Local Government, 'One Person, One Vote', and the Jewish Question

Abstract

Enlightenment thinkers were transfixed by “the Jewish Question” – how to incorporate the manifestly unassimilated Jewish community into a modern nation-state predicated on the idea of a uniform and homogenous citizenry. Their solution was to strip the Jewish community of its collective political character and recapitulate the Jews as abstract citizens of the state. Each Jew was henceforth to be “a man on the street and a Jew at home.”

American constitutional law has confronted its own version of the Jewish question in the problematic position of local governments. Like the Jewish ghettos of feudal Europe, cities historically were autonomous corporate entities that stubbornly resisted the sovereign authority of the state. Thus, just as the Enlightenment purported to resolve the Jewish question by formally abolishing the Jewish community as a corporate body, our jurisprudence has sought to assimilate municipalities into the state by conceptualizing them as mere aggregations of individuals rather than as collective political entities. For example, in the landmark decisions of Reynolds v. Sims and Avery v. Midland County, the United States Supreme Court mandated that states and local governments, respectively, apportion voting power in accordance with the principle of “one person, one vote,” thereby ensuring that only individuals, and not collectivities, would be admitted to the political sphere.

This article argues, though, that while Reynolds and its progeny have presumed to emasculate local governments, those decisions have had exactly the opposite impact. Under the guise that local governments have been rendered inert, courts surreptitiously permit municipalities to exercise a substantial degree of autonomy. The one person/one vote rule provides local governments with a veneer of legitimacy that enables courts to rationalize self-serving local behavior as the effectuation of a grand public interest. This seeming inconsistency in the courts’ treatment of local governments reflects an uneasy compromise between the Enlightenment dream to dissolve groups such as the Jewish community into the abstract “rights of man” and a pragmatic realization that group identity is ineradicable. This compromise, I argue, has troubling consequences: it enables those with sufficient political or financial power to retreat into insulated enclaves under the aegis of state neutrality, while foreclosing recompense for those excluded from such enclaves by deploying the fiction that they still retain their abstract rights. The article concludes accordingly that the egalitarian promise of the one person/one vote jurisprudence rings hollow.

Keywords: local government, legal geography, voting rights, Constitutional law, land use planning, zoning, critical legal studies, jurisprudence