an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Not long ago I did a series of posts about situations in which constitutional interests are regulated by offering an institution a constrained choice that is between a command and an unfettered choice. While I described that idea as a "constitutional liability rule," I now think it should be called a "constitutional property rule," because what is at issue is how bodies bargain over the cost of autonomy. Basically, the point is that sometimes we are better off with a structure that permits certain outcomes but makes them more costly to achieve.
The application of this concept that I have in mind involves local government. With respect to federal and state statutes, courts apply (albeit inconsistently) an interpretive canon that the text should be read, if possible, to avoid constitutional difficulties. We have also have clear statement rules in certain contexts that further a similar goal. And federal courts will sometimes certify ambiguous state law issues when doing so might eliminate the need for a sensitive federal constitutional ruling.
One area where we do not take this cautious approach is where a local government enacts a controversial policy pursuant to its "police power" authority from the state. Suppose a city council or school board wants to use race-conscious remedies, put the Ten Commandments on local property, or ban guns from a certain area. A federal court reviewing a challenge to such a policy almost never asks whether the town was authorized by the state to do these things. The assumption is that unless an action is prohibited by state law, local bodies are free to do as they wish under whatever general enabling statute or state constitutional provision gives cities the power to be cities.
Why should this be the presumption? Why doesn't it make more sense to read a town's authority narrowly when constitutional rights are at stake? The upshot of this is that certain local practices would only be permissible if the state expressly authorizes that city (or all cities within the state) to undertake the practice. This would, of course, make it less likely that a constitutional question would arise, because the underlying decision would need wider support and receive greater scrutiny. Put another way, this interpretive approach would raise the cost of doing certain problematic things without prohibiting them.
The current approach to constitutional avoidance has things somewhat backwards. We care a lot about ensuring that Congress speaks clearly on difficult subjects, even though its internal political and institutional checks are relatively robust. With respect to local government, those kinds of constraints are far more limited (or nonexistent), yet we don't impose an equivalent limit on the law that typically gives cities their authority. I think that this is misguided, at least when a party is making a facial challenge to a local ordinance. Posted
by Gerard N. Magliocca [link]
This post evokes many urban planning and environment impact disputes. Litigation protagonists in such matters often are based nationally or regionally, as one litigant seeks financial advantage by claiming local laws should be myopic about contexts which extend to impact upon personal wellbeing and econmic effects far beyond the ambit of the local organ of government which has produced the irritant ordinances.
I don't think it's quite right to describe this as raising the costs of the behavior, because what you're actually doing is requiring the behavior to have a wider base of support. While in some senses that's an increase in cost, it's also an assault on decentralization and devolution of power. There are probably better ways to increase the cost of actions that potentially violate the constitution while still allowing those decisions to be made by local governments.
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