Municipal Constitutional Rights: A New Approach

American law long held that the Constitution does not limit state power over municipalities, a doctrine exemplified by Hunter v. Pittsburgh. While the Supreme Court has made some moves to update this doctrine in light of the Reconstruction Amendments and the constitutional rights revolution, those moves have been minimal enough to obtain uneven recognition from the Courts of Appeal, and a recent Supreme Court decision suggests a possible return to the ancien regime. I argue that the problem is that Hunter’s reach today is determined by its dicta, not its purpose, which courts have forgotten. Hunter’s purpose should be to preserve state policy flexibility, which means that state grants of municipal powers are not constitutionally enshrined as property or contract. This leaves room for municipal residents and municipalities themselves to invoke the Constitution against their creating states when individual rights or federal regulatory regimes are at stake. It even leaves for municipalities themselves to claim constitutional rights. One such candidate is free speech rights. I also discuss suits between municipalities.