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Hirschl Symposium: What Next When Constitutionalization Does Not Empower Cities?

The 21st Century is hailed as the “Century of the City” as more than half of the world population is now living in urban areas, which is set to increase to three-fourths by 2050. With urban population almost doubling in the last quarter of the century, we have been witnessing and undergoing a fundamental transformation in the way our society and economy are organized. However, our constitutional visions, institutions, and doctrines have largely failed to acknowledge or respond to this inexorable reality. While political scientists, sociologists, and urban theorists have examined the rise of megacities and its implications, legal and constitutional scholars have mostly ignored the city as a key unit of political authority. Ran Hirschl’s latest book City, State: Constitutionalism and the Megacity seeks to address this fundamental void in constitutional law and scholarship through a rich and detailed comparative constitutional analysis.

City, State is the first major book-length inquiry in comparative constitutional studies that explores the role of cities in constitutional systems. Hirschl examines the “bewildering silence” on cities and urbanization in constitutional law, thought, and practice and argues that outmoded concepts of spatial governance steeped in the Westphalian constitutional order needs to make way for new systems that reflect 21st century realities. The book interrogates how national constitutions treats cities and local governments in both “old world” (global north) and “new world” (mostly global south) constitutional orders. It examines why constitutional empowerment of cities does occur in some cases, explores the scope of city self-empowerment through international inter-city networks furthering human rights, environmental sustainability and “the right to the city”, and advances arguments for assigning greater constitutional status to megacities.

Hirschl’s new book is a pathbreaking contribution to constitutional scholarship for three important reasons. Firstly, it breaks the “constitutional blind spot” on cities and local governments in legal scholarship and places the city in the center of constitutional thought. On the one hand, social science scholarship on urbanization has largely ignored the legal power of cities, and on the other, legal scholars have mostly failed to consider city governments in the discussions on federalism and constitutionalism. Within legal scholarship, the limited literature on cities has often been framed within niche domains like local government law and law and geography. Hirschl’s book is significant since it elevates the legal discourse on cities to a core element in constitutional law. Further, it pays significant attention to non-legal scholarship and brings the discussion on cities and constitutionalism in conversation with the existing social science literature on urbanization.

Secondly, it is a serious attempt at comparative constitutional analysis since it undertakes a meticulous examination of the status of cities in constitutional systems across both the global north and the global south. It rescues the city from North American-centric legal scholarship and puts it in a truly global comparative perspective. Scholarship in the field of urban law and local government law has often been restricted to debates very specific to the United States, and to a lesser extent Canada and other English-speaking nations. It has mostly ignored jurisdictions where the vast majority of urban residents live. Hirschl trains his eyes to the constitutional and political experiments on cities in Asian countries like China, Japan, Korea, India, and other countries from the global south such as South Africa, Brazil, and Mexico. Interestingly, in what may be seen as a counter-intuitive finding, Hirschl explains that hardwired and rigid constitutional arrangements in the “old word” constitutional orders in Western Europe and North America have subjugated the megacity and it is the “new world” constitutional orders in Asia, Latin America and Africa that offer “constitutional innovations” for governing cities.

Thirdly, the book offers new normative arguments for empowering and extending constitutional status to cities. The normative basis for furthering local government power has often been either couched within ideas of fiscal federalism, focused on how economic efficiency is improved in smaller units of government, or on the ideas of local democracy, since it makes participative or deliberative democratic processes possible. Hirschl notes that existing arguments for enhanced city power are often abstract and do not account for the constitutional powerlessness of cities. Hence, he makes a set of fresh arguments for enhancing the city’s constitutional status. These include his proposal for a new electoral system to remedy the under-representation of urban voters and arguments for legally empowering cities to tackle the ongoing crises of economic inequality and climate change.

Hirschl’s appeal for giving cities a higher constitutional status needs further consideration. While the arguments for enhancing the powers of city governments are straightforward and explored widely in scholarship, the relevance of their constitutional status is unclear. Is assigning constitutional status to cities necessary for them to exercise enhanced powers? Does the constitutional entrenchment of cities ensure that they are powerful? How will constitutional status help cities tackle climate change and economic inequality or promote social diversity? These questions are fundamental to Hirschl’s contention, yet the book does not systematically examine whether or how constitutionalization of cities is important for city governments’ autonomy or for furthering progressive goals.

The discussion on the constitutional reforms for empowering cities in India, Brazil and South Africa is instructive. As Hirschl notes, while the constitutionalization of cities in India and Brazil has not translated into significant or lasting restructuring of political power structures on the ground, the post-apartheid constitution of South Africa, which instituted three spheres of government at the national, provincial, and local levels, represented a fundamental break from the past. Though the book describes the political context of these constitutional reforms fairly well, it would have benefited from a closer analysis of the reasons for the divergence in the constitutional experience between these three global south jurisdictions. Further, the last chapter which is quite prescriptive and proposes the assignment of constitutional status to cities could have drawn better links with the lessons drawn from the experience of constitutional innovations discussed in previous sections of the book.

The failure of constitutional reforms in countries like India to translate to real empowerment of city governments further begs the question whether granting constitutional status to cities should even be a normative goal. Despite the passing of major constitutional amendments to empower local governments in the early 1990s, India’s city governments continue to be weak as they operate amongst a myriad web of state government-controlled agencies which carry out key civic functions and their mayors have limited powers in directing the city’s future. Hence, the complex relationship between the de jure constitutional status of cities and their de facto powers needs more careful analysis. Hirschl’s field-defining book lays the intellectual foundations and poses critical questions for future scholarship on cities and constitutionalism.


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