GENTRIFICATION


Harvard Law Review
JUNE 2000




Copyright (c) 2000 The Harvard Law Review Association
Harvard Law Review

June, 2000

113 Harv. L. Rev. 2009

LENGTH: 14184 words

BOOK REVIEW: ROMANCING THE TOWN: WHY WE (STILL) NEED A DEMOCRATIC DEFENSE OF CITY POWER City Making: Building Communities Without Building Walls. By Gerald E. Frug.

Princeton, NJ: Princeton University Press. 1999. Pp. x, 256. $ 35.00.

Reviewed by Roderick M. Hills, Jr. *



* Professor of Law, University of Michigan Law School. I thank Don Herzog and Rick Pildes for their helpful comments on this Review.

SUMMARY:
... According to this tradition, participation in local politics is not only a good way to control government, but also a useful way to transform citizens, imbuing them with civic spirit, a taste for public affairs, and political skills. ... If this is so, then lovers of local government (among whom I count myself) are going to have to make a tough choice between the direct political participation that local governments facilitate and the social inequality and parochialism that local governments also seem to promote. ... Nor would one guess from Frug's account that cities today enjoy a myriad of special statutory immunities from various regulations and taxes that would be the envy of any private corporation. ... Why is this postmodern rhetoric relevant to the relationship between city and suburb? According to Frug, it suggests that there is no necessary or natural relationship between a particular person and the municipality where he or she happens to reside. ... Starting from this postmodern insight, Frug recommends that local government law increase residents' postmodern sensibilities by allowing people to vote in any municipal election within the metropolitan area where they reside, regardless whether they live within the particular municipality that is the subject of the election (pp. 106-09). ... In short, Frug's strengthening of regional institutions would tend to undermine democratic localism. ...  

TEXT:
 [*2009] 

Political theorists have historically had a soft spot for local governments. Local governments are said to bring democracy closer to the people, to be the "most perfect school of self-government" n1 or the "perfect exercise of self-government." n2 According to this tradition, participation in local politics is not only a good way to control government, but also a useful way to transform citizens, imbuing them with civic spirit, a taste for public affairs, and political skills. Call this tradition "democratic localism." It is a tradition that has fallen on hard times. In the nineteenth century, democratic localism was the dominant position among Anglo-American advocates of democratic equality, ranging from Thomas Jefferson n3 to John Stuart Mill. n4 But today, this view has largely been supplanted among writers and politicians left of center by what I call the theory of "parochial localism." According to this theory, local governments are less like Athens and more like Mount Laurel: n5 rather than promoting deliberation about public affairs, they promote anxious efforts by the suburban middle class to pursue low taxes, high property values, and homogeneous neighborhoods through exclusionary zoning. For those who adhere to the theory of parochial localism, the preferred solution to this predicament is Leviathan - a single metropolitan government that preempts the parochial  [*2010]  actions of warring local governments, replacing them with a single rational scheme for land use, local taxation, and the provision of governmental services. n6

Gerald Frug's book, City Making: Building Communities Without Building Walls, is an ambitious effort to revive democratic localism while simultaneously setting forth a plan to prevent cities from using their power for parochial ends. To be sure, there has been no shortage of scholars defending local government power. However, the bulk of the recent literature has argued in favor of the economic efficiency of local governments, not their capacity to foster democratic participation. Such literature tends to be rooted in Charles Tiebout's insight that local governments compete with each other to attract taxpayers by offering packages of local public goods at competitive tax "prices," just as private firms compete for consumers by offering competitively priced private goods. n7 The critical mechanism that ensures efficiency is the taxpayer's ability to leave inefficient cities for cities that produce preferred public services for a smaller tax bill. n8 Frug will have none of this. He rejects the metaphor of cities as firms on the grounds that such efficiency is purchased at the price of parochial localism's income and racial segregation (pp. 169-70). Instead of focusing on consumer exit, Frug stresses the capacity of cities to foster citizen voice. In doing so, he revives a classic defense of local power that has not had much play since the 1960s, when it formed the underpinnings for several political movements ranging from the Community Action Program n9 to  [*2011]  the Port Huron Statement of the Students for a Democratic Society (SDS). n10 For Frug, "cities can provide the kind of personal, day-to-day contact among citizens and between citizens and their elected officials that community building requires" (p. 12). This political interaction, as opposed to intercity mobility, constitutes for Frug the "value[] of decentralization": "The freedom gained from the ability to participate in the basic societal decisions that affect one's life, the creativity generated by the capacity to experiment in solving public problems, and the energy derived from democratic forms of organization" (p. 10).

Frug's challenge, then, is to explain how local governments can provide this participatory forum without becoming the sort of parochial localities that he rejects. Hence the subtitle of the book, "Building Communities Without Building Walls": Frug wants local governments to achieve the benefits of democratic localism - the "communities" - but to avoid the "walls" of parochial localism. How well does he succeed in this mission?

Judged by this standard, City Making is a qualified failure. As I Part II of this Review suggests, Frug never offers much solid empirical evidence about how city governments actually behave, and he never provides a clear theoretical account of why local government is especially well-suited for promoting democratic deliberation or "public freedom." Instead, Frug serves up some SDS-like optimism about group talk. This romance of the transformative power of town meetings lacks the theoretical precision or empirical support necessary for a persuasive argument. Frug is not incorrect to argue that participation in local politics can transform our "subjectivity" (Frug's term for one's self-perception, goals, and values). But Frug never explains what sort of local government is likely to cause what sort of transformation.

Once one tries to answer this difficult question, one must confront a dilemma that Frug's book ignores: The capacity of local governments to produce transformative participation in politics (something that Frug likes) might depend on small size, economic and cultural homogeneity, and obsession with real estate values and tax rates (things that Frug deplores). Community building, sadly, might be critically related to the building of walls. If this is so, then lovers of local government (among whom I count myself) are going to have to make a tough choice between the direct political participation that local governments facilitate and the social inequality and parochialism  [*2012]  that local governments also seem to promote. As I explain in Part III of this Review, Frug never faces this dilemma. He suggests several reforms of our localism, all of which call for greater degrees of regional control of local decisionmaking. But although Frug does not admit it, these reforms will all tend to undermine the capacity of local governments to facilitate democratic participation. Any expansion of regional power will inherently diminish citizen interaction and voice in local government. As a result, Frug's book ultimately disappoints as a defense of city power.

This does not mean that the challenge undertaken by Frug is not worthwhile. To the contrary, the analysis and defense of democratic localism have been too long neglected. But such an analysis and defense cannot substitute romance for reality. In Part IV of this Review, I outline how any plausible defense of democratic localism must proceed, the empirical research that it must provide, and the theoretical bullets that it must bite. In the end, it is likely that cities do improve our public life - but in ways less grandiose, less romantic, and more equivocal than Frug allows.

I.
 
In order to appreciate both the ambition and the disappointment of City Making, a more detailed summary of its chief claims is necessary. The book is divided into four parts. The first part, composed of the first three chapters, argues that cities have been rendered powerless by our legal system, because the law protects city power only to the extent that cities act like private corporations or market participants. Frug presents a panoramic account of city history, stretching from the late middle ages to the early twentieth century, to support this claim. Frug begins this account by arguing that "modern political philosophy" has undermined the idea of group identity and the status of associations that mediate between the individual and the state (pp. 30-32). In particular, Frug maintains that the "positivism" of Thomas Hobbes became an important argument against the autonomy of English cities during Charles II's efforts to revoke city charters during the late seventeenth century (pp. 34-36). In America, this intellectual suspicion of city power expressed itself in the legal distinction between municipal and private corporations embodied by the U.S. Constitution's protection of private corporations only (pp. 36-42). Suspicion of city power was also manifested by nineteenth-century doctrines like Dillon's Rule, under which cities could exercise only those powers specifically delegated by the state (pp. 45-51).

In Part II of the book, composed of Chapters Four and Five, Frug argues that although cities should receive more power, local government law must first be reformed to eliminate incentives for city politicians and residents to behave selfishly and parochially, disregarding  [*2013]  the welfare of the greater region. Frug maintains that cities need not have such a "centered subjectivity" (meaning a selfish indifference to metropolitan welfare). Invoking communitarian and postmodern social theory, Frug argues that the subjectivity of cities can be transformed so that they are less obsessed with their own economic welfare and more concerned with the region as a whole.

In Chapter Four, Frug sets out to defend the proposition that "the self is formed only in relationship with others" (p. 73). To support this contention, Frug provides a "glimpse at the literature" on communitarian social theory, quickly summarizing the work of Michael Walzer, Frank Michelman, Roberto Unger, Carol Gilligan, and Martha Minow (pp. 73-76). The essential point of this survey is to show that one's values and desires are formed by one's relationships with other people. In a nutshell, this seems to be what Frug means by the "situated self": the self is neither logically nor ontologically prior to the community of persons with whom the individual forms relationships.

Frug maintains that this literature "could be a source of ideas for a local government law based on a notion of the situated self" (p. 76). Current local government law gives municipalities broad discretion to ignore the interests of neighboring communities. In most states, for instance, local governments have the power to enact zoning ordinances that effectively exclude housing types affordable by low-and moderate-income households (p. 77). Frug seems to suggest that this legal and political fact is the result of the law's adoption of a particular theory of the municipal self: state law bestows such powers on municipalities because the law regards local governments as "centered subjects" rather than "situated subjects" (pp. 76-85). To correct this state of affairs, Frug recommends that local government law promote "interlocal relationships" to encourage a different sense of identity among residents of suburban municipalities - a sense of situated self that would make those residents more solicitous of the interests of the persons excluded by zoning ordinances (p. 85).

In particular, Frug suggests that states should create regional legislatures to govern metropolitan areas and help mediate disputes between central cities and their suburbs (pp. 85-89). This regional legislature would not be required to preempt exclusionary zoning ordinances outright (pp. 83-84). Instead, the process of interlocal mediation would "undermine the power of suburban consciousness by organizing interlocal negotiations to highlight contradictory instincts [among suburban residents]" - in particular, the desire of at least some suburban residents to promote gentrification in the central cities  [*2014]  in order to make cities more desirable places for middle-class persons like themselves to live (pp. 82-83). n11

In Chapter Five, Frug makes a similar argument that local government law could be reformed in desirable ways if lawmakers adopted a different conception of the self. Again, he provides a "glimpse at the literature" (pp. 92-97) - this time, a glimpse at postmodern literature suggesting that the self is a contingent fiction that society and persons must create, rather than "an already existing interior essence" (p. 94). Frug argues that "[a] postmodern conception of local government law" might be the basis for rejecting "residency as the focal point of a person's relationship to the metropolitan area" (p. 97). Individuals need not be centrally attached to the particular suburban jurisdiction in which their house happens to be located, because their sense of self is contingent and could be reshaped to emphasize different priorities (pp. 97-102). To help promote this sense of "postmodern self," voters should be permitted to vote in any municipal election within the metropolitan area where they reside (pp. 106-09).

In Parts III and IV, Frug applies the theoretical framework laid out in Part II to some specific problems in urban law and policy - land-use regulation, education, police, and city services. As a general matter, the law should be amended to promote interaction among heterogeneous people. Invoking the arguments of Iris Marion Young and Richard Sennett (among others), Frug argues that such interaction breeds a beneficial sort of urbanity and tolerance of differences among ethnic, cultural, and economic groups (pp. 115-29). Frug prizes big cities over more homogeneous suburbs precisely because they promote this sort of interaction, and he wants to reform the law to ensure that residents of more homogeneous suburbs cannot avoid social contact with people from different economic, social, or ethnic backgrounds. For instance, he urges that suburban land-use planning follow the neo-traditional models promoted most famously by Peter Calthorpe, Andres Duany, and Elizabeth Plater-Zyberk (pp. 149-54). Frug also suggests that residents be permitted to send their children to any public school in the metropolitan area, so long as their choice increases the "diversity" of the school (pp. 184-90). But the specific proposals seem secondary in importance to Frug's larger vision of how the law can  [*2015]  help to build communities by tearing down the walls between city and suburb.

II.
 
Frug's argument in City Making is plagued by a persistently nonempirical methodology. Although he purports to be describing the actual history or current behavior of cities, Frug rarely explains how or why actual cities behave the way that they do. Instead, he mostly describes the abstract claims that political, legal, and social theorists have made about cities: City Making is an intellectual history of the legal and social theory of cities, but not an account of cities themselves. Moreover, Frug uncritically attributes extraordinary potency to academic theorizing: he seems to assume that highly abstract statements by various theorists (Michael Walzer, Carol Gilligan, Judith Butler, Jean-Francois Lyotard, Iris Marion Young, etc. n12 ) have some inherent magical power to affect how cities behave.

Frug's indifference to empiricism and interest in abstract theory are most striking in Part I of City Making. This Part purports to be a history of cities, yet it contains little information about how cities have behaved throughout history. Take, for example, Frug's account of the transformation of the medieval town into the modern city. Frug argues that the medieval town "was a group of people seeking protection ...for the interests of the group as a whole" (p. 27). To be sure, he concedes that there were violent class struggles between the town's elite merchant oligarchies, who essentially controlled most town power, and the workers or small-scale artisans who rebelled against their mercantile masters (pp. 28-29). Frug argues, however, that those inhabitants, rich or poor, "could see an importance and value in the communal association that we do not" (p. 29), an importance and value apparently rooted in some sort of organic unity such that "the autonomy of the town and of its citizens merged" (p. 30). Frug's only support for this view of medieval towns is Otto Gierke's account of "medieval political thought," according to which associations had a "harmonious unity" that was a "diminished copy of the divinely instituted harmony of the universe" (pp. 29-30). n13

Even assuming that Gierke's views represent the last word on medieval political thought, it is hard to know what to make of Frug's claim on behalf of such "thought." Did medieval thinkers represent the views of city dwellers, or was such "thought" simply ideology from  [*2016]  the literati? Did such "thought" actually cause the city to be structured in a particular way, or was it mere superstructure erected on more fundamental economic or political interests? Frug does not say. A paragraph on Gierke's thoughts on unnamed medieval political thinkers suffices for Frug to establish that the medieval town really did have some sort of organic unity that we have since lost.

The extraordinary and potent, yet unexplained role of "thought" in Frug's account only becomes more prominent as the story progresses. "Modern political philosophy," according to Frug, "undermined the vitality of all groups that had held an intermediate position between what we now think of as the sphere of the individual and that of the state" (p. 31). This assertion would probably have been both flattering and surprising to modern political philosophers; however, Frug cites no real evidence that philosophy had such political potency. As support, Frug offers only Charles II's challenge to London's corporate status in 1682, which "echoed Hobbes," presumably because both Hobbes and Charles II regarded independent towns as a threat to social order. "The king's victory in the London case represented a victory for the positivist position" against intermediate associations (pp. 34-35).

There is, however, little evidence that Charles II's attack on London's independence was influenced by Hobbes's social theory rather than, say, Sir Robert Filmer's theory of the patriarchal monarch. n14 Charles II might have attacked London not because of some overarching theory of Hobbesian positivism, but rather because the London militia helped defeat and ultimately decapitate his father in the English Civil War. Monarchs in medieval times had made essentially similar attacks on city independence without the aid of Hobbes or positivism. n15 True, both Charles II and Hobbes disliked independent cities. Likewise, both Hitler and John Maynard Keynes had little use for balanced budgets. Does this make Hitler a Keynesian? The position of cities changed a lot during the early modern period, but Hobbes and "modern political theory" were probably the least of their problems.

Frug's insistence that the publications of theorists drive history becomes more pronounced after his narrative crosses the Atlantic to discuss the position of American cities. According to Frug, cities in America became powerless as a result of the public-private distinction in American law. During the early nineteenth century, the law divided corporations into private corporations and public corporations. Private corporations, Frug claims, were viewed as individual rights holders, whereas municipal corporations were viewed as threats to individual liberty to be controlled by the state (p. 39). Thus, cities must trace their authority to specific state laws, whereas private corporations are assumed to have the power to act without such specific authorization.

This account of American law, however, rests on sources too thin and academic to bear the weight of Frug's account. Frug relies primarily on two sources - Justice Joseph Story's concurring opinion in Trustees of Dartmouth College v. Woodward n16 and Judge John Dillon's 1872 treatise on municipal corporations. n17 Justice Story's Dartmouth College opinion famously drew a distinction between public and private corporations by arguing that only the charters of the latter were entitled to protection under the Contract Clause of Article I, Section 10. n18 These dicta provide modest support for the idea that private corporations received more solicitude from the courts than did public corporations. However, eighteen years later, the Taney Court refused to interpret the Contract Clause as protecting the charters of private monopolies in Charles River Bridge v. Warren Bridge. n19 The reasoning of Charles River Bridge suggests that the Court's refusal to protect city charters with the Contract Clause owed more to the Court's desire to subject all monopolies - public and private - to democratic control and less to some sort of systemic preference for private over public corporations. n20 Because municipalities almost always have de facto monopoly power over the land and lives of their subjects, it is not surprising that the Court would have regarded municipalities as especially threatening to individual liberty. It does not follow that the Court necessarily regarded private corporations as bearers of individual rights; to the contrary, its Contract Clause jurisprudence suggests that  [*2017]  the Court feared private corporate power just as much as public power and allowed legislatures to limit it accordingly. n21

Frug also relies on Judge Dillon's treatise to establish that municipalities were systematically stripped of power during the nineteenth century (pp. 45-48). Although "Dillon's Rule" certainly constrained municipal power, n22 Frug greatly exaggerates the practical importance of Dillon's Rule, given that the enactment of "home rule" provisions in state constitutions and statutes between 1875 and 1920 rapidly eroded the doctrine. Frug's statement that the rule "largely remains intact" (p. 47) is true only in the trivial sense that the rule exists where it has not been specifically overruled. Today, this is almost nowhere, given that most states with the vast majority of the U.S. population have "home rule" statutes or constitutional provisions that grant municipalities general power over "local" or "municipal" affairs. n23 That these powers are granted by state law rather than by some "inherent" right of group association is academically interesting but practically irrelevant.

Frug responds that "home rule" provisions are inadequate protections of municipal autonomy because "they have not successfully created an area of local autonomy protected from state control" (p. 51). This statement is correct: "home rule" provisions are rarely construed to give cities broad imperio immunity from state regulation. Instead, the provisions are chiefly useful as sources for municipal power to initiate  [*2018]  policies when the state legislature is silent. n24 But it is difficult to see how Frug's statement is relevant to his thesis that municipal corporations have fewer powers than private corporations. After all, except for a brief period of time between Lochner v. New York n25 in 1905 and West Coast Hotel Co. v. Parrish n26 in 1937, private corporations have never had "an area of ...autonomy protected from state control" (p. 51): state legislatures have traditionally exercised broad regulatory powers over private business corporations, controlling and sometimes even abolishing their economic activities. The business corporation today only has the power to initiate policies that have not been outlawed by the state. This power is precisely what municipal corporations have.

All of these particular flaws in Frug's argument point to a weakness that characterizes the entire book - an indifference to the empirical realities of municipal government in favor of an analysis of abstract theoretical claims in academic treatises and U.S. Supreme Court opinions. Frug rarely descends from lofty generalities to the gritty realities of municipal power. One would never know from Frug's account, for instance, that notwithstanding Judge Dillon's assertions to the contrary, cities throughout the nineteenth century exercised broad regulatory power over their inhabitants. n27 Nor would one guess from Frug's account that cities today enjoy a myriad of special statutory immunities from various regulations and taxes that would be the envy of any private corporation. For example, cities are usually immune from federal antitrust liability n28 and the obligation under federal law to bargain with public employee unions; n29 in addition, the interest on municipal bonds is usually exempt from federal taxation, n30 and municipal utilities are often free from the oversight of state public utility  [*2019]  commissions. n31 Others have commented on Frug's failure to consider cities' special statutory immunities. n32 Inexplicably and inexcusably, Frug does not respond to or incorporate these criticisms of his thesis in City Making.

This indifference to experience and fixation on abstract theorizing is also evident in Part II of City Making, in which Frug purports to deduce alternatives to parochial localism from communitarian and postmodern social theory. Although Frug wants to increase city power, he distrusts cities as they are currently constituted because their political leaders behave in selfish, parochial ways. In Frug's words, they "are centered subjects" (pp. 64-69). His solution to this problem demonstrates his extraordinary faith in the power of theory. Frug argues that, because social theory tells us that human interests are dependent on social role, those interests are infinitely and easily malleable. According to Frug, "states can create cities with any subjectivity they please" (p. 65).

This assertion reveals the non sequitur underlying Frug's argument. Of course suburbanites' and their political leaders' desires and interests are a product of their social roles. But nothing in the social theory cited by Frug suggests that this sense of role - this "subjectivity" - can be manipulated with the reforms that he recommends.

Consider, for instance, Frug's use of communitarian theory in Chapter Four. He begins by quoting some snippets of communitarian social theory to show that humans are "situated subjects" - that is, dependent on other humans' interests in building a sense of self (pp. 73-76). Frug concludes from this that suburbs might also be endowed with a "situated subjectivity," if only they were forced to confront the degree to which the fortunes of cities and suburbs are "inextricably entangled" with each other (p. 77). The problem, for Frug, is simply one of inducing suburbanites to make a change of heart and "embrace a vision of themselves as decentered, as interdependent" (p. 80). Toward this end, he urges the creation of a regional legislature that would adjudicate disputes between cities and suburbs over issues that divide them, such as allocation of tax revenue and exclusionary zoning (pp. 85-89). The point, Frug urges, is not simply to give the regional legislature the power to decide issues of regional importance, for this would undermine decentralization of power (pp. 87-88). Instead, he sees the regional legislature as a forum in which cities and suburbs bargain with each other in good faith. Frug seems to suggest that, once they become aware of their common interests by deliberating  [*2020]  with each other in this forum, cities and suburbs will be able to reach some sort of accommodation that will preserve all the benefits of democratic localism while avoiding parochial localism.

Frug gives us no reason, however, to believe that this outcome is remotely possible. It is simply a non sequitur to infer that we will be less selfish because we have "situated subjectivities" that are dependent on others for our identity. Such psychological dependence on others, after all, might be exploitative rather than benevolent. n33 For instance, suburbanites' sense of who they are might be critically dependent on their perception of cities as violent, anarchic, and corrupt dystopias against which their communities are a haven and bulwark. n34 Making suburbs more aware of the plight of central cities is not likely to change the hearts and minds of such suburbanites about the value of, say, revenue sharing, if the suburbanites' identity is partly rooted in the conviction that big city governments squander money.

Chapter Five exhibits the same strange confidence that abstract theorizing about "subjectivities" will somehow vaporize intractable differences in interest. Quoting a battery of postmodern theorists (Judith Butler, Jean-Francois Lyotard, Jean Baudrillard, Brian McHale, Michel Foucault) (pp. 92-97), Frug concludes that our sense of self is not determined by nature but rather "reenacts a performance, a game, a role in a publicly created system" (p. 96). Why is this postmodern rhetoric relevant to the relationship between city and suburb? According to Frug, it suggests that there is no necessary or natural relationship between a particular person and the municipality where he or she happens to reside. The location of one's house need not define one's sense of community, for one could choose to define it otherwise. After all, residents of a metropolitan area "think nothing of crossing city lines for child care, work, shopping, recreation, entertainment, visiting friends, and the like" (p. 99). By insisting that persons are members of the local community where their house or apartment happens to be located, local government law "romanticizes the home as a haven in a heartless world" (p. 101). Starting from this postmodern insight, Frug recommends that local government law increase residents' postmodern sensibilities by allowing people to vote in any municipal election within the metropolitan area where they reside, regardless whether they live within the particular municipality that is the subject of the election (pp. 106-09).

 [*2021]  This rarefied argument, however, ignores the persistent interests of homeowners, which no number of postmodern block quotes is likely to dissolve. Homeowners vote in the elections of the municipalities in which their houses are located because their houses are their most important financial investments and the sites for the leisure and consumption activities over which they have the greatest degree of creative control. n35 This is not romanticizing; it is cold social fact. Of course, homeowners also travel to the cineplex, shopping mall, or cubicles in their workplaces, but these trips hardly indicate a connection to the destination as strong as the typical homeowner's attachment to the equity in his or her house. Homeowners, after all, have not mortgaged the cineplex, and if some zoning decision should cause a shopping mall to go out of business, they can shop somewhere else with little distress. By contrast, a homeowner cannot easily withdraw his or her capital from a house if a zoning decision causes the house's value to plummet, because the zoning decision will likely be capitalized into the house's sale price. n36

Thus, one would expect homeowners to leave postmodernism to the professoriat and instead fight over elections determining the composition of their own zoning authority while ignoring elections in neighboring municipalities. These realities ensure that Frug's suggested electoral reform will likely have no practical effect on electoral outcomes or suburban "subjectivities." To the postmodern theorist, this interest in one's home appears to be "a performance, a game, a role in a publicly created system" (p. 96). But the system will prove resilient as long as the interests underlying the system remain the same. n37

In sum, City Making shows a persistent indifference to the empirical reality of cities. Aside from the obvious danger that ignoring facts will cause one's reforms to fail, Frug's refusal to face facts creates a  [*2022]  second danger - a danger that the problems of local government will seem essentially mysterious. Frug portrays the struggle between city and suburb as a mere misunderstanding, a failure of imagination. Cities are said to be flawed because our "understanding of city power" or our "conception of cities" as "sovereign" and "self-assertive' has somehow transformed the behavior of city leaders (pp. 6-7). By "building city power on the image of the autonomous individual and the nation-state," the law has made city residents and their representatives selfish (p. 9).

But then the question arises: how did this misunderstanding come about? Frug's answer seems to be mystical: some ideology or mood - "our accommodation to bureaucracy" (p. 23), "antidemocratic prejudice" (p. 23), or "modern political philosophy" (p. 31) - somehow spread like an airborne bacterium. The antidote, then, is to spread ideological antibiotics - the "situated self," the "postmodern subject" - and hope that they fight the infection.

An alternative view is that the city-suburb conflict is not a misunderstanding at all but rather a conflict between distinct interests that the parties themselves understand all too well. Different institutions - regional government, state legislatures, counties, municipalities, etc. - favor different interests in different ways. Under this view, the problem for local government law is choosing the right mix of institutions to give victory to the right mix of interests. This task may be difficult, but it has the virtue of avoiding the gratuitous mysticism of Frug's account.

Why does Frug embrace such an extreme idealism under which our imagination is the primary engine of history, enabling us to transform our environment by imagining that it has changed? This idealism is symptomatic of an unfortunate turn in the recent history of left legal studies. Some early strands of critical legal theory - notably, the work of Morton Horwitz - reflected a more conventionally Marxist emphasis on material interests as the engine of historical change, a focus that led to more detailed empirical exploration of the structure of judicial decisions and the influence of material interests on law and policy. n38 But in reaction to the perceived overly deterministic and material character of this Marxist view of social processes, critical legal theory shifted toward greater emphasis on the role of ideas, intellectual consciousness, and the relatively autonomous character of law. Such a shift is entirely sensible if it implies no more than that ideas can be autonomous from, and sometimes influence, social and political institutions. n39  [*2023]  But an implausible strain of legal theory, epitomized by the work of Roberto Unger, has given theory such a dominant role that the only constraint on our capacity to reshape ourselves and society is our lack of theoretical imagination. n40 Frug represents the reductio of this development. In his hands, not only do ideas, consciousness, and theories play some role in structuring institutions: they now seem to play the only role.

Frug's apparent adherence to Unger's social theory may explain his indifference to empiricism. After all, if the present social reality is simply a contingent fact that we can change by imagining something different, then why bother studying it in any detail? This reasoning, however, rests on the invalid inference that institutions are more malleable merely because they are socially constructed. n41 True, the conflict between city and suburb is rooted not in natural necessity (whatever that means), but rather in social practices. But the same could be said for lots of fairly stubborn aspects of our reality - inflation, unemployment, air pollution, budget deficits, mortgage payments, etc. n42 Lecturing them (or us) on their contingency will not make them go away. Moreover, Frug's insulation from experience stunts his imagination. There are, it turns out, more things in heaven and earth than are dreamt of in his scholarly citations. One of those things is the resilience of our municipal form of life - an interwoven fabric of mortgages, widespread homeownership, cheap and abundant land, auto commuting, large-lot and single-family residential zoning, etc. Frug's error is to believe that, because these are social practices, they can be  [*2024]  changed through sheer academic theorizing about society. One might call this the false consciousness of the professoriat.

III.
 
The central problem with Frug's book, however, is not empirical but theoretical. City Making never adequately confronts the tension between Frug's desire to promote democratic localism and his desire to avoid parochial localism. In Part I, he praises cities because they are smaller than other units of government and thus provide greater opportunities for political participation. In Parts II through IV, however, he pushes reforms that promote greater awareness of regional well-being or big-city urbanity. Throughout his account, he never explains why his regional reforms will not undermine the political advantages of "smallness" that he extols in Part I. Instead, he simply exhorts us to believe that, in the end, everything will work out: "there is no reason to think that the choice facing America is between local autonomy and regional (or state or national) government - between separation from others and being overwhelmed by them in the name of togetherness" (p. 223). As I show below, this is whistling in the dark: none of Frug's proposals successfully negotiates between the leviathan of metropolitan centralization and the parochial dysfunction of metropolitan fragmentation. His failure to make any specific suggestions for reconciling democratic and parochial localism severely undermines City Making as a useful contribution to political theory.

To understand this dilemma, one must start with Frug's own defense of city power in Part I of City Making. What is the democratic advantage that cities have over other levels of government? Frug's answer is smallness: compared to state and federal governments, cities' "limited size" enables "ordinary citizens to participate in public life" (p. 21). Why should ordinary citizens participate in public life? Like some other critics of modernity, Frug argues that such participation satisfies the "need for the individual to gain control over those portions of his or her life now determined by others" (p. 21). At several other points in the book, Frug emphasizes the importance of cities' small size for giving citizens this sense of control. This is why he prefers regional legislatures over state legislatures: "little popular participation in the states' decision making is possible because of their size" (p. 88). Likewise, he rejects Iris Marion Young's argument that cities should "cease to have sovereign authority," n43 because such authority "abandons any meaningful effort to decentralize political power" (p. 118).

 [*2025]  Why does size matter to Frug? If one is to move beyond the small-is-beautiful sentimentality, n44 then one must answer this question with skepticism and detail. But Frug never does. He rounds up the usual suspects - Hannah Arendt, Alexis de Tocqueville, John Dewey - to support his case that participation in local politics is necessary for meaningful democracy (pp. 21-24). But Frug's quotations are too brief to shed light on exactly what he means when he says that state legislatures are too large such that we need a "reduction of the scale of decision making" (p. 21). Is it the smaller population of cities that gives them a democratic disadvantage? The ratio of elected and volunteer officers to constituents? The greater levels of information that citizens have about the issues addressed by cities? Or is it something else?

Answering this question is critical because, depending on the relationship between size and democracy, many of Frug's suggested reforms might undermine local governments as vehicles for political participation. To explore this relationship more thoroughly than Frug does, it is useful to consider four democratic advantages a small locality might have over a regional or big-city government. As I describe each advantage, I will highlight how it implies a specific manner in which citizens might benefit from local government being "small."

First, "small" local governments address issues of immediate and intense interest to constituents about which the constituents can acquire relevant information without excessive effort. For instance, because local zoning decisions affect the value of homeowners' largest investment, such decisions tend to inspire intense interest in neighbors. Moreover, homeowners can acquire information relevant to zoning decisions (concerning, for example, traffic patterns, crime rates, need for light or air, use of neighborhood parks, recent real estate deals, local sentiment about land use, etc.) simply by living within the jurisdiction. Thus, participation in a hearing concerning the zoning designation of a specific parcel of land is far more feasible for laypeople who own property in an affected neighborhood than, say, participation in the notice-and-comment hearing for a new EPA standard on ozone and particulate emissions. Given the costs and benefits of participation, it might make sense for a homeowner to hire a babysitter and show up at a 7:00 p.m. planning commission hearing that might run late into the night. If the democratic participation that one wishes to promote with smallness is intense involvement by laypersons, then local governments might benefit by being "small" to the extent that their agendas  [*2026]  are tightly constrained to issues, like land use, that are of immediate concern to constituents.

Smallness might promote democracy in a second way - by increasing the ratio of elected officials to voters. It might be easier for voters to contact local officials or even volunteer to serve on a local board simply because there are far more elected and volunteer positions available per resident. There are, after all, about 500,000 elected local officials in the United States, and about three percent of adult Americans have served on some sort of local board. n45 Moreover, research has repeatedly suggested that citizens personally contact local elected officials more frequently than their federal or state counterparts to express opinions on issues of public concern. n46 If one goal of democratic participation is simply to ensure that large numbers of laypeople have direct experience in the governmental process, then local governments with numerous elected and volunteer positions seem to accomplish this goal more effectively than federal or state governments.

Third, the electoral districts of smaller jurisdictions tend to be smaller than those in larger jurisdictions, and this might reduce significantly the cost of political campaigns in the former, thereby enabling more residents to run for public office. To reach 600,000 voters in a congressional district requires a sizeable amount of money for television or radio ads, print media, etc. In a city of 100,000 people, however, there might be only 10,000 residents in a city councilperson's single-member district: reaching them could require as little as several weekends of door-to-door canvassing and a few signs. n47 Here, the relevant measure of smallness would be the population of electoral districts - a characteristic that only loosely correlates to the population of the jurisdiction, because localities with at-large elections might have districts as large as single-member state legislative districts.

Finally, smallness might promote what Jane Mansbridge refers to as "unitary democracy" - a form of politics stressing rule by consensus rather than majority, face-to-face contact rather than the secret ballot, and equal respect rather than equal protection of interests. n48  [*2027]  Such a form of democracy might be useful to cultivate in certain settings, but it might only be desirable in communities whose members share enough interests to be able to reach consensus over a large number of issues without routinely suppressing dissidents. This is generally the case only in localities with relatively homogeneous populations.

How might these characteristics of local governments improve democracy? Three of the four traits of smaller local governments reduce the cost of participating in the political processes. But why encourage personal participation in government? The usual argument is that such direct participation serves, to use John Stuart Mill's phrase, as a "school of political capacity and general intelligence." n49 By personally participating in governmental decisionmaking, one might learn important skills that are useful at other levels of government - for example, familiarity with group decisionmaking rules (for example, Robert's Rules of Order), the need for compromise in group decisionmaking, public speaking skills, and so forth. De Tocqueville offers a variant on this "schoolhouse-of-democracy" argument: Those who directly participate in the administration of the laws will gain a "spirit of ownership" such that they will make enforcement of the laws their personal concern, entertaining towards the state "a feeling analogous to that which unites [them] to [their] family." n50 One might call this effect the inculcation of "civil trust," except that the term connotes too much passivity. Perhaps a better term is "administrative enthusiasm": the experience of direct participation inculcates in the participant an interest in seeing that boring matters of civil administration ("small concerns" in de Tocqueville's phrase n51 ) are carried out creatively and efficiently, because that participant is himself an author of those details and interests himself in them "by a kind of selfishness." n52

Is there any evidence that direct participation in government actually has these effects? One suggestive fact is that Americans tend to participate more frequently than the citizens of other industrialized nations in the more demanding aspects of governing private and local governmental organizations - showing up at hearings, canvassing neighborhoods, and contacting officials - and Americans also seem to exhibit a greater trust in their ability to use government to protect their interests. n53 But there is little research either confirming or disconfirming  [*2028]  Frug's confident prediction that if cities engaged in more regional negotiation, their citizens would care more about regional welfare (p. 80). The truth may be that political decentralization will merely make citizens more able to use politics and more willing to trust government. There is little evidence that it will also increase their benevolence toward their neighbors, the region, or the nation.

It is not clear whether Frug has these benefits of smallness in mind when he praises localism in Part I of City Making. Although he cites de Tocqueville and Hannah Arendt approvingly (pp. 20-21), he does not dwell in detail on their arguments in favor of the direct participation of citizens in local government. Yet these benefits are an essential starting point for evaluating the reforms that he suggests in Parts III and IV of City Making. To what extent will these reforms undermine the sort of participatory democracy that localism is supposed to produce? I think that the tensions between Frug's suggested reforms and democratic localism are greater than he acknowledges.

Consider, in particular, Frug's desire to promote interaction among heterogeneous groups in political decisionmaking. Frug likes big central cities - say, Seattle, New York, Chicago, San Francisco, or other gothams with populations close to or exceeding a million people - because they allow diverse social groups to interact and thus "accommodate [their members] to unfamiliar strangers" (p. 60). The chief virtue of these metropoles is that they promote urbanity by "increasing the capacity of metropolitan residents to live in a world composed of people different from themselves" (p. 115). Big cities breed a "metropolitan type of individual" (pp. 124-25) who offers the same reaction "when the girl with green hair and multiple piercings, the African American kids blasting hip-hop on a boom box, the gay couple holding hands, the panhandler, and the mentally ill person pushing a shopping cart pass by. That reaction is: Whatever" (p. 213).

Big-city urbanity is undoubtedly a virtue, but it has little to do with democratic participation. The urbane flaneur who enjoys the parade of humanity as it passes him on the sidewalk is, after all, not talking to any of those people, but is rather avoiding eye contact with them. The studied indifference of the streetwise pedestrian might, in a sense, "promote tolerance for social and cultural diversity" (p. 127).  [*2029]  But it is a tolerance often built upon suppressed contempt rather than democratic interaction. n54

Most important, there might well be tension between the goals of promoting heterogeneous jurisdictions with urbane residents and promoting jurisdictions with politically involved ones. Consider the four advantages of smallness outlined above. All tend to be undermined by the sort of "community building" that Frug urges. Take first Frug's proposal to create regional legislatures to overcome municipal parochialism. As Professor Richard Briffault has explained, such regional legislatures would be ineffective in overcoming municipal recalcitrance unless the state stripped municipalities of their power to resist the interlocal bargains that would emerge from the regional legislature's deliberations. n55 But this effectively means that municipal power would be transferred from the municipalities to a legislative body governing a much larger regional population. The number of elected and volunteer positions would diminish, reducing access to policymakers and increasing the costs of elections.

A similar criticism applies to Frug's recommendation that municipalities consider the regional consequences of their land-use decisions to ensure that they do not exclude low-and moderate-income housing (pp. 162-64). But such consideration, if it is to be meaningful, will require a definition of each municipality's "fair share" of the "regional need" for such housing. n56 Judging by New Jersey judicial decisions and administrative regulations, formulating this definition is a task of mind-numbing empirical complexity, requiring formulae to predict employment growth, percentages of "buildable" land, and inventories of housing stock. n57 It is unlikely that laypeople could meaningfully  [*2030]  participate in such a determination. Again, by increasing the scale of government from the municipal to the regional level, Frug would undermine the critical democratic advantages of smaller governments.

Democratic localism is similarly threatened by Frug's proposal that there be a "regionwide focus" to crime prevention (p. 203). His specific recommendations are murky, but he seems to call for more regional funding and greater regional control over the allocation of police services (pp. 200-04). Again, by transferring power over the police from municipalities to regional institutions, Frug would undermine the advantages of smallness for democratic participation. Assuming that the regional legislatures would not have an unmanageably large number of members, his proposed reform would, for instance, reduce the number and power of elective and volunteer positions capable of reviewing policing decisions. The best available empirical evidence suggests that this reform would diminish citizen trust in, and satisfaction with, the police. Citizens, regardless of race, seem to trust their police departments more when those departments are controlled by smaller municipalities rather than large cities or metro governments. n58 One explanation is rooted in the classic theory of democratic localism: residents of smaller jurisdictions have easier access to elected officials who can act as ombudsmen for citizen complaints and suggestions.

In short, Frug's strengthening of regional institutions would tend to undermine democratic localism. This does not mean that his proposals are undesirable reforms. There are, after all, other goals besides increasing democratic participation, including the attainment of social equality and racial and economic integration. The problem with Frug's argument is that he never confronts the tension between preserving the democratic advantages of smallness and increasing regional control, because he never acknowledges that regional reform requires the sacrifice of some of the advantages of smallness. Instead, Frug provides a sunny tale in which municipal walls come tumbling down in Parts III and IV at no cost to the democratic localism that he champions in Part I. The choice between more regionalism or more localism has a tragic aspect in that, however one resolves the dilemma, something valuable will be lost. By ignoring the tragedy, City Making makes no contribution to our ability to make that choice.

 [*2031] 

IV.
 
Is there any way to resolve the dilemma between preserving democratic localism and avoiding parochial localism? While a book review is not the forum in which to answer this question, it is worth saying a bit about what a persuasive answer requires.

First, any answer needs to be sensitive to the complex ways in which a jurisdiction's size and social heterogeneity (or homogeneity) can affect democratic deliberation. It has frequently been observed that socially homogeneous groups tend to produce deliberation of low quality. Deliberation among the like-minded simply makes the participants adhere more zealously to whatever they believed before they began their deliberations, transforming the participants into zealots rather than careful or self-critical thinkers. n59 One might, therefore, argue that larger, more heterogeneous jurisdictions - for example, counties, big cities, states, and the nation - will tend to produce higher-quality deliberation among their members because the residents will more likely be forced to confront viewpoints different from their own. Frug at times seems to express such a view.

This inference, however, ignores the possibility that the residents of heterogeneous jurisdictions will interact with each other less regularly than the residents of smaller, more homogeneous towns, because the costs of direct participation in politics rises as the size of the unit increases. One way of overcoming these organizational costs in larger units is to form an interest group run by full-time professional advocates with an extremely narrow focus - say, clean air, possession of firearms, protection of abortion rights, lower taxes, higher wages, better pensions, etc. By concentrating on one isolated issue and relying on a full-time staff, such interest groups reduce the complexity of their message and the scope of demands that they make on members' time (which often consist only of writing a check). n60 This strategy can offset the increased organizational costs of a larger jurisdiction, but such a benefit comes at a stiff price. There is reason to believe that these advocacy groups tend to espouse the views of their most extreme members, adopting the strident faith of the true believer, which is unlikely  [*2032]  to change in response to debate. n61 Thus, the paradox arises that the residents of larger, more heterogeneous jurisdictions might rarely confront people with viewpoints different from their own. The challenge of local government law, therefore, might be to design a jurisdiction large enough to contain some social heterogeneity but small enough to ensure that members of these heterogeneous social groups actually talk to each other rather than participate in political debate only through the polarized hype of mass-mail politics. n62

Second, future work must specify exactly how localism will be expected to transform citizens. It is important not to gush about the democratic values of local politics: one must specify precisely how and why localism will transform our "subjectivities." De Tocqueville, after all, never said that participation in local politics would eliminate parochialism. Instead, he argued only that it would increase citizens' enthusiasm for the efficient enforcement of the existing laws, whatever they might be. n63 Likewise, Hannah Arendt specifically disavowed the position that political participation would lead to a greater degree of altruism, arguing instead that "public happiness" was not public benevolence but rather a sort of ego gratification that comes from appearing in public and disclosing one's "unique personal identity." n64 We must confront the possibility that "empowered" citizens will use their newfound public freedom for egotistic posturing, reinforcement of class homogeneity, and preservation of racial exclusion. n65

 [*2033]  Finally, once we have answers to the first two questions, we need to ask how regionalism can be made compatible with localism in ways least likely to undermine the sorts of civic participation that we want to encourage. This means abandoning the idea that there can be regionalism without tears. It may be that, in the end, the bureaucratic advantages of efficient governance swamp the advantages of democratic localism. But it might also be the case that specific regional arrangements minimally affect citizens' capacity and willingness to show up at hearings, educate themselves in the workings of democratic systems, and learn the arts of democratic governance.

To prove this point, however, we will need more evidence and more specific theory than Frug provides in City Making. Such proof will be less of a romantic endorsement of localism than Frug provides. It will be messy, sometimes dull and empirical, and always tentative. But knowing what we know about how local governments behave, we need to leave adolescent romance behind and get on with the middle-aged business of saving the marriage between localism and American democracy.



FOOTNOTES:
n1. 2 James Bryce, The American Commonwealth 284 (London, MacMillan 3d ed. 1895).

n2. Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816), in 12 The Works of Thomas Jefferson 3, 9 (Paul Leicester Ford ed., 1905).

n3. See id.

n4. See John Stuart Mill, Considerations on Representative Government 284-306 (Gateway Editions 1962) (1861).

n5. In a series of three separate cases, the New Jersey Supreme Court held that the Township of Mount Laurel's zoning laws, which effectively excluded the poor from the boundaries of the municipality through minimum lot size requirements and the like, were invalid under state law and necessitated remedial measures. See Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 724-25 (N.J. 1975) (invalidating Mount Laurel's exclusionary zoning laws); see also Hills Dev. Co. v. Township of Bernards, 510 A.2d 621 (N.J. 1986) (discussing remedies); Southern Burlington County NAACP v. Township of Mount Laurel, 456 A.2d 390 (N.J. 1983) (same).

n6. The writers who subscribe to the view that "fragmented" (meaning decentralized) metropolitan areas lead to dysfunctional government are legion. For some recent examples, see Anthony Downs, New Visions for Metropolitan America (1994); Myron Orfield, Metropolitics: A Regional Agenda for Community and Stability (1997); and David Rusk, Cities Without Suburbs (1993).

n7. See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416, 421-23 (1956).

n8. The most thorough efficiency-based defenses of metropolitan fragmentation have emerged from the Workshop in Political Theory and Policy Analysis based at the University of Indiana, Bloomington. Led by Elinor and Vincent Ostrom and their students, the Workshop's members have published several theoretical and empirical defenses of the decentralization of many governmental functions to small municipalities. For a collection of representative writings, see Polycentricity and Local Public Economies: Readings from the Workshop in Political Theory and Policy Analysis (Michael D. McGinnis ed., 1999) [hereinafter Polycentricity]. Although the work of the Workshop is influenced by Tiebout's scholarship and the idea of consumer flight, the Workshop also argues that units of government with smaller populations are more likely to be responsive to citizen voice. See Vincent Ostrom, Polycentricity (Part 2), in Polycentricity, supra, at 119, 130 ("Where populations of a million or more persons are governed by reference to a single unit of government, the voice exercised by any one individual becomes irrelevant ....").

n9. For a critical description of the Community Action Program of the Economic Opportunity Act of 1965, see Daniel P. Moynihan, Maximum Feasible Misunderstanding: Community Action in the War on Poverty 75-101 (1969). For a more enthusiastic account, see Sar A. Levitan, The Great Society's Poor Law: A New Approach to Poverty 109-31 (1969).

n10. SDS was organized by students at the University of Michigan to defend the idea of participatory democracy against what they took to be the undemocratic bureaucracies of multinational corporations and the military-industrial complex of the federal government. The Port Huron Statement, issued by SDS in 1962, insisted on more participatory democracy in government. For an account of SDS and its place in the 1960s, see Allen J. Matusow, The Unraveling of America: A History of Liberalism in the 1960s, at 308-44 (1984).

n11. Frug never examines the important empirical question whether exclusionary zoning in practice promotes or inhibits gentrification. There is at least some literature suggesting that exclusionary zoning actually promotes central-city gentrification by forcing upwardly mobile city residents to remain within the central city. See, e.g., Jerome G. Rose, The Mount Laurel II Decision: Is It Based on Wishful Thinking?, 12 Real Est. L.J. 115 (1983). As Brian Berry has noted, increased construction of housing in the suburbs reduces rents in the inner city. See Brian J.L. Berry, Ghetto Expansion and Single-Family Housing Prices: Chicago, 1968-1972, 3 J. Urb. Econ. 397, 416-18 (1976). By reducing new suburban construction, exclusionary zoning stimulates demand in the inner city and thereby promotes rather than retards gentrification.

n12. Frug discusses Walzer and Gilligan on pp. 73-76, Butler and Lyotard on pp. 92-97, and Young on pp. 117-19.

n13. Frug cites Otto Gierke, Natural Law and the Theory of Society, 1500 to 1800, at 162-65, 180-95 (Ernest Barker trans., Beacon Press 1957) (1913).

n14. Filmer published Patriarcha in 1680 to defend the right of kings to rule over their subjects. He argued that kings held the right to rule by descent from Adam, who ruled over his children by divine decree. See Robert Filmer, Patriarcha: The Naturall Power of Kinges Defended Against the Unnatural Liberty of the People, in Patriarcha and Other Writings 1, 6-7 (Johann P. Sommerville ed., 1991). In its reliance on divine authority, Patriarcha was the antithesis of Hobbes's Leviathan. This is not to say that Hobbes could not have influenced Charles II: Hobbes was Charles's math tutor in Paris, and he presented Leviathan to Charles in 1651. However, the royalist circle surrounding Charles was not pleased with Leviathan, and Charles himself flatly refused to allow Behemoth, Hobbes's later account of the English Civil War, to be published. See C.B. Macpherson, Introduction to Thomas Hobbes, Leviathan 9, 14, 22 (C.B. Macpherson ed., Penguin Books 1968) (1651).

n15. Consider, for instance, Emperor Frederick II's effort, from 1235 until his death in 1250, to subdue the cities of the Lombard League. See David Abulafia, Frederick II: A Medieval Emperor 290-320 (1988).

n16. 17 U.S. (4 Wheat.) 518 (1819).

n17. John F. Dillon, Treatise on the Law of Municipal Corporations (Chicago, James Cockcroft 1872).

n18. See Dartmouth College, 17 U.S. (4 Wheat.) at 668-72 (Story, J., concurring).

n19. 36 U.S. (11 Pet.) 420, 553 (1837).

n20. For an account of how Chief Justice Taney's opinion in Charles River Bridge rested on the notion that private corporate charters threaten the property rights of future economic actors and the citizenry in general, see G. Edward White, The Marshall Court & Cultural Change, 1815-1835, at 670-73 (rev. ed. 1991).

n21. By the late nineteenth century, the Contract Clause had become a weak and flimsy protection for corporate charters because, under the "reserved power" doctrine, the Court permitted legislatures to reserve the right to regulate private property in state constitutions. See Stone v. State of Mississippi, 101 U.S. 814, 820 (1880). Thus, Stone essentially relegated private corporations to the position of municipal corporations in Dartmouth College.

n22. Dillon's Rule - that cities may only exercise those powers expressly delegated by the state - was first formulated by Judge John Dillon of the Iowa Supreme Court in Clinton v. Cedar Rapids & Missouri River R.R., 24 Iowa 455 (1868). Dillon incorporated the rule in his 1872 treatise on municipal corporations, stating:


 
It is a general and undisputed proposition of law that 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 declared objects and purposes of the corporation ....
 
Dillon, supra note 17, 55 (emphasis omitted).

n23. See 2 Dennis Jensen & Gail A. O'gradney, Eugene McQuillin on the Law of Municipal Corporations 4.28, at 71 n.2 (3d ed., rev. vol. 1996) (noting that 30 states' constitutions provide for municipal home rule, including those of California, Texas, New York, Illinois, Ohio, Michigan, and other major population centers). Even those states that lack home rule provisions in their constitutions sometimes have constitutional provisions requiring a liberal construction of municipal powers. See, e.g., N.J. Const. art. IV, 7, P11; In re Petition of Hackensack Water Co., 481 A.2d 1160, 1163-64 (N.J. Super. Ct. App. Div. 1984) (per curiam). As Robert Ellickson noted 18 years ago in his critical analysis of Frug's work, legal barriers to municipal exercise of power simply are not a major obstacle to municipal participation in a huge variety of ventures. See Robert C. Ellickson, Cities and Homeowners Associations, 130 U. Pa. L. Rev. 1519, 1568-73 (1982).

n24. For a standard account of the distinction between the "home rule" power to initiate policies when the state legislature is silent and the "imperio immunity" power to resist state law, see Terrance Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn. L. Rev. 643 (1964).

n25. 198 U.S. 45 (1905).

n26. 300 U.S. 379 (1937).

n27. For an account of such municipal regulation, see William J. Novak, The People's Welfare: Law and Regulation in Nineteenth Century America (1996).

n28. See, e.g., City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 370-79 (1991). To enjoy this immunity, cities need some state delegation of power more specific than a general home rule provision, see Community Communications Co. v. City of Boulder, 455 U.S. 40, 52 (1982), but not much more specific: even a general land-use enabling act suffices for this purpose, see Omni, 499 U.S. at 372.

n29. See National Labor Relations Act, 29 U.S.C. 152(2) (1994) (defining "employer" to exclude "any State or political subdivision thereof"). It is well settled that municipalities are "political subdivisions" outside the scope of the Act. See NLRB v. Natural Gas Utility Dist. 402 U.S. 600, 604-05 (1971).

n30. See I.R.C. 103 (1994).

n31. See Osborne M. Reynolds, Jr., Handbook of Local Government Law 113, at 344-45 (1982).

n32. See, e.g., Ellickson, supra note 23, at 1568-79 (1982).

n33. See, e.g., William Ian Miller, The Anatomy of Disgust 251 (1997) ("Like those we hate, those who disgust us define who we are and whom we are connected with. We need them too - downwind.").

n34. For a historical account of suburbs that suggests such a self-perception among suburbanites, see Robert Fishman, Bourgeois Utopias: The Rise and Fall of Suburbia (1987).

n35. The degree to which people in late twentieth-century industrial states value their weekend and associate it with their house is discussed in Witold Rybczynski, Waiting for the Weekend 144-61 (1991).

n36. For an examination of the powerful incentives of homeowners to involve themselves in the local political process, see William Fischel, The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land-Use Politics (forthcoming) (draft of Dec. 30, 1999), at http://www.dartmouth.edu/wfischel/WP.html (on file with the Harvard Law School Library).

n37. As Richard Briffault has noted, there is an outside chance that Frug's suggestion might give more power to white suburbanites at the expense of predominantly minority central-city residents. Suburbanites will have an easier time coordinating their votes in a neighboring central city's election because they have only one central city on which to focus their voting power. By contrast, the residents of a central city must somehow select one out of dozens of possible suburbs in order to concentrate their votes sufficiently to affect a suburban election. See Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115, 1158 (1996). Frug does not cite, much less respond to, Briffault's criticism, so one cannot be sure whether this type of vote dilution is a consequence that Frug would endorse.

n38. The classic example of such detailed historical work is Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1977).

n39. For an account of such sensitive treatment of legal ideology, see Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57, 99-100 (1984) (describing ways in which cultural assumptions or practices can control categories that organize thoughts).

n40. For a typical manifesto stating this belief, see Roberto Mangabeira Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (1987).

n41. Similarly, I have pointed out elsewhere that even though the rules of conventional games such as baseball are socially constructed, our ability to reshape the game is not unlimited, because some sets of variant rules would not create an intelligible game. See Roderick M. Hills, Jr., Truth or Consequences? The Inadequacy of Consequentialist Arguments Against Multicultural Relativism, 15 Const. Commentary 185, 202-03 (1998) (book review). In a nutshell, the essential confusion is to assume that, because the world is a creature of socially constructed concepts, it somehow follows that all methods of worldmaking are equally plausible, acceptable, or coherent. For a typically lucid analysis and evisceration of this argument, see Nelson Goodman, Of Mind and Other Matters 37-42 (1984).

n42. To use Ian Hacking's and John Searle's phrases, such items are "ontologically subjective but epistemologically objective." Ian Hacking, The Social Construction of What? 22 (1999) (citing J.R. Searle, The Construction of Social Reality (1995)). They are "ontologically subjective" in that they would not exist without human practices and institutions. But they are "epistemologically objective" in that certain predictable and well-nigh unavoidable consequences (such as foreclosure) follow if one ignores the socially constructed concept (for example, by missing a mortgage payment). And no amount of heroic theoretical imagination (a la Unger) will cause these consequences to disappear.

n43. Frug quotes Iris Marion Young, Justice and the Politics of Difference 252 (1990). Internal quotation marks have been omitted.

n44. For an example of this sentimentality, see E.F. Schumacher, Small Is Beautiful: Economics as if People Mattered 59-70 (Harper Colophon 1975) (1973).

n45. See Sidney Verba, Kay Lehman Schlozman & Henry E. Brady, Voice and Equality: Civic Voluntarism in American Politics 51 (1995).

n46. See, e.g., id. at 56, 66, 72; see also Robert A. Dahl & Edward R. Tufte, Size and Democracy 66-88 (1973) (showing a correlation between smaller government size and increased communication between voters and elected officials).

n47. This concern with the cost of elections seems to have been an important justification for the Antifederalists' insistence on smaller jurisdictions. See, e.g., Brutus IV (Nov. 29, 1787), reprinted in 1 Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification 423, 426-27 (Bernard Bailyn ed., 1993).

n48. Jane J. Mansbridge, Beyond Adversary Democracy 23-35 (1980).

n49. See Mill, supra note 4, at 293.

n50. 1 Alexis de Tocqueville, Democracy in America 94 (Phillips Bradley ed., Francis Bowen trans., Vintage Classics 1990) (1835).

n51. Id. at 95.

n52. Id. at 94.

n53. See Dahl & Tufte, supra note 46, at 41-65 (demonstrating statistically that Americans try to influence local governments relatively often and have a strong faith in their ability to do so); Verba, Schlozman & Brady, supra note 45, at 80 (showing that Americans participate more heavily than citizens of other industrialized nations in both voluntary associations and religious organizations); Ivor Crewe, Electoral Participation, in Democracy at the Polls 216, 250-58 (David Butler, Howard I. Penniman & Austin Ranney eds., 1981) (demonstrating that American participation in campaign work, contacts with elected officials, community work, and attendance at political meetings exceeds that of most Europeans).

n54. See William Ian Miller, The Anatomy of Disgust 251-52 (1997) ("Look at "live and let live.' Is it not the fundamental principle of pluralistic democracy? Does it not embody a pure sentiment of contempt equitably distributed?"). To be sure, the "civil inattention" characteristic of street encounters might usefully promote the capacity to detach a specific person (with his or her distinctive mix of repulsive and attractive characteristics) from the various abstract social roles that such a person can play in a complex society (as parent, voter, church member, employee, or stranger on a sidewalk), and this capacity might contribute to our belief in political equality. But urbanity does not directly promote the "public happiness" or the sense of control over one's own life that Frug defends in Part I of City Making.

n55. See Briffault, supra note 37, at 1153-56.

n56. Southern Burlington County NAACP v. Township of Mount Laurel, 456 A.2d 390, 418-21 (N.J. 1983) (holding, inter alia, that "numberless" efforts by townships to consider the need for more low-income housing were constitutionally inadequate and requiring townships to calculate specific numbers of low-income units that they would permit).

n57. The New Jersey Council on Affordable Housing has issued elaborate regulations defining how to calculate the "regional need" for low-income housing. These regulations require estimates of housing likely to be produced by rehabilitation, residential conversion, and "filtering"; as well as estimates of household formation within each age group and of the likely percentage of households qualifying as "low-income." N.J. Admin. Code tit. 5, 92-5.1 to 5.11 (1995); see In re Petition of Township of Warren, 622 A.2d 1257, 1264-65 (N.J. 1993). These formulae are loosely based on those approved by Judge Eugene Serpentelli in implementing the Mount Laurel doctrine. See AMG Realty Co. v. Township of Warren, 504 A.2d 692, 696-702 (N.J. Super. Ct. Law Div. 1984).

n58. See Elinor Ostrom & Gordon Whitaker, Does Local Community Control of Police Make a Difference? Some Preliminary Findings, 17 Am. J. Pol. Sci. 48, 74-76 (1973), reprinted in Polycentricity, supra note 8, at 176, 196. Ostrom and Whitaker also have found that black as well as white residents prefer community rather than regional control. See Elinor Ostrom & Gordon P. Whitaker, Community Control and Governmental Responsiveness: The Case of Police in Black Neighborhoods, in Improving the Quality of Urban Management 303, 322 (Willis D. Hawley & David Rogers eds., 1974), reprinted in Polycentricity, supra note 8, at 203, 218-19.

n59. See Cass R. Sunstein, The Law of Group Polarization (John M. Olin L. & Econ. Working Paper No. 91 (2d Series), 2000), http://papers.ssrn.com/paper.taf?ABSTRACT ID= 199668.

n60. On the role of "citizen groups" in national politics, see Jeffery M. Berry, The Interest Group Society (3d ed. 1997). On the diminished level of participation engendered by such groups, see Theda Skocpol, Advocates Without Members: The Recent Transformation of American Civic Life, in Civic Engagement in American Democracy 461, 499-504 (Theda Skocpol & Morris P. Fiorina eds., 1999).

n61. For one theory as to why groups gravitate toward more extreme views, see Paul Edward Johnson, Unraveling in Democratically Governed Groups, 2 Rationality & Soc'y 4, 9-11 (1990).

n62. For an analysis of data regarding the effects of direct mail on national politics, see R. Kenneth Godwin & Robert Cameron Mitchell, The Implications of Direct Mail for Political Organizations, 65 Soc. Sci. Q. 829 (1984).

n63. One might argue that de Tocqueville was therefore a conservative skeptic of democratic equality who thought that participation would give common people the illusion of power while enlisting them to protect the status quo. Perhaps this is why he praises New England townships, which were located in the least democratic states in the Union - states where the old Federalist norms of deference and hierarchy persisted even into the Jacksonian era. See Robert H. Wiebe, Self-Rule: A Cultural History of American Democracy 31-33 (1995).

n64. Hannah Arendt, The Human Condition 179 (1958) ("In acting and speaking, men show who they are, reveal actively their unique personal identities, and thus make their appearance in the human world."); see also Hannah Arendt, On Revolution 121, 132 (1963) (arguing that "love for public freedom and public happiness" is distinct from "self-sacrificing idealism" and is based on the desire to create a space where public participants can "become visible and be of significance"). Arendt argues that such participation protects the well-being of the participants, not the well-being of society, see Arendt, The Human Condition, supra, at 192-93, because it provides an opportunity "for everybody to distinguish himself, to show in deed and word who he [is] in his unique distinctness," id. at 197 (discussing such participation in the Greek polis).

n65. On the other hand, there is some evidence that participation in lower levels of government tends to have beneficial effects on the participants. Robert Putnam, for instance, observes that participation in regional, as opposed to national, legislatures in Italy tended to make politicians less ideologically dogmatic and more "moderate, pragmatic, [and] tolerant." Robert D. Putnam, Making Democracy Work: Civic Traditions in Modern Italy 26-38, 61 (1993).





Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003


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