Hirschl Symposium: Author Reply on Urban Agglomeration and Constitutionalism As Global Imperative

I thank the editors of SLoG Law Blog and of course my interlocutors for their spirited engagement with the arguments put forth in my recent book, City, State As I said in accepting the Stein Rokkan Prize for comparative social science research, writing a book of this scope on a vitally important yet understudied topic at the intersection of public law and comparative politics, requires tremendous devotion and research. It is therefore exceptionally gratifying to see it generating precisely the type of conversation I had hoped it would.

To reiterate: urban agglomeration is among the most burning global policy challenges of the 21st century. The current figures are mind-boggling, and this issue is set to gain even greater prominence as ever-expanding urbanization processes march. In the face of unequivocal evidence from across the scientific spectrum on the significance of cities to every aspect of social, political and economic life, the silence of constitutional theory and of constitutional law with respect to the mounting urban challenge is striking. New thinking about constitutionalism and urbanization, and the spatial dimension of constitutional governance more generally, is the call of the hour.

In that respect, De Visser’s distinction between emancipation of cities from the burden of statist constitutional theory, and empowerment of cities within the confines of that conceptual framework is a critical one. It may well be that the tension De Visser identifies between these two notions is among the main reasons for why Henri Lefebvre’s “right to the city” has not gained momentum constitutionally speaking, while it has been addressed frequently by political theorists and by utopian, avant-garde social thinkers of various persuasions. At any rate, I agree with De Visser that the vision that guides City, State¸ and by far the more realistic one, is that of constitutional empowerment of cities, putting aside “pie in the sky” ideas like city-based nullification, revolt, or secessionism. That said, some of the ideas proposed in the book, notably the recognition of extreme urban density as a form of diversity, or the transformation of fiscal equalization matrixes to account for ever-growing intra-metropolis inequalities (often far exceed inter-state differences upon which such equalization schemes are based), carry potential for radical change in the spatial basis of how resources are allocated and how political voice is expressed.

Either way, the premise of this book is that a polity’s constitutional order is more than mere law; in principle, it reflects that polity’s core identity, commitments, priorities and aspirations, and serves as a compass guiding its political and public life. Granted, from a functionalist standpoint, constitutional law is commonly defined as the law that establishes the role, powers, and structure of the essential governing entities within the state. In this view, constitutional law also determines the spatial boundaries of authority, as well as listing polity-members’ basic rights and duties. Even from this angle alone, cities—the places that serve as home, and affect the lives of the clear majority of human kind—deserve recognition in any modern constitutional order. However, it is a deeper symbolic facet of constitutions that makes the constitutionalization of city power essential. From a normative and poetic standpoint, constitutions, constitutional institutions, and constitutional jurisprudence do more than allocating competences, powers, and rights. Taken together, they define and signal who we are as a political community, what moral and political ideals we cherish and strive for, and how we wish for others to reflect upon our polity. Neither administrative law, nor municipal law—two domains of public law that are commonly drawn upon to govern cities—can lay claim to such elevated legal and symbolic status in a given polity’s legal hierarchy. And as the essence of transformation in this area reflects a quest for enhanced local voice, so-called global law, effective as it may be in some contexts, does not seem to offer a principled, first-order solution here either. Thus, akin to any other instances of major constitutional void—large-scale under-representation and democracy deficit, inadequate government institutions, or outdated hierarchies—a principled remedy to cities’ constitutional non-existence is not to address the matter solely via legal byroads, but also, if not predominantly, through public law’s main highway: constitutional law.

As the contributors to this symposium note, City, State is at least to the best of our collective knowledge, the first major book-length inquiry into the (non)status of cities in comparative constitutional law, and in comparative constitutional studies more generally. As such, it admittedly raises more questions than it offers answers to. In that sense, my interlocutors’ interventions offer a welcome affirmation of my call for further theoretical, normative and empirical inquiry.

As Sapuletti and De Visser highlight in their respective posts, there is considerable room for innovation in areas that do not fall squarely within the realm of constitutional law. Europe, they point out, presents an emerging “living laboratory” for such innovations: extensive human rights city initiatives, joint transnational/subnational networks, EU-led legislative initiatives, and, let me add, possible enhancement of city status through European Court of Justice’s jurisprudence (as in the Court’s 2020 ruling in the Paris v Cali Apartments case). And lest we forget, city residents’ popular demand for more aggressive rent control and public housing measures (e.g. Berlin).

All told, it is hardly surprising that such moves emanate either at the city level or backed by the transnational level, but are seldom prescribed or supported by national constitutional orders. As I suggest in the book, contemporary constitutional law is predicated on a Westphalian, state-centered framework that is agnostic at best towards any competing legal ordering of spatial governance, political sovereignty or constituent power. Having concurred the city in early modern times, the nation-state and its constitutional ordering have no reason to relinquish power to lower levels of government unless they are set to gain from such moves (as in say China’s constitutional designation of megacities as engines for regional economic growth, or closer to home, what has been termed “neo localism”—essentially strategic devolution of power to the local level in an attempt to reduce costs to state authorities or to better implement national goals). This also reflects what Ayelet Shachar and I have termed “spatial statism”, the notion that public law, through its spatial ordering, helps to sustain a state-oriented locus and focus of sovereign control of its territory in the face of competing forces, real or perceived. There may also be a more existential concern at play here. The city features a potentially explosive combination of people, ideas, and spatial conditions that from a statist point of view is better kept under check. The aggregative result of these trends is that attempts to empower cities seldom enjoy the unequivocal support of the national constitutional order, and the statist logic that guides it.

And then there is constitutional path dependence. For well over a century now, federal constitutional theory has been predicated upon traditional subnational units such as states, provinces, Länder, cantons, and regions, and a well-established, hard-to-change matrix of institutional hierarchies and political incentives reflects this disposition. Throw in constitutional rigidity—a combination of dated constitutional arrangements and impossibly burdensome amendment procedures—which makes city empowerment through constitutional reclassification very difficult to achieve and often politically costly. As Kristin Good highlights in her contribution, Canada’s constitutional order provides a textbook example for how such combination of datedness and rigidity creates an exceptionally tough setting for proponents of city rights.

As the contributions by Good and Idiculla thoughtfully highlight, no analysis of constitutional city status is complete without close attention to context. The limited impact of India’s 74th amendment (aimed at strengthening cities), which Idiculla examines in detail here and elsewhere, provides a prime example for the importance of deep understanding not revealed at first constitutional sight, or through what Good aptly calls “simplistic understanding of legal fact.”

But the importance of nuances notwithstanding, we must not lose sight of the general picture, uncovered only through comprehensive comparative inquiry. In that respect, one of the key insights I offer in City, State is that to remain relevant in an ever more urbanized world, constitutional theory will not only have to take the urban challenge more seriously—it will have to set its global gaze southward. In stark contrast to most other areas of constitutional law, much of the innovative constitutional thinking concerning city governance emanates from Asia, Latin America, and parts of Africa. While the informal comparative constitutional canon, as reflected in most textbooks and course syllabi in that field, draws heavily on the constitutional experiences of Global North countries, when it comes to constitutional innovation in the area of city status, Global South settings have taken the lead. Prime examples include Brazil (1988) and South Africa (1996) at the national level, and at the single-city level Mexico City (2017).

One obvious factor that may explain this trend is necessity. Much of the extensive urbanization of the last few decades has taken place outside North America and Europe. Data suggest that 88% of the 3.2 billion increase in the world’s urban population growth between 1960 and 2018 has taken place in Asia, Africa, and Latin America, compared with only 12% in Europe and North America. This trend is bound to intensify in the coming decades, with UN estimates of over 95% of global urban growth by 2050 concentrated in the so-called Global South.

A second factor is constitutional newness and malleability. It is plausible to assume that constitutional orders adopted in the late-20th century onward and that are more susceptible to change—many Global South constitutions fit that bill—are more attuned to contemporary challenges (e.g. the urban challenge, environmental protection) than older or more rigid constitutional orders. The contrast with constitutional datedness and amendment difficulty in, say, the United States or Canada, is obvious.

A third factor is politics. The constitutional empowerment of cities in Brazil and in South Africa was a direct by-product of the transformative political circumstances in those two countries. The same insight holds true in other settings, as diverse as Kenya, where a political push for decentralization resulted in taming of the constitutional status of Nairobi (2010); South Korea, where political struggle in the early 2000s led to a constitutional war over the status of Seoul; or Nepal, where the politics of constitution-making resulted in an extensive list of local government powers enshrined in that country’s new constitution (2015). In other words, no stalemate or change in the constitutional status of cities may be fully understood without grasping the political context within which it occurs.

And so, in the end, as my interlocutors ultimately agree, it is the interdisciplinary approach taken in City, State that holds the key to understanding the constitutional status of cities, and perhaps more importantly, to generating novel ideas concerning the constitutional rearrangement of spatial governance in our current urban era.