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Latest Trump Attack on Cities Shows We Need a Constitutional Amendment to Recognize Them

(federalistpapers)

(federalistpapers)

Last week the Trump Administration announced that it will be adding a citizenship question to the 2020 Census for the first time since 1950 (it has been part of the smaller, more targeted American Community Survey). By loudly adding this question, the administration is clearly hoping to suppress participation by immigrant communities, which is part of its broader effort to demonize, marginalize, and ultimately reduce immigrants in the US — legal or illegal.

If the plan works, the overall populations of cities across the country will be undercounted, leading to a loss of political power and financial resources. This is just one of many ways that this administration has purposefully (although sloppily) tried to undermine America’s cities since taking office.

The best way to stop this is to change the Constitution.

Before you eye roll your way off of this blog post, hear me out on two points. First, I know this is unlikely to ever be a serious political conversation. Second, this argument has little to do with President Trump and more to do with states.

Cities don’t exist in the US Constitution. Any governing power not explicitly allocated to the federal government, the people, or the states rests with the states as outlined in the 10th Amendment. This structure is a product of the country’s origins as separate (competing) colonies and the Founding Father’s fears of centralized government.

Those fears are wildly misunderstoodth to be a product of the Revolutionary War’s struggle against a despotic monarch, but the story is more complicated than that. There were many factions within British and American political life that get flattened by that narrative. I don’t want to go off on a historical tangent (actually, I’d love to), but the point is the war and the aftermath that led to the Constitutional Convention can really be seen as a conflict over local control.

All of this is to say that the Founding Fathers designed our system to prevent the concentration of power in any single person or people (that’s why we are a republic and not a democracy). It was also obviously designed to prevent the majority of the population from participating in government or to even be counted as people, so we can take a lot of this rhetoric with a grain of salt and adjust accordingly (RIP Anthony Scalia). Regardless of these failures in practice, the overarching theories embedded within the Constitution are based on principles of personal liberty, self-government, and checks and balances — at the federal level.

State governments were viewed as a check against an overly aggressive federal government. However, the opposite was not true. The US Constitution did not protect citizens from their state governments.

The Guarantee Clause in Article 4 Section 4 outlines that the federal government will guarantee a republican form of government in each state but fails to elaborate on what that means and what agency the government has to enforce it. The Constitution doesn’t even require state’s to have their own constitution.

This seems like a pretty big oversight if the point of the Constitution is to maintain personal liberty, self-government, and a system of checks and balances. But the Founders were primarily concerned with limiting the power of the federal government to act harshly and the people to act rashly. As strange as it seems to us that the founders would be skeptical of federal government, but not state government, it makes more sense contextually.

States had their own forms of charters or constitutions that predate the Revolutionary War (shout out to my home state of Connecticut for being the first). The Founding Fathers were already used to the role of state governments and saw their state as their default identifier. It was clear that a states-first arrangement failed with the Articles of Confederation, but it still served as the primary organizing principle for the Constitution.

This is why they are silent about the role of state government and their obligations to individuals within states. It was largely an afterthought that simple proximity would make state governments more responsive to its citizens. As far as these men were concerned, state governments were more responsive (virtually all of them were highly powerful in their respective states). This assumption seems laughable given how domestic US history has played out for most other people.

This issue of ignoring the responsibility of states to their citizens wouldn’t be addressed in law until the the first civil rights era (resulting in the Reconstruction Amendments) and the 20th century Civil Rights era, (the last great achievement, the Fair Housing Act, is celebrating its 50th anniversarythis week). Outside of these radical (and ultimately short-lived) moments in US history, the idea that the federal government is the protector of individual liberty, including from state repression, has had a drastically smaller following than those who think the federal government impedes personal liberty.

I don’t have much time for people who argued that the federal government became despotic under President Obama or who argue for states’ rights in general. Historically and, alarmingly, contemporarily, that term has been a racial dog whistle or partisan war cry more than a concrete philosophical argument. The inherent distrust of federal government and unjustified trust in state government has been embedded in our political DNA with disastrous results.

That brings us to cities. Yes, President Trump is nakedly hostile to the political power of cities and their residents. He wants to punish sanctuary cities; he wants to drastically cut affordable housing funding; he wants to cut transportation funding; That he has failed so far shouldn’t make us less vigilant. The weaponization of the Census is certainly a way to harm cities for a generation to come.

But the real problem for cities is at the state level. Many conservative state lawmakers who protest federal overreach into local control have no such qualms about superseding cities’ governing power within their states. Bathrooms in North Carolina and gun laws in Florida have made national headlines, but many state governments have blocked cities from attempting to address local issues that reflect their population’s preferences.

This is true even in seemingly liberal states. Globally powerful cities like NYC or Chicago are handcuffed by state governments who control spending on major policy decisions and are often dominated by rural political interests or well-funded and coordinated special interests. NYC has a particularly challenging environment dealing with Albany, but also must work with New Jersey and Connecticut with limited success, particularly on transportation policy.

The US Constitution has always favored smaller, rural populations by vesting so much power in the Senate and granting each state two senators regardless of population. This divide has consistently undercut the political power of cities (and of minorities, immigrants, and the working class who historically concentrated in cities) but much of the economic power of the country was still split evenly between agricultural and industrial interests, giving some cover of justification. That is no longer true.

As the economy increasingly moves into technology-based services, cities have become the undeniable economic and cultural engines of the US. The 20 largest metro areas produce over 50% of the national GDP.

The 2016 Presidential Election exposed this deepening split dramatically. Secretary Clinton won less than 500 counties (to President Trump’s 2,600), but won the popular vote by over 3 million votes. That’s because most of her support was concentrated around major metropolitan areas. These counties represent 64% of US GDP, but have much less political power than that.

I’m not claiming that economic output should dictate political power (although that has been the de facto reality in our late capitalist age as witnessed by the disproportionate power of wealthy individuals and corporations) but clearly our political system is dangerously unresponsive to the reality of how we are organizing our society in the 21st century.

Without recognizing the unique role that cities play in our evolving society, the US will continue to be flat-footed on issues of environmental degradation, economic inequality, and ethno-nationalism that represent existential threats to our republic.

But what would a constitutional amendment that recognizes cities look like? How much would we need to define a “city”? How would we prevent the erosion of state power? These are complicated questions and deserve a more detailed follow up and debate. However, I think any amendment should tackle two specific topics.

First, it should acknowledge the unique importance of cities to the nation’s health and future by preventing state governments from unfairly superseding the republican outcomes desired by city residents. States may have once been the great laboratories of democracy but today money and the nationalization of politics have ended that. Cities are leading the way on environmental policy, immigration, public safety, and other policies because federal and state politics have failed to lead. They must be allowed to experiment more freely based on the will of their citizens.

An amendment doing so might be something as simple as an add-on to the Guarantee Clause preventing states from superseding cities of a certain size or definition or on certain local matters. In practice, we could use the Voting Rights Act of 1965 (before it was gutted by the Supreme Court in 2013) as a template for how the federal government could review and intervene on such matters as a right.

Second, it would recognize that many cities span beyond their historic city and state lines and must be allowed to coordinate public policy as a cohesive entity accordingly. Cities should have political oversight into areas that reflect their natural domain, perhaps defined by their commuter-shed or their metropolitan statistical area. Whether this means greater annexation powersor more formal regional organization or both would need to be hashed out, but Congress has created similar entities before like the Appalachian Regional Commission.

You can see from these relatively moderate suggestions that I’m not suggesting ripping up the Constitution or devaluing the state as a political entity. And unlike others who champion modern localism, I don’t believe in giving up on the federal government. Quite the opposite — we need what I have called a national reboot along the lines of the New Deal to create a federal government much more responsive to the challenges and opportunities that will define America in the 21st century.

The Constitution has structural flaws but I believe it is philosophically admirable and has grown when it needs to. Now is such a time. Recognizing cities is an important start but any lasting change must come from removing the power of money in politics. We are fooling ourselves if we think anything else will have the necessary impact to make our republic more representative and more innovative.

Finally, President Trump, his approach to cities, and the larger backlash to cities within the conservative movement are symptoms of a deeper malady facing America. At some point in the next century, we will stop being a majority-white country. For many Americans that fact is met with fear, but it shouldn’t be. If we are as committed to the principles outlined in the Constitution, as we have claimed to be, then we have nothing to fear from more diversity and everything to gain.

Indeed, what is happening demographically in the US could perhaps be considered the Last Great Experiment in self-government. Is America committed to its republican principles that span color and creed or are some of us more committed to a majority-white identity? Cities are already the front line in this battle. The Constitution must be on the right side of it.

Why New York Should Have a Constitutional Convention, But Still Needs the Feds

Not exactly what we had in mind (newamsterdamny.org)

Not exactly what we had in mind (newamsterdamny.org)

Since the election of Donald Trump, a lot has been made about the need for more localism.  With the federal government either locked in partisan paralysis or actively cutting back on services, there is a compelling argument for letting states run their own affairs – after all, states are the great laboratories of democracy.  However, we can look at the recent talk of holding a Constitutional Convention in New York to see why this argument is ultimately flawed.

There are two main reasons that localism can’t help improve how our cities/states are governed. First, our society has evolved into a highly complex, integrated national and global environment where the actions of distant players have local consequences.  We need a strong, active federal government to manage the needs of loosely connected people and places.  Despite what many would argue as too many onerous regulations from the federal government (on things like environmental policy), the larger trend over the last 40 years is the retreat of federal policy (on financial policy as one example), which has produced some of the greatest inequality in our country’s history.

Second, this assumes that states are functional enough to handle more responsibility, which is, sadly, not at all clear.  Part of this goes back to the first reason. Our economy and society are too complex and integrated for state-level governments to be able to address all of their citizens’ concerns. Even well run states can be left behind as the economy and demographics shift. But part of it is bad governance.  New York State is a prime example.

I’ve written a lot about the flaws within New York State’s governance (and though I’ve been highly critical of Governor Cuomo, most of those flaws are structural and not his fault per se.)  The quirks of history and geography have put a mostly rural state together with the country’s greatest city.  It has also separated commuters across three states that have more in common with each other than their other fellow citizens.  These issues are beyond the reach of a (state) Constitutional Convention, but show the limits to what a state can address.

However, here is a brief list of what could and should be fixed in New York.  These changes, along with many others certainly, could improve on the quality of governance in the state, but the larger point is to demonstrate that they still couldn’t address the larger trends that pose current and future problems for the state.

1.     One Full-Time Legislature

Many states have a two-body legislative system with part-time legislators based on logic from the US Constitution intended to spread out political power across regions and classes. The idea of the citizen-legislator has romantic undertones, but in practice it means you get an unprofessional class of elected officials who are ripe with conflicts of interest.  

The increasing nationalization of all politics and flooding of out-of-state money into local elections further undermines this quaint notion.  Post-election, lobbyist groups like ALEC often write legislation word-for-word in many states and provide funds and perks for many elected officials all to eager to lighten their load.

The "Three Men in A Room" Era of New York politics has been the opposite. Not only have two of those three people ended up in jail, but also the system made a mockery of both bodies of representation.  The dynamics of New York politics dictate that downstate voting power dominates the Democrat-led Assembly and downstate financial power dominates the Republican-led Senate. This unholy alliance works because we have too many weak legislators.

Paying professional politicians and staff to govern our state through one representative house would produce better outcomes with more transparency.  Singapore has shown how paying comparable private-sector salaries can improve the efficiency and efficacy of government.  We get what we pay for, and I’d rather pay fewer people more to do a better job. 

2.     Home Rule

Localism as it is described in many circles calls for cities to control more of their destinies in the Trump Age. That belies the fact that they can’t.  The US Constitution does not mention cities at all and empowers states exclusively outside of the federal level.  This means that a city like NYC doesn’t control its own transportation, taxation, or even education. 

The honest truth is that NYC is special (obviously I have fully embraced my NYC-centric worldview) and needs to run its own affairs.  It’s one of the world’s premiere cities and needs to have autonomy to run its own affairs to complete with global cities like London or Hong Kong.  That it can’t manage its sprawling obligations and opportunities as easily as Paris or London can costs NYC, New York, and the US. 

Some ideas have been floated for the Convention about returning limited home rule to NYC or as radical as creating autonomous regions (see the picture above) or even succession.  If there was some compromise that cut out a special designation for the 5 boroughs given its unique nature, but would still guarantee some upstate financial exchange - that might just work. But if such a scenario that could benefit both the city and the rest of the state (and the rest of its cities) even exists remains to be seen. And I for one don't want to create a scenario where one region suffers because the other separates.

Furthermore, it’s unlikely that upstate communities would want to surrender access to NYC tax dollars. More importantly, it’s unlikely that upstate politicians would want to surrender access to downstate political money, which would evaporate if upstate influence wasn’t needed.  And no governor, certainly not the current one, would want to surrender the power, and access to the spotlight, that NYC provides. 

3.     Debt Service

Technically, this is more about transparency, but how the state borrows money is in need of a major overhaul.  Right now the Constitution says that voters must approve any state borrowing over a certain amount but that hasn’t happened in decades.  This is because most state borrowing comes through sub-state authorities and agencies that are explicitly exempt from voter referendums. 

Many elected officials, including at one time Governor Cuomo, have criticized this “back-door” borrowing but when push comes to shove, it is a very convenient tool to get projects funded, so the practice continues.   At $300b, New York has the second highest state debt in the country (although, it has been on sound footing for several years.) 

It should be said that debt is not a bad thing for a state to have, especially when it is borrowing for infrastructure and public services that have long-term benefits. The problem is less the outright number or the state’s current ability to fund its debt service and more the ability to determine priorities. The assumption is that most voters won’t know enough or care enough about the state borrowing for a new bridge and might vote it down with enough protest.  This is unfortunately true in some cases. 

However, this is myopic.  The larger truth is that New York, like most states, gives money away for terrible projects all the time without facing voters’ wrath.  The city and state gave close to $500m to Yankee Stadium, without a “yes” from voters.  The Governor gave billions of dollars to upstate, without a “yes” from voters.  Just two weeks ago, it was announced that Aetna, the publicly traded insurance giant, will receive $34m in city/state money to move 250 jobs to Chelsea. Without having to justify expenses to voters, the state has wasted billions and will continue to. 

This all while expansion of public education, transportation, and pension funding all suffer.  It’s always the big-ticket items that get political pushback, but too many little things get through the cracks. This happens because the state thinks voters are ignorant and lazy when in reality they are ignored and misinformed.  Only by changing the way we control our taxes will that change.

There are a lot of other issues that could be addressed in a Convention and there are risks that silly ideas or even bad ones will get traction or distract the process.  These potential issues don’t outweigh the need to reboot the state of New York.  It is entirely healthy for citizens to revisit the organizing documents of its government. I hope that we do this fall. But it’s clear to me that without stronger federal action, cities and states can’t fend for themselves no matter how well run they are.