Document Type

Article

Publication Title

The Yale Law Journal

Volume

128

Publication Date

2019

Abstract

Localism, the discourse of local legal power and state-local relations, has returned to the center of national attention, driven by gridlock at the federal level and sharply rising political and cultural conflicts between cities and their states. In recent years, states have aggressively sought to constrain, eliminate, and even criminalize local policy discretion across an array of policy domains. Cities and their advocates have just as aggressively fought back—in litigation, in the po- litical arena, and in popular discourse.

Advocacy for resurgent local empowerment is raising anew what has long been the central dilemma of localism: how can a vertical allocation of authority in our legal system reflect a general commitment to devolution and decentralization, yet at the same time check the worst excesses of local parochialism? Local governments can be great fonts of democracy, community, and policy innovation, but they can also be exclusionary and stubbornly unwilling to account for the external consequences of local decision-making.

This Essay proposes a new approach to the dilemma of localism in an era of polarization. To calibrate the allocation of state/local power in the current social and political reckoning, the nor- mative dimensions of localism must be more directly confronted. In delineating values to deter- mine where subsidiarity is most appropriately constrained, aspects of state law not always associ- ated with state-local relations can provide normative guidance. State constitutional individual- rights provisions, addressing equality and equity in many states, as well as employment, educa- tion, social welfare, and the environment, bear on the normative commitments states have under- taken. And the too-often neglected idea that when states delegate authority to local governments, local governments must act cognizant of the broader general welfare of the state provides a com- plementary structural principle to import normative concerns into the vertical allocation of power.

To be sure, there are limits to the judicial capacity to apply a more equitable localism, and the values at issue are contestable. But a normative lens on localism foregrounds what is truly at stake in contemporary state/local conflicts. In short, it is critical to ask not just what localism is, but what localism is for. Properly framed, law can find a jurisprudential and institutional path to an answer.

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