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Thursday, March 4, 2021

The Future is Megacities

Vital Interests: Ran, thanks for joining us today for the Vital Interest Forum. You are a Professor of Political Science and Law at the University of Toronto, and your focus is on how law shapes society and how society shapes law.

Your relevant new book is City, State: Constitutionalism and the Megacity, which examines the reality that now more than half of the world's population live in urban areas with this number expected to grow dramatically in the next 30 years. Can you give us the background of how you got interested in this topic? It certainly is important for us all to realize this significant global development.

Ran Hirschl: Thank you for having me! It's a pleasure to be included in this lively forum. 

I first became interested in the topic three years ago when one of my research assistants showed me statistics on the extensive urban agglomeration worldwide. This got me thinking about what constitutional law has to say about this new agglomeration; the answer I came up with is “virtually nothing.” Crickets. Given that we are without doubt living in what one might call the era of the city, this is a serious gap.

How did this come about? Well, a confluence of well-documented geographic, demographic, political, and economic factors have pushed humanity in the urbanization direction. The process has accelerated considerably over the last century and even more so in the last couple of decades. We don't have the time to go into all the details, but by way of a quick overview:  only a century ago, in the early 20th century, approximately 150 million to 200 million people—about 10 percent of the world's population at that time—lived in cities. In the mid-20th century, a mere 60 years later, roughly 750 million people worldwide lived in cities. This is about a quarter of the world's population. As of 2020, approximately 4.5 billion people, or 57 percent of the world population, now lives in cities.

In other words, assuming my math is correct, within the last century the world urban population has increased nearly thirty-fold. And let me also say one more thing about this. The projection for 2050 is that approximately 7 billion people, or 70 percent of the world population at that time, will reside in cities. What is also important is that the majority of the growth has taken place in the Global South, predominantly in Africa and Asia, but the Global North has also seen its fair share of change.

A century ago, there were 12 cities around the world with one million residents or more. Today that number stands at approximately 600. Forecasts, for 2030-50, let alone for the end of this century, range from disturbing to near dystopian. Projections suggest that megacities of 50 million inhabitants—even 100 million—will emerge.

The starting point of my work was how to make sense of what I see as a historic gap between this monumental change and constitutional law’s resounding silence. All these data point in the same direction, yet it seems to me that constitutional law, constructional thought, and constitutional practice has been looking the other way.

VI: There are now a number of megacities in the world with populations of 20 to 30 million, and it is projected that this will rapidly increase to urban areas with close to 100 million inhabitants. This will be an awesome governance challenge for any society to deal with. Can innovative constitutional thinking create governance methodologies for these unprecedented circumstances?

Ran Hirschl: First of all, we need to set the record straight on the actual numbers of these megacities. It's not just urban agglomeration, generally speaking. An immediate byproduct of the extensive urbanization of the last century is the emergence of very large cities and urban centers. Again, the numbers here are absolutely striking. 

A century ago, there were 12 cities around the world with one million residents or more. Today that number stands at approximately 600. Forecasts, as you said, for 2030-50, let alone for the end of this century, range from disturbing to near dystopian. Projections suggest that megacities of 50 million inhabitants—even 100 million—will emerge. We look at projections for places such as Lagos, Kinshasa, Dar es Salaam, Mumbai, Karachi, Dhaka. These cities will have populations between 60 and 80 million within the next three to four decades.

Within the last century the world urban population has increased nearly thirty-fold... The projection for 2050 is that approximately 7 billion people, or 70 percent of the world population at that time, will reside in cities.

 Meanwhile, even the current levels of agglomeration and density in some of these megacities is striking. Kinshasa’s population has increased from 400,000 to 13 million in the space of only half a century, a 32-fold increase. Dhaka contains 20 million residents living with a city-wide density of 46,000 people per square kilometer or approximately 120,000 per square mile—a density that is five times that of New York City and twelve times that of Paris. Really staggering numbers.

One UN projection I find particularly dystopian is that within 50 years, a quarter of the world's population will be living in the world's 100 largest cities. It seems clear to me that the preoccupation of constitutional thought and constitutional law that is based on the state as the main constituent unit of how we think about the constitutional universe needs to be revised. And soon.

Obviously, we've seen some challenges to the statist order from above, the so-called post-Westphalian challenge to the Westphalian constitutional order, but that does not address changes on the ground with respect to urban agglomeration. It’s my view the time has come to shake this up. 

VI: Isn’t your main thesis that the constitutional frameworks we see in the world today are from another ethic—they are 19th century, early 20th century constructions—and as such are desperately in need of modernization in order to take into account the phenomenon we are witnessing in the world today?

Current levels of agglomeration and density in some of these megacities is striking. Kinshasa’s population has increased from 400,000 to 13 million in the space of only half a century, a 32-fold increase. Dhaka contains 20 million residents living with a city-wide density of 46,000 people per square kilometer—a density that is five times that of New York City and twelve times that of Paris. Really staggering numbers.

Ran Hirschl: Yes, that's exactly right. That's one of the main theses of the book and let me elaborate on this a little bit. In the social sciences, or in the human sciences more generally,the city has been a major subject of discussion, of research, of novel thinking. Your readers will be familiar with Henri Lefebvre’s The Right to The City; Saskia Sassen's work on global cities; the work of economists like Paul Krugman and others on economies of scale; Richard Florida on cities and the creative classes; Benjamin Barber's work on If Mayors Ruled the World.

Very little of this innovative energy has extended into the world of constitutional law, constitutional jurisprudence, or constitutional thought. Though we live in the century of the city, we are still captives of constitutional structures and doctrines that were developed alongside the modern nation-state and evolved in a historical process that saw the subjugation of the sovereign city to those states. The legacy of these old battles is still imprinted in today’s national constitutions. In most constitutional systems, cities are conceptualized as creatures of the state, fully submerged within, as I noted earlier, the Westphalian constitutional framework and assigned limited administrative local governance authority. 

The first question that struck me as important in writing the book is not just identifying this gap, but also explaining it. What are the main reasons for this huge oversight? Of course there is the institutional and intellectual path dependence as in any other area of academic research. There exists a vested interest in stagnation. There is constitutional rigidity as constitutions are generally difficult to amend. Many of the constitutions of the so-called Global North, certainly in the US, were conceived more than 200 years ago; in the case of Canada, 150 years ago. The megacity phenomenon was not there for the framers to consider.

However, I suspect that the main reason for this silence is something deeper, tied in with the inherent statist nature of the modern constitutionalist project. National constitutions are statist documents, if you will, and as such are concerned with nation building, state institutions, and so on. The “proper'' constituent units of canonical constitutional theory are national or subnational units, states and provinces, Länder (in Germany), cantons (in Switzerland) and so on. As the statist project of national constitutions, both centrist and federalist, achieved prominence, the effect on the constitutional imagination with respect to political geography and spatial autonomy was immediate and complete, leading to a dearth of creative thinking concerning the constitutional standing of the city. 

Though we live in the century of the city, we are still captives of constitutional structures and doctrines that were developed alongside the modern nation-state and evolved in a historical process that saw the subjugation of the sovereign city to those states

But we can also consider the constitutional silence on this from a more sociological or political standpoint. The city—big cities in particular—can pose some competition to state hegemony. We know from history that if people can congregate and protest and demonstrate, this poses a threat to the status of constitutional and political order. In cities, the density factor, and the proximity of people to government buildings and public spaces have all long played a role in challenging the existing political order. From the French Revolution and the burning of the bastille to massive demonstrations in Hong Kong, from protests in major American cities last summer, to those in Santiago, Chile, and to Tahrir Square in Cairo, substantial protests can be game-changing. I suggest that it's no fluke that the first thing that besieged regimes do is impose night curfews in big cities. They need to keep cities under check. 

But let me sum up my main point here. Yes, there is intellectual path dependence and constitutional rigidity; yes, there is some fear of the autonomous city; but ultimately it's this embedded statist conceptualization of the constitutional order that defies this idea of constitutional empowerment of the city.

VI: You describe a pattern of stagnation in the Global North constitutional order compared with the innovative thinking about the constitutional governance of cities in the Global South. Why is there this dichotomy?

In cities, the density factor, and the proximity of people to government buildings and public spaces have all long played a role in challenging the existing political order.

Ran Hirschl: I think it is a very interesting question, which I address in the book. There is a clear pattern of constitutional stagnation with respect to city status in the so-called Global North, in particular in North America, Europe, and Australia but elsewhere as well, as opposed to some innovation that we are seeing from Global South countries. In order to understand this, we need to say a few words about the situation in the US. Without delving into too much detail, as a general rule American cities are largely at the mercy of state governments, constitutionally speaking, controlled through doctrines such as the Dillon's Rule, and Home Rule (or the Cooley Doctrine).

Those doctrines were formulated in the mid-19th century and endorsed by the US Supreme Court in the early 20th century. This continues to govern the constitutional status of American megacities today. It has led to a phenomenon that some constitutional scholars in the US identify as preemption. In this scenario, state legislatures essentially preempt progressive social legislation coming from cities in various contexts. It could be sanctuary cities. It could be LGBTQ rights. It could be employment law, anti-gun statues, even soda tax. There is a range of progressive legislation coming from cities on these and other matters that states have been able to preempt. When we add an old, possibly dated constitutional order that is exceptionally difficult to change, and let's face it—lack of serious political interest or incentive to change the constitutional status of cities has led to stagnation in the US.

I'm a proud Canadian, and here is something I hate to admit. Those American proponents of enhanced city power may find some solace in the fact that however disempowered American cities may be, Canadian ones are worse. Our cities easily win the title of constitutionally weakest in North America. In Canada, cities are largely non-existent, constitutionally speaking. The Constitution Act 1867, adopted over 150 years ago, assigns full control over cities to the provinces.

There is a clear pattern of constitutional stagnation with respect to city status in the so-called Global North... as opposed to some innovation that we are seeing from Global South countries.

We end up with a near-absurd situation in which Toronto, the largest city in Canada with a metro population of around 7.5 million people, exists in a constitutional framework adopted in the mid-19th century , at a time when the city had less than 50,000 residents. This is in spite of the fact that Toronto constitutes some 20 percent of Canada's population and every second immigrant to Canada settles in Toronto. The 2018 unilateral slashing in half of the Toronto City Council by the Ontario Premier in the middle of mayoral and municipal elections is merely a recent illustration of this constitutional non-status in action. Despite important differences, cities do not enjoy much of a constitutional standing in most Western European countries either. The gap between what cities are expected to do, the challenges they face, the services they must deliver, and their actual constitutional non-status and non-standing is striking. So that's a look at the Global North from 30,000 feet.

We compare this with the so-called Global South, and here we see a different trend. Let me start with a few quick examples. The 1988 Constitution of Brazil establishes the rights of the ‘right to the city’ in Articles 182–183 of the Constitution. This was coupled with the City Statute, adopted in 2001. These and other changes were associated with a socially progressive constitution adopted in 1988 that contrasts with an earlier military authoritarian constitution. India is another example, and although less successful in the realization of the experiment, the fact does remain that two constitutional amendments adopted in 1993, Amendment 73 and 74, deal with local government and the urban situation in that country.

American cities are largely at the mercy of state governments, constitutionally speaking, controlled through doctrines... Those doctrines were formulated in the mid-19th century and endorsed by the US Supreme Court in the early 20th century

Perhaps the most successful illustration of innovation from the Global South in this area comes from South Africa.  The 1996 Constitution devotes an entire chapter, Articles 151–164, to constitutionally empowering cities. This is in a direct reversal of apartheid-related urban policy. Generally speaking, cities now in South Africa are assigned control over matters such as land use, planning, public housing, and so on.

Of course, there is another branch of constitutional innovation coming from the Global South but that I think is slightly outside our present conversation: that is the “Asian Tigers” model where countries such as China, Vietnam, South Korea, and others, assign constitutional power to some megacities by way of turning them into engines of economic growth. Unlike Brazil and South Africa (where the main motive is democratization, deference to local governance, and empowering the people), the Asian Tigers model has more of a central domination, controlling a planned economic development dimension to it.

One way or another, my main question here is this: why is it that most constitutional innovation in this area is emerging from the Global South? My book provides some ideas. One is of course necessity. We saw earlier that the vast majority of urbanization and urban growth has taken place in the Global South. But I think the more significant factor is that the constitutional order is not as dated in the South, and is therefore often more amenable to change, sometimes even radical one. 

The gap between what cities are expected to do, the challenges they face, the services they must deliver, and their actual constitutional non-status and non-standing is striking.

Brazil and South Africa, perhaps the two most conspicuous examples of innovation in this respect, both came as part of a major constitutional overhaul. Brazil saw a transition from authoritarianism to democracy in 1988. In South Africa, the demise of apartheid and the rise of the new South Africa post-apartheid took place in 1996. These are the two most obvious examples currently on offer in the comparative constitutional world on constitutional innovation concerning the city. Political will, political interest, gets to shape the new constitutional sphere in these and other similarly situated settings in a more direct way in these settings than it is in established constitutional orders as in North America and Europe.

VI: Let's talk about the forces behind shaping these new constitutions’ formulations making them advantageous for cities. In the growing megacities in Latin America, in Africa, in Asia, are the political forces advocating for change in the form of  labor unions, civic society groups, entrepreneurial economic interests or collaboration or urban interests who understand the need for urban constitutional power within a national context?

Ran Hirschl: The major impetus in places such as Brazil and South Africa was democratic renewal, pure and simple. Empowering the people. The Left, in particular, supported these innovations. We can go later into details concerning constitutional innovation in Mexico City, which is also an important example. It's mainly empowering the people in a sort of bottom-up pressure to enhance the constitutional status of cities, the constitutional representation of city dwellers.

The most successful illustration of innovation from the Global South in this area comes from South Africa. The 1996 Constitution devotes an entire chapter, Articles 151–164, to constitutionally empowering cities.

The Asian Tigers model is driven, as I said earlier, by central economic planning, by an attempt by the regime to foster regional development, to create world cities that attract international investment, banking, corporations, etc. The underlying impetus—well, this varies. In some Global South countries, it comes from the people, bottom-up; and in some other settings, it's more of a top-down process. I think for our purposes as readers in, say, North America, the bottom-up scenario is perhaps slightly more interesting or at least more inspiring.

VI: Is this phenomenon of the growth of the Global South cities and the progressive constitutional ideas that are being generated  the result of networking between cities in the Global South? Are the people involved with urban planning, social justice, and governance talking to another, getting together at conferences, using social media to share ideas of how to organize their cities and get some of these beneficial laws in place?

Ran Hirschl: Yes, that is definitely part of the picture, and I want to zoom in on an interesting phenomenon in this respect: self-aid measures that have been taken by proactive cities and mayors worldwide to advance agendas and enhance their status. We've seen plenty of what we may call international networking among cities worldwide that advance initiatives such as “human rights cities.” In other words, I am thinking here of cities that take the initiative to incorporate some provisions of international human rights treaties into city legislation, or cities that commit themselves to human rights standards, particularly international human rights standards.

Another branch of constitutional innovation coming from the Global South... is the “Asian Tigers” model where countries such as China, Vietnam, South Korea, and others, assign constitutional power to some megacities by way of turning them into engines of economic growth

We've seen some measures such as citywide identity cards that would essentially bypass some restrictions on illegal immigration and refugees. We've seen, predominantly in the context of environmental protection, some serious international collaboration among cities. Your readers may be familiar with networks such as the C40 Network. Cities definitely talk to each other around the world and try to advance an alternative universe, so to speak, in order to bypass or complement the stagnant state-controlled constitutional order. They locate gaps and opportunities, predominantly in the environmental protection area where proactive cities and mayors can make a difference.

The bottom-line answer to your question is: yes, cities around the world talk to each other and learn from each other. The main challenge remains constitutional recognition of these initiatives. And in this domain, generally speaking, constitutional recognition is completely absent. With few exceptions, these self-aid initiatives, effective as they may be on the ground, continue to operate parallel to, or at best at the margins of, the statist constitutional order, and are not an integral part of it.  

VI: Also, there are a number of major country leaders now that came up through the political process from being mayors.

Ran Hirschl: That's a critical point that you're making - the importance ofational leaders who served as mayors earlier in their career. There are some prominent mayors who are very proactive. The Mayor of Paris or the Mayor of Barcelona, for example. And cities have fought corporations. For example, several European cities are fighting Airbnb in courts: there is a big decision of the European Court of Justice that allows cities to regulate short-term rentals. Definitely, proactive leaders can do a lot. 

Why is it that most constitutional innovation in this area is emerging from the Global South?... One is of course necessity... But I think the more significant factor is that the constitutional order is not as dated in the South, and is therefore often more amenable to change, sometimes even radical one.

The problem again remains, and I want to emphasize this, that we need not be overly optimistic about these initiatives because the constitutional order itself has, by and large, failed to recognize them. Cities can only do that much as long as this entire universe operates alongside the constitutional order, not via mainstream constitutional recognition.

VI: Let us consider the realities of governance in mass population cities. Aren’t there significant problems with corruption and crime in many of these cities? Do we even know the control that city governments have in the sprawling shanty towns, favelas, and slums where a de facto power-sharing often exists with gangs and criminal cartels?

Ran Hirschl: Certainly that's a problem, but my conclusion is somewhat higher on the optimism scale than that. This has been the situation following years of central government control of these metropolitan centers, and massive internal migration to cities with little or no infrastructure or services to support it. If anything, outlawing common social practices or widespread political impulses has only led to the emergence of an informal economy and black market in these settings. Central government's failure, at times even intentional, has contributed to these activities.

Maybe I'm overly optimistic, but my take on this is that constitutional empowerment of city status, accompanied by enhanced taxation powers, land use policy, planning authority, and so on, will in the long run enable some important changes. We would see better city representation at the fiscal and policymaking bargaining table, better provision of schooling and healthcare in needy areas, and, ultimately, reductions in black markets or pockets of lawlessness. My hunch, based on anecdotal evidence that I present in the book, is that the more autonomy large cities have, the greater the likelihood they try to provide those services, the lack of which allow these black markets to emerge.

Cities definitely talk to each other around the world and try to advance an alternative universe, so to speak, in order to bypass or complement the stagnant state-controlled constitutional order.

VI: In other words, one of the paramount objectives of giving the people more control in running cities is to create security and wellbeing for their fellow citizens?

Ran Hirschl: Absolutely. That's exactly the idea in empowering cities, some of which are far larger than fully autonomous countries or semi-autonomous sub-national units.

VI: Constitutions exist to represent the rights of all their citizens. In liberal democracies there is a distinct idea of preserving minority rights. In the United States, however (and this is also true in other countries), we see constitutional arguments and tactics being used that limit the representation and influence of urban majorities. How can this prejudice against urban populations be countered?

Ran Hirschl: Some of the reasons why cities are kept under check is precisely because the majority of the population lives there. The phenomenon of “superdiversity,” as sociologists call it, is abundantly obvious in cities. Cities are considerably more diverse, and probably more socially progressive across the board than rural areas. The control of cities is driven in no small part by an attempt to keep the majority representation ideals under check. There's no question about it.

I think you may be alluding here to another issue that is important to flag. The representation in media and in general discourse of the city is often as the place of the “haves,”  while rural areas are depicted as the “have-nots.” There is this mainstream media representation of the situation as such, but the reality is that the cities are underrepresented politically.

Some of the reasons why cities are kept under check is precisely because the majority of the population lives there... Cities are considerably more diverse, and probably more socially progressive across the board than rural areas. The control of cities is driven in no small part by an attempt to keep the majority representation ideals under check.

I want to direct your readers to a major book by Jonathan Rodden, Why Cities Lose: The Deep Roots of the Urban-Rural Political Divide, which demonstrates that across the board in multi-district, first-past-the-post electoral systems, such as in the U.S., city interests and urban populations are underrepresented on the whole. 

VI: By design

Ran Hirschl: By design, exactly. That happens in other systems from Canada, to India, to the UK, and so on. In some settings, Canada, India and Brazil are just three examples that I discuss in some detail in the book, electoral malapportionment of cities is entrenched constitutionally so we end up with systemic underrepresentation of city voters. In other words, as you say, this happens by design.

I also want to say that inequality within urban areas—that is, intra-metropolis inequality—often far exceeds inequality among regions or inter-state inequality. In other words, the inequality within major urban centers in North America and elsewhere far exceeds levels of inequality, say, between, “have” states and “have-not” states. If anything, this tells me that we constitutional thinkers need to go beyond thinking about states all the time—red states, blue states, purple states—and  instead begin to think about the urban situation and the urban/rural divide as the new frontier for our intellectual efforts.

VI: There is a negative connotation around the term cosmopolitan, which is bantered about a lot these days. Being cosmopolitan means you are one of the haves, a professional with a global outlook (often disdaining so-called provincial attitudes), considered to be in control. Do these notions also contribute to efforts to limit the power of cities?

We constitutional thinkers need to go beyond thinking about states all the time—red states, blue states, purple states—and instead begin to think about the urban situation and the urban/rural divide as the new frontier for our intellectual efforts.

Ran Hirschl: Yes, certainly it does, but again the data suggest that the differences within major urban centers far exceed the differences between urban centers and the non-urban areas. Clearly, the dichotomous and simplistic portrayal of cities as the place of the haves across the board is at the very least inaccurate, if not intentionally politically driven.

Let me provide one set of statistics. São Paulo, Brazil, is the biggest city in South America. Recent studies suggest that the life expectancy in central São Paulo is more than 79 years on average. By contrast, the life expectancy in a poor neighborhood in the same city less than 15 kilometers away, is between 56 years and 57 years. Translation: life expectancy within the same metropolitan center is 25 years apart. Portraying city dwellers as the “haves” is just plain wrong. It lumps together the power of corporate, cultural and political elites, with the underrepresentation of tens of millions of middle class, lower-middle class, and outright poor families who reside in major urban centers.   

VI: Basically a straw man used by those who want to limit the control of the cities?

Ran Hirschl: Absolutely. That's correct. Let me just complement that with one more example that we haven't had the chance to talk about regarding city empowerment: Mexico City, one of the world’s largest cities

Portraying city dwellers as the “haves” is just plain wrong. It lumps together the power of corporate, cultural and political elites, with the underrepresentation of tens of millions of middle class, lower-middle class, and outright poor families who reside in major urban centers.

In 2013, due to political rearrangement in Mexico, local and national interests aligned and the opportunity came for the city of Mexico City to essentially liberate itself constitutionally. Before then, Mexico City had been federally governed. After a process that took four years and involved constitutional change at the national and at the local level, in 2017 , Mexico City became constitutionally equal to any other Mexican state. It's no longer a federal district. It's now CDMX; the autonomous Ciudad de México. 

The interesting part for our discussion is that this happened through a major crowdsourcing process. The residents of Mexico City were asked to submit their request for a new status, what should be included in the new state constitution and so on. It was moderated and controlled (some say it was not fully representative or open) but still it's the biggest example we have to date of constitutional empowerment of a major city in that way. 

And I say this in the context of our earlier discussion because Mexico City is now by far the most progressive jurisdiction within Mexico. It allows for same-sex unions and abortion. In the context of Mexico these are almost radical social achievements.

VI: In the conclusion of the book, you offer a number of recommendations for how cities can be empowered constitutionally speaking. Is Mexico City a model that can be translated in other cities throughout the world?

I suggest, for example, the concept of enhanced representation in instances of extreme involuntary density—that is, translating density or extreme involuntary density into political voice.

Ran Hirschl: It is feasible, but there are some idiosyncratic features there that suggest we may need to look elsewhere. I'm happy to elaborate on some of the examples elsewhere. I devote over 70 pages in my book to considering new ideas in this context. If I may say so humbly, the book is the first of its kind, so obviously some of these ideas are bold, perhaps even naive, but the idea is to push the discussion forward.

I suggest, for example, the concept of enhanced representation in instances of extreme involuntary density—that is, translating density or extreme involuntary density into political voice. Other ideas include joint or mixed urban-rural electoral districts; split urban/non-urban cantons, states or provinces without altering the overall seats they have so as to give better representation to both parts and to limit mutual imposition of worldviews and policy preferences; enhanced taxation capacity to reduce dependence on government grants or on corporate money, or intra-metropolis and intrastate fiscal equalization-transfer of money or resources within different parts of the policy. This last idea would not be just based on states or provinces, but on intra-metropolis inequalities.  I also consider the constitutional entrenchment of enhanced city authority over environmental protection regulation, land use, urban planning, and public housing in an attempt to help the realization of constitutionally-guaranteed economic and social rights.  

In terms of applying constitutional norms, principles of constitutional differentiation, “community standards” or space-based or locality-based differentiation, could alleviate the rural-urban tensions. Moving gradually away from the idea of one constitutional rule fits all, we could introduce new ideas such as mixed electoral systems; this could be proportional representation for urban areas, and first-past-the-post for non-urban areas alongside some compensatory quota seats for rural areas to address some of their particular needs.  Ideals of subsidiarity are well recognized in constitutional thought and constitutional documents and may be applied creatively in the context of city status. 

The time has come for scholars of constitutional design to harness their knowledge and creativity to address the mounting urban challenge and by extension the urban/rural divide.

And then there is the all-affected principle. The basic idea of democracy is that the closer a decision may be taken to the people, the better—the more democratic it is. Another way to look at it is whoever is affected by a decision should be proportionally represented in making that decision. But these are just a few of the ideas I consider. Either way, the time has come for scholars of constitutional design to harness their knowledge and creativity to address the mounting urban challenge and by extension the urban/rural divide. 

VI: These ideas that you are talking about sound like they're mostly bottom-up kinds of movements?

Ran Hirschl: Yes, for sure most of them are initiated in a bottom-up fashion by on-the-ground activists, civil society organizations and so on. Some gain momentum and become real movements. Of course there must be an alignment with broader political interests, and a constitutional order that allows for some formal, institutional change to take place. 

VI: How does that happen? Does that happen through education? Does that happen by civil societies taking up these ideas and championing them? Is there a need for outside NGOs coming in to help these populations familiarize themselves with these ideas and then move them forward?

Ran Hirschl: My answer to this is twofold. First of all, our job as intellectuals is to put ideas on the table. As a scholar of world constitutions, I feel that I fulfill my social mission, so to speak, by introducing new ideas and new possibilities concerning burning constitutional challenges. Then it's up for political activists, think-tanks, civil society organizations and political parties and leaders to make them more concrete, more practical.

Now, as to how it actually works, we can learn from the examples I mentioned earlier from the Global South. In Mexico City, Brazil, and South Africa, these movements began as bottom-up; NGOs, political activists, people on the ground spreading those ideas to neighborhood and city leaders. Eventually, as the level of support reaches a certain point, even national leaders that are not champions of city power became interested in this for self-interested reasons.

Novel constitutional thought about how to govern megacities is the call of the hour.

Eventually, you move beyond the tipping point where national leaders begin to be interested in this. It is however a long process, and I'm afraid to say that in settings such as the US or Canada, with their constitutional rigidity, it's a very long road, and a steep uphill battle. And it may well be that the urban gap in these countries lends support for calls made by Sanford Levinson’s and others for a new constitutional convention to rewrite a constitution for the 21st century and beyond.  

VI: Ran, these are ideas worth careful consideration since the megacities that are projected in the coming decades will need all the governing skills they can develop. Otherwise, as you mentioned in the beginning of our conversation, the reality is a very dystopian future for the vast urban populations throughout the world.

Ran Hirschl: Absolutely. I think you hit the nail on the head here. The silence here is not just a matter of an intellectual gap. It's a matter critical to governing our lives properly in the next century. Looking at the challenges that face humanity in the coming years, I consider this to be one of the top two or three, alongside climate change, poverty, and democracy. When it comes to constitutional thought, I would say the silence is deafening but the need is urgent.

Novel constitutional thought about how to govern megacities is the call of the hour.

VI: We're coming to the end of our time. Thanks very much for what has been an extremely interesting conversation, and as we just concluded, a vital one. I hope your book is widely read and your ideas discussed and implemented.

Ran Hirschl: Thank you so much, John. I look forward to continuing the conversation with your readers. 

 
Ran H. pic.jpg

Ran Hirschl (PhD Yale University) is Professor of Political Science and Law at the University of Toronto, holder of the Alexander von Humboldt Professorship in Comparative Constitutionalism at the University of Göttingen, and head of the Max Planck Fellow Group in Comparative Constitutionalism. He is the author of several major books, including City, State: Constitutionalism and the Megacity (Oxford University Press, 2020); Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014), winner of the 2015 APSA Herman Pritchett Award for the best book on law and courts; Constitutional Theocracy (Harvard University Press, 2010), winner of the 2011 Mahoney Prize in legal theory; and Towards Juristocracy (Harvard University Press, 2004), as well as more than 120 articles and book chapters on constitutional law and its intersection with comparative politics and society. Professor Hirschl’s work has been translated into various languages, discussed in numerous scholarly fora, cited by jurists and in high court decisions, and addressed in media venues from the New York Times to the Jerusalem Post. He is an elected Fellow of the Royal Society of Canada (FRSC). The official citation describes him as “one of the world’s leading scholars of comparative constitutional law, courts and jurisprudence.”