Must local levels of government respect the US Constitution and its amendments?

The US Constitution prohibits Congress (and, via the XIVth amendment, the states as well) from establishing various types of laws.

Are local levels of government also compelled from enacting such laws?

As an example, if a municipal or city government passed a law banning public criticism of the mayor, would it be struck down by ‘The Courts’? (I believe it is the case that if said municipality receives federal funds, it cannot pass laws contrary to the Constitution; so let’s assume this municipality is wealthy and does not receive any federal money).

Disclaimer: I’d be surprised if this question hasn’t been asked here in some form at some time, but damned if I can find it. Here’s a thread that I, myself, started a few years ago but the question raised was whether states, as opposed to Congress, could violate a constitutional ban. Nothing about local governments came up.

Municipal governments are basically administrative arms of state governments which may have some devolved powers. They have no sovereignty of their own, and whatever restrictions apply to the states also apply to them.

I was also under the impression that municipal governments (cities, counties, towns, townships, villages, etc.) are devolved from States and have no claim to sovereignty, like the States. The States do have some sovereign powers, but those powers are restricted by the Constitution. A City can only have as much power as the State deems fit to give it, and the State can only legally devolve power that it itself possesses. So that means that, logically, the State of Virginia cannot legally give the City of Virginia Beach the right to sign a treaty with Canada because Virginia does not have the power to enter into treaties on its own. Since the States do have sovereign power (iirc) over education, I don’t see any reason why Virginia couldn’t allow Virginia Beach to set its own curriculum.

I really don’t think money has anything to do with it. The US Constitution applies to all US territory. Anything not specified in the Constitution is left up to the States, within reason. But no municipality anywhere on US soil can pass laws directly contrary to it. That is, they could pass them but depending on the severity of the constitutional conflict they would be quickly struck down by a Federal judge and/or the SCOTUS…

I had no idea about the relationship between the states and their municipalities. None at all.

I appreciate your answers (and your promptness in replying). Thanks!

It is a common topic of discussion in GQ. Here is a recent thread that delves into the issue quite a bit.

In short: the states and the federal government share sovereignty. Everything else is devolved. That includes things like the District of Columbia, federal territories, and Indian reservations (devolved from the federal government) and every municipal government within the states (devolved from the state government.)

Thanks, I had no doubt that such a basic question had been discussed. In my defense for missing it, I’ll note that I was about ten days post surgery at the time of that thread, having just been discharged from the hospital. Indeed, the hydromorphone I was taking made me miss a lot more than that thread! And, the astute doper may have noticed that I’ve been more active than usual these past eight weeks or so - as I play on the ‘Net’ and the SDMB during my so-called convalescence!

In any case, thanks!

The City of Philadelphia has passed more restrictive firearms laws than the State of Pennsylvania, but these have been nullified. They were struck down in state court:

Yes. Most of the Bill of Rights has been “incorporated”, which means that it applies to state and local governments as well as the federal government.

However, the bulk of the constitution is devoted to the operation of the federal government. There are a few provisions that apply specifically to the stats, and the states must adhere to them.

Local governments are subject to the authority of the states. A city can’t pass a law that violates the laws of the state, and the state government can nullify any local law unless the state constitution gives the local governments the authority to have those laws.

I believe Florida did something similar. The rational at the state level is that people shouldn’t need to, and can’t, know the nuances of these laws as they move from city to city, county to county. So the state said the you can’t have a more restrictive law than the state already has.


For example, in 1989, the U.S. Supreme Court ruled the New York City Board of Estimate, a budget-making body, was an unconstitutional in its structure because it violating the Equal protection clause of the 14th Amendment.

Mayor Nutter? :smiley:

That is a case of state preemption and has always existed in Pennsylvania. The Constitution has nothing to do with that.

Okay, two points not yet addressed. First, Article VI of the (original) U.S. Constitution defines the Constitution itself, and laws and treaties adopted pursuant to it, as the supreme law of the land. That means the 13 little nation-states that had been confederated under the Articles agreed that there would be a new higher level of government to which they would irretrievably cede a portion of their sovereignty. Later, Massachusetts and Virginia were divided, with their consent, by splitting off Maine and West Virginia, the nation-states of Vermont and Texas were admitted, and various territories were granted statehood on an equal footing with the others to date. So if the Constituion, including amendments adopted pursuant to Article V, gives the Feds. jurisdiction, that supersedes anything the states can do.

Amendment X is worth noting. Though some have made exaggerated claims about it, it does guarantee that the resuidual sovereignty that has not been delegated up to the Federal government is retained by the states. Counties, cities, towns, villages, school districts, etc., are creatures of the state legislatures, which can erect and abolish them more or less at will (subject to any limits the individual state onstitutions may place on them, of course).

I am unaware of any city which is still operating under a pre-1776 charter. There were, of course, many in the earliest days of the country, but I suspect they have all been rewritten and/or replaced in the 223 years since 1789.

Believe it or not, the 4th Amendment even applies to Puerto Rico, along with a few other provisions of the Bill of Rights. The Insular cases spell out what is basically applicable to possessions, etc.

When Heller v. DC was decided, the question of “Incorporation” was not presented, as DC was not a state, although a federal district, they have had Home Rule for many years, although Congress has “ultimate” authority.

There was a seperate US SC case from my memory that ruled the Bill of Rights IS applicable to Washington, D.C., as it would apply to a state, but I can’t find it now, it is not cited in Heller though. Maybe Bricker can find it.

A few years later, the McDonald/Chicago case settled the incorporation issue.

Wasn’t it the desegregation companion to Brown v. Board? Basically the Court had said that the 14th amendment equal protection clause didn’t allow segregated schools. But, oopsy, the 14th amendment doesn’t apply to D.C., only to states, so they came up with some crazy interpretation to make it stick., so that the absurd result of Washington, D.C. to the exclusion of everywhere else, could have segregated schools …

There was a specific case I had in mind, but blank now, but Board and it’s progenies were not it.

To present an ideally systematic overview: the bulk of the Constitution applies, on its face, to the construction and operation of the *federal *government. As Polycarp mentions, Art. V. states that the Constitution and federal law promulgated thereunder shall be the supreme law of the land when its provisions conflict with state laws. But the bulk of the language restricting what government could do (that is, for instance, the text of the Bill of Rights) was directed at the federal government, not the states, and it did not apply to the states.

For instance, the federal government could not restrict freedom of speech or assembly. But if a state government wanted to do it, it was pretty much free to do so. Most state constitutions had their own provisions that, as a matter of state law, extended similar protections against state action, but those were rescindable by the states, and applied as broadly or narrowly as the states wished to construe them.

The system changed drastically as a result of the Civil War. The Reconstruction Amendments, in particular the 14th Amendment, explicitly established the primacy of federal law over the states, and it said that states were no longer permitted to deprive persons of life, liberty, or property without due process. (This quoted a similar provision in the 5th Amendment that, like all the Bill of Rights, applied only to the federal government. Now, the states were similarly restrained.) Nor were states permitted to deprive any person of the equal protection of the law (for instance based on their color or past condition of servitude).

As is the case in all matters of Constitutional text, the precise contours of the 14th Amendment were (and are) the subject of debate for the next several decades. But starting in the '20’s, and continuing significantly under the Warren Court of the '50’s and '60’s, the provisions of the Bill of Rights began to be applied to the states via the theory that the Due Process Clause of the 14th Amendment “incorporated” (some of the) particular protections in the Bill. That is, were a state to deprive someone of their right to free speech, it would be by definition depriving them of liberty without due process, something that the Constitution now prohibited states from doing.

Not all rights are incorporated, however. Exactly what rights count and which ones don’t is a case by case determination, and there have been competing theories on the Court over the years as to what tests should be used. But so far, the First, Second, Fourth, most of the Fifth, pretty much all of the Sixth, and part of the Eighth Amendments have been incorporated. (The 9th and 10th A.'s don’t grant specific protections.) The Second was just incorporated in 2010, in the abovementioned McDonald v. Chicago.

The Third Amendment hasn’t come up too often (not much quartering of troops going on these days, although there are some lower-court cases about it). The Fifth Amendment’s grand jury requirement has not been incorporated – states don’t have to provide grand juries. AFAIK, grand juries still exist in all states, but some states have abolished or made them optional for lesser felonies, even though a grand jury would be required were the same crime charged federally.

The big one that’s missing is the 7th Amendment, which mandates the right to a jury trial in civil cases. There’s no requirement that civil litigants be provided a jury trial in a suit filed in state court.

Starting with the Reconstruction Amendments, by the way, most Amendments that have established new civil law protections (for instance, the right of women and 18 year olds to vote) have explicitly applied themselves to the states, and have given the federal government the power to enforce them through appropriate legislation. So the rights newer than the those in the Bill of Rights don’t require incorporation to be binding on the states.

To sum up – states weren’t originally required to abide by the provisions of the Bill of Rights, and the bulk of Constitutional provisions were directed only at the federal government. After the Civil War, when the Union established in blood the proposition that individual states were inferior to the nation as a whole, the 14th Amendment prohibited states from depriving persons of life, liberty, or property without due process. Exactly what that meant was up in the air for a while, but primarily in the middle of the 20th century, the Supreme Court determined that (among other things) some of the protections in the Bill of Rights now applied to the states through the operation of the 14th A.'s Due Process Clause, a process called incorporation. What provisions are incorporated is determined on a case by case basis, a process that is still ongoing, and the bulk of the protections in the Bill of Rights – but not all – have so far been incorporated into the Due Process Clause and are therefore binding on the states.


Thanks! Very perspicuous and very helpful.

True. Money comes into play with legislation, as a “carrot” approach. For example, no school district is forced to comply with No Child Left Behind testing and whatnot; they just have to do those things to continue to receive federal funds, which most kind of rely on–to the point where they might even refer to NCLB as a “federal mandate.”