David J. Barron

The promise of Cooley's city: Traces of local constitutionalism

t Attorney-Advisor, Office of Legal Counsel. I wish to thank Juliette Kayyem, Jerome Barron, Robert Kayyem, Gerald Frug, H. Jefferson Powell, Robert Brauneis, William Treanor, Robert Delahunty, Lisa Bressman, Daniel Halberstam, and Marty Lederman. The views expressed in this article do not represent those of either the Office of Legal Counsel or the Department of Justice. I See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978) (upholding a state statute giving extraterritorial force to a municipal ordinance on the grounds that political

A Localist Critique of the New Federalism

This Essay takes the recent federalism revival to rest, at least in part, on a commitment to a more localized form of decisionmaking. The notion that more governmental decisions could and should be handled locally seems to fit with the times. There is increasing philosophical skepticism about the existence of “right” answers, more comfort with the notion that democracy depends upon reasonable disagreement, and growing uneasiness with top-down solutions that threaten to entrench inefficiencies and squelch innovation. There also is an undeniable appeal to the contention that community-level responses often have been the more creative ones of late. Even corporate bureaucracies now see the virtues of decentralization. The Supreme Court’s new federalism, in this respect, is of a piece with a more thoroughgoing aversion to centralization and corresponding attraction to local decisionmaking. These localist instincts seem to be defensible, even reasonable. Perhaps, even, progressive. This Essay nevertheless argues that those who are attracted to this localist orientation should be wary of the recent federalism revival. This revival focuses on protecting the autonomy of state and local governments by limiting the power of the central government. The invocation of “local autonomy” conjures up the attractive values as-

Why (and When) Cities Have a Stake in Enforcing the Constitution

This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Franciscos recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argues against the conventional view that cities either have no distinctive role in interpreting the Constitution or that their interpretations should be considered suspect, even dangerous. But it also contends that cities should generally be permitted to decline to enforce state laws on constitutional grounds, or to challenge their constitutionality in court, only when they do so in order to expand the scope of local policymaking discretion. Thus, the Essay concludes that the problem with San Franciscos disregard of Californias marriage laws was not (as the California Supreme Court suggested in Lockyer) that its action was too localist, but rather that it was not localist enough. San Francisco was not seeking freedom from state law so that its officers could adopt a distinct, local marriage policy for San Franciscans. Instead, the city claimed that higher law required all local officers to grant, rather than deny, licenses to same-sex couples seeking to marry. Thus, while San Francisco may have seemed to strike a blow for city power when it took the Constitution into its own hands, a deeper consideration of the controversy suggests that advocates of decentralization should have little reason to cheer the citys actions. A UT HO R. Professor of Law, Harvard University. I would like to thank Sam Bagenstos, Jerome Barron, Richard Fallon, Jerry Frog, Heather Gerken, Jack Goldsmith, Marty Lederman, Dan Meltzer, Martha Minow, Richard Schragger, and Larry Tribe for extremely helpful comments, and Ashley Aull for outstanding research assistance. Thanks as well to the participants in the faculty workshops at the George Washington University Law School and Boston University and also to the participants in the symposium at Yale Law School. Imaged with the Permission of Yale Law Journal