The Yale Law Journal

February 2019

The Dilemma of Localism in an Era of Polarization

Local GovernmentConstitutional Law

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 political 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 normative dimensions of localism must be more directly confronted. In delineating values to determine where subsidiarity is most appropriately constrained, aspects of state law not always associated with state-local relations can provide normative guidance. State constitutional individual-rights provisions, addressing equality and equity in many states, as well as employment, education, social welfare, and the environment, bear on the normative commitments states have undertaken. 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 complementary 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.

author. Albert A. Walsh Chair in Real Estate, Land Use, and Property Law, Fordham University School of Law. For helpful feedback and discussions on this Essay, the author wishes to thank Ben Beach, Corey Brettschneider, Richard Briffault, Hanoch Dagan, Paul Diller, Solomon Greene, Rick Hills, Clare Huntington, Olati Johnson, Jared Make, Audrey McFarlane, Kathleen Morris, Jane Schacter, Rich Schragger, Chris Serkin, and Nadav Shoked, as well as faculty in workshops at the University of Alabama School of Law, Cardozo School of Law, Georgia State University College of Law, Texas A&M University School of Law, University of Wisconsin Law School, and the 6th Annual State and Local Government Works-in-Progress Conference. Louis Cholden-Brown and Kaitlyn Laurie provided invaluable research assistance. A portion of the research for this Essay was supported by the Rockefeller Family Fund, but the views expressed in the Essay are entirely those of the author.