The Case for Local Constitutional Enforcement

This Article calls for the overruling of the central rule in Hunter v. City of Pittsburgh (1907) on Erie grounds. Hunter announced as a matter of federal law that local governments are powerless instrumentalities of state governments. Legal scholars have criticized Hunter for exacerbating the doctrinal and practical problems that plague local government law. This Article goes further by challenging Hunter directly. It argues first that Erie v. Tompkins (1938), properly read, effectively overruled the central rule in Hunter. Second, it argues that we should not mourn the loss of that rule because its analytic support structures are historically, doctrinally, and logically defective. The Article then narrows its focus to a doctrine derived from Hunter, the federal rule barring localities from invoking the Constitution against their own states (the Hunter doctrine ). It argues that after Erie, the Hunter doctrine is best understood as a doctrine addressing capacity to sue; that federal courts should defer to state law in deciding whether a particular locality has the capacity to bring a constitutional challenge against its own state rather than superimposing a national rule; and that courts and scholars should welcome localities into constitutional debates because their full participation is pro-local and pro-democratic, and would raise the overall competence of constitutional debate and local public advocacy. Finally, looking to the future, the Article calls for scholars to address which of the Constitution\u27s provisions should apply to localities qua localities; to consider the circumstances under which the Court should permit localities to pursue representative constitutional claims on behalf of their constituents; and to develop an alternative, post-Hunter theoretical framework for local government law