In the last few weeks, the water poisoning scandal in Flint, Michigan, has revealed a lot about our cities, from the entrenched inequities in America’s basic infrastructure to the amount of damage incompetent or negligent officials can wreak upon their citizenry. It also revealed a deep flaw in how the U.S. Supreme Court treats cities: When it comes to local government, Americans have no constitutional rights. While the U.S. Supreme Court has declared that when citizens vote, their votes must be treated equally, it has never held that citizens have a right to local elections in the first place. What this means is that a state can eliminate its local governments altogether, override local decision-makers at will, or replace locally elected officials with appointed ones, and the U.S. Constitution has nothing to say about it. That last scenario is precisely what happened in Flint. And yes, it’s perfectly constitutional.
How is that possible? At one time, judges and constitutional lawyers insisted there was a right to local self-government. Serious constitutional scholars, like Thomas Cooley—chief justice of the Michigan Supreme Court in the late 1800s and the author of a famous treatise on constitutional law—argued persuasively that representative local government was a matter of “absolute right” and could not be overridden by state legislative fiat.
But that notion began to vanish in the early part of the 20th century, when the Supreme Court held that cities do not enjoy any formal constitutional status. In the 1907 case of Hunter v. Pittsburgh, the court declared that cities are “political subdivisions of the state, created as convenient agencies for exercising such governmental powers of the State as may be entrusted to them.” This wholesale rejection of any right to local self-government reflected and reinforced the dominant Progressive era view of the city: It was venal and corrupt and needed to be restrained. The answer to the ills of the Victorian city, then, was to enlist experts in its management and to run it like a business. At the turn of the century, this view licensed state legislative takeovers of municipal functions. And it suggested that what mattered most in running municipal affairs was technical skill—not democratic accountability.
Recent events in Flint highlight the cost of eliminating local electoral democracy. It is now clear that the state-appointed city manager repeatedly failed to respond to citizen complaints about the dangers of Flint water. While cities might be badly managed, at least when local citizens vote, they can hold city officials accountable. This is not the case with an emergency manager. Emergency managers answer to nobody but the one state official who can hire and fire them. State officials, in fact, don’t want appointed managers to be responsive to local constituents. That is the whole point of appointing a manager—to prevent him or her from responding too readily to the costly demands of city constituents. When a manager has been appointed to govern a city, the state is functionally declaring that the local political process has broken down and cannot be trusted.
This skepticism of the local political process might explain why there is so little outrage when elected city officials are summarily dismissed. Imagine if the federal government simply replaced the elected government of Wyoming with an appointed official. There would be a revolution. And yet the entire elected government of Detroit—a city with a population larger than that of Wyoming—can be suspended and replaced with an appointed outsider, and few people outside the city bat an eyelash.
Despite all this, many serious scholars and policymakers strongly advocate for interventions that eliminate local elected officials. Some think unelected federal bankruptcy judges should be tasked with sorting out local finances or that cities should be put into receivership, where experts in finance and administration can be tapped to make hard but necessary decisions. Instead of recognizing that the problems of our cities are a result of too little democracy, they argue that the problems arise from having too much.
But this gets things exactly backwards. Frederic Howe, a member of the Cleveland City Council and Ohio senator, saw this in 1905, when he observed that municipal reformers had “voted democracy a failure.” Howe was reacting to the crises of the industrial cities, when the patrician city fathers believed that the ethnic mobs—the Italians, Irish, Poles, and Jews of the immigrant city—could not be trusted with their own municipal governments. But Howe believed that taking away power from citizens on the theory that they could not manage their cities was exactly the wrong way to address what ailed the early industrializing city.
The idea of the “technical” city, run by administrators with “expertise,” has prevailed, however. And perhaps unsurprisingly, the white ethnic mobs of the previous century have been replaced with new groups who cannot be trusted with governance: blacks and Hispanics. Nobody should be shocked to hear that most cities with emergency managers are poor and black or that their poorness and blackness is often invoked as the very evidence of the city’s political failure.
Certainly entrenched racial poverty is a political failure, but it is not primarily a failure of the city. Even the most efficient city government and the most well-intentioned city manager cannot solve the problems of entrenched poverty, deindustrialization, and white flight. Nor can an unaccountable city manager redraw city boundaries so that they contain more taxable real estate, equalize school funding across rich districts and poor ones, or reform state and local tax systems to be more equitable. State legislators could do many of those things, but for political reasons they are never interested. And so entrenched city problems become more severe, with accountability dissipated across the state.
What if there were a constitutional right to local self-government? At a minimum, it could mean that if a state had local jurisdictions, they would be guaranteed a democratic form of self-rule. The Guarantee Clause of the Constitution already requires that the federal government ensure a republican form of government for the states. Why not afford the same guarantee for cities?
Flint citizens should have a right to elect the local officials who govern them, just as they have the right to having their votes count equally with other citizens of the state. This is not just a moral imperative; it is also a better solution to the admittedly severe problems facing declining, deindustrializing American cities. The remedy for local corruption or mismanagement is not for state officials to take over those cities but for local citizens to do so—through the political process. Citizens are capable of self-rule. And when they are given the opportunity, they can govern well, even if not perfectly. But first we must trust them.