Our Nonuniform Constitution: Geographical Variations of Constitutional Requirements in the Aid of Community

As a matter of federal constitutional law, what are the maximal powers of self-governance that can be extended to tightly knit communities living in largely homogeneous enclaves? This Article suggests that under the federal Constitution such communities can be accorded far greater powers to govern themselves than is generally thought. To better appreciate what is at stake, consider two vignettes. The religious group known as the Rajneesh appear to have believed that incorporating a city was necessary for the practice of their religion. In their view, attaining spiritual perfection demanded separation from general society, so as to be freed from society's influences, and extensive powers of self-government, which the Rajneesh deemed to be a core aspect of worship. The group consequently purchased a 64,229 acre parcel of land in rural Wasco County, Oregon and took the steps required under state law to incorporate as a municipality about two thousand acres of the parcel.1 Shortly thereafter a federal court in Oregon v. City of Rajneeshpuram(2) determined that the incorporation of a city inhabited solely by, communally owned by, and controlled by members of a particular religion would violate the Establishment Clause.3 Consider next the experience of residents of public housing owned by the Chicago Housing Authority. In response to rampant criminal activity, the Housing Authority adopted a policy authorizing its police to search apartments in public housing, without first obtaining warrants and in the absence of exigent circumstances, after the occurrence of certain types of violent incidents (such as random gunfire).4 Although eighteen of nineteen local advisory council presidents (who themselves were public housing residents) and five thousand other housing residents supported the policy and stated that, in their view, it did not violate their constitutional rights,(5) a federal district court in Pratt v. Chicago Housing Authority(6) found that the policy likely violated the Fourth Amendment and enjoined implementation of the policy.7 The cases of the Rajneesh and the Chicago public housing residents raise an important question that arises in numerous contexts: To what extent can communities govern themselves, or allow themselves to be governed, as they believe to be necessary?8 This issue can be broken down into two parts: as a normative matter, to what extent should communities be permitted to govern themselves, and as a descriptive matter, to what extent can such communities govern themselves consistent with the Constitution? With respect to the normative question, elsewhere I have critiqued the Rajneeshpuram court's holding and argued that liberal political theory compels the conclusion that communities like the Rajneesh, whose members believe self-governance to be necessary for their full self-actualization, be permitted to opt out of general society and govern themselves subject to only minimal constraints.9 In a similar spirit, Professors Tracy Meares and Dan Kahan recently have sharply criticized the Pratt court's decision insofar as it may have interfered with the residents' preference to be governed by the Housing Authority's search policy. 10 This Article does not further pursue these normative arguments (or similar arguments on behalf of other communities), but instead focuses on how self-governance of the sort sought by the Rajneesh and the Chicago public housing residents can be implemented in a manner consistent with the Constitution. It is important to direct attention to issues of implementation even if one does not believe that the normative question has been definitively resolved because the view that contemporary constitutional doctrines bar such self-governance has led commentators largely to ignore the normative question of whether such self-governance is desirable. By showing that the Constitution is not necessarily a bar to such selfgovernance, this Article hopes to reinvigorate deliberation concerning the normative question. …