This Article highlights an overlooked but integral aspect of American constitutional law: that some activities believed to be flatly unconstitutional are permissible in select locations. Contrary to what the Constitution has been construed to proscribe in most jurisdictions, for example, governments in some places in our country can ban political speeches by citizens, impose prior restraints with regard to petitions to government officials, and disallow defendants at risk of incarceration from having counsel.
The Article brings together the case law that creates nonuniformity across geographical locations. It first explains the mechanics by which this "geographical constitutional nonuniformity" is generated and establishes that such nonuniformity sometimes is used to enable idiosyncratic but valuable communities to endure. Nonetheless courts often overlook the availability of geographical constitutional nonuniformity and unquestioningly conclude that the Constitution forecloses any and all communities from governing themselves in unconventional ways. The Article shows how geographical constitutional nonuniformity can be utilized to extend the powers of self-governance to various communities not currently the beneficiaries of constitutional nonuniformity and identifies the factors that determine when resort to nonuniformity is constitutionally appropriate.
Mark D. Rosen,
Our Nonuniform Constitution: Geographical Variations of Constitutional Requirements in the Aid of Community,
Tex. L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/522