The Problem of the Cities

Ever since people began migrating in large numbers from America’s rural areas to its urban areas  in the 19th century, cities have presented unique challenges: sanitation, housing, transportation, education, public safety, and fire protection, to name just a few. Responding to these challenges typically entailed government intervention, the precursor to the Great Society and the modern welfare state.

As Edward Banfield noted in The Unheavenly City (1970), Chicago grew “from a prairie village of 4,470 in 1840 to a metropolis of more than a million in fifty years.”  Industrialization attracted 15 million new residents—including many immigrants from foreign countries—to American cities during the 1880-1900 period alone, and this trend accelerated in the early part of the 20th century.

The rapid growth of urban areas, increased population density, and a massive influx of immigrants—accompanying the explosion of manufacturing and commerce during the Gilded Age—hastened the rise of municipal political machines (such as Tammany Hall in New York City), official corruption, labor unrest, and the demographic diversity that continues to this day. Even though Americans’ standard of living generally improved during industrialization (people moved to the cities for a reason), the Progressive movement was in significant part a response to America’s nascent urban problems.

Progressivism is a legacy that endures, as we know, and for good or ill, urbanization has profoundly affected the American experience. Members of ethnic minorities disproportionately reside in U.S. cities, and their local governments are disproportionately (in fact more or less exclusively) in the hands of the Democratic Party. Cities expend substantial taxpayer resources to try to address poverty, crime, air pollution, congestion, substandard housing, homelessness, and the education of non-English speaking students, all of which are not as prevalent in suburban and rural areas.

Cities tend to have large numbers of unionized public employees, high (and rising) taxes and debt (including unfunded pension liabilities), and intrusive regulations. For a variety of reasons, urban residents favor liberal policies—and elect liberals to office—to a greater degree than suburban and rural voters. Some major American cities, such as Detroit, have become dysfunctional fiefdoms, forced into bankruptcy.

Proponents of classical liberalism generally favor limited government and free market solutions, but these views do not prevail in most American cities. Even in Texas, the reddest of red states, every major city is governed by a Democratic mayor, and local governments increasingly adopt liberal policies. The city of Denton, for example, banned fracking, a common extraction technique for oil and gas. The city of Austin forbids employers to ask about applicants’ criminal records before extending an offer of employment. The city of Dallas has mandated transgender bathroom access. Green energy mandates, plastic bag bans, “sanctuary city” status, and similar activist measures abound at the local level in the Lone Star State, creating, in the words of Texas Governor Greg Abbott, “a patchwork quilt of bans and rules and regulations that are eroding the Texas model.” Abbott warns that Texas’ cities are “California-izing” the state.

Not just in Texas, but throughout the country, cities are the tail wagging the dog of state government when one considers that localities are literally “political subdivisions” of the 50 states. Because of the Constitution’s Tenth Amendment, states have far more ability to regulate their local governments than the federal government has power over the states. When and how will the states assert such authority to rein in activist cities?

A recent decision of the Texas Supreme Court, BCCA Appeal Group, Inc. v. City of Houston, provides some guidance. An ordinance was passed by the city of Houston concerning local air quality, and this regulation of emissions within the city’s borders eventually included a compliance program, fee schedule, and penalty provisions—all of which are layered on top of the provisions of the statewide Texas Clean Air Act, which is enforced by the Texas Commission on Environmental Quality (TCEQ).

A group of chemical manufacturing plants and refineries subject to both state law and the city’s ordinance challenged the ordinance on preemption grounds. After winning in the trial court but losing in the court of appeals, the challengers sought and obtained review by the state supreme court.  In an 8 to 1 decision, the Texas Supreme Court ruled on April 29 that the ordinance was invalid because the Clean Air Act expressly forbids local ordinances not “consistent” with statutory provisions or TCEQ rules or orders.

The majority found that the ordinance was impermissibly inconsistent with state law in various respects, reasoning that “the Ordinance converts what is primarily an administrative and civil enforcement regime under state law into a primarily criminal enforcement regime, removing primary enforcement authority from the agency that can ensure consistent enforcement across the state and placing that authority in the hands of the local health officer, city personnel, and municipal court judges.”

While “home rule” cities such as Houston possess the right of self-government and do not depend on grants of authority from the state, their authority is subject to limitation by the state.   The Texas Constitution states that no city ordinance “shall contain any provision inconsistent with . . . the general laws enacted by the Legislature of this State.”

Thus, under the holding of BCCA Appeal Group, the Texas Legislature could, by statute, express the uniform public policy of the state in the area of, say, retailers’ use of plastic bags, pre-employment inquiries regarding applicants’ criminal records, or (regarding a topic recently in the news) conducting background checks for taxi cab and “ride sharing” drivers. By doing this, the Texas Legislature could preempt contrary city ordinances, preventing rent-seeking and meddlesome regulation at the local government level.

State legislatures could also rein in profligate local governments by restricting their ability to raise taxes, making it harder for them to incur bonded indebtedness (by requiring super-majority voter approval, for instance), prohibiting forced annexation, prohibiting taxpayer-funded lobbying, and even curbing the spending of financially-distressed cities  (as recently proposed by Stephen Eide in City Journal).

Cities present different challenges than they did a century ago, but the current problems are no less dire. Costly and ineffective public education systems, massively under-funded public employee pension plans, law-enforcement failures, high taxes, and uncontrolled spending imperil the security and solvency of America’s cities. Unless these problems are promptly addressed by responsible state reforms, more urban residents will face the tragic plight of Detroit, Chicago, Baltimore, and San Bernardino.

No state can thrive if its major cities become dysfunctional and/or bankrupt. Fortunately, these problems can be fixed—if state legislatures are willing to assume their legitimate role and exercise statewide governance to curb local government excesses.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 17, 2016 at 11:07:38 am

Or for that matter, preemption in the matter of bathroom etiquette as in North Carolina!!!!

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Image of gabe
on May 17, 2016 at 11:57:19 am

Transgender bathrooms, "sanctuary cities," and a long list of other municipal follies.

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Image of Mark Pulliam
Mark Pulliam
on May 17, 2016 at 14:37:04 pm

There is, or has been, a general libertarian "movement" to get governing (the business of "being governed") down as close to the people affected and to their preferences and choices as possible; and to move away from "centralization" (coolie cutter") governing wherever and in whatever ways possible.

Here we read that maybe ain't so good all the time.

"Local" governments sometimes go loco (agreed!). But, whether those conditions are correlated to the morphologies of "Progressivism" is a matter for further considerations.

There are also the factors of that "Great Centralization" by the managers of the Federal Administrative State intervening (and mediating) between State managers and local mangers. The Fed managers having the advantage of also intervening in State operations.

It's difficult to keep up, but Houston's school "bathroom rules" probably conform more to the (now) title ix format than TX legislation.

There are lots of gorillas in these rooms.

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Image of R Richard Schweitzer
R Richard Schweitzer
on May 17, 2016 at 14:54:31 pm

Yep! and they require an ample supply of bananas - or is it that the FAS REQUIRES an ample supply of *bananas* to keep promulgating their idiotic edicts?

You tell me! I'm going back to sniffing the fumes of some semi-transparent stain. It too will make you bananas!

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Image of gabe
on May 17, 2016 at 15:11:01 pm

That's interesting. I've been reading Bowen's Miracle at Phildelphia recently. I came across this gem:

"Looking ahead, Madison saw a United States peopled very differently from the year 1787. "In framing a system which we wish to last for ages," he told the Convention, "we should not lose sight of the changes which ages will produce. An increase of the population will of necessity increase the proportion of those who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence." Power, Madison said, could then slide into the hands of the numerous poor rather the the few rich. Symptoms of a leveling spirit had already appeared in certain quarters. How was this danger to be guarded against "on republican principles"? A body in the government (a senate) "sufficiently respectable for its wisdom and virtue," with an elective term of nine years to render it stable ..."

It's interesting how prescient those guys were sometimes. They tried to design against these problems, but in this case the design broke down. The senate is now popularly elected and heavily influenced by the "leveling spirit." The states copy the example of the feds and the error propagates.

There are folks in government, I'm sure, who understand the nature of the problem. But the way the system of government works--with the government controlled by two power hungry political parties--the problem may not be corrected with quick and easy measures. The 17th Amendment may have been a one-way gate.

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Image of Scott Amorian
Scott Amorian
on May 17, 2016 at 16:27:51 pm

Yeah, big cities suffer from high and rising taxes, crime, cronyism, and bankruptcy. And this would differ from small towns -- how?

That said, I certainly share Pulliam’s main conclusion: The mere fact that a decision is make locally in no way renders the decision optimal. Indeed, small towns can act with greater impunity because they get less scrutiny. Centralized decisions, such as those issued by the Supreme Court, may be wrong – but they generally aren’t wrong because the decision-maker was stupid, or lacked information, or believed he could sneak a decision out after nightfall for the benefit of his girlfriend and no one would notice.

That said, democracy seems to favor “subsidiarity” – pushing decisions down to the most local level practicable. So there’s a tension between the benefits of centralized decision-making and the benefits of local decision-making.

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Image of nobody.really
on May 18, 2016 at 16:30:40 pm

Cities have more money and more power. When corruption, etc. happens, it happens bigger.

Cities attract people who want to take advantage of the greater power and money. In small towns it's hard to hide your bad deeds. Everyone seems to know everyone else's business. In the city you can hide in the hordes of people. In small towns you can't. There aren't a lot of ambulance chasers or union bosses in small towns.

People tend to move to the country to get away from the problems of the city and attend a nice church. This kind of foot election tends to draw sensible and religiously moral people out of the city and into the country. So you get a sort of more sensible and well behaved government in the country.

Small towns have corruption, sometimes of a different variety than is found in cities, but it's never as big. For example AIDS came from the cities, not the small towns for, I think, obvious reason. Organized crime would have problems growing in small towns. The entire town would have to have some kind of association with the gang. There are not as many outlets for government spending, so there is less opportunity for corruption. In small towns welfare tends to be looked down upon in favor of local charities and social connections.

I wonder what motivated Madison to say "An increase of the population will of necessity increase the proportion of those who will labor under all the hardships of life..."? Why "of necessity"? He was accurate. We see that in the growing divide between the wealthy and the poor and the erosion of the middle class.

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Scott Amorian
on May 19, 2016 at 02:14:36 am

I have to wonder if this discussion is a product of wishful thinking about small towns, fueled by ignorance. We know something about the problems of cities because most of us live in cities, and because newspapers cover cities. We know almost nothing about most small towns.

But occasionally we get a glimpse of small-town life in the news.

Some of us will recall a town of 21,000 people called Furguson, Missouri. Yeah, the people largely knew each other – but that didn’t stop the white police force from oppressing the black citizens. And it certainly did nothing to stop the police from preying on black motorists who happened through the town. More to the point, why should it? Why should we expect small towns to treat helpless parties with compassion, especially when the towns themselves are broke?

Some of us will recall stories about the prevalence of sexual assault in small towns. Now, maybe the towns in question are exceptional. But why should we expect that? What dynamics drive sexual assault – and why should we imagine that those dynamics are any less prevalent in small towns than in large ones?

Some of us are acquainted with the prevalence of meth in small towns.

Some of us are acquainted with people in need of social services (autistic kids, people with physical disabilities, people escaping abusive spouses, etc.) in small towns. Ask your transgendered friends whether they’d rather have to spend a summer in a small Southern town, or in a major Southern city. They might offer a different perspective about how very wholesome and trouble-free life in small towns might be.

Ah, but what about AIDS? That came from big cities, right? Current theories estimate that humans first acquired HIV from apes while living in remote hunting villages in the Democratic Republic of Congo in the 1930s. Yes, HIV spread in cities, but only because people in cities were infected by people visiting from small towns. This is the general pattern with infectious diseases, which tend to arise from people working with livestock. Most people working with livestock don’t live in big cities.

Perhaps small towns are really attractive places to live – but demographic trends don’t support that conclusion. The world is becoming more densely urbanized all the time. And in the US, small towns have been growing ever older and smaller.

Indeed, the overwhelming trend is from small towns to cities, not the other way around. This was the predominant pattern of immigrant groups, too. Thus, small towns become an object of nostalgia, an imagined place of childhood purity and wholesomeness. Country Western music became popular not when people were living in the country, but when people began moving to the cities. And cities, in contrast, have long been associated with the breakdown of small-town norms – especially norms against race-mixing.

Thomas Jefferson argued that agrarian yeomen were the bedrock of democracy, and that democracy would collapse if we tried to build on any other foundation. And perhaps he was right. After all, the colonial time was a period of wealth equality the world had never seen and would never see again….

….provided you calculated this data selectively. That is, colonial white males lived with unprecedented levels of wealth equality. And this statistical achievement was made possible simply by killing off and ignoring the Native Americans and redistributing their land, and then by ignoring the plight of blacks and women who provided most of the labor. This became the benchmark against which various people would judge the appropriate role of government – a benchmark created by clearly artificial, brutally unjust, and irreproducible circumstances, yet one prized by libertarians ever since.

In sum: Yes, if your perspective is restricted to characters who appear in Ayn Rand novels – 30s-ish, educated, healthy, single, without family attachments or other responsibilities -- then yes, small town living is great. If your perspective encompasses human beings, then small towns have a range of problems – often the same problems as big towns, but without the big-town resources to manage them.

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on May 19, 2016 at 09:27:21 am

Small towns tend not to get "home rule" powers that larger cities have, so they can't get into quite as much foolishness. They can still make all the same stupid or short-sighted financial decisions of the larger cities (and apparently often do), but regulations like the one at issue in this case are much harder to enact in small towns.

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Image of Greg
on May 19, 2016 at 09:51:58 am

Looks like you are slipping back into the 1950's again with your analysis.

Yep, small town life ain't perfect, nor are its citizens; but can we just get over "the horror of it all" after all these years. Life everywhere in the good ole USA is appreciably better than it ever was. Can we not recognize that considerable progress has been made in most areas. Harping upon "the sins of the fathers" is more likely to cause retrograde action than further progress.

Just for a reality check: By my reckoning, the year is 2016 Anno Domini ( oops, I forgot, we now refer to this as the Common Era. How appropriate to name our calendar after something so *common*).

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Image of gabe
on May 19, 2016 at 11:04:11 am

Here's another gorilla: Why are residents of large cities given allowed more self government through Municipal Home Rule while voters in other communities are explicitly denied that level of self government? Isn't this an Equal Protection problem?

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Image of Heymaker
on May 19, 2016 at 13:00:38 pm

1950s? All the links I provide are to contemporary stories.

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Image of nobody.really
on May 19, 2016 at 13:20:54 pm


I must have missed the part about "killing off native Americans and and redistributing their land, and then by ignoring the plight of blacks and women who provided most of the labor."

Oh, that's right, I don't watch MSNBC so I must have missed it.

And oh, BTW: I consider myself a *native* American as much as any man or woman asserting such a claim. I ain't hyphenated, bro! as much as folks would like to hyphenate us all, just ain't buying it!

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Image of gabe
on May 19, 2016 at 13:57:58 pm

I must have missed the part about “killing off native Americans and and redistributing their land, and then by ignoring the plight of blacks and women who provided most of the labor.”

Gabe,that was a reference to colonial times -- you know, Thomas Jefferson and all? 1750s maybe, but not 1950s.

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Image of nobody.really
on May 20, 2016 at 09:15:57 am


At least I had half of it right - the 50's part - maybe because I was born in 50 that I am hung up on it! And shucks, I thought that Thomas Jefferson was still alive when I was born (philosophically speaking, of course).

take care

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Image of gabe
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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.