Should Local Governments be Included in the Constitution? A Comparative Analysis Between the U.S. and Brazilian Supreme Courts' Reasoning Regarding Annexation Laws

• Autore: Carolina Arlota
• Carica: Visiting Assistant Professor of Law at the College of Law of the University of Oklahoma
• Pagine: 149-186

ARTICLES & ESSAYS

https://doi.org/10.6092/issn.2531-6133/7493

UNIVERSITY OF BOLOGNA LAW REVIEW

ISSN 2531-6133

[VOL.2:2 2017]

This article is released under the terms of Creative Commons Attribution 4.0 International License

149

Should Local Governments Be Included in the Constitution?

A Comparative Analysis Between the U.S. and Brazilian Supreme Courts’

Reasoning Regarding Annexation Laws

CAROLINA ARLOTA †

TABLE OF CO NTENTS: 1. Introduction; 2. The U.S. Scenario; 3. The Brazilian Scenario; 4.

Discussion of Research Findings; 4.1. General Analysis of the Comparison and Related

Consequences for Fundamental Rights; 4.2. Insights Based on Constitutional Design; 5.

Conclusion.

ABSTRACT: Annexation of local governments is a contentious topic. Litigation of

annexation often addresses important constitutional provisions, such as property

rights, federalism, limitations to police powers, equality and, more specifically, the

Voting Rights Act. The United States Constitution is famously silent about local

governments. In light of this omission and considering individual constitutional rights,

would it make a difference to have local governments in the constitutional text? And to

whom would it matter the most? This research developed an original dataset to answer

those questions. This article focuses on annexation as proxy for local powers, and it

compares the U.S. federalism scheme with the Brazilian unprecedented experience of

leveling local governments alongside the states and the federal union in the

Constitution of 1988. This research is unique in its comparison of the reasoning of the

U.S. Supreme Court (U.S.S.C.) and its Brazilian counterpart, the Supremo Tribunal

Federal (S.T.F.), with regard to annexation laws. The main contributions of this study to

the literature are straightforward. First, it advances the literature on constitutional

design by focusing on local governments, instead of states and the federal union.

Second, and related to such an advancement, this paper departs from traditional

federalism comparisons which were restricted to developed countries. Third, this

research provides evidence contradicting previous claims that the U.S. constitutional

omission of local governments was a failure of constitutional design relating to future

matters. In addition, this study analyzes the consequences of the Brazilian

constitutional design. This article concludes that there is no evidence supporting the

proposition that the inclusion of municipalities as federal actors is necessarily superior

to the current comparative trend that uses the dual spheres system of the U.S.

federalism as a paradigm. Therefore, this research leads to unexpected results and

provides evidence that contradicts the understanding of the U.S. constitutional

omission of local governments as a failure of constitutional design.

KEYWORDS: Constitutional Design; U.S. Federalism; Annexation Law; United States Supreme

Court; Local Governments; Comparative Law; Law and Development; Voting Rights Act; Legal

Transplants; Brazilian Federalism.

University of Bologna Law Review

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https://doi.org/10.6092/issn.2531-6133/7493

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1. INTRODUCTION

Annexation is a contentious topic, being the most frequent form of boundary

change in the United States.

1

Setting boundaries is of key importance for local

governments with regard to a variety of purposes: tax base, jurisdiction,

regulations, access to public services and rights to vote.

2

In 2015, there were

89,004 local government entities in the United States, and they levied

approximately 6.6% of this country’s (G.D.P.).

3

Claims referring to annexation

of local governments in light of constitutional rights have significantly

increased in the United States.

4

The U.S. Constitution is famously silent about

several provisions, including local governments. In light of this omission and

individual constitutional rights, would it make a difference to have local

governments in the constitutional text? And to whom would it matter the

most? This article aims at answering these questions. It focuses on annexation

as proxy for local powers, considering the absence of local governments’

provisions in the U.S. Constitution. It compares this scheme with the

unprecedented Brazilian experience of leveling local governments alongside

the states and the federal union in the Constitution of 1988.

5

This research compares the reasoning of the U.S. Supreme Court

(hereinafter U.S.S.C.) with its Brazilian counterpart, the Superior Tribunal

† Carolina Arlota is a Visiting Assistant Professor of Law at the College of Law of the University of

Oklahoma. Contact address: carolarlota@ou.edu. I am grateful to Professors Nuno Garoupa, Laurie

Reynolds and Jose Antonio Cheibub for important comments on earlier versions. I would like to

thank anonimous referees of the UBLR for helpful feedback. Emilee N. Crowther provided excellent

research assistance. The common disclaimers apply.

1

See RICHARD BRIFFAULT & LAURIE REYNOLDS, CASES AND MATERIALS ON STATE AND LOCAL GOVERNMENT

LAW 210-11 (7th ed. 2008).

2

See Christopher J. Tyson, Annexation and the Mid-Size Metropolis: New Insights in the Age of Mobile

Capital, 73 U. PITT. L. REV., 505, 506-61 (2012).

Reports There Are 89,004 Local Governments in th e United States, U.S. CENSUS BUREAU (Aug. 30, 2012),

https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html. Local

governments levied, in taxes, $1303 billion in 2015. See Government Revenue Details, US GOVERNMENT

REVENUE (August 4, 2016), www.usgovernmentrevenue.com/numbers. Brazil currently has 5564

local governments, with revenue and mandatory transfers from the union reaching 8.6% of the

Brazilian G.D.P.. See Panorama 2011 bulletin, FRENTE NACIONAL DE PREFEITOS (Feb. 9, 2015).

4

Along those lines and stressing that, historically, state governments legitimized racially,

national origin and class related discrimination: see Michelle Wilde Anderson, Cities Inside Out:

Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. REV. 1095, 1095-160 (2008). For an

illustration, see Chart I of this paper.

5

For an analysis of Brazilian federalism, see CHARLES D. COLE, COMPARATIVE CON STITUTIONAL LAW:

BRAZIL AND UNITED STATES 32-33 (2d ed. 2008).

University of Bologna Law Review

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Federal (hereinafter S.T.F.), in relation to annexation laws.

6

Federalism itself

has been associated with the success of the U.S. constitutionalism.

7

As the U.S.

federal experience inspired Brazil, implications concerning comparative

constitutional design are considered.

8

A literature review on constitutional design reveals a multiplicity of

approaches.

9

Regardless, studies on local governments remain largely

overlooked, despite being a relevant factor for fostering democracy.

10

As a

product of institutional choices and continuing experiences, the better a

constitutional design is, the more it should promote democracy by avoiding

permanent political conflict.

11

As litigation increases, less institutional

predictability can exist, and economic growth is, therefore, jeopardized.

12

Despite belonging to distinct legal traditions, both courts are independent,

with similar jurisdiction when judging issues of local governments.

13

In both

countries, such subject matter is generally dealt with at the state level, and the

Courts have jurisdiction only if specific violations of the federal Constitution

occur.

14

Insights based on constitutional design also contend that the scope and

the size of countries are relevant.

15

In this direction, a comparison between

Brazil and the United States is pertinent, because both countries display

6

The dataset for this research encompasses the decisions of the U.S. Supreme Court during the

long tenure of the U.S. Constitution until February 2014, and the decisions of the S.T.F. – during

the Constitution of 1988 until the same year. 2014 is the most recent year for which data could be

gathered.

7

See Keith S. Rosenn, The Success of Constitutionalism in the United States and Its Failure in Latin

America: An Explanation, 22 U. MIAMI INT’L & COMP. L. REV. 1, 9-20 (1990).

8

The study of comparative constitutional law has been founded on the U.S. Constitution. MARK

TUSHNET, Comparative Law and National Identity, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 1226

(Mathias Reimann & Reinhard Zimmermann eds., 2008).

9

This research uses expression “constitutional design,” despite its intrinsic limitations, including

how misleading the notion of design might be when applied to the complexity of social reality.

TOM GINSBURG, COMPARATIVE CONSTITUTIONAL DESIGN 1-2 (2012).

10

See SUJIT CHOUDHRY & NATHAN HUME, Federalism, devolution and secession: from classical to post-

conflict federalism, in COMPARATIVE CONSTITUTIONAL LAW 377 (Tom Ginsburg & Rosalind Dixon eds.,

2011).

11

See GINSBURG, supra note 9, at 10.

12

See Ran Hirschl, The “Design Sciences” and Constitutional “Success”, 87 TEX. L. REV. 1339, 1339-74

(2009).

13

Independence in the sense that there is no external and direct interference with each Supreme

Court’s final decision in a given case.

14

Even in consideration of the constitutional amendments that occurred in Brazil in 1996 and

2008, the annexa tion of municipality occurs in the field of state law – albeit obedient to general

guidance that will be determined in a federal complementary law, one which does not exist.

15

See Hirschl, supra note 12, at 1343.