CHAPTER 1: INTRODUCTION TO THE PROBLEMS OF DECENTRALIZATION
A. DECENTRALIZATION OF POWER TO LOCAL GOV’T: PROS & CONS 001–022
Debates about the definition of & desirability of decentralizing political power
· Constitutional supporters – strengthen national gov’t
· Constitutional opposition (anti-federalists) – argued the Constitution threatened the primacy of the states & endangered the preservation of individual liberty.
· Controversy over the distribution of power (not whether it should be distributed but how)
· Tocqueville’s defense of decentralization of power to local gov’t
· Madison’s Federalist 10, argument against decentralization of power
Alexis De Tocqueville, Democracy in America 4
· Town is the only assoc. which is so perfectly natural
· Until local freedom has become part of the culture of a people, it is easily destroyed
Can’t go up against a large organized gov’t
· Strength of free nations resides in the local community
local gov’t brings liberty w/in people’s reach & teach them how to use & enjoy it
w/o local institutions, a nation may establish a free gov’t, but it can’t have the spirit of liberty
· However, enlightened & skillful a central power may be, it can’t of itself embrace all the details of the life of a great nation.
· Centralization excels in prevention, but not action
· Action of individuals, joined to that of the public authorities, frequently accomplishes what the most energetic centralized administration would be unable to do.
· The great adv. of the Americans consists in their being able to commit faults which they may repair afterwards.
· The citizen looks upon the fortune of the public as his own, & he labors for the good of the State, not merely from a sense of pride or duty, but greed.
· Democratic gov’t brings the notion of political rights to the level of the humblest citizens.
· Every one is personally interested in enforcing the obedience of the whole community to the law.
The citizen of the US complies w/ it, not only b/c it is the work of the majority, but b/c it is his own, & he regards it as a K to which he is himself a party.
Americans obey the law not only b/c it is their work, but b/c it may be changed if by any chance it is harmful; a law is observed b/c first, it is a self-imposed evil, &, secondly, it is an evil of transient duration.
· Democracy does not give the people the most skillful gov’t, but it produces what the ablest gov’t are frequently unable to create; namely, an all-pervading & restless activity
· Local Gov’t – positives
Change / innovation
Correctability, bad decisions will be made, but easier to overcome at local level
Self-realization – liberty
Empowerment, responsibility
Greed / self interest (free market analysis) –
Built in disincentive
Enforcement – the people that pass it, has a vested interest in following the law
· Local Gov’t – negatives
No unity
Assumption people involved voted or have power
Madison, The Federalist, Number 10 12
· Brake & control the violence of factions
· The larger the polity, even when the faction forms, it’s unlikely a faction will make up a majority & be able to assert their own interests
Scale – diversity of views
Be opposite of change & innovation, keep the status quo & get more views
· Delegation
Comparison
· Split them up (national v. local interest)
· Madison – local is like the gov’t & more oppressive
· Tocq – local gov’t more like individual
Romer v. Evans, 517 U.S. 620 (1996) 17
Facts: Amend. 2 sent to voters. Factions: the state & homosexuals. In Colorado, various ords that afforded protection to persons discriminated against by reason of sexual orientation gave rise to a statewide controversy. In a statewide referendum, voters passed Amend. 2. It prohibited all legislative, executive, or judicial action at any level of state or local gov’t designed to protect homosexual persons. Resps., homosexual persons & municipalities whose ords. were invalidated, commenced litigation to declare Amend. 2 invalid & enjoin its enforcement. The state supreme Ct. affirmed the judgment that enjoined enforcement of Amend. 2.
H/Rat: The US Sup. Ct. affirmed. Amend. 2 violated the EP clause, U.S. Const. amend. 14, b/c the classification was unrelated to any legitimate state interest. Amend. 2 w/drew from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, & it forbid reinstatement of protective laws & policies. Amend. 2 thus classified homosexuals not to further a proper legislative end but to make them unequal to everyone else.Dissent: This is a frustration of the state process by passing local.
CLASS NOTES
· Taking power away from the city to enact a benefit for a discriminated class
Taking away local political right
· Courts Rule
Avoid making a judgment on whether or not homosexuals should have a protected status
Should the Ct. have any role, who should define the relationship?
Arguing the individual – city is a collection of individual
· City bounces back & forth
Gov’t & the people, fundamental divide
Law adjudicates the rights b/t the gov’t & individual rights
Not clear for intermediary bodies
B. THE CITY AS PUBLIC OR PRIVATE 022–056
· Sketching arguments for & against decentralization of power, introduce one of the basic themes of local gov’t law.
· Question: Whether cities, when they exercise decentralized power, should be treated as public or private entities.
Cities can be understood as exercising the coercive power of the gov’t
Also traditionally been understood as a collective entities organized to pursue not the interest of the state but the interest of the people who live w/in them.
· Cities seen not as only gov’t but vehicles for the exercise of self determination.
· Defending the autonomy of medieval towns against national control was a way to maintain individual liberty by securing the entitlements of a group.
By ensuring the rights of a corporation, one could protect the group as a whole.
· Frug – describes how the nature of the relationship b/t corporations & legislatures became established.
It shows the law distinguished b/t public corporations, such as towns & cities, & private corporations, such as business.
GERALD FRUG, CITY MAKING: BUILDING COMMUNITIES W/O BUILDING WALLS 24
· History of the city, nebulous line b/t private & public corporation
City was originally private – medieval towns & compares it to the sovereigns
Ø Organized around a protected fear
Tension b/t king & town
Ø The city in the very beginning was a collection of individuals that gathered together to make money & have some protections – biggest counterweight to the king
Ability to hold on to private property & regulate their own property
· Dartmouth College 1819 – state wanted to pick the president, college said no
What is DC? Public or private corporation
What is the purpose?
What are their property rights?
· What are the courts drawing on to make a public / private distinction?
Exclusion – not public if can exclude
Ownership of property – cannot have one owner – how can you have a public entity if only one owner
Function (private corporation opens up for public use, i.e. shop owners)
Formal title
Profit + income (taxes or personal income)
OREGON v. CITY OF RAJNEESHPURAM, 598 F.Supp. 1208 (USDC Org. 1984) 30
PP: Π state sought a declaratory judgment declaring that it was not required by state law to recognize the municipal status of defendant city b/c to do so would violate the Oregon Constitution & the Establishment Clause under U.S. Const. amend. I. The city filed a motion to dismiss the state’s complaint for failure to state a claim upon which relief can be granted.
Issue: Whether the Establishment Clause was violated by the operation & existence of a city, which was subject to the control of a religious corp., as a sovereign municipal gov’t that was validated & supported by the state.
Overview: The ct concluded that if, as alleged, all of the real property in the city was owned or controlled by a religious org., the provision of municipal services by the city necessarily had the effect of aiding not only the individual residents of the city, but also of
4 Mich. Pub. Acts 416 was valid & enforceable. Ct. reversed & remanded.
C. FORMS OF LOCAL POWER 056–092
· Contrasting views of homeowner’s associations
Homeowners associations are creatures of property law rather than local gov’t law: covenants & servitudes, instead of city ords, specify the rules of how theses communities operate.
Some control land use decisions & provide services in a manner comparable to city gov’t
· Special purpose gov’ts
Gov’t-created entities designed to perform a single function or limited range of functions.
More like business entities than as gov’t: they are often run by an appointed board of directors, immunized from restrictions on city gov’t, & sometimes, given their own sources of revenue.
Created to avoid popular democratic decision making
· Business improvement districts (BID)
Controlled by property owners, not citizens.
Provide specialized services comparable to those offered by city gov’t
ROBERT ELLICKSON, CITIES & HOMEOWNERS ASSOCIATIONS 57
· The ass’n is the obvious private alternative to the city.
Enables households that have clustered their activities in a territorially defined area to enforce rules of conduct, to provide “public goods” & to pursue other common goals they could not achieve w/o some for of potentially coercive central authority.
Law treats them as private
· Difference b/t city & ass’n
Involuntary nature of membership in a city v. the perfectly voluntary nature of membership in a homeowner’s ass’n.
Cities are more active than ass’n are in undertaking coercive redistributive programs.
· Gov’t are distinguished by their acknowledged, lawful authority—not dependent on property ownership —to coerce a territorially defined & imperfectly voluntary membership by acts of regulation, taxation, & condemnation, the exercise of which authority is determined by majoritarian & representative procedures.
· Ass’n
Viewed as private, not a gov’t
Rules a “territorially defined” area & obtains its power to do so through no form of property ownership.
Can undertake acts of both regulation & taxation (monthly assessment on members)
Can’t condemn a unit (gov’t power), but some can expel members
Members elect board members to manage ass’n (majoritarian & representative procedures)
Voluntary membership in formation of the ass’n v. involuntariness in formulation in gov’t.
· The presence of involuntary members is both a necessary condition for the use of the adjective “public” in ordinary language, & also a power explanation for the different legal treatment currently accorded public & private organizations.
EVAN MCKENZIE, PRIVATOPIA 60
· Four basic types of CIDs:
Condominiums, planned developments, stock cooperatives & community apts.
In a CID, everybody who buys a unit automatically becomes a member of the community ass’n
Although the decision to purchase may be voluntary, membership is mandatory.
Ass’n is founded & governed by certain documents like state’s constitution & set of codes.
Ø Including, set of covenants, conditions, restrictions that run w/ the land & are legally binding on present & future owners of the property.
Ø Articles of incorporation (if incorporated)
§ Written by the developer.
