Also known as: self-governments · self-governance · self-governed · self-governing · autonomy · self-rule · home rule
Written by attorneys — see sources below.
A constitutional doctrine permitting states to exclude noncitizens from positions intimately related to the democratic process without triggering strict scrutiny under the Equal Protection Clause. The exception applies when the position involves discretionary decision-making that significantly affects the political community or the functioning of government.
Elena Vargas, a lawful permanent resident, applies to teach high school government. The state denies the application because she is not a citizen. The court upholds the restriction under the self-government exception because teaching shapes attitudes toward citizenship and government and involves discretionary educational decisions central to the political community.
Marco Ruiz, a lawful permanent resident, seeks appointment as a notary public. The state denies the application on citizenship grounds. The court strikes down the requirement because a notary performs only clerical functions that do not involve discretionary authority affecting the political community, so the self-government exception does not apply.
Aisha Khan, a noncitizen, applies for a state probation officer position. The state rejects her application. The court sustains the citizenship requirement under the self-government exception because the role entails discretionary decisions about supervision and liberty that directly affect the political community.
Luis Mendoza, a lawful permanent resident, is excluded from the jury pool by a state statute limiting service to citizens. He sues, claiming alienage discrimination. The court upholds the exclusion because jury service involves discretionary judgment that affects the administration of justice and the political community.
During a 1967 adjudicatory hearing conducted pursuant to section 742 of the New York Family Court Act, a judge in New York Family Court found that the twelve-year-old appellant had entered a locker and stolen one hundred twelve dollars from a woman's pocketbook. The petition which charged appellant with delinquency alleged that his act, if done by an adult, would constitute the crime or crimes of larceny. The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt but relied on section 744(b) of the New York Family Court Act, which provides that any determination at the conclusion of an adjudicatory hearing that a juvenile did an act or acts must be based on a preponderance of the evidence. After a subsequent dispositional hearing, appellant was ordered placed in a training school for an initial period of eighteen months, subject to annual extensions of his commitment until his eighteenth birthday, six years in appellant's case. The Appellate Division of the New York Supreme Court, First Judicial Department, affirmed without opinion. The New York Court of Appeals then affirmed by a four-to-three vote, expressly sustaining the constitutionality of section 744(b). The Supreme Court noted probable jurisdiction.
View caseFatima Al-Hassan, a noncitizen, applies to become a municipal police officer. The city denies the application under a citizenship requirement. The court applies rational-basis review under the self-government exception because officers exercise discretionary law-enforcement authority that significantly affects the political community.
L. B. Sullivan is one of three elected Commissioners of the City of Montgomery, Alabama. He has duties including supervision of the Police Department. He brought this civil libel action against the New York Times Company and four individual petitioners who were Alabama clergymen. The suit sought $500,000 in damages based on a full-page advertisement entitled "Heed Their Rising Voices" that appeared in the New York Times on March 29, 1960. A jury in the Circuit Court of Montgomery County awarded Sullivan the full amount claimed against all petitioners. The Supreme Court of Alabama affirmed the judgment. The advertisement was signed by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. It described widespread non-violent demonstrations by Southern Negro students and an unprecedented wave of terror against them. Two paragraphs formed the basis of the claim. One alleged that after students sang on the State Capitol steps their leaders were expelled, truckloads of police ringed the Alabama State College Campus, and the dining hall was padlocked to starve students into submission. The other stated that Southern violators had bombed Dr. King's home, assaulted him, arrested him seven times, and charged him with perjury. The text appeared over the names of 64 persons. It was endorsed by the individual petitioners among others. Sullivan contended that the references to police referred to him in his supervisory capacity. Six Montgomery residents testified that they read the statements as referring to him. However, several statements were inaccurate. The students sang the National Anthem rather than "My Country, 'Tis of Thee." The expulsions were for a different incident. The dining hall was not padlocked. Dr. King had been arrested only four times. The bombings occurred before Sullivan's tenure with police efforts to apprehend the perpetrators. The Times published the advertisement for approximately $4800. It acted upon an order from a New York advertising agency. The agency provided a letter from A. Philip Randolph certifying authorization. The Times made no efforts to confirm its accuracy against its own news files. Sullivan served written demands for retraction on the petitioners pursuant to Alabama law. None of the individual petitioners responded as they had not authorized use of their names. The Times did not retract. It published a retraction only upon demand by Governor John Patterson after learning more facts. The Supreme Court granted certiorari to the separate petitions of the individual petitioners and the Times due to the importance of the constitutional issues involved.
View caseSamuel Cohen, a lawful permanent resident, seeks appointment to a local election board. The state limits the position to citizens. The court sustains the limitation because the role entails discretionary decisions about ballot access and voting procedures that directly shape the political community.
The Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989, established several requirements governing the performance of abortions within the Commonwealth. The Act required a woman seeking an abortion to provide informed consent after receiving specific information from a physician or counselor at least twenty-four hours before the procedure. It mandated that a minor obtain the informed consent of one parent, subject to a judicial bypass option. It further required a married woman to sign a statement confirming that she had notified her husband of her planned abortion, unless certain exceptions applied. The Act also imposed reporting obligations on facilities providing abortion services and defined a medical emergency exception to the various requirements. Before any of these provisions took effect, the petitioners brought suit in the United States District Court for the Eastern District of Pennsylvania. The petitioners were five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services. They sought declaratory and injunctive relief and challenged each provision as unconstitutional on its face. The District Court entered a preliminary injunction. After conducting a three-day bench trial, the District Court held all the provisions unconstitutional and entered a permanent injunction against their enforcement by Pennsylvania. The Court of Appeals for the Third Circuit affirmed in part and reversed in part. It adopted the District Court's factual findings and legal analysis except with respect to the spousal notification requirement. The Court of Appeals upheld the spousal notification requirement as constitutional and applied the undue burden standard in evaluating the provisions. The Supreme Court granted certiorari to consider the constitutionality of the challenged provisions of the Pennsylvania statute.
View caseThe exception covers positions that involve discretionary decision-making significantly affecting the political community, such as primary and secondary school teachers who shape attitudes toward government and citizenship. Notary publics and other clerical roles do not qualify because they lack meaningful policy-making authority.
Ordinary alienage classifications receive strict scrutiny and are invalid unless supported by a compelling interest. The self-government exception lowers the standard to rational basis when the position is intimately related to the democratic process or the heart of representative government.
The exception is framed for state and local government positions. Private expressive associations receive separate First Amendment protection for their own autonomy in selecting members and leaders, as illustrated by cases protecting groups from compelled inclusion that would alter their message.
The self-government exception is limited to alienage classifications involving public positions that affect the political community. It does not extend to substantive due process claims concerning personal or family autonomy.
…cf. Brant, Seditious Libel: Myth and Reality, 39 N. Y. U. L. Rev. 1. : Cf. Meiklejohn, Free Speech and Its Relation to Self-Government (1948).