INTRODUCTION
I) States & Local Governments
A) Federal Governments
i) Enumerated powers- must be a specific source for the power if the federal government wants to do something
ii) Growth of federal spending – increasing tremendously; big concern w/reigning in federal spending
B) The States
i) States have inherent preexisting independent self governing powers
ii) Do not get power from state constitutions
C) Local Governments
i) Top Down v. Bottom Up (local governments have both)
(a) Top Down
(1) State control aspect
(2) Formed from the top down, pursuant to the state’s authority to dictate
(3) Counties and townships – imposed by the states, states divide themselves into counties and then divide the county into townships
· Counties provide countywide services for all their citizens regardless of incorporation
(b) Bottom Up
(1) Local Control aspect
(2) Formed from bottom up pursuant to the consent of the government
(3) Classic unit is a city or municipality- formed when citizens get together and fulfill the necessary statutory requirements
ii) General Purpose v. Special Purpose
(a) General Purpose
(1) Have relatively broad responsibilities over a significant number of areas (e.g. – public safety, public health, land use, streets highways and transportation)
(2) E.g. – incorporated municipality
(b) Special Purpose
(1) Special districts- units of government that can take care of one or a few functions of government only, providing a service such as a school district
(2) Can be bottom up of top down (created by the people or by the state)
(3) Stealth forms of government – many people are unaware of them until there is a problem
iii) Functions of Local Governments
(a) Provide Basic services
(b) Planning & Zoning
II) The Vertical Distribution of Power Question
A) James Madison, The Federalist, #10
i) Highly influential argument against decentralization of power. Believed in the tyranny of the majority and that because the passions of the day will control the law, the majority will enslave the rest of the people
ii) Higher Level means Greater Competency – if there are more people to choose from when picking who will represent the people, this will result in greater competency and only those who can see the big picture will be elected
iii) Factions – groups of citizens w/interests contrary to the rights of others or the interests of the whole community
(a) Large republics will better guard against factions
B) Alexis de Tocqueville, Democracy in America
i) A defense of the decentralization of power to local governments. De Tocqueville claims a few of the greatest advantages of democracy include…
ii) Political Pride & Action- every citizen is as warmly attached to the interests of the country as if they were his own. He takes pride in the glory of his nation and boasts of its success b/c he conceives himself to have contributed at the local level. Every American takes an active part in the government of society, whether by office or by exercise in the elective franchise.
iii)
– Localism & Legal Theory
i) The special districts’ financial and governance arrangements minimize their regional redistributive and politics. The operation of these agencies is usually funded through service fees or user charges, and thus local taxes are not increased b/c outside usage. Moreover, their members are usually appointed and thus lack any political ties or conflicts
F) Richard Thompson Ford: Beyond Borders: A Partial Response to Richard Briffault
i) Local govts often use their zoning power to create segregated and regimented uses of land often causing a detriment to the public they are supposed to serve
G) Analysis: is this a Valid Local Power
i) Determine purpose of law
(a) Is it intended to solve a local problem?
(1) If so, even if there are overtones beyond the scope of what the specific law is doing, if the law is meant to address local concerns it will not necessarily be invalid
III)State Constitutions
A) The Theory of State Constitution: Grant v. Limitation
i) State constitution is a limit, not a grant of power
ii) Analysis: Does the constitution take away the state’s power to do something?
iii) Similarities of fed & state constitutions
Both create the structure of the government
