Urban citizenship is a bold and intriguing idea, regardless of whether we envision it as an alternative or as a complement to extant models of state-based membership. However, this concept seems to me to be slightly off target in identifying the main issue of city under-representation, namely the constitutional non-existence of cities, and more generally, the great constitutional silence surrounding today’s extensive urbanisation and the consequent rise of megacities. The problem with city under-representation is not the lack of citizenship rights of its individual dwellers, as Rainer Bauböck suggests, since the vast majority of whom are full and equal members of the sovereign national entity within which their home city is located, and as such enjoy the entire gamut of constitutional protections to which any other member of the polity is entitled. Rather, the problem is the non-existence of cities qua order of government in constitutions, constitutional jurisprudence, and constitutional thought more generally (Hirschl 2020).
The evidence on urban agglomeration worldwide is unequivocal. As of 2019, 56% of the world population already lives in cities. That figure is projected to rise to over 70% by 2050 (85% within OECD countries). Our constitutional institutions and imagination, however, have failed to keep up with this new reality. Though we live in the century of the city, we are still captives of constitutional structures, doctrines, perceptions, and expectations that were conceived along with the modern nation-state and germinated through the age of revolution, a historical process that saw the subjugation of the sovereign city (Prak, 2018). As extensive urbanisation 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. At the very least, our current urban era exposes a critical discrepancy within constitutions between the rights they guarantee (social, economic and other equity-enhancing rights) and their power to make good on these guarantees. Any attempt to put local government at the centre of the constitutional order will therefore require against-the-grain constitutional thought combined with strong political will, a combination that has generally not yet emerged in either politics or scholarship.
Innovative thinking about urbanisation and cities is
prevalent throughout the human sciences; Henri Lefebvre’s Le droit à la
ville, Saskia Sassen’s work on global cities, Paul Krugman’s theorisation
of megacities as economies of scale, Richard Florida’s ideas about cities as
magnets for the creative classes, and Benjamin Barber’s If Mayors Ruled the
are a few examples. This rich intellectual attention,
by contrast, does not extend into the world of constitutional law. Here, the
city remains a non-entity and a non-subject. Public law writing about cities
occurs largely within the confines of administrative law or municipal law, but
seldom in constitutional law. The existing conversation, be it academic or
jurisprudential, about all matters subnational—regions, states, provinces, etc.—is limited to centuries-old ideas about the supposedly
proper units of federalism and subsidiarity; the European examples of
city-provinces mentioned by Bauböck are
precious few exceptions to this reality, and virtually none is predicated on a
deep, across-the-board constitutional recognition of the metropolis as an
autonomous order of government.
the problem runs much deeper than a scholarly void. My forthcoming book City, State: Constitutionalism and the Megacity
(Hirschl 2020) shows that in many polities worldwide, hard-wired
constitutional arrangements originating from outdated concepts of spatial
governance—the constitutional division of competences adopted in a pre-megacity
era are increasingly detached from 21st century realities.
Consequently, those cities that are home to the majority of humanity, that are ubiquitous
and crucial to every aspect of 21st century society, culture,
economics and politics, do not exist constitutionally. Cities remain “creatures
of the state,” subjugated by a Westphalian constitutional order as well as by
the state’s instinctive tendency to maintain jurisdictional primacy over its
territory; again, we can find very few exceptions. This reflects what Ayelet
Shachar and I have termed Spatial Statism (Hirschl & Shachar 2019). The
key features of national constitutions as being both firmly entrenched and
innately statist render the city systemically weak and to a large degree under-represented.
Cities – creatures of states and provinces
Most constitutional orders that were adopted over a
two-century span, between the late 18th century and the 1970s,
whether federal (e.g. U.S., Canada, Australia, Mexico, Germany), unitary (e.g.
France, Netherlands, Sweden), or somewhere in between (e.g. UK, Spain),
covering North America, Western Europe, as well as many former colonies in
Africa, Asia, and Latin America, treat cities, including some of the world’s
most significant urban centres, as creatures of the state, fully submerged
within a Westphalian constitutional framework, and assigned limited
administrative local governance authority. Their constitutional statuses
range anywhere from secondary to non-existent. Whereas
approximately 60% of the national constitutions currently in effect designate their respective country’s “national capital,”
only a small handful of these constitutions (not to mention the other 40% of
national constitutions) address these cities,
let alone other large cities within their territorial jurisdiction, as
metropolitan centres per se.
American cities, some of which are among the world’s
largest, lack constitutional personality, and are principally at the mercy of
state governments, constitutionally speaking. Doctrines such as “Dillon’s Rule”
and home rule (the “Cooley Doctrine”) were formulated in the mid-19th
century and endorsed by the U.S. Supreme Court in the early 20th
century; these continue to govern the constitutional status of American
megacities today. The result is that American constitutional
jurisprudence on city power represents a very small fraction of that country’s
federalism case law. Meanwhile, America’s dated
yet rigid constitutional structure equips states with the powers to draw
electoral district boundaries in a way that frustrates urban representation,
and, most importantly, allow state legislatures to “pre-empt” city legislation.
experts on American cities’ constitutional status note that there are various
ways in which states could frustrate cities’ efforts to address the welfare of
urban residents by implementing redistricting and rezoning to dilute local
power to the suburbs. Instances of pre-emption have expanded considerably in
the last decade: states have pre-empted or overridden city ordinances on issues
as diverse as local living wage regulations, gun control, municipal civil
rights law, tobacco regulations, LGBTQ anti-discrimination rights, posting nutritional information in restaurants,
anti-plastic and environmental protection legislation, and sanctuary city
policies. Several states have also enacted laws that prohibit cities from
joining international city networks.
American proponents of enhanced city power—an uphill
battle, as we have seen—may find solace in the fact that, disempowered as
American cities are, Canadian cities easily win the title of constitutionally
weakest in North America. Lacking any direct constitutional powers,
cities and municipalities in Canada exist only as bodies of delegated
provincial authority, entirely dependent on provincial legislation for their
power and sources of revenue. Large Canadian
cities, essentially the front-line delivery agents of Canadian multiculturalism
and social integration, are governed by a constitutional order that dates back
to 1867 (at which time metro Toronto’s population was less than 50,000; today
it is 7.5 million). In this reckoning, “municipal institutions” are creatures
of provincial governments, controlled exclusively by provincial
authority alongside “charities,” “eleemosynary institutions,” “shops,” and “saloons
and taverns.” Given that 85% of Canada’s population lives in cities, and that
over 50% of the nation’s population is concentrated in six metro areas, it
would be something of an understatement to say that the constitutional
non-status of cities in 21st century Canada—purportedly one of the
world’s leading constitutional democracies, featuring abundant scholarly awareness
for and legal recognition of diversity and differentiated citizenship—reflects
serious constitutional datedness. It represents a major democracy deficit,
possibly in violation of some of the country’s major constitutional pillars, as
defined by the Supreme Court of Canada. (As is
well-known, in its decision in the Quebec Secession Reference case
(1998), the Supreme Court of Canada stated that the Canadian Constitution is
based on four equally significant underlying principles: (1) federalism, (2)
democracy, (3) constitutionalism and the rule of law, and (4) the protection of
minorities. None of these principles trumps any of the others. See Reference re Secession of Quebec, 
2 S.C.R. 217.).
constitutional order too allows for near-complete state domination of cities
and metropolitan governance more generally. Consequently, Australia’s large
cities—Sydney (metro population 5.2 million; approximately two-thirds of New
South Wales’ population); Melbourne (metro population 5 million; approximately
three-quarters of the Victoria’s population); and Brisbane (metro population
2.5 million; approximately half of Queensland’s population)—are largely at the
mercy of state governments, which effectively control a variety of key policy
areas including education, health, and policing to planning, land use,
infrastructure and major utilities.
the Rhine-Ruhr metropolitan region (Germany’s largest urban agglomeration with over
11 million people) lacks any autonomous constitutional standing or personality;
in fact, it is not even mentioned in the state constitution of North
Rhine-Westphalia, within the boundaries of which it exists. The same is true of
Frankfurt, described in Saskia Sassen’s seminal work as a “global city”
alongside New York, London, and Tokyo—yet not even a whisper about Frankfurt in
the Hessian state constitution. The dynamics of
megacity constitutional empowerment in “new world” constitutional settings,
mainly Asia and Latin America, is somewhat different, reflecting a confluence
of varying demographic, political, and constitutional factors. However, even in
those parts of the constitutional cosmos, the starting point and basic
assumption of statist constitutional orders is that the city is just a component—and
a largely dependent one at that—of the nation state and its statist constitutional
This structural problem is further exacerbated
by the intersection of demographic concentration in many urban areas with
constitutionally protected malapportionment, which leads certain electoral
systems to systematically under-represent large urban centres and their
residents. In metropoles as diverse as Toronto, Chicago, Zurich, Mumbai, and São Paulo, poorly apportioned electoral systems are
structured in a manner that prevents increasingly large sections of
a democratic polity’s population from having equitable
representation in a legislative body. To put
it bluntly, the voice of urban voters is worth less than that of others,
creating a de facto “one person, half a vote” reality for urban dwellers. As
recent studies have suggested (e.g. Rodden 2019), given this inefficient
concentration of voters, nearly every single-member, first-past-the-post
electoral system under-represents its urban voters.
The applicability of city-zenship to megacities of the
Global South is questionable
We could go on to question the efficacy, applicability, or indeed the very relevance, of a hypothetical “city-zenship” to the main sites of urbanisation: low- or lower-middle-income countries in the Global South. In these settings, state capacity may be variously weak (and would be further weakened by “city-zenship”) (See also Patti Lenard who makes a similar claim, albeit in the markedly different Canadian context); strongly-held ethnic, religious, or linguistic collective identity bases are likely to preclude alternative membership basis; or it may be strongly statist, where at times authoritarian governance reigns (thus rendering devolutionary “city-zenship” an impractical “pie in the sky” idea).
challenges facing Kinshasa, for example, are enormous—its population has
increased from 400,000 to 13 million in the space of only half a century, a 32-fold
increase in a city where the annual GDP per capita ranges between $200 and $500.
Dhaka contains 20 million residents living with a city-wide density of 46,000 people/km2 (119,140/mile2). Consider how much greater is the
population density in Dhaka than it is in other cities: it is five times that
of New York City, seven times San Francisco, 12 times Paris, 16 times Toronto,
and nearly 30 times Melbourne. The challenges of Kinshasa, Dhaka, Mumbai, Lagos
and other huge cities of the Global South will not be
resolved by thought-provoking yet abstract political theory accounts that
project a New York, Paris, or San Francisco political and demographic reality
on fundamentally dissimilar urban settings in the Global South (these are three
of the main cities that have experimented with city-based identity card
Enough said. In City, State, I examine the origins and consequences of the constitutional (non)status of the city. For this forum, suffice it to say that what may well require urgent remedy is not the under-representation of city dwellers qua equal individual citizens, but rather the under-representation of the city itself qua major order of government in an increasingly urbanised world. While the daring arguments for city-based citizenship advanced by Bookchin (1987), de-Shalit (2018) , or Bauböck (2003) challenge the largely uncontested “seeing like state” underpinnings of contemporary political membership regimes, they seem to offer little response to the root cause of cities’ under-representation: the great constitutional silence on cities and on the urban condition more generally.
- Bauböck, R. (2003). „Reinventing Urban Citizenship.“ Citizenship Studies 7(2): 137-158.
- Bookchin, M. (1987). The Rise of Urbanization and the Decline of Citizenship. San Francisco, Sierra Club Books.
- de Shalit, A. (2018). Cities and Immigration. Political and Moral Dilemmas in the New Era of Migration. Oxford, Oxford University Press.
- Hirschl, Ran. 2020 (forthcoming). City, State: Constitutionalism and the Megacity. Oxford University Press.
- Hirschl, Ran and Ayelet Shachar. 2019. “Spatial Statism,” International Journal of Constitutional Law 17: 387-438.
- Prak, Maarten. 2018. Citizens without Nations: Urban Citizenship in Europe and the World, c.1000-1789. Cambridge University Press.
- Rodden, Jonathan. 2019. Why Cities Lose: The Deep Roots of the Urban-Rural Divide. Basic Books.