Constitutional Off-loading at the City Limits

58 Pages Posted: 23 Apr 2021 Last revised: 19 Jan 2022

See all articles by Sarah Lynnda Swan

Sarah Lynnda Swan

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: January 10, 2022

Abstract

The most constitutionally divisive issues in the United States today often play out literally on the ground, in the realm of land use. For instance, towns that have proclaimed themselves to be “sanctuary cities for the unborn” do not want abortion clinics opening up in neighborhood medical complexes, localities with “small town values” do not want strip clubs sprouting up on Main Street, and cities that support gun control do not want new firing ranges coming to their commercial districts. When municipalities try to exclude these constitutionally protected uses, however, a perennially perplexing question arises: Does it matter that whatever is being limited can be easily accessed beyond a locality’s borders? In other words, can one municipality constitutionally justify its exclusion of a particular service or facility by pointing to availability in a neighboring town?

The answer, it turns out, largely depends on size. Across multiple constitutional contexts, courts frequently allow small localities to look beyond their borders and exclude particular facilities, yet typically prohibit large cities from doing that exact same thing. When mapped onto the political geography of the United States, this “horizontal tailoring” effectively means that small, conservative “red” towns can maintain and even deepen their conservative community character through exclusions, while large “blue” cities are prohibited from crafting their progressive community character through similar exclusionary methods. A tailored approach thus appears to privilege the self-determination of small localities over that of big cities, with potentially partisan political consequences.

This Article argues, however, that this is not the end of the story. This Article shows that the ability to engage in “constitutional off-loading” comes at substantial risk for small localities, while the prohibition on constitutional off-loading comes with a potential benefit for big cities. When courts look beyond a locality’s borders, they undermine the significance of those borders and highlight the fundamental interconnectedness and interdependencies of that locality with other areas in the region. This vision profoundly undermines the version of localism espoused in cases like Milliken v. Bradley and Warth v. Seldin, and weakens the arguments of small localities that they should be taken seriously as independent constitutional actors.

Conversely, the inability of cities to engage in constitutional off-loading comes with a potential benefit. By reinforcing the meaning of a city’s borders and applying the same rule to cities as applies to states (that is, that neither can engage in constitutional offloading beyond their territorial borders), the constitutional off-loading jurisprudence strengthens and fortifies arguments for recognizing a “big city localism” and pushes toward recognition of a constitutional status for large cities. The correlated benefits and burdens of constitutional off-loading may therefore ultimately push toward a more balanced localism for all.

Suggested Citation

Swan, Sarah Lynnda, Constitutional Off-loading at the City Limits (January 10, 2022). 135 Harvard Law Review 831 (2022), Available at SSRN: https://ssrn.com/abstract=3825074 or http://dx.doi.org/10.2139/ssrn.3825074

Sarah Lynnda Swan (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States

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