Cities in Federal Constitutional Theory
October 24, 2022
The volume Cities in Federal Constitutional Theory edited by Erika Arban, which came out recently with Oxford University Press, originates in the rising importance of cities. Cities emerged in recent decades as powerful engines of development, innovation, business relations, but also as cultural and educational centres that provide essential services to citizens. They attract people from various socio-economic, cultural, ethnic, linguistic, and religious backgrounds. They are hotbeds of progressive agendas. But while scholarship in the social sciences has extensively explored the multifaceted urban reality through different epistemological lenses, in constitutional law cities as independent subjects of theorisation remain, with a few exceptions, largely neglected. There is no solid theoretical foundation about their role in constitutional theory yet. This is even more apparent in federalism, a field dominated – as pointed out by Hirschl – by state-sized units and constitutional structures and doctrines conceived at the emergence of the modern state.
Against this backdrop, the book offers a theoretical account of cities as novel units of analysis in constitutional law and federalism with contributions authored by prominent theorists who have been pioneer thinkers in this field. The volume is structured in two parts. Part I sketches the conceptual framework of the book, by offering an overview of federalism, local governments and subsidiarity. Part II focuses on the status of cities as neglected constitutional players. The common thread linking all chapters is that they introduce the city as a constitutional unit of analysis, and address the relationship between cities, federalism and localism.
Specifically, in Chapter 1, Arban retraces the intellectual history of federalism as a constitutional principle and delves into the historical treatment (or lack thereof) of cities as federal units. This leads to a broader discussion, continued throughout the book, on whether cities have the required features to become separate federated entities, independent from the local governments of which they are usually part.
In Chapter 2, Saunders and Arban focus on the constitutional position of local governments in federal systems. They identify how they contribute to desirable federal properties but also the challenges in formalising a constitutional role for them. The chapter then suggests the concept of ‘partnership’ with other levels of government, governed by principles of comity, solidarity, subsidiarity and equivalence.
In Chapter 3, Cahill and O’Sullivan examine four types of justifications for increasing city autonomy: (i) the consistency argument; (ii) the expertise argument; (iii) the stake-holding argument; and (iv) the distinctiveness argument. They then test the extent to which these arguments track with four models of subsidiarity, a principle often invoked to justify enhanced city autonomy: (i) subsidiarity-as-federalism; (ii) subsidiarity-as-efficiency; (iii) subsidiarity-as-democracy; and (iv) subsidiarity-as-respect-for-distinctiveness.
In Chapter 4, Hirschl explores the significance of the federal/unitary distinction in determining the constitutional status of cities. He identifies the Global North/Global South division as more significant in such an assessment. He also investigates what national constitutions say about the urban/rural divide. Federal constitutions are no more likely to address such divide than the constitutions of unitary states, he notes. This implies that the preoccupation of federal constitutional theory with traditional subnational units may lead to conceptual rigidity and institutional path dependence in addressing problems of urbanisation. Hirschl also suggests that whether federalism is favourable or unfavourable to cities is auxiliary to other considerations such as the Global North/South distinction, constitutional ‘newness’ or malleability, and concerted political will to constitutionally strengthen cities.
In Chapter 5, Briffault delves into the ‘new’ doctrine of pre-emption in US federalism to reflect upon the apparent conflict between the theory of federalism (whose values are better advanced at city level) and formal federalism (in which the states are the main units). In US federalism, a conflict has emerged between cities and their states, with some cities pursuing progressive agendas and state governments rejecting them at state level, thus pre-empting progressive city action. Among other things, this highlights the failure of US federalism to recognize cities apart from their states, underscoring its commitment to states rather than cities. Beyond the US example, the chapter reflects upon issues of global relevance, such as the relationship between federalism, localism and the city, and whether federalism is bad for cities.
In Chapter 6, Kong puts forth a particular version of republican theory that justifies the constitutional entrenchment of a division of powers between territorially defined jurisdictions. He contends that cities and their residents have interests and characteristics that can be understood in terms of such republican theory. Focusing on Canada, Kong posits that the Canadian constitution should be amended to entrench the status of cities. He shows how such entrenchment might serve republican ends, offering policy prescriptions for achieving entrenchment. The chapter contributes to a globally-relevant theoretical debate on whether federations should constitutionally embed cities.
In Chapter 7, Partlett suggests that the diffusion of powers intrinsic in federalism can help generate a more effective criminal justice system. Federal states are grounded on the idea that decentralization yields important advantages, but then federations ignore such advantages when reforming criminal justice systems. Partlett contends that empowering cities can introduce the benefits of federalism to criminal law reform. In particular, urban accountability mechanisms—many of which already exist—provide cities with tools for understanding, debating, and holding accountable the discretionary decision-making of police and prosecutors. The chapter addresses the theoretical relationship between federalism, cities and subsidiarity, with the insight that federalism is not necessarily bad for cities.
In Chapter 8, Nelson discusses legal mechanisms that could help cities better face environmental issues. The adoption of modern constitutional environmental rights provisions speaks to the magnitude of contemporary environmental threats. However, the centrality of cities in causing and experiencing environmental threats remain substantively unaddressed by constitutional scholars. The chapter applies an environmental lens to address key questions such as whether constitutions should recognize cities, and what recognition they should seek to accomplish. By focusing on environmental issues, the chapter contributes to the theoretical debate on how cities could be better equipped to deal with pressing contemporary challenges.
In Chapter 9, Petkova examines the tension between the traditional anonymity of city life and the ‘datafication’ of cities. She suggests that the rising economic and political power of cosmopolitan, data-rich cities calls for new understandings of federalism in a digital age. By looking at a range of North American and European examples, the chapter explores how the link between privacy and big cities translates into both a normative commitment to diversity and varying legal privacy protections. The chapter also debates how cities could be better equipped to deal with pressing contemporary challenges.
Finally, in Chapter 10, Schragger considers the mismatch between cities’ increasing economic, political, and sociological importance and their relative lack of status in constitutional theory. He contemplates ways in which cities could be empowered. This lays the groundwork for the broader argument that state-based federalism is bad for cities. The ‘old’ federalism is based on the theory that sub-national governments are limited in their policy choices by the threat of capital flight, and presumed weak and ineffectual cities. A ‘new’ federalism would recognize the central role of cities in an urban-based political and economic order and provide them powers commensurate with that role.