Local Government Law
Exam-7 hour take home.
Questions 1) issue spotter
2) in depth analysis of the body of the cases
3) policy question
Class Outline
I. Decentralization
Do we trust a bunch of people sitting in Buffalo to make decisions?
II. Special Relationships-Cities and States, Cities and Federal Government
III. Neighboring Cities
IV. Cites and their Citizens
Decentralizaiton
Hypothetical-
De Tocqueville- describes town hall meeting, traditional democracy. This form of government is inefficient. Americans learn from their mistakes. They reform the mistakes. When they get the law right, they have more incentive to follow the law. His focus on participation is great. The administrative affects are not great, but the political ones are great. Americans have ownership of their laws. With individuals contributing, this helps the government. Dynamism and Constructive? Constructive aspect. By interacting with other citizens, American’s figure out what they want. Legitimacy of the law. If people participate, they will follow the laws. Greed drives these people. The energy of the Americans is constructive for the form of government.
Is he crazy? He is espousing anti-federalist ideas.
Madison- Factions. He’s worries about them. Majoritarian factions. He views the individual views of Americans as a race to the bottom. He views the democratic process as zero sum. De Tocqueville sees factions as a good thing, Madison thinks they are dangerous. Madison is talking about the poor. He’s afraid of the poor. They will make bad decisions. You need a bit of aristocracy to filter things out. What’s the answer? Create a republic.
De Tocqueville: concerned about growing the pie. Coming away with something new.
Madison: thinks the poor will tax the rich, abolish the debt. Thinks the pie will not grow.
States can take care of the local and particular.
Romer v. Evans
Boulder, Aspen and Denver passed ordinances protecting homosexuals from discrimination.
Amendment 2 said no locality can pass a law that protects homosexuals.
Kennedy: Says the freedom of association is trampled on. Kennedy says the rights of the local governments are taken away. Fails rational basis test. Discriminating against particular group can never be a rational legislative reason. The state of Colorado is removing from the homosexuals the ability to pass local legislation that favors them. It’s not about taking away their “special” status as the State argues. Making a deToqueville argument. The locals know what is best for their own government. The law might not be perfect, but it was passed on the local level and locals know each other better than statewide populace. “central to our ideals of is that each end and level of government remains open to all to seek its assistance.” Gov’t should be impartial. This is a status based law. No good.
Scalia: Thinks the homosexual cause is a minority faction. Maybe the state is the faction. Kennedy is the national government that controls the effects of the faction. Takes a Madisonian view. He thinks the groups in Denver, Boulder, Aspen had disproportionate power in their communities and when entire State looked at issue,
onian fear of factions
People think that associational rights are opposed to property rights.
People fear the mob. Even local government champions (Jefferson), who saw towns as elementary republics, thought they could be dangerous.
Oregon v. City of Rajneeshpuram (US Dist OR 1984)
Facts: Followers of the Bhagwan want to establish a town, but the state of Oregon sues for a declaratory judgment that the state cannot recognize the town, as it would be a violation of the establishment clause. The followers of the Bhagwan have set up a private corporation that is completely controlled by the followers and owns all the property, via the vehicle of a commune, which restricts control of its membership.
Rule: The court cites Lemon v. Kurtman and its three-step process. Also, there’s the Constitution.
Holding: A violation of the establishment cause based on the issue of access.
Reasoning: While the creation of the town might be problematic, think of the permissible example of the group of Amish (or whoever) who all want to incorporate a town. That might be permissible, but the issue here is access: the city here is all owned by a corp. that is controlled by a commune that restricts membership and access to the city.
-too much entanglement here. The city is the corporation is the religious body.
