Buffalo Law Review
Copyright (c) 2000 Buffalo Law Review
Buffalo Law Review
48 Buffalo L. Rev. 31
LENGTH: 3273 words
SYMPOSIUM ON REGIONALISM: Against Centralization
+ Samuel R. Rosenthal Professor of Law, Harvard University.
... Poindexter rightly emphasizes how poor many American suburbs are, and
insightfully demonstrates the special nature of the problems of concentrated
poverty in suburban rather than central city locations. ... If so, we need to
reject both ingredients in the standard vision: its reliance on centralization
and its focus on concentrated poverty. ... Instead of focusing solely on the
effect of the status quo on the poor, their problems should be understood as
simply one ingredient in the widespread difficulties caused by the current
metropolitan landscape. ... Once this impact becomes well understood,
metropolitan residents can begin to explore how current rules can be changed
without abandoning the decentralization of power. ...
There is much to admire in Georgette Poindexter's Beyond the Urban-Suburban
n1 Poindexter rightly emphasizes how poor many American suburbs are, and
insightfully demonstrates the special nature of the problems of concentrated
poverty in suburban rather than central city locations. But when she turns to
her suggestions about what to do about the current concentration of poverty in
America, she seems to embrace a vision that is common among urban scholars. One
ingredient in that vision is centralization: only the exercise of state and
federal power or regional government, these scholars suggest, can redirect
America's urban policy in a way that can improve the lives of the poor. A
second ingredient is the kind of urban policy they want centralized government
to adopt: they imagine the creation of programs specifically targeted at the
problems facing America's poor.
We have seen this vision before; it is 1960s-style liberalism. The Great
Society, one should recall, was an effort to mobilize the power of centralized
government (in particular, the power of the federal government) to win the war
Lyndon Johnson had declared against poverty. Since I myself was a '60s liberal,
I find much in this vision that stirs the heart. But I think that it is high
time that we admit that this '60s strategy is not going to be implemented. The
era of big government, we have been authoritatively told, is over. The war
against poverty is over too. If so, we need to reject both ingredients in the
standard vision: its reliance on centralization and its focus on concentrated
Let us start with the embrace of centralization. Like
[*32] many others, Poindexter presents centralization as the only alternative to the
current fragmentation of America's metropolitan areas into dozens (often,
hundreds) of autonomous jurisdictions, each of which is empowered to advance
its own self-interest at the expense of its neighbors.
n2 One form these writers see this centralization taking is federal legislation:
they rely on housing policies adopted by the U.S. Department of Housing and
Urban Development or on federal transportation policies like the 1991
Intermodal Surface Transportation Efficiency Act. Another is state government
initiatives, such as the establishment of urban growth boundaries and
environmental protection laws. Moreover, in the style of the 1960s, these
scholars tend to think of centralization not just in terms of federal and state
legislation but also in the form of federal and state court decisions.
Poindexter cites with approval, for example, efforts undertaken by a federal
district court in the late 1960s and early 1970s to place public housing built
for the African-American poor in the suburbs, efforts upheld (with many
qualifications) by the United States Supreme Court.
n3 Still, the most popular form of centralization that current writers now
embrace is the creation of a powerful, multi-functional regional government.
Strong regional governments, they suggest, can best undertake the tasks of
integrating housing, transportation, and jobs - and of allocating waste
disposal facilities and other noxious land uses - in a way that would alleviate
concentrated poverty in metropolitan America.
The reason that this reliance on centralization is so problematic is that the
prevailing conceptual framework that now dominates thinking about metropolitan
governance presents local governmental power as the exercise of freedom and
centralized decision making as the exercise of coercion. The status quo in
metropolitan America - racial and class segregation, car-centered
transportation systems, ever-increasing suburban sprawl - is widely associated
"what people want." In sharp
[*33] contrast, suburban residents treat the egalitarian and integrationist goals
that Poindexter seeks to accomplish through centralization as efforts to revive
policies - like
"forced busing" - that have been repudiated for a generation. And suburban residents are not
alone in their distrust of centralized power. Many African-American mayors of
declining central cities have become equally enamored of local power,
preferring to run their cities in their own way rather than submit to
centralized control. Moreover, it is not just federal or state mandates - or
judicial activism - that are routinely condemned as efforts to force people to
adopt policies that they would not choose for themselves. Regional government
is usually understood as simply one more form that this centralized coercion
would take. As a result,
"almost no one favors metropolitan government," as Anthony Downs puts it,
"except a few political scientists and intellectuals."
I do not think that the best strategy to counteract this picture is to try to
convince people that centralization is in fact a good idea. Instead, I think
that those who share Poindexter's goals - and I am one of them - need to
develop an alternative to centralization better than the status quo. Doing so
requires institutional imagination: it requires creating a form of
decentralization different from the one now embraced by local government law
yet equally associated with the exercise of freedom. In my view, it is the
current definition of decentralization - not the idea of decentralization
itself - that has led to the inequities that Poindexter seeks to correct.
This current definition is the product of dozens of legal rules. Here I shall
mention only two. Cities within the metropolitan area have the power to design
what their community looks like, and, as everyone knows, many cities have used
this zoning power to exclude the kind of people they consider
"undesirable." This power is normally accompanied by a second important legal power: the
ability of city residents to treat the property within their city limits as
their own property - as a resource that can be used to support the people who
live within city boundaries and no one else. The reason that prosperous
communities can support their services in a much more lavish way than can their
poorer neighbors, in other words, is that they are
[*34] entitled to exclude the poor not only as residents but as beneficiaries of
These two rules reflect a privatized definition of city power. The reason that
I call it privatized is that these rules are derived from the legal rules that
define private property. The first power - the right to exclude
"undesirables" - is, in fact, often thought of as the very essence of the property right.
n5 To have private property, it is frequently said, means the ability to prevent
uninvited people from entering one's property - let alone moving in. The second
power - the basis of local finance - is equally associated with the notion of
private property. The idea that you can treat the property located within the
city boundaries as a resource available only to city residents analogizes it to
property that is jointly owned by the residents. That is why any suggestion
that taxes raised on the property located within a city's boundaries should be
spent elsewhere is so often experienced as the reallocation of wealth. These
property-based images have so powerfully influenced the definition of city
power that it is easy to forget that the legal rules I am describing define an
aspect of governmental power, not the power of a private entity - they define
what cities are and what they can do.
This privatized conception of city power has enabled people to adopt another
privatized conception of cities. This is the notion that the way to think about
where to live in a metropolitan area is to shop for cities - in the same way
that one shops for any consumer good - by calculating how much a particular
package of city services costs in city taxes.
n6 People who think in this way move to wealthy communities, if they can afford
to do so, because they thereby save the money that they would have spent on the
poor had they remained in a class-integrated jurisdiction. The reason they can
avoid taxes paid by those they leave behind, one should recognize, is that they
can exclude the poor though exclusionary zoning and limit their schools and
other services to city residents. As the wealthy move to
[*35] their suburbs with this cost-consciousness in mind, taking their resources
with them, the cities they abandon begin to decline. As a result, people in the
middle class move to their own suburbs and exclude those poorer than they are,
and the central cities decline even further. Ultimately, the central cities -
and the suburbs that Poindexter describes where the poor also live - become
very poor (although some retain pockets of the rich living in their own
isolated neighborhoods). What I am describing here is a self-perpetuating
cycle: the more the suburbs are built on the ideas of private property and
consumer choice, the more the metropolitan area becomes divided into spaces
readily identifiable in terms of the income level of their inhabitants.
This is the status quo that is so often described as
"what people want." In order to rethink the legal structure that has helped bring this status quo
into being we have to recognize that it can also be understood as producing a
metropolitan landscape that people do not want. Emphasizing the environmental
problems caused by suburban sprawl is the usual way this point is made these
n7 It is simplistic to assume, advocates of
"smart growth" contend, that those who are moving to the outer suburbs are in favor of
sprawl. On the contrary, they say, people who are moving further and further
from the central city are actually seeking to escape sprawl rather than to
embrace it: what they want is being surrounded by nature, not more strip malls
and traffic jams. As a result, even those who are contributing to sprawl by
moving out can be part of a constituency to end it. So can the farmers whose
land is threatened with development, as well as everyone else in the region,
wherever they live, who value the ability to enjoy natural beauty unspoiled by
development. Moreover, this environmental argument only begins to touch the
problems generated by the incentives to exit fostered by current legal rules. I
have written elsewhere about four other categories of metropolitan residents
hurt by suburban sprawl: women whose ability to combine their professional and
family life is frustrated by long commuting time and lack of access to nearby
child care; elderly people
[*36] who are prevented from remaining in their neighborhood because zoning rules
prohibit them from subdividing their house to make room for family members or
because the decline of their neighborhood (or its gentrification) makes it
impossible to stay; residents of the vast areas of the metropolitan area -
central cities, middle-class suburbs, and the poor suburbs that Poindexter
describes - who are hurt by the disinvestment produced when businesses follow
the wealthy to the outer suburbs; and middle-class African-Americans, now
living in their own suburbs, who are increasingly isolated both from white
suburban residents and from the poor African-Americans they left behind.
n8 Many more kinds of people can be added to this list.
A revised local government law needs to be built upon this variety of problems
metropolitan residents now experience with the status quo. That is why the
second ingredient in Poindexter's programmatic vision - her focus solely on the
problems of concentrated poverty - has to be rejected. Instead of focusing
solely on the effect of the status quo on the poor, their problems should be
understood as simply one ingredient in the widespread difficulties caused by
the current metropolitan landscape. The Charter of the Congress of the New
Urbanism - a group of architects, planners, and others interested in restoring
urban centers and reconfiguring the nature of suburban sprawl - has made the
interrelationship among the problems now facing metropolitan residents a
"The Congress for the New Urbanism views disinvestment in central cities, the
spread of placeless sprawl, increasing separation by race and income,
environmental deterioration, the loss of agricultural lands and wilderness, and
the erosion of the society's built heritage as one interrelated
Local government law needs to be reformulated so that it too views these issues
as one interrelated community-building challenge. This does not require the
centralization of power. Even the metropolitan residents who recognize the
pervasive problems created by the status quo object to centralization. Instead
of the abolition of local power, what
[*37] is needed is a modification of the sprawl-generating mechanism built into
current law. No one thinks it irrational for people to enrich themselves, if
they can, by adopting as their own the incentive system that local government
law now embraces. These individual decisions, however, have had collective
consequences that even those who have been enriched by them do not like. These
undesirable consequences cross existing city borders, and those affected by
them - environmentalists, mothers working outside the home, the elderly,
residents of declining cities, African-Americans, and the poor, among many
others - are themselves spread throughout the area. Any attempt to bring this
wide variety of people together to solve the problems caused by unlimited
suburban growth is frustrated, however, by the
"us versus them" mentality built into the current privatized definition of city power. No
doubt, a conversation among the different kinds of people disserved by current
rules would generate a considerable amount of conflict about how to change
them. Still, the first step is to begin the conversation.
I have written elsewhere about the kind of regional institutions that might
best facilitate such a conversation and, thereby, promote a less privatized
conception of the decentralization of power.
n10 In this short comment, I simply want to convince you that there is no reason
to identify centralization with the ability to solve inter-jurisdictional
problems and decentralization with the protection of local selfishness.
Historically, centralization has been a major contributor to the promotion of
local selfishness, and the conventional definition of federalism is simply the
most familiar attempt to recognize that entities that exercise decentralized
power can together form an indivisible union.
n11 An important aspect of any metropolitan-wide discussion should be an
enumeration of the decisions made by centralized government that have
contributed to metropolitan fragmentation. By this I mean not only highway
funding and decisions about land use (such as the failure to impose growth
boundaries), but the definition of city power adopted by state law. An equally
[*38] should be an analysis of the ways in which current zoning rules and financing
rules have affected metropolitan residents generally, not simply those who live
in the areas of concentrated poverty. Once this impact becomes well understood,
metropolitan residents can begin to explore how current rules can be changed
without abandoning the decentralization of power. Zoning rules that recognize
the impact that exclusionary zoning imposes on outsiders can still empower
local people to make decisions about land use. Financing rules that limit the
preference that the current system offers insiders - in a way similar to
Commerce Clause restrictions on local protectionism
n12 - can retain, even increase, local control over the delivery of services such
as education while remedying the scandalous inequality that the current system
generates. Because the greatest problem now facing America's poor is their
n13 addressing the problems of concentrated poverty requires breaking the
connection between the concept of decentralized power and the separation and
division of the metropolitan population. But the same observation should be
made about everyone else: the urban policy of separation and division now
embodied in local government law limits the lives of everyone in America's
n1. Georgette Poindexter, Beyond the Urban-Suburban Dichotomy: A Discussion of
Sub-Regional Poverty and Concentration,
48 Buff. L. Rev. 67 (2000).
n2. Books published in the 1990s include, for example, David Rusk, Inside Game
Outside Game: Winning Strategies for Saving Urban America (1999); Myron
Orfield, Metropolitics: A Regional Agenda for Community and Stability (1997);
Anthony Downs, New Visions for Metropolitan America (1994); and Neal Peirce,
Citistates: How Urban America Can Prosper in a Competitive World (1993).
Hills v. Gautreaux, 425 U.S. 284 (1976).
n4. Downs, supra note 2, at 170.
n5. See Cohen, Dialogue on Private Property,
9 Rutgers L. Rev. 357, 374 (1954).
n6. This conception is widely associated with Charles M. Tiebout's A Pure Theory
of Local Expenditures, 64 J. Pol. Econ. 416 (1956), but the crucial assumptions
recognized by Tiebout when constructing his economic model (such as equal
access to mobility) are routinely omitted in the popular version of the idea
referred to here.
n7. See, e.g.,
<http://www.epa.gov/region01/ra/sprawl/sprawl.html> ("Smart Growth Strategies for New England") (Nov. 8, 1999) (on file with the Buffalo Law Review).
n8. See Gerald
Frug, City Making:
Building Communities Without Building Walls 154-164 (1999).
<http://www.cnu.org.> (Nov. 8, 1999) (on file with the Buffalo Law Review).
Frug, supra note 8, at 85-89, 106-09.
n11. The best analysis of the relationship between centralization and the promotion
of local separatism is in Richard T. Ford, Law's Territory (A History of
97 Mich. L. Rev. 843 (1999).
Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).
n13. See, e.g., Paul Jargowsky, Poverty and Place: Ghettos, Barrios, and the
American City 193 (1997).
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes