between districts is too high then
"historic respect for the integrity of [local] boundaries" falls.
While noting that valid considerations may underlie the
"desire to maintain the integrity of various political subdivisions" (such as municipal and county boundaries),
n128 the Supreme Court has held that political subdivisions of the state are not
n129 Therefore, the overriding objective in state legislative apportionment
"must be substantial equality of population among the various districts, so that
the vote of any citizen is approximately equal in weight to that of any other
"mathematical exactness or precision is hardly a workable constitutional
"deviations from population equality must be justified by legitimate state
n132 Hence, local government boundaries can dissolve in the face of a
As discussed above, the creation of a fractured system of local government
allows citizens an extension of self. This confluence of the individual with
the community likewise empowers local government: the legal position of these
governments is grounded in the legal position of the individual. If we
juxtapose these seemingly inconsistent sources of local government power, we
find at the core one central theory. The true legal power of local government
(unlike state and federal government) is premised upon the notion that its
citizens form one collective individual. If the law treats local government as
"collective individual," is it any surprise that consumers search for that collective individual who
looks, thinks and acts as they do? The collective individual not only composes
the economic, political and social bases of local government power, but also
creates its legal power.
The Collective Individual and Moral Hypernorms
I do not want Negroes in the City of Parma.
Kenneth Kuczma, President of the Parma City Council in 1971
[*636] Having made the case for recasting local government to collections of
individuals, I am uneasy about the whole proposition. Is it sound to permit
"balkanization" of local government to go unchecked by any moral limitations? Taken to its
logical end, the elevation of individual preference to the point of political
and legal power would permit unchecked discrimination on any basis, with the
justification that it was the collective will of the new community. Clearly
there must be some limit on the individual/collective will. The difficulty in
formulating this limitation is that the homogeneity prevalent in local
government limits dissent and the ensuing discourse that would otherwise
challenge moral decisions.
n135 How, then, do we externally impose moral limitations while maintaining
internal freedom of will? The solution to this dilemma calls for a balancing
act. On one side of the scale is the necessity to uphold certain normative
limitations imposed by society outside of the community. On the other side is
the necessity for a community to exclude in order to achieve the goal of
The Legal Ability to Exclude
Exclusion is the antithesis of the popular notion of the principles for which
our country stands. Exclusion, however, defines who we are. Whether such
exclusion is on a national level, as in immigration limitations,
n136 or on a local level, as in segregated residential patterns,
[*637] cannot close our eyes to the existence of legally sanctioned exclusion. Such
exclusion, though, should not be viewed as democratic deficiency, but rather as
"a necessary consequence of a community's process of self-definition."
An all-inclusive community is oxymoronic.
n139 Such an all-inclusive community would be a community without parameters,
boundaries or definition. It would not be a community. Community is based on
commonality, and commonality is the antonym of difference. Exclusion, for all
of its negative connotations to our liberal-thinking minds, is necessary for
the creation of self. After all, we are not only defined by what we are but
also by what we are not. The difficulty in addressing exclusion based on
difference is that ascribing difference is not a value-neutral exercise. As
Professor Minow points out:
"The attribution of difference hides the power of those who classify and of the
institutional arrangements that enshrine one type of person as the norm, and
then treat classifications of difference as inherent and natural while debasing
those defined as different."
The goal, then, is to identify universal norms for regulating exclusion based
on difference. Such
n141 would override the will of the collective community.
n142 Such universally imposed norms are necessitated, not only by obligations of
societal morality, but also by every day reality. As communities are in close
proximity, if not contiguous with each other, there will undoubtedly be
substantial intercommunity relationships. If for no other reason than
n143 overriding norms that apply regardless of geographic location must be
n144 Think of the region expressed as a series of concentric circles with an
individual in the center and the entire region as the outermost ring. As we
move out along the radius, we can expect to find less and less consensus as to
norms because consensus falls as there is more diversity of opinion. However,
strong norms will emerge; these are our hypernorms. The discovery of these
hypernorms will enable us to determine, hypothetically, when and on what basis
exclusion for difference is permitted and when it is prohibited. In essence the
hypernorm will establish the line between decisions that are private and beyond
the scope of governmental intervention and those that are not.
Limitations on the Ability to Exclude
This country has had a long history of racial discrimination.
n146 As a society though, we have moved (albeit in fits and starts) away from the
institutionalized racism of slavery, through state imposed racism of the Jim
Crow era, through tolerance of racism in spheres not implicating fundamental
rights, and finally, to attempts at erasing racism altogether through programs
such as affirmative action and preferential treatment. By analyzing the role of
the law in housing discrimination, a small aspect of the multifaceted problem
of racial discrimination, we can begin to devise when individual decisions to
discriminate must succumb to externally imposed norms of multicultural
inclusion. Housing discrimination cases are well suited to this endeavor
because of the courts' willingness to impose state values on private decisions.
Necessity of State Action
Beginning with Buchanan v. Warley,
n148 the Supreme Court has refused to allow the state to be an active participant
in private housing discrimination. In Buchanan, the Court struck down a city
[*640] that permitted discrimination on the basis of race in the sale or lease of
n149 Relying on its decision in Buchanan, the Court ten years later, had no
difficulty declaring a racially discriminatory town ordinance invalid in the
1927 case of Harmon v. Tyler.
n150 Yet, just one year earlier, in 1926, the Court was unwilling to strike down a
racially restrictive covenant in Corrigan v. Buckley
n151 because the restrictive covenant at issue was a private contract with no state
involvement. The Court dismissed the action for lack of jurisdiction because,
inter alia, it found no constitutional prohibition on
"private individuals...entering into contracts respecting the control and
disposition of their own property."
In 1948, in Hurd v. Hodge
n153 and Shelley v. Kraemer,
n154 the issue at hand was once again a private agreement - a restrictive covenant.
The restrictive covenant ran with the land and prohibited sale of the property
to non-Caucasians. The petitioners sought an injunction to enforce the covenant.
The imposition of state action was not nearly as direct in these cases as it
had been in Buchanan. Instead of the state promulgating a racial restriction,
as was the case in Buchanan, in these cases the argument was that the state was
using its power to enforce a privately imposed racial restriction. However,
despite the less direct state action, in each case the court found this state
action of enforcement unconstitutional.
n155 The court carefully avoided declaring the covenants invalid.
n156 In both
[*641] Hurd and Shelley, the Court was determining the validity of the enforcement of
the covenants, not the validity of the covenants themselves.
We see the beginning of the discovery of our hypernorm: at the threshold,
discriminatory private agreements are subject to state intervention if there is
state action involved to enforce such agreements.
Abandoning the State Action Requirement
Building on Shelley, the Court in Barrows v. Jackson,
n157 again invalidated the enforcement of a private covenant based on state action.
Unlike Shelley, the state in Barrows was not asked to
"enforce" a racially restrictive covenant through the court's equity powers. Rather, the
question presented was whether there was state action in the awarding of
damages in a civil suit for breach of contract for violating the restrictive
covenant. The Court shifted away from reliance on direct state action and held
"if the State may thus punish respondent for her failure to carry out her
covenant, she is coerced to continue to use her property in a discriminatory
manner.... [Such punishment] would constitute state action as surely as it was
state action to enforce such covenants in equity ...."
Chief Justice Vinson, who wrote the Court's decisions in Shelley and Hurd,
dissented and sought to limit the voiding of such covenants to instances
[*642] where there was direct state action against a member of a protected class.
Pertinent to our discussion of state intervention in private agreements, the
Chief Justice wrote:
These racial restrictive covenants...are not legal nullities so far as any
doctrine of federal law is concerned; it is not unlawful to make them; it is
not unlawful to enforce them unless the method by which they are enforced in
some way contravenes the Federal Constitution or a federal statute.
A brief pause here at the crossroads of Barrows allows us to mull over the
limitations of state regulation of private agreement. The Court has unanimously
struck down instances where the state perpetuates (Buchanan, Harmon) or
facilitates (Hurd, Shelley) racial discrimination. Historically, though, the
Court has shied away from striking down
"purely private" contracts (Corrigan). By recognizing that a more diffuse standard, the murky
"coercion," violates the rights of unspecified third parties - moving away from the bright
line rule of state enforcement - the Court has signaled its willingness to
sacrifice the private agreement for the public good.
The Court, however, is still struggling with the notion brought forth in the
Civil Rights Cases:
n160 Action prohibited by the Fourteenth Amendment
"is only such action as may fairly be said to be that of the States. That
Amendment erects no shield against merely private conduct, however
discriminatory or wrongful."
n161 Yet the Court finds housing discrimination so repugnant that in this
"unique set of circumstances"
n162 it has begun to relax both procedural (standing questions) and substantive
(state action) requirements.
We can begin to tease out our hypernorm: private action that results in
racial/ethnic discrimination presents such a
"unique" situation that it cannot be aided by the state even if there is no direct
state involvement. While it may not be unlawful to be a bigot, the state will
not assist you in such endeavors. What is undecided is the scope of the
"aid." The Court is moving away, notwithstanding dissent, from the idea that
"aid" is confined to state action, as characterized by active enforcement, and
moving towards the notion that
"aid" includes any state involvement.
Running parallel with the Court's exploration of the evolving constitutional
[*643] role of the state in regard to private, discriminatory contracts, are the
legislative initiatives that reflect a growing public dissatisfaction with
racially restrictive covenants. Passed as a part of the Civil Rights Act of
42 U.S.C. 1982 provides that the purchase, sale or leasing of real and personal property is
afforded to all citizens of the United States without regard to color.
n163 This law was originally held to apply only to state action.
n164 However, in 1968, in Jones v. Alfred H. Mayer Co.
n165 the Supreme Court took the
"state action" requirement out of the equation. The Court reversed the decision of the court
of appeals, which had held that 1982 only applied to state action and thus did
not reach private refusals to sell real property based on race. Therefore,
after Jones, intervention is no longer relegated to the shadows. The Court
embraced state intervention in private agreements even in the absence of state
"We hold that 1982 bars all racial discrimination, private as well as public, in
the sale or rental of property, and that the statute, thus construed, is a
valid exercise of the power of Congress to enforce the Thirteenth Amendment."
It is worth noting that the Court's decision in Jones is not predicated on the
Fair Housing Title (Title VIII) of the Civil Rights Act of 1968.
n167 Title VIII is full of proscriptions,
n169 causes of action
n170 and remedies.
n171 By contrast, 1982 is a single flat pronouncement that requires the courts,
through judicial interpretation, to find the level at which a citizen's rights
to real property have been abridged on account of race. The Court's explicit
reliance on 1982 provides us with an even stronger normative compass than
reliance upon Title VIII would
n172 The wide latitude of discretion afforded the Court in actions based upon 1982
allows the Court to fashion its decision not upon statutory limitations but
rather upon prevailing societal norms.
One year later in Sullivan v. Little Hunting Park, Inc.,
n173 the Court revisited the application of 1982 to private contracts and expanded
its holding in Jones. In Sullivan, an African-American resident was denied
membership to a community pool and park, although he held a membership share
n174 The issue before the Court was whether the refusal to grant membership to
African Americans solely on the basis of race denied them property rights in
violation of 1982. Based upon its decision in Jones, the Court held that 1982
was applicable to private agreements and that the membership share in the park
was property as covered by 1982.
Justice Harlan dissented again in Sullivan, objecting once again to the
crossing of the public/private line of demarcation.
n176 There was another disagreement; Harlan raised the question of why the Court
was deciding this case when the Fair Housing Act would have been better suited
to the task.
n177 Harlan cautioned against the use of 1982 to
[*645] combat racial discrimination in housing because
"lurking in the background are grave constitutional issues should 1982 be
extended too far into some types of private discrimination. [Section] 1982
fails to provide standards as to the types of transactions in which
discrimination is unlawful ...."
The essence of the public/private distinction crystallizes. Why would the
Court stretch to reformulate private transactions based on 1982 when a cause of
action in the Fair Housing Act was waiting in the wings? The exigency and
importance of civil rights and the eradication of housing discrimination based
on race was such a normative imperative that it required extraordinary
n179 Our hypernorm can be refined: racial and ethnic discrimination will not be
tolerated by the government. Moreover, the government is empowered to void
purely private transactions that contravene this goal.
Stated as such, the hypernorm challenges the primacy of the private sphere
"people are free to act in a self-interested manner, without regard to the
interests, needs or expectations of others."
n181 In essence, it challenges our individualism. The imposition of this hypernorm
- a universal normative value - seems to require a sacrifice of self to the
Left unchecked this hypernorm is like a runaway engine roaring towards the
destruction of our individually based communities. How can we exalt
individualism and at the same time bow to norms that subordinate the individual
to the greater society? Clearly there must be limitations on the hypernorm.
Limits of State Intervention
In 1981, in City of Memphis v. Greene,
n182 the Supreme Court applied the brakes to private actions based on 1982. While
conceding that private action is subject to review under 1982, the Court
required a showing of racial motivation to establish a prima facie case.
n183 In Greene, a white neighborhood sought to close a street - an action that
would have denied access to people living in the adjacent neighborhood (who,
notably, were primarily African-American). The Court found that there was
"no evidence that the closing was motivated by any racially exclusionary desire."
n184 Rather, in language reminiscent of Belle Terre,
n185 the Court wrote that
"the city's decision to close West Drive was motivated by its interest in
protecting the safety and tranquillity of a residential neighborhood."
Justice Marshall, writing for the dissent, voiced no disagreement with the
requirement of a showing of discriminatory intent. Rather, he focused on the
presence of unspoken racial motivation.
n187 Whether or not there was a sufficient showing of racial motivation in Greene
[*647] to the present discussion, for we have found the boundary of the hypernorm:
conduct that may have discriminatory impact is permissible if there is no
discriminatory motive. This is not a radical thought. Zoning laws that promote
economic segregation likewise promote racial segregation
n188 and, for the most part, legal attempts to manipulate zoning laws to eradicate
this segregation have had only limited success.
n189 I submit that this lack of success is due to the fact that the motive of the
segregation is economic, and economic segregation does not challenge American
society's value structure as does racial segregation. Without racial motivation
our societal hypernorm is not violated.
Application of this hypernorm will attempt to shape collective behavior beyond
individual will. This notion conjures up the image of a salmon (manipulation of
collective behavior) swimming upstream against the current (power of individual
rights). The difficulty is that the hypernorm attempts to ban segregation
(group dynamic) while still allowing prejudice (individual choice). Separating
segregation from prejudice is difficult because there is no way to clearly
"voluntary" segregation (a result of prejudice) from
"involuntary" segregation (a result of market forces).
The function of the hypernorm is not to destroy individual choice. Rather, it
serves to stake out the boundaries of individual choice as that choice
"transforms" into collective behavior.
n191 Housing discrimination
[*648] cannot and should not be tolerated, let alone aided, by the government. For
societal good, the individual choice of racial prejudice must be sacrificed
insofar as it becomes the collective behavior of housing discrimination.
However, since sacrifice of individual choice is premised upon racial
prejudice, we should be willing to allow choices not based upon racial/ethnic
prejudice to remain.
The Struggle to Restructure Local Government
"Is it larger than a breadbox?"
- Twenty Questions
We are trying to fit the round peg of collective individuality into the square
hole of the present state of local government law. To a certain extent, the law
does recognize local government as a collective individual, free to determine
its fate without intervention from those outside the community.
n193 But local government falls short of allowing complete freedom on two somewhat
contradictory fronts. First, while the law does, in some instances, validate
the revealed choice of those choosing to move to the suburbs by treating
suburbs and city separately instead of regionally,
n194 it penalizes others for an individual's choice by not forcing upon the
migrator an internalization of the externalities produced by such migration.
Second, the law, through secession statutes,
[*649] limits the individuality of those consumers who may want to remain physically,
but not politically, in the city. The new local government structure,
therefore, should combine features of deurbanization with a mechanism to
internalize negative externalities while maintaining faith to our societal
hypernorms. In effect I am trying to build a regional
n195 The tiles would be the collective individual communities while the grout that
holds them together insures that negative externalities are spread evenly
across the mosaic.
The Neighborhood as a Political Entity
What is the optimal level at which to express this collective individualism?
Obviously, as Professor Frug noted, absolute individual self determination is
n196 It is just as clear that large cities lack the homogeneity necessary to allow
individualism to shine through.
n197 The legal goal is to superimpose distinguishing economic and social
characteristics on a region to give spatial life to collective individualism.
The neighborhood would be the optimal level for city government. The idea of
using the neighborhood as the optimal spatial unit is certainly not new.
n198 Social functionalist planners organized the city around the neighborhood unit
because the neighborhood fosters community at the local level by increasing
participation in democracy and serving to distribute scarce resources.
n199 What is unique about the
[*650] political neighborhood, as envisioned here, is that this neighborhood would
function politically and legally autonomously from the city, or local
government, to which it once belonged.
Furthermore, neighborhoods are also rich repositories of local values.
n200 The division of governmental powers should reflect such community values.
n201 While hypernorms would overrule conflicting community norms, the common values
within the community would form the basis of self-definition.
The next question is almost immediate: how do we decide what is (and what is
"neighborhood?" Moreover, who gets to decide the boundaries of these newly empowered
municipalities, the new
"Political Neighborhood"? There are no generally accepted legal or economic principles for determining
a municipality's geographic dimensions or even whether that unit should exist.
n203 This is relatively uncharted legal
n204 The law must walk the fine line between realist concerns (what are the
physical, objective boundaries?) and instrumental concerns (what should be the
boundaries to achieve the goals of government?) without falling into undue
reliance on the descriptive (what do residents think are the boundaries?).
The realist sees a neighborhood as bounded by tangible, objective markers:
streets, rivers, etc. This argument runs parallel to the
"natural areas" argument of Park.
n205 Use of objective markers, however, may mask true collective individualism. For
while objective markers may be easy to use, they are imposed from the outside.
As has been asserted by scholars writing subsequent to Park, what makes these
"natural areas" natural exists in the mind of the researcher.
n206 What would be determined by the realist definition of a neighborhood is less
what the neighborhood is than what, for bureaucratic efficiency, an outsider
thinks that it is.
An instrumental determination is, admittedly, less objective. Here the
boundaries would be drawn to reflect the underlying goal of decentralization of
government. How should the neighborhood achieve the goals of decentralized
government? If, for example, the Jeffersonian ideals of suffrage and
n207 were the goal, then the neighborhood would be numerically limited by the
optimal number of inhabitants to produce the highest levels of political
I submit however, that our goal is more subjective. To be sure, the efficiency
arguments of the realists must be given their due for this end to be at all
workable. Yet, the
"should" question is as important as the objective goals and must be dealt with in
tandem. To truly express collective
[*652] individualism we must answer the normative questions:
"power to whom?" and
"power for what?"
In the quest to define the political neighborhood, it is tempting to rely on
the inhabitants for the definition. After all, it is the inhabitants who make
up the collective individual which is the neighborhood. While self-definition
can be notoriously unreliable,
n209 it is not totally without merit.
This concept is neither as arbitrary nor as circular as it may initially
appear. After all, we each define our respective space every day by what we are
and, sometimes more importantly, by what we are not.
n210 The insistence on preserving present local boundary lines to define local
government is, in fact, more arbitrary and circular than reliance on
self-definition. Most people disregard these boundaries countless times each
day, while forming their own idea of region, which they organize according to
their personal concept of neighborhood. Instead of imposing objective
definitions from the outside, we should strive toward a subjective definition
of neighborhood created by those seeking to be defined. This subjective
definition must be coupled with a realistic acknowledgment of the need for some
efficiently determined population goals, while keeping in mind that our aim is
the expression of individualism.
This process will inevitably generate dissent because there is no democratic
way of deciding who gets to draw the boundaries.
n212 The dissent can be incorporated into the process of neighborhood definition
[*653] if the creation of the neighborhood is premised upon voluntary association.
The Lockean requirement of voluntary association for a legitimate government,
when used as a premise for such neighborhoods, will insure that whatever the
definition, the political neighborhood will be treated as a body politic
because all parties have consented by joining the final product.
n213 Even if people initially differ on their definition of the boundaries of the
n214 it is this final consensus that will define the neighborhood.
Allowing Formation of the Political Neighborhood
Creation of the political neighborhood requires an analysis of the fundamental
political philosophy underlying secession.
n215 While some scholars maintain that secession be predicated upon
n216 I propose that
"no-fault," nonconsensual secessions be granted. To be sure, a resident is always free to
leave a jurisdiction. Secession, though, involves more than a group of
dissatisfied residents moving out of the jurisdiction. By seceding, the group
wants to leave the jurisdiction and
[*654] wants to take its property along.
Opposition to secession can rest on democratic ideals or upon economic
arguments of equity and externalities.
n218 I will discuss these arguments in turn as they apply to the formation of the
political neighborhood. Abraham Lincoln argued that secession is fundamentally
at odds with democratic self-government based on majority rule. Lincoln stated:
"The central idea of secession, is the essence of anarchy."
n219 It is difficult to demand on democratic principles that a mistreated and/or
ignored minority has the duty to stay and accept the majority's rule. Some
argue that a minority that has suffered no harm, however, should not be allowed
to secede because secession is not the democratic manner of expressing
In other words, should secession be permitted even when there has been no
showing that the existing municipality has harmed the secessionists in some
way? This argument misses the point because secession in the present context
should not be dependent on the existing municipality's failure to perform its
n221 Instances will arise where the existing municipality has fulfilled every duty
to a group that nevertheless wants to secede, analogous to a no-fault divorce.
This secession should be granted because secession is based, not upon a failure
of the majority, but upon a community's desire to express an individuality that
it cannot express while remaining in the existing municipality.
[*655] response to this democracy argument recalls the purpose behind the political
neighborhood's creation: to allow full and free expression of individuality.
Secession in this context is not at odds with democracy because it does not
reject majority rule. Rather it rejects the majority itself.
The creation, and especially the placement of externalities upon those
uniquely unable to bear the costs is the most powerful argument against
"no-fault" secession. As stated before, there will be persons who have neither the social
nor the economic wherewithal to form a new political neighborhood.
n224 By default these individuals will remain in what was the old municipality.
n225 The externalities of secession are not internalized and will be borne by those
outside the new political neighborhood. To overcome this problem we must
require that those who secede will contribute to the cost of services for those
left behind. Here, collective individualism collides with collective public
interest. Therefore, an intermediate, federative tier of government must be
created to effectuate region-wide wealth redistribution for social service
expenditures. To use Rousseau's terminology, the political neighborhood is
based on the will of all, the sum of the individual wills (omnes ut singuli),
and the intermediate tier is based on the will of general intention
"directed to the attainment of the general good" (omnes ut universi).
The precise mechanics of the intermediate tier's revenue-raising (whether
through a sales tax, an income tax or a property tax) are not as important as
the creation of a regional wealth redistribution mechanism.
n227 For while the secession of political neighborhoods may permit the expression
of full individualism, it can create glaring negative externalities. Without
the intermediate tier it is impossible to internalize these externalities. This
tier, though, would have a very limited function, primarily serving as a
conduit for regional wealth redistribution. To place any more power in the
intermediate tier is to approach regional government.
n228 Regional government is the antithesis of empowering the collective individual.
The creation of this regional federation is not purely an altruistic endeavor
on the part of the new political neighborhood.
n229 Our previous definition of self included not only what we are, but also what
we are not. In defining ourselves, it is useful to compare ourselves to what we
n230 Therefore, recognition of other individuals, other municipalities, creates an
interdependence that is necessary for the recognition of self. The federative
tier permits full expression of individuality while capturing the externalities
created by such personal choice.
Political Reality and Social Justice
"The problem, therefore, of the present is to lead our law to hold a
[*657] more even balance between individualism and collectivism."
- Roscoe Pound
Now comes time for a pragmatic application of legal and social theory.
n232 I say
"pragmatic," and not
"practical" carries the baggage of an economic efficiency analysis. The goal here is not
to promote efficiency above all else. Rather, the goals should be the legal
recognition of an individual's social and economic desires and the
implementation of legal vehicles to further that recognition.
n233 There are two questions on the table: is a government structure premised upon
individual cum collective choice possible? And even if it is, why would anyone
opt for this form of government?
The Paradox of a Collective Choice Democracy
Democratic government is premised upon legislative enactment of collective
will as determined by majority voting. Because codification of collective will
is binding on dissenters it is distinct from a series of individual choices.
n234 Therefore, although individualism forms the basis of our newly empowered
neighborhood, combining individual preferences into a democratic society may
have paradoxical results if we try to find the will of the majority.
n235 The tension between individual choice
[*658] and collective will exists on two levels in the proposed structure of local
government. First, regardless of how homogeneous the political neighborhood
might be, there will inevitably be dissension between the community and the
individual. Second, the federative tier's redistributive function counteracts
individual choice because participation is mandatory regardless of residential
location within the region. Hence, the willingness of an individual to allow
herself to be bound by the will of the community (whether the neighborhood or
the region) must be grounded in more than individual choice. I will address
each source of tension in turn.
The Individual Within the Political Neighborhood
Rational, individual choice must at some point give way to collective choice
and social justice. By acceding to the necessity of collective choice over
individual choice, I do not give collective will lexicographic priority over
n236 I am simply acknowledging the connections between rational choice and theories
of social justice.
n237 Just as a purely individualistic theory
n238 of society is ultimately unworkable in modern living, a purely utilitarian
n239 does not give individual choice its proper respect. To find a theory of social
justice we should go back to the Social Contract of Rousseau:
Some form of association must be found as a result of which the whole strength
of the community will be enlisted for the protection of the person and property
of each constituent member, in such a way that each, when united to his
fellows, renders obedience to his own will, and remains as free as he was
[*659] The political neighborhood would be a voluntary scheme with autonomous members
and self-imposed obligations that premise social cooperation upon mutual
Grounding our new framework of local government on such contractarianism
allows us to express two fundamental ideals. First, the value of liberty is
maintained as it is will, not force, that underlies the government. Second, the
collective value of justice is preserved as the base of our society is right,
n242 The social contract that binds the community assures that while a member may
sacrifice a portion of his or her individuality for the good of the community,
society will only demand so much as is necessary to achieve social justice.
As Rawls stated, however,
We are not to think of the original contract as one to enter a particular
society or to set up a particular form of government. Rather, the guiding idea
is that the principles of justice for the basic structure of society are the
object of the original agreement. They are the principles that free and
rational persons concerned to further their own interests would accept in an
initial position of equality as defining the fundamental terms of their
association. These principles are to regulate all further agreements; they
specify the kinds of social cooperation that can be entered into and the forms
of government that can be established. This way of regarding the principles of
justice I shall call justice as fairness.
A recent contribution to the contractarian literature is David Gauthier's
Morals By Agreement.
n245 Although not without critics,
[*660] contends that justice is the outcome of a rational bargain among voluntary
n247 In our voluntary political neighborhood, individuals should be willing to
sacrifice their goal of maximizing individual utility based not upon
benevolence, but rather upon realization of a mutual advantage. The bargain
model acknowledges self-interest, but fits it into the framework of the
necessity for social living.
The Individual Within the Region
Although a contractarian notion of community cooperation may easily apply
within the political neighborhood, the concept of mutual advantage requires
further refinement to fit around the redistributive goals of the federative
tier. The Rawlsian, contractarian, notion of justice is that cooperation is
founded on a voluntary system of fairness.
n248 Fairness, though, is a subjective term.
n249 To those on the receiving end of intraregional wealth redistribution, the
system may certainly appear fair. However, to those on the paying end, the
fairness may be harder to prove. What is the basis for asserting that those who
are better off have the duty to help those who are less fortunate? What is the
We can approach the answer from two directions. The first would be to
determine whether those receiving wealth redistribution contributed to the
cooperative effort to establish the mutual advantage. The answer is yes. The
cooperative contribution of the region's poor is the sanction by the poor of an
insular political neighborhood. The contribution of the poor is their consent
to economic exclusion.
n251 In exchange for this exclusion, the region's well-off must contribute to the
economic externalities caused by the exclusion.
Alternatively, there is a second theoretical rationale for the imposition of
the redistributive tier. This theory is Rawls's refinement of the idea of
justice as mutual advantage, and it is expressed in his difference principle.
n252 The difference principle allows more productive people to earn more than less
productive people only if the poorest people in society are thereby made less
"No amount of gain to the better-off can be justified if it is achieved at any
cost to the poor."
n253 The difference principle expresses the concept of social reciprocity in
With the addition of the concept of reciprocity, as expressed by the
difference principle, the wealthier residents cannot gain without also giving a
benefit to the poorer residents. The creation of the political neighborhood
benefits those within the neighborhood by allowing greater expression of
individual choice. In accordance with the difference principle this gain cannot
be at the expense of the poor. The reciprocity is the federative redistribution
The difference principle is grounded on its requirement that a cooperative
society benefits all of its members.
"Thus the more advantaged...man cannot say that he deserves and therefore has a
right to a scheme of cooperation in which he is permitted to acquire benefits
in ways that do not contribute to the welfare of others."
Dissatisfaction with the Status Quo
If mutual advantage and reciprocity in society convince the well-off to
participate in a regional wealth redistribution scheme (or at least justify
such participation), why not merely impose this requirement within the present
state of local government? Why should we tear down the present state and
rebuild along the parameters of a political neighborhood? Or, alternatively, if
there is such a societal cooperative requirement, why not erase all local
boundaries and meld into one big regional government?
The present state of local government represents the worst of both worlds. On
the one hand, residents, many of whom have sought security in the suburbs, see
frontal attacks on their individual will by city politicians.
n256 On the other hand, the poor in the city suffer because the tax base necessary
to support adequate social services has fled to the suburbs. The political
neighborhood would answer both of these concerns by guaranteeing expression of
individual will while requiring participation in regional wealth redistribution.
Regional government also fails to overcome regional economic and legal
problems. Some may point to the interjurisdictional tax-sharing cooperation
effort of the Minneapolis-St. Paul region as an example of workable, and
working, regional government. Its success, however, has yet to be duplicated on
a large scale in other regions.
n257 As with any wealth redistribution system, these types of efforts will survive
only as long as substantial numbers of nonbeneficiaries remain motivated and
willing to pay.
"nonbeneficiaries," placed within the new political neighborhood, on the other hand, will be
motivated to continue such participation due to the benefit of political and
The answer comes back to what is the foundation of local government: the
individual. Proving mutual benefit, which is the predicate to
[*663] wealth redistribution, is problematic in regional government. In the absence
of allowing the individual free expression in the choice of local government,
the benefit to these
"nonbeneficiaries" all but vanishes. Instead of attempting to prove the positive externalities of
the central city to prod interlocal revenue sharing,
n259 we should allow local municipalities to fully realize their individuality and
point to that as the benefit to obligate regional wealth redistribution.
As a response to those who argue that restructuring local government around
the collective individual is politically unrealistic, I suggest we explore the
alternatives. We cannot continue under the present system without regressing to
economic apartheid: the haves in the suburbs, the have-nots in the city. The
disparity between the income levels of suburban and city residents increases
n260 On the other hand, broad-based regional government has found little acceptance
outside of the Academy.
n261 This resistance to regional government comes from city dwellers and
n262 Local government as the collective individual is more politically attainable
than regional government and promises social justice lacking in the status quo.
In our attempt to
"save" the city we have lost sight of the elements that constitute the city. Why
should we direct our scholarly energy, policy directives, or economic power
toward revitalizing an anachronistic, dying species of legal definition? The
city that some are trying desperately to save is not the classical city that
was defined by its sphere of influence. It is the city of political
boundary-making that is inapposite to
[*664] modern social and economic development.
Instead we must tear down the walls created by happenstance and long-forgotten
political will, and establish community as those within the community would
define it. Such redefinition would clearly benefit those within the newly
created communities, but the impact of the redefinition would be much broader.
We could begin to solve the economic mismatch between the city and the suburbs
- the city's disproportionate burden of regional poverty versus the suburbs'
advantage of disproportionate regional wealth. Rather than viewing these
"city" problems, we redefine them as
"regional" problems and solve them without regard to legally and politically created
boundaries. But as long as the legal structure maintains the long recognized
bright-line boundaries of the traditional city, any attempt at a regional
solution will fail. City will stand as a proxy for the existence of the
problems of poverty, crime and social dysfunction. Those who choose not to live
in the traditional city boundaries will resist a recasting of social problems
as an attempt to force a political, social and economic allegiance to an entity
they have fled.
By legally empowering the collective individual, as expressed in choice of
local government, we validate individual choice, ground local government law in
determinative legal doctrine, and begin to balance regional economic
n1. Jean-Jacques Rousseau, The Social Contract, in Social Contract: Essays by
Locke, Hume, and Rousseau 169, 181 n.5 (Oxford Univ. Press 1962) (1762).
n2. See Gerald E. Frug, The City as a Legal Concept,
93 Harv. L. Rev. 1057, 1059 (1980) (explaining the law's contribution to
"the current powerlessness of American cities").
n3. See, e.g., Richard Briffault, Our Localism: Part I - The Structure of Local
90 Colum. L. Rev. 1, 4 (1990) [hereinafter Our Localism: Part I] (providing a critical reading of the
"law of state-local relations"); Richard Briffault, Our Localism: Part II - Localism and Legal Theory,
90 Colum. L. Rev. 346 (1990) [hereinafter Our Localism: Part II] (describing interlocal differences and
setting forth a normative account of local power); Richard Briffault, Voting
Rights, Home Rule and Metropolitan Governance: The Secession of Staten Island
as a Case Study in the Dilemmas of Local Self-Determination,
92 Colum. L. Rev. 775, 779 (1992) [hereinafter Voting Rights] (arguing that the fragmentation of cities such as
New York creates
"serious...economic, political, and social concerns"); Richard Briffault, Who Rules at Home?: One Person/One Vote and Local
60 U. Chi. L. Rev. 339, 343 (1993) [hereinafter Who Rules at Home?] ("The encounter between one person/one vote and American local
governments...tells us something about both the uncertain conceptual
underpinnings of our dominant conception of representation and the multiple
roles local governments play in American life."); Richard T. Ford, The Boundaries of Race: Political Geography in Legal
107 Harv. L. Rev. 1841, 1845 (1994) ("Racially identified space results from public policy and legal sanctions - in
short, from state action - rather than being the unfortunate but irremediable
consequence of purely private or individual choices.");
Jerry Frug, Decentering Decentralization,
60 U. Chi. L. Rev. 253, 254 (1993) (rejecting the
"traditional understanding of decentralized power in America"); Joan C. Williams, The Constitutional Vulnerability of American Local
Government: The Politics of City Status in American Law,
1986 Wis. L. Rev. 83, 86-87 (1986) (discussing
"the current impact of the constitutional vulnerability of cities" and Frug's use of
"the issue of city status as a proxy for his fears and aspirations about
n4. See infra notes 82-86 and accompanying text.
n5. In 1987 the per capita income of city residents was 59% of their suburban
neighbors. Some cities fared even worse. For example in Philadelphia in 1990,
the city per capita income was 48% of the suburban per capita income. See
Georgette C. Poindexter, Towards a Legal Framework for Regional Redistribution
of Poverty-Related Expenses,
47 Wash. U. J. Urb. & Contemp. L. 3, 10 (1995).
n6. See, e.g., Fair Housing Act,
42 U.S.C. 3601-3631 (1994).
N7. See, e.g.,
Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 724 (N.J. 1975) (Mount Laurel I) ("Every...municipality must, by its land use regulations, presumptively make
realistically possible an appropriate variety and choice of housing.");
Southern Burlington County NAACP v. Township of Mount Laurel, 456 A.2d. 390, 410 (N.J. 1983) (Mount Laurel II) (clarifying and strengthening the original decision in Mount
Hills Dev. Co. v. Township of Bernards, 510 A.2d 621, 654 (1986) (Mount Laurel III) (reinforcing the commitment to
"the provision of a realistic opportunity for the construction of needed lower
n8. See, e.g., Robert C. Wood, A Division of Powers in Metropolitan Areas, in Area
and Power: A Theory of Local Government 53, 55 (Arthur Maass ed., 1959) ("Finally, and happily, perhaps, there appears to be a readiness to experiment
with new structures of government ....").
n9. See, e.g., David Rusk, Cities Without Suburbs 85 (1993) ("The
"city' must be redefined to reunify city and suburb. Ideally, such reunification
is achieved through metropolitan government.").
n10. See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ.
416, 424 (1956) ("If consumer-voters are fully mobile, the appropriate local governments, whose
revenue-expenditure patterns are set, are adopted by the consumer-voters.").
n11. Alexis de Tocqueville, Democracy in America 69 (Richard D. Heffner ed., 1956).
n12. Stylized facts are empirical regularities that describe the most obvious
features of a dynamic system. See generally Michael Reiter, The Dynamics of
Business Cycles: Stylized Facts, Economic Theory, Econometric Methodology and
Applications 9-12 (1995). A stylized fact requires an analytical model to
explain its existence. For example, assume that women earn 60% of the wages
earned by men. The existence of this fact requires a theoretical explanation,
such as discrimination, lower productive ability or genetic differences. In a
discussion using stylized facts, the validity of the statistic is accepted as
fact. See Charles W. Calomiris, The Motivations for Loan Commitments Backing
Commercial Paper, 13 J. Banking
& Fin. 271, 271 (1989) (discussing a model that explains
"stylized fact' that firms with a high percentage of backing for their
commercial paper tend to have high commercial paper ratings."); Brian H. McGavin, The Political Business Cycle: A Reexamination of Some
Empirical Evidence, 26 Q.J. Bus.
& Econ. 36, 36 (1987) ("The political business cycle usually is accepted as a stylized fact of
democratic industrial countries.").
n13. See Jerry Adler, Bye Bye Suburban Dream, Newsweek, May 15, 1995, at 41.
n14. See id.
n15. William Schneider, The Suburban Century Begins, The Atlantic, July 1992, at 33.
n16. See Rusk, supra note 9, at 8.
n17. See id.
n18. See Peter Mieszkowski
& Edwin S. Mills, The Causes of Metropolitan Suburbanization, J. Econ. Persp.,
Summer 1993, at 135.
n19. See id.
n20. See Tiebout, supra note 10, at 418; see also Charles L. Leven
& Jonathan Mark, A Revealed Preference Model for Analyzing Interneighborhood
Mobility 1 (Institute for Urban
& Reg'l Studies, Wash. U., Working Paper HMS 6, 1975) (suggesting several
"hypotheses why people move between neighborhoods"); Bruce W. Hamilton, Property Taxes and the Tiebout Hypothesis: Some Empirical
Evidence, in Fiscal Zoning and Land Use Controls 13, 14 (Edwin S. Mills
& Wallace E. Oates eds., 1975) (criticizing Tiebout for his failure to
"endow his mechanism with a system of prices for the local public services"); Robert P. Inman
& Daniel L. Rubinfeld, The Judicial Pursuit of Local Fiscal Equity,
92 Harv. L. Rev. 1662, 1669 (1979) ("A family deciding where to locate within a metropolitan area will search for a
community that provides that bundle of municipal services and housing which
most closely approximates its preferred package.").
n21. See Tiebout, supra note 10, at 418; see also Steven L. Percy et al.,
Revisiting Tiebout: Moving Rationales and Interjurisdictional Relocation, 25
Publius, Fall 1995, at 1, 10 (analyzing interjurisdictional moves in Milwaukee
in 1992 and concluding that
"tax and service factors are used more often in selecting a new residence").
n22. See Tiebout, supra note 10, at 422.
n24. See Harold A. McDougall, Regional Contribution Agreements: Compensation for
60 Temp. L.Q. 665, 667-68 (1987) ("The value of Tiebout's thesis appears of limited value in the context of
exclusionary zoning."); Wallace E. Oates, On Local Finance and the Tiebout Model,
71 Am. Econ. Rev. 93, 93 (AEA Papers
& Proceedings 1981) (suggesting that the Tiebout model
"involves a set of assumptions so patently unrealistic as to verge on the
outrageous"); Stewart E. Sterk, Competition Among Municipalities as a Constraint on Land
45 Vand. L. Rev. 831, 834 (1992) (explaining
"why market forces are inadequate to eliminate the potential for municipal abuse
of the exaction process").
n25. Fragmentation allows municipalities to include, or exclude, residents in
accordance with the wishes of the municipality through zoning ordinances, also
known as exclusionary zoning. See Stephen D. Galowitz, Interstate
Metro-Regional Responses to Exclusionary Zoning,
27 Real Prop. Prob. & Tr. J. 49, 61 (1992) (suggesting that a desire to increase housing prices is an incentive to
exclude). This concept, however, goes deeper than zoning ordinances. Beyond the
law there is evidence that inter-jurisdictional differences in tax rates and
public sector benefits are capitalized into residential property values. See
Bruce W. Hamilton, Capitalization of Intrajurisdictional Differences in Local
66 Am. Econ. Rev. 743, 743 (1976) (developing a model in which
"the excess of local public sector benefits over tax liability (or fiscal
surplus) causes shifts in the demand curves for various classes of residential
n26. See Vicki Been,
"Exit" as a Constraint on Land Use Exactions,
91 Colum. L. Rev. 473, 524 (1991) ("Many studies have shown that middle-class migration between the city and the
suburbs is significantly affected by the disparity between city and suburban
spending for education."); Percy, supra note 21, at 13, 14 (noting that taxes and the quality of public
schools are significant predictors of cross-community relocations).
n27. Paul A. Samuelson, A Note on the Pure Theory of Consumer's Behaviour,
Economica, February 1938, at 61, 65 (with errata, August 1938).
n28. A theoretical difficulty with Samuelson's theory is that it supposes only two
alternatives. Kenneth Arrow relaxed the Samuelson framework in two ways: he
allowed for the possibilities 1) that there were more than budget sets involved
in the choice and 2) that consumers could have more than one
"best" alternative when faced with a set. Kenneth J. Arrow, Social Choice and
Individual Values 46 (1951). Arrow set forth the
"Impossibility Theorem," which questions the ability to make collective decisions because social choice
is an aggregation of individual preferences. Id. Just as Condorcet proved,
collective decisionmaking is impossible when more than two alternatives are
presented. For a description of the Condorcet paradox, see Maxwell L. Stearns,
Standing Back From the Forest: Justiciability and Social Choice,
83 Cal. L. Rev. 1309, 1329 (1995) (describing the decisionmaking process of law review editors in the selection
of one article for publication when faced with three possible choices). Because
we are dealing only with a choice between the city and the suburb, Arrow's
theory is inapplicable.
n29. This means that a consumer will choose alternative x over alternative y if
<gteq> W(y). See Kaushik Basu, Revealed Preference of Government 59 (1980).
n31. This assumption should not imply that those consumers living in the city are
irrational. There are those who choose to live in the city because the services
provided (including culture and commerce) mesh with their individual choice.
Furthermore, there are those who live in the city because they cannot afford
the suburbs. In the former case, the city consumer's choice is rational
decisionmaking in the same manner as those who choose the suburbs. In the
latter case, the consumer's
"choice" is not irrational, but rather made in response to market constraint.
n32. Rousseau, supra note 1, at 196.
n33. Frug, supra note 2, at 1068 (citing Hannah Arendt, On Revolution 114-15,
119-20 (1962) and discussing Arendt's concept of
n34. Williams, supra note 3, at 105.
n35. See Letter from the Federal Farmer to the Republican (Oct. 12, 1787), in The
American Constitution For and Against 33-34 (J.R. Pole ed., 1987) ("When power is transferred from the many to the few, all changes become
n36. For a discussion of the intersections of exit, voice and loyalty, see Albert
O. Hirschman, Exit, Voice, and Loyalty (1970).
Voting Rights, supra note 3, at 828 (discussing a solution to this size problem). Political
theorists conclude that a neighborhood should range from 50,000 to no more than
200,000 inhabitants to maximize democratic participation. See, e.g., Robert
Dahl, The City in the Future of Democracy, 61 Am. Pol. Sci. Rev. 953, 967
(1967) (suggesting that the
"optimum size for a city [is] the range...from 50 thousand to about 200 thousand"); Douglas Yates, Neighborhood Government, in Neighborhoods in Urban America
131, 138 (Ronald H. Bayor ed., 1982) ("Democratic theorists argue that a city...should probably contain no more than
200,000 residents if anything remotely like direct democracy is to exist." (emphasis omitted)). I submit that the ideal size is closer to 50,000 for
n38. Wood, supra note 8, at 53 (describing the views of Ylvisaker regarding the
ends served by an areal division of power); see also
Big Country Foods, Inc. v. Board of Educ., 952 F.2d 1173, 1179 (9th Cir. 1992) ("Local control fosters both administrative efficiency and democratic governance.");
Voting Rights, supra note 3, at 823 ("The debate over the appropriate structure for metropolitan governance has been
informed by concerns for efficiency, equity, and democracy.").
n39. See, e.g., Our Localism: Part II, supra note 3, at 402 (noting the view of
some urban economists that interlocal competition between fragmented and
overlapping local governments promotes efficiency); Richard Briffault, The Role
of Local Control in School Finance Reform,
24 Conn. L. Rev. 773, 791 (1992) ("Economists have suggested that economies of scale turn into diseconomies once a
government unit grows past a certain size."); cf. Steven C. Deller, An Application of a Test for Allocative Efficiency in
the Local Public Sector, 20 Regional Sci.
& Urb. Econ. 395, 406 (1990) ("[A] higher level of fragmentation in local public good provision is positively
capitalized into total property values.").
n40. For an historical analysis of the links between the functional requirements of
government and governmental spatial reform, see Wood, supra note 8, at 59.
n41. See Carolyn Adams et al., Philadelphia: Neighborhoods, Division, and Conflict
in a Postindustrial City 83 (Joe T. Darden ed., 1991) (describing
"white flight" from the city of Philadelphia). But see Leven
& Mark, supra note 20, at 3 ("[The] median income of its population, not racial composition, is the most
relevant neighborhood characteristic in determining the willingness to pay for
a particular unit."); Georgette C. Poindexter, Locational Perception: City Versus Suburban
Home-Buying Preference, 16 Law
& Pol'y 473, 481 (1994) (questioning the
"importance of racial homogeneity as a primary motivational factor" in the move to the suburbs).
n42. See Poindexter, supra note 41, at 480 (finding that style of home is the most
important factor affecting suburban residents' choice of neighborhood); see
also Suzanne Keller, Creating Community: The Role of Land, Space, and Place 7
(1986) (noting a significant increase in the number of homeowners who mentioned
a detached house as a significant ingredient of an ideal community).
n43. The interstate highway system funded by the federal government provides a web
of roads that facilitates travel between the city and the suburbs, allowing
workers to live in the suburbs while working in the city. See Brian J.
O'Connell, The Federal Role in the Suburban Boom, in Suburbia Re-examined 183,
187-88 (Barbara M. Kelly ed., 1989).
n44. The Federal Housing Authority (FHA) insures home loans to qualified borrowers,
thus eliminating the lender's risk and providing lenders with an incentive to
make mortgage loans. In the post-World War II period, however, FHA lending
criteria resulted in a pronounced preference in lending for new construction
rather than for existing structures. Because new construction tended to be in
the suburbs rather than in the city, the program encouraged suburban growth to
the detriment of city growth. See id. at 189-90; see also Kenneth T. Jackson,
Crabgrass Frontier: The Suburbanization of The United States 190-218 (1985)
(noting that consumer choices were subsidized by federal government policies
that pushed people out of the cities while pulling them into the suburbs).
n45. David Hume, 1 Essays: Moral, Political, and Literary 128 (T.H. Green
& T.H. Grose eds., London, Longmans, Green
& Co. 1875), quoted in Douglass Adair, That Politics May be Reduced to a
Science, 20 Huntington Libr. Q. 343 (1957), reprinted in Fame and the Founding
Fathers: Essays by douglas adair 93, 103 (Trevor Colbourn ed., 1974).
n46. Robert Ezra Park, Human Communities: The City and Human Ecology 16 (1952).
Park's animation of the city, giving it life, allows us to conceptualize
community as an organic being, capable of change from within. Park goes so far
as to liken the city to a super-organism as in plant ecology:
"Plants and animals, living together in a common habitat, invariably tend to
develop a natural economy and to form, as an incident of such economic
interdependence, a biotic community in which the different species are able to
live more securely and prosperously together than they can apart." Id. at 119; see also Phillip L. Clay, Choosing Urban Futures: The
Transformation of American Cities,
1 Stan. L. & Pol'y Rev. 28, 29 (1989) ("It begins with the proposition that cities are organic entities with a capacity
for renewal, not just decline.").
n47. Gregory R. Weiher, The Fractured Metropolis: Political Fragmentation and
Metropolitan Segregation 37 (1991).
n48. For example, the rise in the number of gated communities indicates not only a
choice to live in that community, but also an explicit choice to keep other
Adams et al., supra note 41, at 93-98 ("The white population...despite the presence of a sizable black population in
its midst, has managed to maintain its neighborhoods as predominantly white
enclaves in both city and suburbs.").
n50. See Park, supra note 46, at 177 ("Social status...turns out finally to be a matter of...social distance."). A person from the neighborhood is not treated with the same suspicion an
outsider engenders when both walk into the neighborhood bar.
n51. Exclusion has been both informal (as in Chinatown, Little Italy and Harlem)
and explicit (as in deed restrictions). For a discussion of the formal
exclusion, see infra Part III (discussing
Shelley v. Kraemer, 334 U.S. 1 (1947)).
n52. See infra Part III (discussing the history of racial and ethnic discrimination
n53. See Suzanne Keller, The Neighborhood, in Neighborhoods in Urban America, supra
note 37, at 8, 18 (arguing that planners' justification for designing spatial
subdivisions in large urban areas is to
"help promote local utilization of services and indirectly encourage other local
attachments and loyalties").
n54. The interesting facet of neotraditional planning is that it attempts to
recreate in the suburbs the
"neighborhood" feel of the city in days gone by. How ironic that the social connection that
people seek is a
"city" feel that now is by and large confined to the suburbs.
n55. See Herbert J. Gans, The Levittowners 40 (1967) ("About 95 percent of [Levittowners]...hoped for improved individual, family, and
social life ...."). But see Howard Pack
& Janet Rothenberg Pack, Metropolitan Fragmentation and Suburban Homogeneity, 14
Urb. Stud. 191, 191 (1977) (noting that the extent of homogeneity in
Pennsylvania suburbs, as determined by age, education, occupation, income and
marital status of head of household, was actually more limited than is
generally believed). The authors noted, however, that:
The absence of realised homogeneity casts little light on the validity of the
underlying behavioural assumption that a desire to live with others of similar
background and circumstance is an important feature of social life. Indeed,
such desires may be fundamental but their realisation is limited by a number of
n56. See Keller, supra note 42, at 2.
n57. David Sucher, City Comforts: How to Build an Urban Village 65 (1995).
n58. See Shan Guisinger
& Sidney J. Blatt, Individuality and Relatedness: Evolution of a Fundamental
Dialectic, 49 Am. Psychologist 104, 104 (1994) ("Social interest may be as necessary as self-interest to survival."). A mature sense of self is contingent on interpersonal relationships. On the
other hand, the continued development of increasingly mature interpersonal
relationships is contingent on mature self-definition. There must be a balanced
development of both dimensions. See id. at 109.
n59. For example, there is certainly national patriotism ("American, and proud of it") and state pride ("Texan").
n60. There are over 86,000 units of local government in the United States. See John
Kincaid, Regulatory Regionalism in Metropolitan Areas: Voter Resistance and
13 Pace L. Rev. 449, 450 (1993) (noting that the existence of 86,692 units of local government has resulted in
extreme governmental differentiation, especially within metropolitan areas).
Contrast that number with the choice of 50 state governments.
n61. Professor Ford refers to community self-definition as tautological because of
racially restrictive entrance barriers. See Ford, supra note 3, at 1860 ("Although the governance of...an association may be democratic in form, it may
well not be democratic...in substance if the initial selection of members was
highly exclusive."). I disagree. While the imposition of racially restrictive barriers may serve
to entrench and strengthen the status quo in a community, barriers are but a
tool used to create the definition. To say that
"we are a community of white, upper middle-class, single-family homeowners" may be racially and economically exclusionary, but it certainly is not
n62. This is not to imply, however, that community definition can be accomplished
only by looking within the community. As Professor Frug has written,
"the autonomous individual has to be interested in others, not as a matter of
sentimentality or altruism but as a matter of self-interest." Frug, supra note 3, at 274. Just as the individual will be interested in other
individuals, so will the local community be interested in other local
n63. Our Localism: Part II, supra note 3, at 444.
n65. This characteristic is the basis of a truly republican government. In
"distinctive characters" of the republican form of government, Madison stated,
"we may define a republic to be...a government which derives all its powers
directly or indirectly from the great body of the people." The Federalist No. 39, at 255 (James Madison) (Isaac Kremnick ed., 1987).
n66. See Jackson, supra note 44, at 362.The Home Owners' Loan Corporation (created
pursuant to the Home Owners' Loan Act of 1933, Pub. L. No. 73-43, 48 Stat. 128
(1933)) directed the flow of home mortgage capital. HOLC carved the national
housing market into four classifications when it drew up confidential
"Residential Security Maps." Id. at 199. These maps were then used to determine whether credit would be
extended to an applicant from a particular neighborhood.
The color-coding system placed a lower value on areas in which Jews, Blacks and
other minorities resided. The first category, A or green, was most highly
valued. These areas were white, homogenous, desirable neighborhoods. The second
group, B or blue, consisted of stable, but declining neighborhoods. The
neighborhoods in the third level, C or yellow, were already in decline, and the
fourth, D or red (hence
"red lining"), contained the least desirable areas. See id. at 197-98.
n67. Interestingly, the opposite appears to be occurring today. Although people are
still defined by their neighborhoods, rigorous enforcement of the Community
Redevelopment Act produced a whirlwind of lending activity in historically
minority communities. See Jacqueline Simmons, Home Prices Soar in Unexpected
Places, Wall St. J., Feb. 13, 1996, at A2 ("If it were not for CRA, nobody would be getting these loans, and houses would
not be selling at these amounts.").
n68. Richard K. Matthews, The Radical Politics of Thomas Jefferson: A Revisionist
View 87 (1984) (quoting Letter from Thomas Jefferson to Joseph C. Cabell (Feb.
n69. Weiher, supra note 47, at 165.
n70. This feature is in sharp contrast to other nations where
"urban development and local government formation...are integrated into national
policy." Id. For a comparative study of local government structure in 20 Western
industrialized countries, see Local Government and Urban Affairs in
International Perspective (Joachim J. Hesse ed., 1990).
n71. Weiher, supra note 47, at 3.
n72. See de Tocqueville, supra note 11, at 297. Of course, citizens were defined as
white male landowners.
n73. See id. De Tocqueville states:
It may be remarked, that, at the present day, the lower orders in England are
striving with all their might to destroy local independence, and to transfer
the administration from all the points of the circumference to the centre;
whereas the higher classes are endeavoring to retain this administration within
its ancient boundaries. I venture to predict that a time will come when the
very reverse will happen.
n74. Matthews, supra note 68, at 82 (quoting Letter from Thomas Jefferson to Joseph
C. Cabell (Feb. 2, 1816)).
n75. Samuel P. Huntington, The Founding Fathers and the Division of Powers, in
Area and Power supra note 8, at 150, 162.
n76. Matthews, supra note 68, at 77 (quoting Letter from Thomas Jefferson to Samuel
Kercheval (July 12, 1816)). According to Federalists such as Madison who viewed
a large republic as a surer bastion of liberty, factionalism threatened purely
democratic government. But see The Federalist No. 10, at 128 (James Madison)
(Isaac Kramnick ed., 1987) ("Hence, it clearly appears that the same advantage which a republic has over a
democracy in controlling the effect of faction is enjoyed by a large over a
small republic - is enjoyed by the union over the states composing it.").
n77. See Weiher, supra note 47, at 179 ("The proliferation of governments in the United States did not occur by divine
n78. Frug, supra note 2, at 1076.
n80. For examples, see the New York and Pennsylvania home-rule statutes,
N.Y. Mun. Home Rule Law 50 (McKinney 1994); Act of Dec 19, 1996, ch. 29, 1996 Pa. Legis. Serv. 177 (West)
(to be codified at
53 Pa. Cons. Stat. Ann. 2961) ("A municipality which has adopted a home rule charter may exercise any powers
and perform any function not denied by the Constitution of Pennsylvania, by
statute or by its home rule charter."). Although calling for grants of municipal power to be
"liberally construed in favor of the municipality," such power is given by the state to local government - not taken by
municipalities from the state. Id. Also,
"local governments have no federal constitutional rights against their states
and local residents have no constitutional claim to belong to particular local
Voting Rights, supra note 3, at 792 n.90 (discussing Staten Island's obstacles to achieving
Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907), overruled on other grounds by
Baldwin v. Winston-Salem, 710 F.2d 132 (4th Cir. 1983).
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (upholding a local ordinance restricting land use to single family dwellings);
see also Frug, supra note 3, at 265 (discussing cases in which the Supreme
Court has upheld local government authority to regulate community issues).
Recently, the Eighth Circuit held that the City of St. Louis's interest in
decreasing congestion and noise in residential areas was a rational basis for
restricting single family dwellings to eight or fewer unrelated persons. See
Oxford House-C v. City of St. Louis, 77 F.3d 249, 252 (8th Cir. 1996), cert. denied,
117 S. Ct. 65 (1996) ("Cities have a legitimate interest in decreasing congestion, traffic, and noise
in residential areas, and ordinances restricting the number of unrelated people
who may occupy a single family residence are reasonably related to these
n83. But see Williams, supra note 3, at 119 (citing the protection of property
values, and not home and family, as the impetus for deference to local
n84. Weiher, supra note 47, at 166.
n85. The clearest judicial declarations on this theory are the Mount Laurel cases.
Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 727-28 (N.J. 1975) (Mount Laurel I) ("The general welfare which developing municipalities...must consider extends
beyond their boundaries and cannot be parochially confined to the claimed good
of the particular municipality.");
Southern Burlington County NAACP v. Township of Mount Laurel, 456 A.2d. 390, 422-35 (N.J. 1983) (Mount Laurel II) (instructing municipalities to coordinate development of low
income housing projects to conform to a state plan);
Hills Dev. Co. v. Township of Bernards, 510 A.2d 621, 632 (N.J. 1986) (Mount Laurel III) (upholding the constitutionality of the Fair Housing Act,
N.J. Stat. Ann. 52:27D-301 to -329 (West 1986
& Supp. 1996), New Jersey's legislative response to the previous Mount Laurel
which enables municipalities to determine
"what is required [of] them").
n86. In essence, this is a privacy argument. See
Roe v. Wade, 410 U.S. 113, 152 (1973) ("The Constitution does not explicitly mention any right of privacy. In a line of
decisions...the Court has recognized that a right of personal privacy, or a
guarantee of certain areas or zones of privacy, does exist under the
Griswold v. Connecticut, 381 U.S. 479, 483 (1965) (discussing different zones of privacy); see also Williams, supra note 3, at
85 (analyzing theories of local government law offered by Cooley, Dillon,
Justice Brennan and the Burger Court majority, and finding a pattern:
"each author's theory of city status is closely linked with his desire to rein
in excessive governmental power" although each one sees different
"nightmares of government run amok").
n87. Our Localism: Part II, supra note 3, at 444.
n88. See John F. Dillon, 1 Commentaries on the Law of Municipal Corporations 449,
448-451 (5th ed. 1911) ("[A] municipal corporation possesses and can exercise the following powers and
no others: First, those granted in express words; second, those necessarily or
fairly implied in or incident to the powers expressly granted; third, those
essential to the accomplishment of the declared objects and purposes of the
corporation - not simply convenient, but indispensable.").
n89. See Williams, supra note 3, at 85 (noting that since cities
"have no set place in American constitutional structure...courts and
commentators have been able to redefine city status without the textual
constraints that limit reformulations of the status of the state and federal
425 U.S. 284 (1976).
418 U.S. 717 (1974) (Milliken I).
Gautreaux, 425 U.S. at 286-92.
Milliken I, 418 U.S. at 721-30.
Gautreaux, 425 U.S. at 305-06.
Milliken I, 418 U.S. at 752-53. However, the Supreme Court did uphold a lower court ruling implementing a
city-based desegregation plan in
Milliken v. Bradley, 433 U.S. 267, 291 (1976) (Milliken II).
Milliken I, 418 U.S. at 741; see also
Gautreaux, 425 U.S. at 300 (stating that local boundaries should not become
"an arbitrary and mechanical shield for those found to have engaged in
Milliken I, 418 U.S. at 744; see also
Gautreaux, 425 U.S. at 298 ("Nothing in the Milliken decision suggests a per se rule that Federal courts
lack authority to order parties found to have violated the Constitution to
undertake remedial efforts beyond the municipal boundaries of the city where
the violation occurred.").
"The critical distinction between HUD and the suburban school districts in
Milliken is that HUD has been found to have violated the Constitution."
Gautreaux, 425 U.S. at 297.
Gautreaux, 425 U.S. at 296 ("HUD does not dispute the Court of Appeals' determination that it violated the
Fifth Amendment and 601 of the Civil Rights Act of 1964 ....").
id. at 298.
Milliken I, 418 U.S. at 745.
Id. at 757 (Stewart, J., concurring).
id. at 734-36 (describing the ruling of the court of appeals).
Gautreaux, 425 U.S. at 296.
Newburg Area Council, Inc. v. Board of Educ., 510 F.2d 1358, 1360 (6th Cir. 1974), cert. denied,
429 U.S. 1074 (1977); see also
Evans v. Buchanan, 393 F. Supp. 428, 432 (D. Del. 1975), aff'd,
423 U.S. 963 (1975) ("To the extent that segregation imposed by state law has had inter-district
effects, federal courts can fashion appropriate inter-district remedies.").
Liddell v. Missouri, 731 F.2d 1294, 1305 (8th Cir. 1984), cert. denied,
469 U.S. 816 (1984). The court was definite, however, as to the impact of a constitutional
violation in its willingness to uphold the settlement agreement:
"We make it clear, however, that no party found to have violated the
Constitution will be permitted to escape its obligation to provide equal
educational opportunity to the black children of St. Louis."
Id. at 1297.
"Proof of racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause."
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (finding no
"invidious purpose" behind denial of rezoning request to build low-income housing). The Court in
Arlington Heights reaffirmed the position taken in Washington v. Davis that an
action is not unconstitutional
"solely because it results in racially disproportionate impact,"
Arlington Heights, 429 U.S. at 265, although proof of disproportionate impact can be used to prove invidious
"because in various circumstances the discrimination is very difficult to
explain on nonracial grounds."
Washington v. Davis, 426 U.S. 229, 242 (1976). But see
United States v. Board of Sch. Comm'rs, 637 F.2d 1101, 1106-08 (7th Cir. 1980), cert. denied,
449 U.S. 838 (1980) (holding that state's long history of racial discrimination was a significant
factor in establishing discriminatory purpose).
Missouri v. Jenkins, 115 S. Ct. 2038, 2052 (1995). Even upon finding that a school districting scheme was unconstitutional, the
Connecticut Supreme Court declined to impose an interjurisdictional remedy and
instead deferred to the legislature. See
Sheff v. O'Neill, 678 A.2d 1267, 1290-91 (Conn. 1996).
n109. de Tocqueville, supra note 11, at 58.
Milliken v. Bradley, 418 U.S. 717, 745 (1974) (Milliken I) ("Without an interdistrict violation and interdistrict effect, there is no
constitutional wrong calling for an interdistrict remedy.").
Hills v. Gautreaux, 425 U.S. 284, 298 (1976) ("Here, unlike the desegregation remedy found erroneous in Milliken, a judicial
order directing relief beyond the boundary lines of Chicago will not
necessarily entail coercion of uninvolved governmental units ....").
n112. See Laurie Reynolds, Rethinking Municipal Annexation Powers,
24 Urb. Law. 247, 247 (1992).
id. at 248 (citing
People ex rel. Leland Grove v. Springfield, 520 N.E.2d 1205, 1209 (Ill. App. Ct. 1988) ("Fundamental fairness dictates that the property owner must be allowed to choose
between the several municipalities vested with annexation jurisdiction ....")).
207 U.S. 161 (1907).
n115. See, e.g.,
Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978) ("While the broad statements as to state control have undoubtedly been
qualified...we think that [Hunter] continues to have substantial constitutional
significance in emphasizing the extraordinarily wide latitude that States have
in creating various types of political subdivisions and conferring authority
Township of Jefferson v. City of West Carrollton, 517 F. Supp. 417, 419 (S.D. Ohio 1981), aff'd,
718 F.2d 1099 (6th Cir. 1983) (table) ("Hunter...still reflects the viable principle of law that annexation matters
fall entirely within the discretion and standards of the state constitution ....").
Hunter, 207 U.S. at 178-79.
id. at 179 (noting that a state may modify a municipality in any way,
"unrestrained by any provision of the Constitution of the United States").
n118. Furthermore, there is no absolute right under the Due Process Clause to vote
on proposed alterations to municipal boundaries. See
id., 207 U.S. at 179 (stating that alterations may be made
"conditionally or unconditionally, with or without the consent of the citizens,
or even against their protest");
Adams v. City of Colorado Springs, 308 F. Supp. 1397, 1400 n.3 (D. Colo. 1970), aff'd,
399 U.S. 901 (1970) ("The state therefore, at its pleasure, may...expand or contract the territorial
area, unite the whole or a part of it....with or without the consent of the
citizens ...."), aff'd mem.,
399 U.S. 901 (1970).
n119. See discussion infra Part III.
Gomillion v. Lightfoot, 364 U.S. 339, 345 (1960) (holding that the Fifteenth Amendment prevents a state from manipulating
political subdivisions so as to defeat the federally protected right to vote);
City of Port Arthur v. United States, 459 U.S. 159 (1982) (Powell, J., dissenting) (noting that annexation that abridges the fundamental
right to vote is only permitted if the municipal voting scheme is realigned to
counteract such voter dilution);
City of Richmond v. United States, 422 U.S. 358, 370-71 (1975) (stating that a municipality created by annexation must
"fairly reflect[ ] the [voting] strength of the [minority] community").
Reynolds v. Sims, 377 U.S. 533, 555 (1964) ("The right of suffrage can be denied by a debasement or dilution of the weight
of a citizen's vote just as effectively as by wholly prohibiting the free
exercise of the franchise.").
n122. See, e.g.,
City of Petersburg v. United States, 354 F. Supp. 1021, 1031 (D.D.C. 1972), aff'd mem.,
410 U.S. 962 (1973) ("[Annexations are] approved only on the condition that modifications [in the
electoral plan] calculated to neutralize to the extent possible any adverse
effect upon the political participation of black voters are adopted ....");
City of Richmond v. United States, 422 U.S. 358, 370 (1975) (expressly reaffirming City of Petersburg).
n123. See, e.g.,
United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484 (1972);
Wright v. Council of Emporia, 407 U.S. 451, 460 (1972) ("If the proposal [to create a new district] would impede the dismantling of the
dual system, then a district court, in the exercise of its remedial discretion,
may enjoin it from being carried out.");
Burleson v. County Bd. of Election Comm'rs, 308 F. Supp. 352, 357 (E.D. Ark. 1970) (noting that there may be times where secession from a school district raises
no constitutional objection if
"one or more parts will not have a substantial Negro population and thus will
have no integration problem"), aff'd mem.,
432 F.2d 1356 (8th Cir. 1970) (per curiam).
Jones v. Deutsch, 715 F. Supp. 1237, 1240 (S.D.N.Y. 1989). In Jones the municipality denied a secession petition because boundary lines
were drawn in a racially discriminatory manner. Although the federal court did
not reach the merits due to procedural defects, it issued an open invitation to
adjudicate if the procedural defects were cured.
"open door" policy is not limited to cases involving constitutional violations. The
disparate impact analysis of Title VII litigation was employed by a federal
court in a Fair Housing Act case to strike down a zoning regulation prohibiting
the construction of subsidized housing in a white neighborhood. See
Huntington Branch NAACP v. Town of Huntington, 844 F.2d 926, 934 (2d Cir. 1988) ("The disparate impact approach of Title VII cases is fully applicable to this
Title VII case brought against a public defendant."), aff'd,
488 U.S. 15 (1988) (per curiam).
Title VII's scope is, by definition, statutory and, thus, perhaps not as
illustrative as constitutional limitations on the power of local government.
Cases such as Huntington, however, show a clear direction of the judiciary to
hold local government responsible for discriminatory actions just as it would
n125. See supra notes 121-22 and accompanying text.
Abate v. Mundt, 403 U.S. 182, 185 (1971) ("It is well established that electoral apportionment must be based on the
general principle of population equality and that this principle applies to
state and local elections.");
Avery v. Midland County, 390 U.S. 474, 481 (1968) ("We therefore see little difference, in terms of the application of the Equal
Protection Clause...between the exercise of state power through legislatures
and its exercise by elected officials in the cities, towns, and counties.").
Connor v. Finch, 431 U.S. 407, 416 (1977) (holding that a deviation of 16.5% from population equality was unacceptable).
Reynolds v. Sims, 377 U.S. 533, 578 (1964); see also
Abate, 403 U.S. at 185 ("Our statements have reflected the view that the particular circumstances and
needs of a local community as a whole may sometimes justify departures from
Reynolds, 377 U.S. at 575.
Id. at 579.
Id. at 577.
Abate, 403 U.S. at 185; see also
Board of Estimate v. Morris, 489 U.S. 688, 701-03 (1989) (striking down New York City Board of Estimate apportionment scheme of one
borough, one vote). But see
Brown v. Thomson, 462 U.S. 835, 847-48 (1983) (upholding an admittedly disproportionate county-based apportionment scheme
due to Wyoming's constitutional policy of preserving county boundaries and the
absence of any hint of arbitrariness or discrimination).
At-large voting systems are also subject to attack if a racially discriminatory
purpose is proven. See
Rogers v. Lodge, 458 U.S. 613, 621-22 (1982) (holding that at-large voting systems must be upheld against constitutional
attack unless they are maintained for a discriminatory purpose);
City of Mobile v. Bolden, 446 U.S. 55, 66-67 (1980) (same).
n133. Contrast this with the constitutionally created power of state boundaries in
federal voting. States with disparate populations retain their ability to vote
as a state. See U.S. Const. art. I, 3. Not only is this established in the
creation of the United States Senate (two senators per state, regardless of
population), but is also evident in national election law. The Electoral
College, which elects the President, gives three votes to the state of Wyoming,
which had 480,000 inhabitants in 1995. Montana also gets three votes with
almost twice as many residents (870,000). See U.S. Dep't Commerce, Statistical
Abstract of the U.S. tbls. 27, 434 (1996).
Government's Exhibit 118, United States v. City of Parma, 494 F. Supp. 1049, 1065 (N.D. Ohio 1980), aff'd,
661 F.2d 562 (6th Cir. 1981) (holding that Parma, by rejecting low-income housing and enacting ordinances
precluding construction of low-income housing, violated the Fair Housing Act).
Parma is Cleveland's largest suburb. In the 1970s Parma had a reputation as a
white, ethnic, suburban enclave. In 1973 the U.S. Justice Department sued the
City of Parma, alleging that the city had violated the Fair Housing Act.
President Kuczma's remarks were made during a meeting in which a proposed
subsidized housing project was rejected. This rejection formed part of the
Justice Department's case against Parma. The district court imposed a remedial
order designed to promote residential racial integration in Parma. See
United States v. City of Parma, 504 F. Supp. 913, 918-23 (N.D. Ohio 1980), aff'd in part, rev'd in part,
661 F.2d 562 (6th Cir. 1981) (enjoining the City of Parma from actions that violate the Fair Housing Act
and ordering the city to implement fair housing education programs, to enact a
fair housing resolution, to advertise Parma as an open community, and to take
actions to increase the supply of low-income housing). The mayor and leaders of
city council resisted the remedial order, delaying its implementation until
1983. Although some progress has been made (the 1990 census showed a black
population of 0.75% as compared to 0.04% in 1970), see W. Dennis Keating, The
Suburban Racial Dilemma 3 (1994), such progress has been slow and Parma's image
as a racist community remains. For further discussion of Parma and other
situations facing African Americans in the suburbs, see id. (addressing
"housing segregation and efforts at housing integration in the suburbs of
n135. As Professor Ford notes,
"individualism comes with a covert normative structure...[that] makes it
difficult to understand the political claims of minority, racial and cultural
groups as anything other than strategic, distributive, remedial or separatist." Ford, supra note 3, at 1892 n.149.
n136. For example, The Quota Act of 1921, ch. 8, 42 Stat. 5, and the Immigration Act
of 1924, ch. 190, 43 Stat. 153, limited immigrant admission contingent upon the
national origin of the immigrant. Under these acts the number of immigrants
from any one nation was limited to 3% of the number of foreign-born persons of
such nationality resident in the United States as determined by the Census of
1910. See Andrew Smith, The Rough Road for Vietnamese Visa Applicants in Hong
21 N.C. J. Int'l L. & Com. Reg. 649, 656 & n.74 (1996)(providing a background for United States immigration legislation); see also
Frank H. Wu, The Limits of Borders: A Moderate Proposal for Immigration Reform,
7 Stan. L.
& Pol'y Rev., Summer 1996, at 35, 42 (discussing how prior to 1965 immigration
by Eastern and Southern Europeans was limited by strict quotas, especially if
their countries of origin were more heavily Catholic or Jewish).
n137. African Americans in the United States experience
"hypersegregation" to a greater degree than any other minority group, especially when analyzing
neighborhood dissimilarity (ethnic concentration) and spatial isolation
(clustering of racially concentrated neighborhoods). See Douglas S. Massey
& Nancy A. Denton, Hypersegregation in U.S. Metropolitan Areas: Black and
Hispanic Segregation Along Five Dimensions, Demography, Aug. 1989, at 373, 389 ("Blacks are thus unique in experiencing multidimensional hypersegregation."). See generally The Housing Status of Black Americans (Wilhelmina Leigh
& James Stewart eds., 1992) (exploring the limited housing opportunities
available to blacks caused by continued racial discrimination and economic and
policy changes). Furthermore, African Americans experience suburban segregation
at higher levels than any other U.S. minority group. See Thomas J. Phelan
& Mark Schneider, Race, Ethnicity, and Class in American Suburbs, 31 Urb. Aff.
Rev. 659, 675 (1996) ("Despite substantial changes over time in the ethnic composition of migrants to
suburbs, blacks are still the most highly underrepresented ethnic group of the
"big three' minority ethnic groups in the United States.").
Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982) (holding that strict scrutiny is inappropriate where the restriction against
"primarily serves a political function").
"difference community' is an oxymoron." James W. Torke, What Price Belonging: An Essay on Groups, Community, and the
24 Ind. L. Rev. 1, 33 (1990) (defining a
"difference community" as a community that emphasizes differing views and beliefs as opposed to
n140. Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law
n141. See Thomas Donaldson
& Thomas W. Dunfee, Toward a Unified Conception of Business Ethics: Integrative
Social Contracts Theory, 19 Acad. Mgmt. Rev. 252, 265 (1994) ("Hypernorms...entail principles so fundamental to human existence that they
serve as a guide in evaluating lower level moral norms. As such, we would
expect them to be reflected in a convergence of religious, philosophical and
cultural beliefs ....").
n142. To explain how hypernorms will overrule even the unanimous consent of parties
to microsocial contracts, Dunfee and Donaldson use the example that contractors
would not permit microsocial contracts that condone murder as a method of
enforcing contracts even under conditions of unanimous consent because a rule
against murder is included in a set of standards to which all societies can be
held. See id. at 265.
n143. For example, enforcement of racially restrictive covenants in one community
but not another would result in real estate agents and apartment managers
analyzing the family tree of all prospective buyers and renters, thereby
resulting in additional transaction costs.
n144. The logical question at this point is whether these norms should merely be
suggestions, with the market determining compliance, or whether these norms
should have the force of law and be actionable. This same discussion is played
out today in discussions on affirmative action. The difficulty in relying on
the market model to assure compliance is that discrimination (i.e., exclusion)
is sometimes perfectly rational and the market will not punish a rational
actor. The interventionist model, which legally punishes noncompliance, is the
only way to assure the even application of hypernorms across community lines.
For a discussion of the interventionist model versus the market model to
eradicate housing discrimination and segregation, see Alex M. Johnson, Jr., How
Race and Poverty Intersect to Prevent Integration: Destabilizing Race as a
Vehicle to Integrate Neighborhoods,
143 U. Pa. L. Rev. 1595, 1616 (1995).
n145. There is a consensus amongst anthropologists, political scientists and
philosophers that there exists such a convergence of beliefs across cultures
that identifies hypernorms. See Donaldson
& Dunfee, supra note 141, at 265-66.
n146. I speak here not solely of de jure discrimination resulting in racial
segregation, discussed infra, but also of de facto racial segregation that
still persists today. See generally Douglas S. Massey
& Nancy A. Denton, American Apartheid: Segregation and the Making of the
Underclass 84 (1993) ("Although the racial climate of the United States improved outwardly during the
1970s, racism still restricted the residential freedom of black Americans; it
just did so in less blatant ways."); Douglas S. Massey
& Nancy A. Denton, Patterns of Neighborhood Transition in a Multiethnic World:
U.S. Metropolitan Areas, 1970-1980, 28 Demography 41 (1991) (concluding that
"white population loss is related strongly to both the proportion of minority
members and the distance to established minority neighborhoods; this
relationship builds a self-feeding dynamic into the process of ghetto expansion"); Massey
& Denton, Hypersegregation, supra note 137, at 388 (confirming previous studies
documenting a persistently high degree of black residential segregation and
suggesting that this segregation is
"even more extreme than previously imagined"); see also Richard H. Sander, Comment, Individual Rights and Demographic
Realities: The Problem of Fair Housing,
82 Nw. U. L. Rev. 874, 874-76 (1988) (exploring why fair housing laws have failed to bring about housing
n147. A discussion of how the public/private dichotomy factors into the Court's
willingness to intervene is not novel. See, e.g., Barbara Rook Snyder, Private
Motivation, State Action and the Allocation of Responsibility for Fourteenth
75 Cornell L. Rev. 1053, 1053 n.1 (1990) (providing a partial list of scholarship concerning the state action
requirement). What I hope to accomplish here is to present a brief analysis of
the changing and evolving scope of this distinction that will highlight the
power of societal interest over private agreements.
245 U.S. 60 (1917).
n149. The Court explained:
We think this attempt to prevent the alienation of the property in question to
a person of color was not a legitimate exercise of the police power of the
State, and is in direct violation of the fundamental law enacted in the
Fourteenth Amendment of the Constitution preventing state interference with
property rights except by due process of law.
Id. at 82.
273 U.S. 668 (1927) (per curiam). Ordinance No. 8037, C. C. S., adopted by the City of New Orleans
on September 18, 1924, forbade African Americans from occupying houses in a
white community or whites from occupying houses in African American communities
except upon written consent of a majority of persons of
"opposite" race in the community affected.
271 U.S. 323 (1926).
Id. at 330.
334 U.S. 24 (1948).
334 U.S. 1 (1948).
id. at 20;
Hurd, 334 U.S. at 35.
"So long as the purposes of those agreements are effectuated by voluntary
adherence to their terms, it would appear clear that there has been no action
by the State and the provisions of the [Fourteenth] Amendment have not been
Shelley, 334 U.S. at 13.
Nothing in the opinion of this Court...may properly be regarded as an
adjudication of the issue presented by petitioners in this case which concerns,
not the validity of the restrictive agreements standing alone, but the validity
of court enforcement of the restrictive covenants under the Due Process Clause
of the Fifth Amendment.
Hurd, 334 U.S. at 28-29.
346 U.S. 249 (1953).
Id. at 254 (citing
Shelley, 334 U.S. 1). The Court in this case also broadened the status of potential litigants in
housing discrimination cases. Eschewing the threshold requirement that the
party show that he or she is in the class whose constitutional rights are
allegedly infringed (the petitioner here being a home seller, not a prospective
minority purchaser), the Court stated:
We are faced with a unique situation in which it is the action of the state
court which might result in a denial of constitutional rights and in which it
would be difficult if not impossible for the persons whose rights are asserted
to present their grievance before any court. Under the peculiar circumstances
of this case, we believe the reasons which underlie our rule denying standing
to raise another's rights...are outweighed by the need to protect the
fundamental rights which would be denied by permitting the damages action to be
Barrows, 346 U.S. at 257. This dilution of the standing requirement may be interpreted to indicate the
Court's willingness, at times, to use extraordinary means to address and
manipulate private agreements that contravene the public goal of the
eradication of housing discrimination.
Barrows, 346 U.S. at 261 (Vinson, C.J., dissenting).
109 U.S. 3 (1883).
Shelley, 334 U.S. at 13.
Barrows, 346 U.S. at 259.
"The Court, by a unique species of arguments, has developed a unique exception
to an otherwise easily understood doctrine."
Id. at 260-61 (Vinson, C.J., dissenting).
"All citizens of the United States shall have the same right, in every State and
Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property."
42 U.S.C. 1982 (1996).
Jones v. Alfred H. Mayer Co., 379 F.2d 33, 44-45 (8th Cir. 1967).
Hurd v. Hodge, 334 U.S. 24, 34 (1948), was also decided upon analysis of 1982, but there the Court found sufficient
state action to apply the statute.
392 U.S. 409 (1968).
Id. at 413.
n167. Pub. L. No. 90-284, 82 Stat. 81 (codified as amended at
42 U.S.C. 3601 (1996)) (making discrimination in housing rentals and sales illegal);
Jones, 392 U.S. at 413.
n168. 804 (a)-(e), 82 Stat. at 83 (prohibiting discrimination in the sale or rental
n169. 808 (e), 82 Stat. at 85 (describing the duties of the Secretary of Housing and
n170. 810-813, 82 Stat. at 85-88 (listing causes of action that trigger Title VIII).
n171. 812, 82 Stat. at 88 (granting remedies for Title VIII violations in federal
n172. The Court's expansion of the applicability of 1982, however, was not
unanimous. Justice Harlan's dissent in Jones reiterates the same concerns
raised by Chief Justice Vinson in Barrows. Justice Harlan argued,
"the Court's construction of 1982 as applying to purely private action is almost
surely wrong, and at the least is open to serious doubt."
Jones, 392 U.S. at 450 (Harlan, J., dissenting).
396 U.S. 229 (1969).
id. at 234-35. The African-American resident who was denied use of the facilities had been
assigned a membership share in connection with his lease of a house in the
area. According to the bylaws of Little Hunting Park, Inc. - the nonstock
corporation organized to operate the community's recreational facilities - a
person who rented his home and who owned a membership share was entitled to
assign that membership share to the tenant. A membership share entitled its
holder to use the community recreational facilities. Id.
id. at 236 ("What we have here is a device functionally comparable to a racially restrictive
covenant, the judicial enforcement of which was struck down in Shelley v.
id. at 247, 248 (Harlan, J., dissenting) ("Today the Court goes yet beyond Jones ...."). Justice Harlan's public/private distinction, however, does have its limits.
In his concurrence in Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, he noted that
"injuries inflicted by officials acting under color of law...are substantially
different in kind [from those inflicted by private parties]."
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 409 (1971) (Harlan, J., concurring) (asserting that statutory authority is not
necessarily a prerequisite to constitutional enforcement in damage suits).
Sullivan, 396 U.S. at 241-42 (Harlan, J., dissenting). Justice Harlan argued:
Because the Fair Housing Law will become fully effective less than three weeks
from now, I think the majority even more unwise than it was in Jones, in
precipitately breathing still more life into 1982, which is both vague and
open-ended, when Congress has provided this modern statute, containing detailed
remedial provisions aimed at eliminating racial discrimination in housing.
Id. (footnote omitted).
Id. at 248 (citing
The Civil Rights Cases, 109 U.S. 3 (1883)); see also supra note 172 and accompanying text.
n179. See Frances Lee Ansley, Stirring the Ashes: Race, Class and the Future of
Civil Rights Scholarship,
74 Cornell L. Rev. 993, 1031 n.155 ("Civil rights cases and statutes eventually made significant inroads on formal
"private' spheres."). One only need look at the headlines of the times to grasp the urgency of
such imperatives. Racial strife in this country was rampant when Jones and
Sullivan were decided. In this analysis we
"must be mindful of the
"events and passions of the time'...."
General Bldg. Contractors v. Pennsylvania, 458 U.S. 375, 386 (1982) (quoting
United States v. Price, 383 U.S. 787, 803 (1966)).
n180. Some may argue that the Court in Sullivan, by rejecting the trial court's
conclusion that Little Hunting Park was a
"private social club,"
Sullivan, 396 U.S. at 236 ("There was no plan or purpose of exclusiveness. It is open to every white person
within the geographic area, there being no selective element other than race."), went beyond the property scope of 1982 by tying pool membership to a
"By attempting to deal with the problem of discrimination in the provision of
recreational facilities under 1982, the Court is forced, in the context of a
very vague statute, to decide what transactions involve
"property' for the purposes of 1982."
Id. at 248 (Harlan, J., dissenting).
The Court's willingness to make this leap illustrates the normative power of
the desire to eradicate racial discrimination in all sectors. The Court further
expanded its definition of
Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431 (1973). In this case, the property link to recreational facilities was even more
tenuous (residence simply enhanced one's ability to join the club, it did not
confer automatic membership). Nonetheless, the Court concluded that since
membership in a racially exclusive club enhanced property values of those
allowed to join the club, the racially restrictive code of the pool was in
violation of, inter alia, 1982. See
id. at 437.
A similar expansion of state oversight of private contracts occurred outside of
the real estate context in the Court's interpretation of 1981. In 1976 the
Court held that 1981
"prohibits racial discrimination in the making and enforcement of private
Runyon v. McCrary, 427 U.S. 160, 168 (1976). This decision was revisited and reaffirmed in
Patterson v. McLean Credit Union, 491 U.S. 164 (1989).
n181. Joseph William Singer, Legal Realism Now,
76 Cal L. Rev. 465, 481 (1988) (book review).
451 U.S. 100 (1981).
id. at 119-20.
Id. at 114.
Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974) (describing Belle Terre as
"[a] quiet place where yards are wide, people few and motor vehicles restricted" and noting that these are
"legitimate guidelines in a land-use project addressed to family needs").
Greene, 451 U.S. at 119.
Id. at 141-55.
n188. It is commonly assumed that economic segregation contributes to racial
segregation because the African-American poverty rate is higher than the white
poverty rate. See Bureau of the Census, U.S. Dep't of Commerce, Current
Population Reports, Consumer Income, Series P60-188, Income, Poverty, and
Valuation of Noncash Benefits: 1993, at xvi tbl.C (1995) (stating that in the
United States in 1993, 9.9% of whites (not of Hispanic origin) lived in
poverty, while 33.1% of the black population lived in poverty). But see Sander,
supra note 146, at 886 ("Middle class blacks experience virtually the same level of segregation as the
black community as a whole."); see also Phelan
& Schneider, supra note 137.
n189. See e.g., cases cited supra note 7 (requiring zoning regulations to allow for
the development of low and moderate income housing);
Britton v. Town of Chester, 595 A.2d 492 (N.H. 1991) (striking down as exclusionary a zoning ordinance which, through density
limitations, excluded persons of low or moderate income).
n190. Richard Sander contends that such a distinction cannot be maintained and that
discrimination and segregation cannot be addressed in isolation.
"Neither discrimination nor segregation can be addressed in isolation from one
another. Even if most discrimination is eliminated, the residual can trigger
the cycle of resegregation and leave the ghetto intact." Sander, supra note 146, at 903. I assert that we must try. Although the
hypernorm can, and should, shape collective behavior, it cannot eradicate
n191. Transformation of individual choice into collective behavior is premised upon
the theory that
"individual choice is a microcosmic facet of collective or social choice." Warren J. Samuels, 1 Essays on the Economic Role of Government 58 (1992).
n192. There is of course, the legal quagmire that surfaces in any discrimination
case: Is it enough to prove discriminatory impact or must actual discriminatory
motive be proven? See, e.g.,
Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that when an employer's facially neutral rule is shown to have a
racially disproportionate effect on job applicants, that rule will violate
Title VII of the Civil Rights Act of 1964 unless it is shown to be related to
job performance). Lowering the bar to allow impact alone may permit many types
"discrimination" (e.g., economic) to eviscerate individual choice so that the individual will
disappear from the equation. However, as the dissent in City of Memphis
maintained, racial and ethnic discrimination, more often than not, is not
blatant, and disparate impact may be the only evidence. See
City of Memphis, 451 U.S. at 151-53 (Marshall, J., dissenting).
n193. For example, courts frequently uphold the validity of zoning codes. See
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (upholding a zoning regulation in spite of land owners' protests that the
regulation reduced property values). But see Mount Laurel and progeny, supra
note 7 (striking down narrow zoning laws and holding that a municipality's land
use regulations must provide a realistic opportunity for low and moderate
n194. This dichotomous treatment, some say, has been the downfall of past urban
strategy. See Michael E. Porter, The Competitive Advantage of the Inner City,
Harv. Bus. Rev., May-June 1995, at 55, 55 ("Lacking an overall strategy, such programs have treated the inner city as an
island isolated from the surrounding economy and subject to its own unique laws
n195. Brian J.L. Berry, The Human Consequences of Urbanization 66 (1973) (defining
"mosaic culture" as
"a society with a number of parallel and distinctly different life styles").
n196. Frug, supra note 2, at 1069.
n197. See Park, supra note 46, at 90 ("The difficulty of maintaining in the city the intimate contacts which in the
small town insured the existence of a common purpose and made concerted action
possible is certainly very great.").
n198. See generally Herbert J. Gans, The Urban Villagers at ix (1962) (reporting a
study of a now defunct low-income Boston neighborhood); Howard W. Hallman,
Neighborhood Government in a Metropolitan Setting 12 (1974) (asserting
"neighborhood government should be established in the larger cities of the
United States [as it] would contribute to improved urban governance"); David Morris
& Karl Hess, Neighborhood Power: The New Localism 5, 99 (1975) (attempting to
define the concept of
"neighborhood" and noting that neighborhoods can be based upon direct participation); William
Grigsby et al., The Dynamics of Neighborhood Change and Decline, 28 Progress in
Plan. 1, 20 (1987) ("Despite the long history of interest in urban neighborhoods, consensus about
precisely what they are or should be does not exist."); Yates, supra note 37. The neighborhood continues to be a fertile area of
social research. See, e.g., Christopher Mele, Globalization, Culture and
Neighborhood Change: Reinventing the Lower East Side of New York, 32 Urb. Aff.
Rev. 3 (1996) (discussing changes in the
"East Village" and reactions of inhabitants).
n199. For a discussion of this topic, see Keith Aoki, Race, Space and Place: The
Relationship Between Architectural Modernism, Post-Modernism, Urban Planning,
20 Fordham Urb. L.J. 699, 724-27 (1993) (citing work of social functionalist planners such as Clarence Stein in
Radburn, New Jersey).
n200. See Gans, supra note 55, at 14-15 (explaining that
"the various ethnic groups [in a poor Boston neighborhood] at various
points...had common values").
n201. See Arthur Maass, Division of Powers: An Areal Analysis, in Area and Power 9,
9 (Arthur Maass ed., 1959) ("Division of powers...is instrumental of community values; and the form of the
division at any time should, and likely will, reflect the values of that time.").
n202. This raises the questions of whether such variance would trigger an equal
protection claim and, assuming it does, the level of scrutiny the courts would
impose. Although the answer to this dilemma is outside the scope of this
Article, Professor Neuman offers the following insight:
Thus, what I am proposing is that intrastate variations in the scope of
fundamental rights that result from the independent decisions of self-governing
political subdivisions should be excused from heightened scrutiny and subjected
only to the rational basis test. They should be excused because they are
justified by their contribution to the goal of local self-determination, though
not in a way that would withstand heightened scrutiny under the equal
protection clause. An exception to the scrutiny that would otherwise be applied
is therefore required when geographical classifications affect fundamental
Gerald L. Neuman, Territorial Discrimination, Equal Protection, and
135 U. Pa. L. Rev. 261, 311-12 (1987).
n203. See Who Rules at Home?, supra note 3, at 395 (stating
"the concept of self-government does not dictate who is the
"self' that does the governing"); George C. Galster, What Is Neighbourhood? An Externality-Space Approach, 10
Int'l J. Urban
& Regional Res. 243, 243-45 (1986) (stating that no consensus exists regarding
the definition of a neighborhood and arguing for a new conceptual definition);
see also, e.g., Grigsby et al., supra note 198, at 20 ("Despite the long history of interest in urban neighborhoods, consensus about
precisely what they are or should be does not exist."). This definitional question is not unique to creation of local governments.
As the breakup of the former Yugoslavia has shown, on the international level
there is no universally valid criteria for identifying a genuine nation.
n204. There have been attempts in the economics and social science literature to
determine municipalities' geographic dimensions. See, e.g., Galster, supra note
203, at 246-47 (attempting to delineate neighborhoods using an
"externality space" model); Albert Hunter, The Urban Neighborhood: Its Analytical and Social
Contexts, 14 Urb. Aff. Q. 267, 267 (1979) (summarizing
"three approaches to the study of neighborhoods: (1) typologies, (2) stages of
change, and (3) functions"). As Professor Frug points out:
"The fact that some projects might fail can no more serve as an argument against
these experiments than the fact that some projects might succeed, although both
arguments are commonly made when such city ventures are proposed." Frug, supra note 2, at 1151.
n205. See Park, supra note 46, at 172 ("Natural areas are the habitats of natural groups. Every typical urban area is
likely to contain a characteristic selection of the population of the community
as a whole.").
n206. See Weiher, supra note 47, at 43 ("Most subsequent research...casts serious doubt upon the validity of the natural
n207. Jefferson argued that suffrage is the true foundation of popular government.
See Matthews, supra note 68, at 78.
n208. Wood, supra note 8, at 54 ("Answers to the normative questions of
"power to whom?' and
"power for what?' are to be modified continually in the light of contemporary
n209. For example, people in one Chicago study defined the boundaries of their
neighborhood quite inconsistently. See Weiher, supra note 47, at 26 (discussing
a 1972 study of the South Shore community in Chicago); see also Ernesto G.
Arias, Bottom-up Neighbourhood Revitalisation: A Language Approach for
Participatory Decision Support, 33 Urb. Studies 1831, 1837 (1996) (describing
various mechanisms, including computer simulations, designed to assist
neighborhoods in the task of self-definition).
n210. According to Professor Frug, identity is not only made up of sameness, it is
also composed of and dependent upon differences. See Frug, supra note 3, at
n211. George Galster uses a similar tripartite economic model to define
neighborhood. He formulates algorithms to estimate congruence ("the degree to which an individual's externality space corresponds to predefined
geographic boundaries"), generality ("the degree to which an individual's externality spaces for different types of
externalities correspond") and accordance ("the degree to which externality spaces for different individuals in the same
area correspond"). Galster, supra note 203, at 246-54.
Voting Rights, supra note 3, at 802 ("There is no uncontestably
"democratic' way of deciding who [draws boundaries].").
n213. See John Locke, An Essay Concerning the True Original, Extent and End of Civil
Government 95-96, in Social Contract: Essays by Locke, Hume, and Rousseau,
supra note 1, at 56-57 (arguing that the consent of the individuals governed is
a prerequisite for a legitimate government that may act by will of the
majority). But the presence of involuntary members is necessary for a
"public' organization. See Robert C. Ellickson, Cities and Homeowners
130 U. Pa. L. Rev. 1519, 1523 (1982) ("The presence of involuntary members is...a necessary condition for the use of
"public' in ordinary language ....").
n214. For example, people who lived in the same Chicago suburbs defined the
boundaries of the community differently. See Weiher, supra note 47, at 26; see
also Grigsby et al., supra note 198, at 23 (cautioning that while subdivision
of communities into neighborhoods for planning purposes is commendable,
"such an exercise may easily lead to erroneous inferences about what these
geographic units really mean in the lives of the residents").
n215. For a discussion of the Staten Island case, see
Voting Rights, supra note 3 (advocating that Staten Island meet a tough standard before it be
allowed to secede); Florence L. Cavanna, Note, Home Rule and the Secession of
Staten Island: City of New York v. State of New York,
8 Touro L. Rev. 795 (1992) (discussing New York's home rule); Jeffrey Underweiser, Note, The Legality of
Staten Island's Attempt to Secede from New York City,
19 Fordham Urb. L.J. 147 (1991) (arguing that New York's Home Rule Doctrine should be invoked to stop Staten
Island's secession). Some state courts have advocated a liberal construction of
secession laws, which allows more flexibility for secession. See, e.g.,
Harris Trust & Sav. Bank v. Village of Barrington Hills, 549 N.E.2d 578, 581-82 (Ill. 1989) (recounting the court's long history of interpreting disconnection statutes
n216. Briffault contends that
"secession should be predicated on a showing that the municipal majority is
systematically exploiting the minority, or at the very least that the majority
is advancing only its own values and consistently ignoring the minority's needs
Voting Rights, supra note 3, at 847.
Voting Rights, supra note 3, at 788 ("In a secession, people are determined to leave the jurisdiction and to take
their territory with them."); see also Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322, 326
(1991) ("The secessionist does not deny the state's authority as such, but only its
authority over her and the other members of her group and the territory they
occupy." (emphasis added)).
Voting Rights, supra note 3, at 833-48 (discussing the case against secession in terms of democracy,
equity, efficiency and externalities). But see Allen Buchanan,
Self-Determination and the Right to Secede, 45 J. Int'l. Aff. 347, 353-58
(1992) (discussing various justifications for secession including rectificatory
justice (reappropriation of stolen property by the rightful owners) and
discriminatory redistribution (unfair taxation));
Buchanan, supra note 217, at 327-32 (same).
Voting Rights, supra note 3, at 845-46 (quoting Abraham Lincoln, First Inaugural Address, reprinted
in Abraham Lincoln, Speeches and Writings, 1859-1865, at 220 (Library of
Voting Rights, supra note 3, at 846-47.
n221. In the international arena the question of justification of secession in the
absence of state-perpetuated injustice is best exemplified by Quebec's recent
attempt to secede from Canada on the basis of cultural preservation. The
difficulty with this ground for secession is finding a clear definition of
"culture." Allen Buchanan asserts that cultural preservation provides an adequate
justification for national secession under stringent conditions. See
Buchanan, supra note 217, at 357-58 (discussing secession for cultural self-preservation).
n222. For a different opinion, see
Voting Rights, supra note 3, at 818-19 (presenting the idea that secession laws should be like
annexation laws, that is, requiring first, a referendum in the area looking to
secede, second, consent of the municipality left behind, and third, state-level
review that could overturn a denial of consent on the basis of the
"overall public interest" of the region).
Voting Rights, supra note 3, at 836-42 (noting that secession raises equity concerns regarding the
"redistribution of municipal wealth").
n224. Some urban researchers have found relatively lower mobility among lower-income
households. See Charles F. Adams et al., Flight from Blight and Metropolitan
Suburbanization Revisited, 31 Urb. Aff. Rev. 529, 535-36 (1996) (discussing
study results and noting that
"migrants [to the suburbs] tend to be from the middle- and upper-income levels").
n225. An argument put forth for opposing secession is that secession may be resisted
if it would be fatal to the larger political unit. Superficially, this line of
logic begs the question. Furthermore, deeper analysis reveals that the ability
to enter into interlocal agreements for police, fire, water, etc., would save
municipalities from doom. For a discussion of this
"self-defense" argument on the international level, see
Buchanan, supra note 217, at 332-50.
n226. Sir Ernest Baker, Introduction to Social Contract: Essays by Locke, Hume, and
Rousseau, supra note 1, at xxxiii (discussing Rousseau's concept of the will
upon which a state is based).
n227. In this respect, I suspect I join what Joan Williams calls the
"third generation of twentieth century reformers who have sought to reformulate
city status as a first step in redefining the body politic in order to solve
pressing social problems." Williams, supra note 3, at 150 (discussing Frug's reform ideas).
n228. In this respect I disagree with Professor Briffault. Although he also
envisions a two-tier local government, he is willing to shift certain
governmental functions to the regional level while reserving others to
pre-existing local governments. See Who Rules at Home?, supra note 3 at 411-19
(discussing regional governments). I question how he can take power away from
local governments while
"assuring them continuing autonomy over a range of other functions." Id. at 413. Likewise, I disagree with the structure of Professor Frug's
regional legislature. See Frug, supra note 3, at 294-300. I fear that by
empowering the intermediate tier with discretionary functions (not merely
administrative duties), we move away from decentralization and toward regional
n229. To avoid pure altruism the framework must be constructed to withstand any
distributive (as opposed to redistributive) pressures that may develop over
time. A distributive policy identifies
"the class of potential recipients [as] virtually unlimited, so that there is no
clearly definable group that comprehends themselves as taxed to support others
without themselves benefiting." Douglas J. Watson et al., The Politics of Redistributing Urban Aid 123-27
(1994) (discussing distributive versus redistributive policies). I advocate a
redistributive policy where the taxed do not benefit directly from the revenue
raised by the tax.
n230. For a fascinating discussion of this topic, see Frug, supra note 3, at 258-63
(describing the complexities inherent in defining identity).
n231. Ronald Chester, Inheritance, Wealth, and Society 97 (1982) (quoting Roscoe
Pound, The Spirit of the Common Law, 18 The Green Bag 17, 24 (1906)).
n232. By using the term
"pragmatic," I do not mean to invoke the philosophical definition of pragmatism in its
strictest sense. Rather, I am employing the term in a more colloquial sense. As
Richard Warner points out:
"Sometimes the label connotes little more than taking a serious interest in
practical politics and the realities of human well-being and suffering ...." Richard Warner, Why Pragmatism? The Puzzling Place of Pragmatism in Critical
1993 U. Ill. L. Rev. 535, 539. However, even the more philosophical definition of pragmatism may be
applicable insofar as pragmatism recognizes that law is
""contingent not just upon the acts of legislatures or other authoritative
entities, but also upon the surrounding social context, the content of an
entire form of life.'" Stephen J. Schnably, Property and Pragmatism: A Critique of Radin's Theory of
Property and Personhood,
45 Stan. L. Rev. 347, 348 (1993) (quoting Margaret Jane Radin, Reconsidering the Rule of Law,
69 B.U. L. Rev. 781, 808 (1989)).
n233. If the last statement sounds sanctimonious, please forgive me. I am taking to
heart what Steven Smith found to be the function of legal pragmatism:
"not to say things that lawyers and judges do not know, but rather to remind
lawyers and judges of what they already believe but often fail to practice. The
pragmatist is a kind of preacher." Steven D. Smith, The Pursuit of Pragmatism,
100 Yale L.J. 409, 411 (1990).
n234. See Shaun Hargreaves Heap et al., The Theory of Choice: A Critical Guide 199
(1992) ("A collective choice, as distinct from...a series of individual choices ... has
the characteristic that it holds for all members of a given group.").
n235. See Julian N. Eule, Judicial Review of Direct Democracy,
99 Yale L.J. 1503, 1520 (1990) (noting that because there is no fair way to combine individual preferences,
"it may be impossible to reflect accurately such a thing as the will of the
majority"); Richard H. Pildes
& Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory,
Value Pluralism, and Democratic Politics,
90 Colum. L. Rev. 2121, 2124 (1990) (
"Social choice theorists claim democracy cannot avoid being defective ...."); see also Arrow's
"Impossibility Theorem," supra note 28 and accompanying text.
n236. For Rawls, liberty always has lexical order and can only be restricted for the
sake of liberty. See John Rawls, A Theory of Justice 250 (1971) (listing only
two cases in which liberty can be restricted: when
"(a) a less extensive liberty must strengthen the total system of liberty shared
by all, and [when] (b) a less than equal liberty must be acceptable to those
citizens with the lesser liberty").
n237. See Heap et al., supra note 234, at 260 (postulating that there are links
between theories of social justice and rational choice, with some links being
stronger than others).
n238. That is, society is a collection of individuals; society itself has no purpose.
n239. That is, society is simply an aggregate of the welfare of individuals without
distinguishing amongst those constituents.
n240. Social Contract: Essays by Locke, Hume, and Rousseau, supra note 1, at 180.
n241. As Rawls has stated:
[A] society satisfying the principles of justice as fairness comes as close as
a society can to being a voluntary scheme, for it meets the principles which
free and equal persons would assent to under circumstances that are fair. In
this sense its members are autonomous and the obligations they recognize
Rawls, supra note 236, at 13-14.
n242. See id. at 5 ("[Societies] understand the need for, and...affirm, a characteristic set of
principles for assigning basic rights and duties and for determining...the
proper distribution of the benefits and burdens of social cooperation.").
n243. This argument is along the lines of the Hobbesian necessity of a social
contract to induce social cooperation. In that model, the
"role of sovereign power is...to supply some assurance to each individual that
others will keep...the bargain." See Heap et al., supra note 234, at 202-03.
n244. Rawls, supra note 237, at 11.
n245. David Gauthier, Morals By Agreement 9 (1986) (presenting a contractarian
rationale for morality where
"[morality] emerges...from the application of the maximizing conception of
rationality to certain structures of interaction [and where the a]greed mutual
constraint is the rational response to these structures").
n246. See Allen Buchanan, Justice as Reciprocity Versus Subject-Centered Justice, 19
& Pub. Aff. 227-28 (1990) (referring to Gauthier as a proponent of the idea of
justice as reciprocity -
"a strain of thought...that threatens to shatter the basic conceptual framework
within which our legal system and commonsense morality formulate the problems
of justice"); see also Brian Barry, Justice as Impartiality 42-45 (1995) (arguing that
there are serious flaws in Gauthier's theory of justice as mutual advantage).
n247. He explains:
The just person is fit for society because he has internalized the idea of
mutual benefit, so that in choosing his course of action he gives primary
consideration to the prospect of realizing the co-operative outcome. If he is
able to bring about...an outcome that is both (nearly) fair and (nearly)
optimal, then he chooses to do so; only if he may not reasonably expect this
does he choose to maximize his own utility.
Gauthier, supra note 245, at 157.
n248. See supra note 244 and accompanying text.
n249. One definition of fairness that can be applied is a distribution of goods that
is both envy-free (no one prefers another's bundle to their own) and
Pareto-optimal (when one person's welfare increases, no one's decreases, and
social welfare increases). See Heap et al., supra note 234, at 319-22
(describing the overlap between justice and fairness).
"One essential feature of a mutual-advantage theory is that there is no place
for purely redistributive transfers of income - for transfers which impose a
cost on some people so as to benefit others." Heap, supra note 234, at 278. Critics of Gauthier point to the unjust outcome
when basing justice on mutual advantage. See supra notes 241 and 246 and
accompanying text. If a severely handicapped person cannot contribute to the
cooperative effort, does this mean she may justly be excluded from the fruits
of that effort? Fortunately, I do not believe we have to reach this perplexing
question. As discussed infra, the contribution of the poor is in acquiescing to
the political and economic insularity (notwithstanding the federative tier) of
the political neighborhood.
n251. In effect this is the end of inclusionary zoning requirements such as those in
n252. Rawls, supra note 236, at 83 ("Social and economic inequalities are to be arranged so that they are...to the
greatest benefit of the least advantaged ....").
n253. Heap et al., supra note 234, at 272 (contrasting Rawls's theory with
n254. See Rawls supra note 236, at 102 ("Thus we are led to the difference principle if we wish to set up the social
system so that no one gains or loses from his arbitrary place in the
distribution of natural assets of his initial position in society without
giving or receiving compensating advantages in return.").
n255. Id. at 104.
n256. See Rich Henson, Suburbs and City Join for a Chat at the Convention Center,
Phila. Inquirer, May 26, 1995, at B4 (indicating that Philadelphia Mayor Ed
Rendell would like the city to
"get a slice of suburban tax revenues").
n257. The Minnesota Fiscal Disparities program, begun in 1975, is a tax-sharing
policy that regionalizes a portion of the commercial-industrial tax base in the
Minneapolis-St. Paul metropolitan area. Each year 40% of new
commercial-industrial tax base is apportioned to the regional fiscal
disparities pool. Tax revenues from the pool generated by a single regional tax
rate are then distributed to municipalities based on local tax capacities. See
Robert Inman et al., Fiscal Future for American Cities: Lessons from Three
Cities 19 (Wharton Real Estate Center Working Paper No. 189, 1994) (describing
the Minneapolis project).
n258. See Watson et al., supra note 229, at 124-26.
n259. See Theodore Hershberg, Regional Cooperation: Stategies and Incentives for
Global Competitiveness and Urban Reform, 85 Nat'l Civic Rev. 25, 29 (1996) ("It is time for suburban Republicans to sit down with urban Democrats. Both
sides would come to the table aware of shared interests.").
n260. In 1960 the per capita income of city residents was 105% of that of
suburbanites. By 1980 it dropped to 90%. In 1987 it fell again to 59%. In some
cities the contrast is even more stark. For instance, in 1990 the per capita
income of Philadelphia city residents was 48% of their suburban neighbors. See
Poindexter, supra note 5, at 10 (comparing the relative income levels of
suburban and city dwellers over the past three decades).
n261. For a general discussion of voter resistance to regional government, see
Kincaid, supra note 60.
n262. See Peter Dreier, America's Urban Crisis: Symptoms, Causes, Solutions,
71 N.C. L. Rev. 1351, 1360 (1993) (noting resistance of suburban residents to the creation of broad-based
regional government); Ronald Smothers, City Seeks to Grow by Disappearing, N.Y.
Times, Oct. 18, 1993, at A10 (stating that resistance will come from
"urban blacks benefiting from a rising tide of political power").
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes