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Ran Hirschl, University of Toronto Constitutional design and the urban/rural divide

The urban/rural divide has proven to be of critical significance in contemporary politics. In country after country, voters in urban areas perceived as ‘central’ tend to favour a more liberal, cosmopolitan, or socially progressive set of values and policy preferences relative to the national median voter position, while voters in non-urban areas tend to favour more traditional and socially conservative worldviews. With very few exceptions, this pattern translates into considerably higher levels of support in the countryside than in large urban centers for right-wing, socially conservative, and/or populist leaders, parties, and policy preferences. More often than not, the political rhetoric advanced by such leaders and parties denounces big city dwellers, specifically the urban intelligentsia and creative classes, for their deficient patriotism, universalist outlook, excessive materialism, and uncritical social progressivism, often contrasted with a supposedly ‘unrefined’ yet ‘authentic’ periphery with purportedly uncorrupt moral and cultural preferences. In virtually all settings where nationalist-populist movements have gained power, their leaders talk openly about protecting the people from “the other,” whether it be the immigrant or the international tribunal that threatens to spoil the authentic, national identity. This “us versus them” discourse privileges narratives of supposed national purity while stifling cosmopolitan constitutional values, and promotes leaders who profess allegiance to the “ordinary person,” commonly portrayed as a denizen of the spatial, cultural, and economic hinterlands.

The close association of the spatial dimension of political preferences with the rise of ethno-nationalist populism in dozens of national and sub-national jurisdictions worldwide has attracted considerable attention from political scientists, sociologists, economists, and human geographers alike, and has been the subject of countless academic and media accounts, whether descriptive, explanatory, or normative. However the rapidly expanding constitutional scholarship on what has been termed “democratic backsliding” or the rise of various populist, illiberal, or authoritarian threats to constitutional democracy consistently overlooks the spatial dimensions of this trend. With very few exceptions, the burgeoning comparative constitutional design literature aimed at addressing phenomena such as democratic backsliding, constitutional capture, illiberal constitutionalism, threats to judicial independence and the rule of law, or exclusionary “us versus them” rhetoric and legislation, has not focused its intellectual efforts on creative designs aimed at mitigating the significance of place as an emerging cleavage in contemporary politics.

In this article, I consider the curious blind spot in constitutional scholarship concerning the resurging rural/urban divide—a readily evident phenomenon closely associated with levels of support for/opposition to political populism and illiberal sentiments—and how we may begin to address that challenge through creative constitutional designs. I will begin by highlighting that while there has been a burst of novel thinking about urbanization and cities throughout the human sciences, little of this innovative energy has extended into the world of constitutional thought. To date, the rapidly expanding constitutional literature that addresses the rise of various populist, illiberal, or authoritarian threats to constitutional democracy highlights primarily institutional factors while overlooking the political geography dimensions of these trends. Next, I will survey what national constitutions actually say about cities and about the urban/rural divide, and more significantly what they do not. I will then proceed to discuss three main areas of constitutional law and theory that appear to hold some intellectual promise in this context: (i) creative electoral system designs that take into account the spatial dimension of politics; (ii) ideas drawn from concepts such as ‘community standards’, ‘mixed jurisdictions’, legal hybridization and constitutional pluralism; and (iii) rethought elements of equalization and fiscal federalism more generally. Taken together, these three directions offer a repertoire of constitutional design possibilities that hold promise in mitigating the resurging rural/urban gulf. More generally, they serve as an invitation to constitutional thinkers to shake up the rather stagnant constitutional thought of spatial governance, and to think ingeniously about ever-expanding urban/rural divide and its consequences for the theory and practice of 21st century constitutional democracy.

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