Why Cities Ought to, Sometimes, Challenge Their States

[Cross-posted to In Medias Res]

On next Tuesday’s ballot here in Wichita, KS, voters will be able to, whether they realize it or not, directly contribute to an ongoing struggle over the meaning and operations of democratic government in the United States. Specifically, they may speak as a city against their state. What follows from that may be interesting, to say the least.

The specific issue is a ballot proposal which would order the city of Wichita to reduce the penalty attached to the first-time possession of a small amount of marijuana (currently a class A misdemeanor, resulting in a criminal record and a fine of up to $2500 and a year in jail) to an easily-paid infraction (a $50 fine with no permanent record). I’ve contributed in a few small ways to the effort to get this proposal on the ballot, and now that it’s on, I hope everyone in my city votes “yes.”

Many won’t, of course. There are multiple voice urging Wichitans to vote “no” instead for a multitude of reasons. The most persuasive–or so it seems to me as I speak to people I know–are those which are most reflective of the interests of the law enforcement and media establishment:  they oppose the ballot proposal not because they disagree that criminal penalties for marijuana possession are too great, or that the social costs of the drug war are experienced most severely upon those poor and more diverse segments of the urban population which most need fuller integration into the mainstream of city life, but because they simply believe its passage could force upon the city an unnecessarily complicated legal and constitutional problem. Kansas Attorney General Derek Schmidt has stated he would sue the city to prevent the ordinance from going into effect, and that’s a potentially expensive threat to deal with.

But I say: vote for the ordinance anyway. Why? Because forcing problems upon our elected leaders is one of the tried and true methods of moving policy conversations forward under our legal and constitutional system. Yes, as I’ve written before, a local change in marijuana laws might introduce a complicated inconsistency into the body politic. But that inconsistency would only reflect what democratic self-government often, I think, ought to mean.

I don’t dispute that consistency in government is an important value; the old Hamiltonian argument about how executive “effectiveness” is really the only test for government (assuming it protects basic liberal freedoms) which matters has a certain persuasiveness to it. And in light of that argument, the issue appears rather cut-and-dried. Our state government here in Kansas–like all the other 49 state governments–claims authority over basic matters of law and order. That claim is supported by a fairly well-attested reading of the U.S. Constitution, which by implication clearly suggests that cities, as entities without any sovereign authority, are only allowed to wield that power which the states delegate to them. Until and unless the state allows the cities the power to make democratically-determined decisions about drug enforcement policy, they have no basis to claim it.

The problem with this conclusion, however, is that sovereign or governing “power” is far more than what is laid out in legal documents. It is also what practically operates in the context of actual case-by-case interpretation and rule-making; it is what we give our consent to through recognizing a law as legitimate. And “consent” itself is a tricky concept, involving such cultural and communitarian matters as identity and affection. If we believe in popular sovereignty, then presumably that power ought to be understood as resting in, or adhering to–and thus as being that which may be delegated from–those places where we, the people, actually reside.

Of course, that is easier said than formalized. For our residences are themselves nestled into other, larger, communities and associations of identity and allegiance, state and regional and national (and, for some, perhaps even global). Moreover, modern technology and economies have reduced–or, if you prefer, empowered–our many of our places of residency and labor so as to make over into nodes along vast networks, whether of roads or power lines or flows of financial data or corporate-issued information. And so perhaps there are good reasons, in a world of such fluidity, for a country like ours, with its established history both national and state governments, to reserve the legal, consensual exercise of democratic power to those governmentalities which have been specifically and constitutionally marked out. After all, don’t forget that questions of scale, and the feasibility of commanding sufficient financial and material resources so as to even address any one of the many issues which complicate our borders come into play as well. Still, I would insist that all these concerns do not mitigate the earlier, Jeffersonian point: that if self-government ought to be place-centered, than there must be at least some times, and some cases, where we citizens should insist that, practically speaking, sovereign power really does belong to those localities where most people most immediately live. True, this could open the door to subdivisions ad infinitum. But speaking realistically, towns and cities, out of all such overlapping bodies in the United States, have a genuine historical integrity, as well as a recognized place in our popular imagination. As such, it seems eminently reasonable to support cities in their occasional “complication” of the smooth operations of other sovereignties, when those citizens who live there democratically wish it.

(On a long but highly relevant side note: a recent study of state-level allegiance in the United States makes the argument that, in contrast to the rhetoric of centralizers of both market and state varieties, large numbers of Americans still look to the distinct cultures and economic and geographic situations of their states as a source of identity, and thus consequently invest significant expectation in their state governments and constitutions as tools for the expression of that identity. Could the same be said for cities? Only in the case of the very largest and most notorious cities, the author thinks, not entirely consistently; after all, in making his defense of states he includes those with small populations–South Dakota or Wyoming or Delaware–while excluding many metropolitan areas which as such plausible sources of sovereign attachment whose populations dwarfs those states. He specifically names Wichita as a city where a distinctive political culture very likely could never emerge, and he may be right–but then again, the combined statistical metropolitan area of even a mid-sized city like Wichita is greater than that of the whole of Vermont, which of course, as a state, makes his list as a valid player in the dispersal of authority and attachment sweepstakes. He also suggests that cities can’t work because they are rarely conceived by those who live there as “imaginary communities” (obviously invoking Benedict Anderson’s classic work on the construction of national sovereignty here) in the terms which reflect their actually existing governing institutions. I would suggest that such a claim would require more study in how the residents of cities think about themselves–and in the meantime, would note that such an argument probably takes Connecticut or New Jersey out of his picture, since the folks who live there almost certain don’t primarily understand themselves in relation to Hartford or Trenton, but rather to sprawling, unbordered the New York megalopolis. Ultimately, I think the only argument of his thoughtful analysis of state allegiance which can be consistently said to not apply to any cities of at least some significant size as well is institutional: city governments today, unlike the case of American cities in the 19th century, simply lack effective power. For the author of this study, who investigates the extent of state attachment mostly out of an interest in strengthening federalist and states’ rights claims under out system, this conclusion simply supports directing our attention to those units of government which already have a formal constitutional place. But for those of us who are interested in enriching places of democratic self-government more than figuring out how to better balance a structure which doesn’t especially prioritize that in the first place, the complaint about the lack of effective city power only brings us back to the original argument–isn’t really so implausible that cities ought to, sometimes, strive to get it back?)

What I’ve said so far may sound either like abstract philosophy or demographic hair-splitting, but it’s neither; it is, rather, the governmental reality which drives any federal arrangement of authority. Power-sharing, and the shifting grounds of expressions of that power, with the specifics always being argued about, and pushed back and forth one way or another, over commerce authority or health care or immigration or same-sex marriage or any number of issues–that’s life under a system which seeks to balance the many and various ways in which people organize themselves for purposes of collective self-government. That life is filled with legal and constitutional complications, to be sure. Yet are those complications themselves sufficiently frustrating to make power-sharing seem to be not worth it?

If not, then by the same logic, even if it lacks explicit constitutional warrant, such a tolerance of confusing borders and contested jurisdictions ought to applies to the arguments between cities and states. And–to get practical from here on out–this is already happening. Most notorious in recent news cycles has been the successful effort different citizens groups to gain support from portions of the business community and push through minimum wage hikes in their cities–but beyond cities acting on their own to raise the minimum wage there has been actions taken on fracking, abortion rights, restrictions on pornography, labor rules, and much more. States, noticing this reality, are fighting back, both predictably and appropriately so. Either way, the democratic and constitutional conversation goes on.

And it there is any topic about which such a city-involving conversation is needed, it has to be disputes over the low-end of the drug war, such as the issue of the criminal possession of marijuana. Larger arguments about the addictive power of the drug and what it’s use by members of a community might represent are valid. But beneath that, down near the ground, there is the fact that the likely serious criminal deterrent of harsh penalties arising from first-time possession is minor, while the social costs–to foolish first-time users, to young and irresponsible low-income able-bodied workers, to families struggling to hold themselves together, to neighborhoods and communities which desperately deserve active political representation–as well as the fiscal costs–building jails, setting quotas on already busy police departments, etc., all of which lands primarily upon cities–is great. In recent years other cities have struggled against their states over this issue, with diverse results. Denver, CO, Grand Rapids, MI, even Lawrence, KS, all took local action to change their approach to marijuana penalties; some of those actions ultimately contributed to eventual state-wide changes, while others have been subject to multiple court challenges, and yet others have sometimes just been left alone. Does that betray a frightening inconsistency in executive effectiveness, such as to render the public debate and activism which led to it as worthless? Not if we recognize that democratic dispute is simply a feature, not a bug, in our system (it’s not like the fact that the most recent steps in scaling back drug war were taken by states themselves hasn’t stopped continuing arguments!).

In a state like Kansas, where our governor and legislature have shown relatively little respect of late for the particular interests of cities when it comes to handgun policy, education funding, and more, I think any opportunity to show Topeka that the people of Kansas’s largest city (even if it is only mid-sized!) can, in fact, think carefully about matters of drug enforcement, and come to reasonable conclusions about what it should consist of, ought to be supported. It’s not just good policy, if enacted–it would be, whether ultimately enacted or not, the sort of thing that active citizens who care about where they live, and about what kind of democratic action which the people who live in those particular places ought to have available to them, should do.