CITIES AND THE CONSTITUTION

Cities, unlike states, are not mentioned in the Constitution. Many other important collective institutions in our society, such as corporations, are not mentioned in the Constitution either. In its effort to determine the constitutional status of cities, the Supreme Court has had to decide whether to treat cities like states or like corporations. In fact, the Court has been required to answer two separate questions concerning the constitutional status of cities. First, do cities, like private corporations, have rights that are protected from governmental power by the Constitution? Second, do cities, like states, exercise governmental power which is limited by the Constitution?

At the time the Constitution was written and adopted, there was no legal distinction between cities and other corporations. Neither william blackstone'scommentaries, published the decade before the constitutional convention of 1787, nor the first treatise on corporations, published by Stuart Kyd in 1793, categorized corporations in a way that would distinguish the Corporation of the City of New York, for example, from manufacturing and commercial concerns or from universities. Each of these entities was considered a lay corporation, formed by its members and given legal status by a grant of power from the state. The ability of these corporations to pursue the purposes for which their charter was granted was a right that needed protection from governmental power. At the same time, however, all corporations wielded power delegated to them by the state and, therefore, posed a danger of abuse that required subjection to popular control.

The Supreme Court's first important attempt to settle the constitutional status of corporations created a distinction between cities and other corporations. In dartmouth college v. woodward (1819) Justice joseph story articulated a public/private distinction for American corporations, classifying cities with states and distinguishing them from private corporations. "Public corporations," he said, "are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes, and counties; and in many respects they are so, although they involve some private interests; but strictly speaking, public corporations are such only as founded by the government for public purposes, where the whole interests belong also to the government."

When considering whether cities should have rights that protect them against state control, the Supreme Court has largely accepted Justice Story's proposition that the cities' whole interest belongs to the government; it has treated cities as if they were the state itself. At least insofar as they are considered "public" entities, cities, unlike private corporations, have virtually no constitutional protection against state action. The Supreme Court dramatically summarized the nature of state power over cities in Hunter v. Pittsburg (1907):

Municipal corporations are political subdivisions of the State created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them.…The State, therefore, at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or part with another municipality, repeal the charter and destroy the corporation.…In all these respects the State is supreme, and its legislative body, conforming its actions to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.

The Court in Hunter indicated, however, that there might be a limit to state power over cities, one it articulated in terms of a public/private distinction within the concept of a city. To some extent, cities act like private corporations, and this private aspect of city government, the Court said, could receive the same constitutional protection as other private interests. Even Justice Story had recognized in Dartmouth College that cities are not purely public entities but "involve some private interests" as well. But the proposition that cities are entitled to protection from state power under the Constitution in their "proprietary" (as contrasted to their "governmental") capacities has not yielded them much constitutional protection. The Supreme Court has never struck down a state statute on the grounds that it invaded such a private sphere. Indeed, in Trenton v. New Jersey (1923) Justice pierce butler, noting that such a sphere could not readily be defined, expressed doubt whether there was a private sphere that limited the states' power over their own municipalities.

Whatever limited protection the Court has given cities under the Constitution has involved their public and not their private capacities. In gomillion v. lightfoot (1960) the Court held that the fifteenth amendment restricted the state's ability to define the boundaries of its cities in a way that infringed on its citizens' voting rights; the Court narrowed the extravagant description of state power over cities in Hunter by construing the Court's language in that case to be applicable only to the particular constitutional provisions considered there. But the Court has not subsequently expanded on its distinction between the Fifteenth Amendment and other constitutional provisions, such as the fourteenth amendment and the contract clause, as vehicles for limiting state power over cities. No subsequent case has given cities constitutional protection against state power.

From 1976 to 1985, during the short life of national league of cities v. usery (1976), the Supreme Court articulated the most expansive constitutional protection ever given cities, again a protection for their public and not their private activities. By treating them as if they were states the Court limited the power of the federal government to regulate cities; it held that cities, like states, were immunized from federal control under the tenth amendment insofar as federal interference "directly impaired their ability to structure integral operations in areas of traditional governmental functions." In garcia v. san antonio metropolitan transit authority (1985), however, National League of Cities was overruled. One reason for overrulingNational League of Cities, the Court said, was that there was no practical way to make a public/private distinction between "traditional governmental functions" and other state and city functions. Hence, the Court reasoned, there was no principled basis for choosing some areas of state or city activity over others to be immune from federal control as a constitutional matter.

There is a second question concerning the constitutional status of cities: to what extent are cities like states, and, therefore, subject to those constitutional provisions that affect the power of states? The Supreme Court's answer to this question has been complex.

For some purposes, the Court has treated cities like states. City power is like state power, for example, in that it is equally limited by the due process and equal protection clauses of the Fourteenth Amendment and by the dormant commerce clause. On the other hand, the Court has held that cities are not like states for purposes of the eleventh amendment (dealing with states' immunity from suits in federal court). In a number of nonconstitutional cases the Supreme Court has also sought to distinguish cities from states. "We are a nation not of city-states but of States," the Court said in Community Communications Co. v. City of Boulder (1982), holding cities, like private corporations but unlike states, liable to federal antitrust laws.

Indeed, sometimes the Court has treated cities in a way that distinguishes them from both states and corporations. In monell v. department of social services (1978) the Supreme Court interpreted section 1983, title 42, united states code to allow damage suits against cities when they commit constitutional violations. City action is like state action in that cities are subject to constitutional limitations applicable to states. But states, unlike cities, have immunities under the Eleventh Amendment against suits in federal court to enforce these constitutional limitations. Thus, under Monell, cities are liable under section 1983 for constitutional violations in situations in which neither the states (because of the Eleventh Amendment) nor private corporations (because their power is not subject to constitutional limitations) would be liable.

Finally, at times cities are considered like states and private corporations simultaneously. Both cities and states can act in the marketplace just as private corporations do. Thus in White v. Massachusetts Council of Construction Employers (1983) the Supreme Court held that the commerce clause does not restrict a city's ability to require its contractors to hire city residents as long as it is acting as a market participant and not as a market regulator. The Court thus extended to cities the immunity from commerce clause restrictions that it had previously provided states when they act as market participants. The practical effect of the White case, however, is limited. In United Building & Construction Trades Council v. Camden (1984) the Court held that the privileges and immunities clause, unlike the commerce clause, limited a city's ability to require its contractors to hire city residents whether or not it acts as a market participant. In Camden the Court treated cities like states but distinguished them from corporations; the power of states and cities, unlike that of corporations, is restrained by the privileges and immunities clause of the Constitution.

The cities' historic link with corporations and their assimilation in the nineteenth century to the status of states have given them a divided status under the Constitution. Although the predominant linkage has been between cities and states, there remain occasions when the prior linkage with corporations is emphasized. The Court's ability to conceptualize cities as either states or corporations (indeed, to conceptualize them as both simultaneously or as distinguishable from both) opens up a multitude of possibilities for the Court as it defines the relationship between cities and the Constitution in the future.

Gerald E. Frug
(1986)

Bibliography

Clark, Gordon 1985 Judges and the Cities: Interpreting Local Autonomy. Chicago: University of Chicago Press.

Frug, Gerald 1980 The City as a Legal Concept. Harvard Law Review 93:1059–1154.

Hartog, Hendrik 1983 Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870. Chapel Hill: University of North Carolina Press.

Michelman, Frank 1977–1978 Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy Indiana Law Journal 53:145–206.