The Limits of Localism
108 Pages Posted: 26 Jan 2002
In this Article, Chicago v. Morales serves as a vehicle for interrogating the limits of localism. Morales, which involved a Chicago ordinance that banned loitering by gang members in certain inner-city Chicago neighborhoods, has served as a flashpoint for an increasingly robust scholarship that argues for the devolution of constitutional norms down to the neighborhood level. The debate over local norms is often structured as a clash between a minority community's efforts to solve pressing local problems and the liberal abstractions of due process imposed by majority outsiders. The conventional story has only two possible endings: either the wider political community respects the decisions of local people to adopt laws that are responsive to local conditions or it imposes a norm by force that the affected community does not share.
This Article challenges the structure of that debate by examining the coherence of the concept of community on which arguments on behalf of local autonomy are based. Localism depends on the creation and maintenance of smaller-than-state associations marked off in geographical space by a definable perimeter. Yet, while boundaries create citizens (or aspire to do so), they must also, by definition, create noncitizens, and therefore they are invariably destructive of the ideal of a wider community. Localism tends to sacrifice inclusion for the possibilities of citizenship. The creation of a place for meaningful self-government for those inside the (metaphorical and sometimes literal) gates always affects (and often injures) those who are outside the gates. The "boundary problem" in local government law thus is the problem of pluralism.
By challenging the devolutionary trend in criminal procedure and the normative foundations for localism in general, the Article seeks to highlight the boundary problem of local government law and to illustrate how it is fostered by the spatially deployed rhetoric of "community." The Article develops three accounts of community - contractarian, deep, and dualist - that provide the most common theoretical grounds for local autonomy. It then critiques each account by examining how law is often "boundary creating" - how legal doctrine marks us in legal, social, and literal space as insiders or outsiders, members or nonmembers, citizens or noncitizens. The Article argues that the conventional dichotomy between respect and force is a false one. The difficult choice is how to define "the local" in the first place.
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