Attempts at City Self-Empowerment

This chapter examines efforts by constitutionally voiceless cities and mayors to expand cities’ quasi-constitutional powers through urban citizenship schemes or, more frequently, through international networking and collaboration based on notions such as “the right to the city,” “sustainable cities,” “solidarity cities,” and “human rights cities.” For the most part, such initiatives have a socially progressive undercurrent to them. They address policy areas such as air quality and energy efficient construction, “smart cities,” affordable housing, enhanced community representation, or accommodating policies toward refugees and asylum seekers. Such experimentation with city self-emancipation is increasing in popularity and possesses significant potential in policy areas not directly addressed or hermetically foreclosed by statist constitutional law.

The Sound of Constitutional Silence

This chapter examines four introductory dimensions of the political and constitutional discourse around cities. The first is the tremendous interest in cities throughout much of the human sciences as contrasted with the silence of public law in general, and of comparative constitutional law in particular. Next, the chapter takes a look at the dominant statist stance embedded in constitutional law, in particular as it addresses sovereignty and spatial governance of the polity. A brief account of what national constitutions actually say about cities, and more significantly what they do not is then given. Finally, the chapter turns to the tendency in political discourse on collective identity to understand the “local” almost exclusively at the national or regional levels, rather than distinguishing urban interests from those of the state. Taken together, the four angles of city constitutional (non)status examined here highlight the bewildering silence of contemporary constitutional discourse with respect to cities and urbanization, as well as the strong statist outlook embedded in national constitutional orders, effectively rendering the metropolis a constitutionally non-tenable entity.

Introduction

This introductory chapter illustrates that, in many settings worldwide, hardwired constitutional arrangements reflect outdated concepts of spatial governance featuring constitutional division of competences adopted in a pre-megacity era and increasingly detached from twenty-first-century realities. Consequently, cities do not exist constitutionally. And with few exceptions, cities remain subjugated by a Westphalian constitutional order and by the state’s innate inclination to maintain jurisdictional primacy over its territory. National constitutions’ entrenched nature and innately statist outlook render the city systemically weak and to a large degree underrepresented. As extensive urbanization marches on, an ever-widening gap emerges between what is expected of a modern metropolis, and what cities can actually deliver in the absence of adequate standing, representation, taxation powers, or robust policy-making authority.

Constitutional Innovation in Governing the Metropolis

This chapter contrasts the status of metropolises in “old world” constitutional orders with their status in “new world” constitutional orders. It focuses largely on the Global South—where new ideas about the constitutional governance of the metropolis are more likely to emerge. From Asia to Latin America and parts of Africa, innovative, sometimes radical, constitutional measures have been introduced, some with more success than others, to address the metropolis issue. The chapter explores several examples of countries in Asia (Japan, South Korea, and China) in which central governments’ constitutional support of megacities reflects astute, long-term planning for regional or national economic growth. It further shows how South Africa’s constitutionalization of city power as part of its 1996 constitutional transformation is arguably the most effective of these attempts to date. In other Global South settings—notably India and Brazil—constitutional experimentation with city emancipation has succumbed to deeply engrained intergovernmental hierarchies. And in yet other settings strategic behavior and colliding incentive structures have driven attempts to either strengthen (e.g., Mexico City, Buenos Aires) or weaken (e.g., Nairobi) megacities.

Rethinking City Constitutional Status

This chapter explores key arguments for assigning greater constitutional status and standing to cities and their residents. It suggests that existing arguments for enhanced city power do not acknowledge or appreciate the full scope of urban centers’ constitutional powerlessness, and overlook crucial aspects of urban agglomeration, in particular in the Global South. To address these shortcomings, this chapter develops six fresh arguments for extending constitutional status to cities that have not been given due attention in the pertinent literature. These include considerations of electoral parity, economic inequality, the right to housing, climate change, density, diversity, democratic stakeholding, federalism and subsidiarity, all pointing to an acute need for a modified spatial conceptualization of the city in the constitutional state. En route, the chapter explores several constitutional designs that may remedy the systemic underrepresentation of urban voters while providing suitable voice to rural area constituencies.

The Metropolis in “Old World” Constitutional Law

This chapter examines the constitutional subjugation of the metropolis throughout much of the Global North in constitutional orders adopted over a two-century span between the late eighteenth century and the 1970s, from the United States and Canada to the United Kingdom, Western Europe, and Australia. It illustrates how constitutional stalemate has emerged in these countries as a result of hardwired city-subverting constitutional frameworks, rigid amendment rules, a lack of political incentives to empower cities, and oftentimes proactive resistance to city power. At least two lessons may be drawn from this chapter. First, in contrast to North America, where litigation is the main channel for debating the constitutional status of urban centers, the megacity discussion in Europe is largely taking place in central government planning and policy-making circles. Second, when it comes to urban agglomeration, the Global North has witnessed a great constitutional silence.