October 18, 2011
In a lecture co-sponsored by the Harvard Civil Rights-Civil Liberties Law Review and the Federalist Society, San Francisco City Attorney Kathleen Morris made the case for local constitutional law, which would overturn a century of Supreme Court precedent.
In her article, “The Case for Local Constitutional Enforcement,” which appeared in the Harvard Civil Rights-Civil Liberties Law Review, Morris argues that the Supreme Court must overrule the antiquated decision in Hunter v. Pittsburgh (1907), which "announced as a matter of federal law that local governments are powerless instrumentalities of state governments."
View video of the event:
The Harvard Civil Rights-Civil Liberties Law Review live-blogged from the Sept. 27 event. Read transcript here.
Morris's argument challenges the constitutionality of the ruling and criticizes Hunter for "exacerbating the doctrinal and practical problems that plague local government law." The Hunter rule, according to Morris, is "historically, doctrinally, and logically defective."
In her article, a companion to the lecture, Morris urges "courts and scholars [to] welcome localities into constitutional debates because their full participation is pro-local, pro-democratic, and would raise the overall competence of constitutional debate and local public advocacy."
"There shouldn't be a bar on localities from constitutional arguments," she says. "There is a real-world context for local government law: 39,000 local public entities...some in education and health care, others in the safety business, and some even engage in international trade agreements."
Morris believes the legal system is making powerless the best kind of "we the people" governance.
"There's an untapped potential at local law offices...to enforce constitutional norms. We basically have taken our frontlines of governance and cast them as always villains but never champions of the government."
The result, notes Morris, is a constitutional hierarchy that places private corporations and nonprofits before public localities.
After her lecture, Barron, Frug and Ford weighed in on her presentation.
"There are plenty of people on Earth focused on national constitutional problems. How many people are thinking about whether cities have the authority to work on their problems?" asked Barron, HLS's Honorable S. William Green Professor of Public Law, who sympathizes with Morris's argument.
Barron added, "One of the attractive features of cities and local government is they can think about solutions to those problems that are at a different scale, using different tools visible to them because it's their focus."
Frug, HLS's Louis D. Brandeis Professor of Law, also believes localities are deprived of adequate legal standing.
"We elect our representatives locally for good reason. If cities united, they would have an enormous influence in each state. Right now, state laws encourage them to fight with each other," Frug said.
Ford, the George E. Osborne Professor at Stanford Law School, argued that Hunter remains on the books "to respond to the arbitrariness of local boundaries." He continued, "There are externalities that result from delegation of power to decentralized entities."
-- Alexander Heffner