Should More Land Use Professors be Libertarians? Part III (Final Post)

This is (hopefully) the last in a series of three posts, again cross-posted from Concurring Opinions. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?

State Structuring of Local Governments

Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.  

That’s not even the interesting part. This is: Why have the states created a system in which local governments have such perverse incentives? According to Jerry Frug, states created the modern system of local government law because they were threatened by cities. Cities’ openness and spirit of participation stood in contrast to the bureaucratizing tendencies of the state. States created a system of local government law designed specifically to emasculate and frustrate cities’ ambitions. In other words, local government represents a vital aspect of human experience that has been actively suppressed by the state.  Frug and many others have argued ever since that in order to recover the essence of the local, we need to recalibrate local power and change cities’ incentive structures.

Local Governments and Participatory Democracy

Frug wrote in the tradition of the New Left, with its emphasis on participatory democracy, and in the aftermath of a period in which cities had been devastated by riots, white flight, urban renewal, disinvestment, and outright hostility from state and national political figures.  During the late 1960s, there had been a moment when cities appeared to be on the brink of realizing their potential as fora for public participation – a heady time of citizens’ councils and “maximum feasible participation” – but this potential was quickly squashed by nervous elites.

Frug’s argument echoes theorists of participatory democracy such as Hannah Arendt. Arendt writes that, despite the bureaucratization of modern life, there periodically erupt spontaneous displays of citizen activism that demonstrate a latent human desire for political participation. These moments, of which she includes the Paris Commune of 1871, the Hungarian Revolution of 1956, and others, are quickly snuffed out when powerful interests feel threatened.  Nevertheless, Arendt sees participatory democracy as lying at the core of the human condition, and the quest to recover the lost tradition of spontaneous citizen activism as a noble calling, which she refers to as “pearl diving.”  This “pearl diving,” this quest to recover the vital potentiality of the local, is I think what motivates many leftist local government scholars, and fuels our optimism.

A False Utopia?

Before we all choke on the sentimentality of the last paragraph, I should note that the nostalgia for the pre-Progressive era city is somewhat discomfiting. The Gilded Age city was no enlightened democracy; even before the political machines turned cities into cesspools of corruption, as legal historian Robin Einhorn writes, cities were highly privatized, “segmented” entities that almost exclusively served the will of propertied interests. Going back further in history, certainly very few of us would like to live in the “free” cities of the middle ages, which were basically totalitarian communes, or the Athenian polis, which was rooted in the exploitation of slave and female labor.

Moreover, it is hard for cities to fulfill their potential as fora for participation when they are so embroiled in the quotidian business of governing at the local level.   While states have the freedom to delegate hard decisions and devote their energies to ideological struggles, cities have to deal with the pragmatic daily chore of picking up the garbage, literally and figuratively. On a nearly daily basis, cities must address intractable issues such as homelessness, affordable housing, climate change, education, health care, security, immigration, and more, issues that, in an era of globalization, are only likely to intensify the pressure on cities as states and national governments recede in influence.  Managing all these issues will require shortcuts, and city governments will be forced to make unpopular decisions that are sure to anger significant segments of the community; these issues cannot possibly be addressed if we see urban politics as merely, or even principally, a forum for democratic deliberation.

But everything I have just said also explains why we leftists insist on putting all our eggs in the local government basket. Like it or not, cities are, and for the foreseeable future will be, the primary means of dealing with the messy everyday problems we confront. In some cases, as with the provision of clean water (see my earlier post on cities in the developing world) they have succeeded spectacularly. In others, such as the provision of affordable housing, they have failed miserably. But even where they have failed, as in the case of affordable housing, we can often point the finger at the way states have empowered local governments, rather than some inherent flaw in local government. In any event, as I mentioned in my previous post, we have few viable alternatives to local government. For reasons both practical and utopian, it figures to think that cities represent our best hope for the future, and to rest our efforts on improving urban governance rather than displacing it.

Ken Stahl