Local Constitutions

Nestor M. Davidson, Fordham University School of Law


Municipal charters are the forgotten constitutions of our federal system. Scholars generally understand our democracy to be governed by federal and state constitutions, but there is a third, almost entirely ignored realm of constitutional law and practice that lives at the local-government level, embodied in the charters that govern cities, counties, and towns. Engaging these foundational documents is critical. In an era of political gridlock and national polarization, with cities and other local governments increasingly grappling with policy concerns once considered state, federal, or even international responsibilities, the legal institutions that govern local democracy merit newfound scrutiny.

Although municipal charters serve many of the functions that constitutions perform at other levels of government—delineating public institutions and articulating areas of “higher” law—legal scholars rarely take them seriously as constitutional texts. This Article argues that foregrounding the constitutional nature of municipal charters provides new theoretical insights into local governance and the role that local governments play in our political order. Like the federal Constitution, charters can be an important locus for constitutional meaning and civic identity, rendering fundamental choices about governmental structure, political process, and individual rights more salient and doctrinally significant.

Understanding municipal charters as constitutions, in turn, carries important normative implications. Properly framed, charters can reinforce the contested nature of local governments as democratic polities, rather than administrative arms of the states or quasi-private service providers, at a time when the democratic underpinnings of localism are under strain. Improving charter constitutionalism can also serve to legitimate cities and other local governments by furthering rule-of-law values, such as transparency and stability.

A newfound appreciation of the conceptual and normative potential of municipal charters, finally, suggests pathways for reforming the law and practice surrounding these instruments. This Article thus proposes pragmatic innovations in how local governments and the states can approach charters, emphasizing the centrality of inclusive process in ratifying and amending charters at what are, ultimately, vital local constitutional moments.