Swan & Eisenberg Debate: Treating Small Towns and Cities as Constitutionally Distinct
Recently published in the Harvard Law Review, Sarah Swan’s (previously Florida State Law, now at Rutgers) article Constitutional Off-Loading at the City Limits addresses law, geography, and political and economic power in the border spaces between urban and rural: literally, at the city limits.
Essentially, Swan’s work analyzes legal battles over the siting of facilities that include constitutionally protected activities (e.g., free speech, gun control, and—at the time the article was written—abortion). Swan argues that these siting issues are analyzed differently for large cities and small towns, with courts frequently allowing smaller localities to look at consequences beyond their jurisdictional borders to exclude particular facilities but prohibiting larger cities from doing the same thing.
Swan deems this geographic difference an example of “horizontal tailoring,” which is defined as applying the same legal principle differently within the same level of government (here, localities).
By engaging in horizontal tailoring in these cases, Swan argues that courts are both reflecting and constructing the view that small towns are entitled to greater latitude in self-determining their community character than big cities. By situating constitutional off-loading within the existing theory of horizontal tailoring, Swan suggests that it is deeply tied to normative ideas about the differing natural of small towns and big cities and their respective claims to “community.” Effectively, this means small conservative “red” towns can maintain and even deepen their conservative community character through exclusion, while large “blue” cities are prohibited from crafting their progressive community character through similar exclusionary methods.
Swan highlights the effects and realities of courts participating in horizontal tailoring of constitutional off-loading. Swan argues that small towns often benefit from this horizontal tailoring, whereas large cities do not. Consequently, there are one set of constitutional expectations and rules for large cities and another set for small towns – which Swan argues may ultimately push toward a more balanced localism for all.
Her argument is that, while small towns may benefit from this constitutional off-loading in the near time, courts are simulatenously weakening the arguments of small localities that they should be taken seriously as independent, strong, and meaningful political subdivisions or otherwise as standalone jurisdictional entities. Conversely, as courts deny constitutional off-loading in larger cities, they are strengthening arguments for recognizing a “big city localism” and push toward recognition of cities as more independent constitutional actors. As a result, Swan argues, the benefits and burdens of constitutional off-loading balance over time, creating an ultimately more level playing field.
Eisenberg’s Response
Ann Eisenberg (South Carolina Law) in Power and Powerlessness in Local Government: A Response to Professor Swan responds with a summarization of Swan’s research and provides a normative critique of Swan’s primary conclusion that the problems and benefits associated with the phenomenon she observes will ultimately push toward a more balanced localism for all and may help defuse urban-rural polarization. Specifically, Eisenberg states having divergent constitutional standards for different types of local government is more concerning than Swan’s analysis proposes.
Eisenberg recognizes that at first glance, because of this horizontal tailoring, small towns – including the thousands of small towns that comprise much of rural America and the many suburbs outside urban centers whose conservative political leanings often resemble rural ones – are relatively powerful. However, just as Swan demonstrates – Eisenberg claims the story is more complex.
Putting Swan’s analysis into a practical setting, Eisenberg places Swan’s conclusion that large cities actually obtain more power through this horizontal tailoring into the context of what this offers large cities – a conceptual tool to be used in preemption battles. In recent times, we have seen conservative states try to preempt large, progressive cities’ efforts to pursue liberal legislation. This reality combined with the courts’ approach to constitutional off-loading can be understood to actually elevate large cities’ constitutional status to an even footing with states – meaning cities have stronger claims against preemption.
Eisenberg also argues this horizontal tailoring actually affects small towns in detrimental ways that cannot be outweighed by the benefits for large cities. Eisenberg combines Swan’s analysis with the work of other scholars, such as Professors Lisa Pruitt and Rick Su, to show that courts give small municipalities leeway to shape their own destinies when, for example, a strip club comes to town, but then they are denied the opportunity to shape their own destinies when they need it to influence regional livelihoods and opportunities that can actually keep their communities afloat.
In sum, Eisenberg argues that in reality, horizontal tailoring of constitutional off-loading affords states more ammunition to disregard small towns’ constitutional significance and does not seem neutral or positive, but rather rings in subjugation. If courts condescend to treat small towns as closed-minded and intolerant, courts help make rural communities and suburbs as much, in turn helping to drive the young, progressive, and those of minority backgrounds to more populated locales. In reality, the courts are not allowing small towns any meaningful avenue for self-determination which ultimately and eventually obliterates the small town.
