30 J.L. & Pol. 53 (2014-2015)
The Role of Localism in Constitutional Change: A Case Study

handle is hein.journals/jlp30 and id is 57 raw text is: The Role of Localism in Constitutional Change:
A Case Study
Michle Finck*
ABSTRACT
This Article investigates the role local governments have played in
bringing about constitutional change in the area of gay rights. Localities
are conventionally framed either as administrative agents that implement
state and federal norms or as creators of local regulation, the effect of
which is strictly limited to the local territory. Conventional images of
constitutional law accordingly assume that the competences of local
governments are too limited to influence constitutional change. I take issue
with this assumption and illustrate that localities can be generators of
important legal norms that transcend the local territory. By acting through
legal, rather than purely political means, the performative nature of local
regulation influences state and federal law in a constitutional order
characterized by polycentricity and porosity. As such, municipal policies
have been one of many driving forces behind the significant changes in gay
rights at the state and federal levels over the past years.
INTRODUCTION
This Article is concerned with the manner in which we imagine the role
of local governments in constitutional law and, in particular, constitutional
change. In relying on the terminology of imagination, I refer to implicit
and collective structural assumptions about constitutional law, which frame
our understanding thereof.' Localities are generally pictured either as
implementers of state or federal norms, or as creators of regulation that are
strictly limited to the local scale, such as land-use policies. Accordingly,
localities are not located in images of constitutional change .2 1 take issue
* The author wishes to thank Elizabeth Fisher, Stephen Weatherill, the participants of the NYU
JSD forum as well as Barry Friedman, Peter Zimroth and Kenji Yoshino for helpful comments and
discussions. Any errors remain my own. This research was funded by the Luxembourg National
Research Fund.
1 See also Lorraine E. Weinrib, Postwar Paradigm and American Exceptionalism, in THE
MIGRATION OF CONSTITUTIONAL IDEAS 110 (Sujit Choudhry ed., 2006) (Constitutional conceptions
organize our understanding of our particular domestic... arrangements).
2 David Barron, The Promise of Cooley's City: Traces of Local Constitutionalism, 147 U. PA. L.
REV. 487, 487 (1999) (We do not think of local governments, such as towns and cities, as important
components of the federal constitutional structure.).

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