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

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.