Comparative Constitutional Design: Northern Stagnation, Southern Innovation

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Ran Hirschl

In an earlier work, I suggested that the field of comparative constitutional law tends to draw on “a small number of overanalyzed, ‘usual suspect’ constitutional settings and court rulings.”[1]

The constitutional sphere in the United States, the UK, Canada, and Germany are honorable members of that commonly explored (to put it mildly) “platinum club.”[2] With notable exceptions such as South Africa, India, and Colombia (commonly invoked supposed posterchildren of “Global Southness”), much of the so-called Global South—an admittedly fuzzy category comprising some 150 to 170 countries in Africa, Asia, the Middle East, the Pacific Rim, Latin America and the Caribbean—is infrequently explored or represented. Consequently, “the constitutional experiences of entire regions … remain largely uncharted terrain, understudied and generally overlooked.”[3] The void has been somewhat mitigated in recent years, with an increasing number of works focusing on democratic backsliding and constitutional retrogression. Even so, here too a few constitutional settings (e.g. Hungary and Poland) have become the routine, near-cliché reference point for any discussion in that area.

The “unofficial canon” phenomenon poses a set of normative, epistemological, and methodological challenges for a field that purports to advance universal, generalizable, scientifically sound insights. When it comes to comparative constitutional design, however, the extensive focus on a dozen frequently explored constitutional settings is not a matter of representation, fairness, or justice, but a missed practical opportunity to engage with a living laboratory of constitutional innovation concerning some of the greatest challenges of our time. Unlike the largely stagnant national constitution-making enterprise throughout much of the Global North, many of the most daring and innovative constitutional experiments concerning issues such as climate change, urbanization, and democratic renewal have taken place in countries and constitutional settings of the Global South. The vast majority of these settings lie well beyond the contours of the oft-studied comparative constitutional “canon.”

Consider climate change and environmental protection—arguably the most significant global challenge currently facing humanity. Ecuador (2008) was the first country to enshrine the right of environment in its constitution. Article 71 is dedicated to Pachamama (Andean “Mother Earth”), providing for Nature’s “right to integral respect for its existence, the maintenance and regeneration of its life cycles, structure, functions and its evolutionary processes ... All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature … The State shall give incentives to protect nature and to promote respect for ecosystems.” Article 414 further states that: “The State shall adopt adequate and cross-cutting measures for the mitigation of climate change, by limiting greenhouse gas emissions, deforestation, and air pollution; it shall take measures for the conservation of the forests and vegetation; and it shall protect the population at risk.”

As of 2022, the national constitutions of ten countries—all in the Global South—have followed Ecuador’s precedent. Neighboring Venezuela (2009) and Bolivia (2009) adopted a constitutional provision on the right and duty of the State and present generations to future generations. Vietnam (2013), Tunisia (2014), and the Dominican Republic (2015) similarly outlined the State’s policy to protect the environment and respond to climate change. Zambia (2016) included a broad commitment to implement mechanisms to address climate change. Thailand (2017) provided for a national reform of water resource management to respond to climate change. Cuba’s (2019) climate clause is explicitly framed by political language vowing to respond to climate change as part of a commitment to “anti-imperialism” and a more “equitable international economic order.” Both Côte d’Ivoire (2016) and Algeria (2020) include a commitment to climate protection in their constitutional preambles. To be sure, politics plays a key role in any constitutional transformation; not all, or even most, of these constitutional commitments were driven by genuine care for the environment. But the fact remains that these innovations provide constitutional drafters and constitutional scholars alike with a range of new design options to consider.

Trends in constitutional jurisprudence parallel the adoption of climate clauses. Most cases taking a constitutional rights-based approach to climate litigation are found in the Global South. A textbook illustration is the 2018 Colombian case of Future Generations v Ministry of the Environment and Others.[4] Here, 25 youth plaintiffs sued the Colombian government, alleging that its failure to take steps toward a target of zero-net deforestation in the Colombian Amazon by 2020 (as agreed under the Paris Agreement and the National Development Plan 2014–2018), threatened their fundamental rights. The Colombian Supreme Court of Justice, analyzing the Constitution from a “green” perspective, elevated the environment to the category of a fundamental right. The Court recognized that the rights of life, health, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem.[5]

Another clear indication of the Global South lead in climate change jurisprudence is the recent Supreme Court of Brazil ruling (June 2022) to recognize the Paris Agreement as a human rights treaty.[6] Such designation as human rights treaty—the first of its kind concerning the Paris Agreement worldwide—establishes a basis for requiring the federal government to reactivate its national climate fund and allocate resources from it to fight extensive deforestation in Brazil, acknowledged by the court as a major source of emission and as jeopardizing attempts to effectively fight climate change.

In contrast, there has been very limited constitutional innovation with respect to climate change and environmental protection in national constitutions of the Global North.[7] The US Supreme Court ruling of June 30, 2022 in West Virginia vs. Environmental Protection Agency speaks for itself.[8] France’s failure to reach a constitutional referendum on a climate amendment in 2021 further illustrates the Global North’s disparate experience in constitutionally addressing climate change. Iceland, poised for potential “crisis-change” amendments in the aftermath of the 2008 financial crisis, failed to reach a consensus among opposing political parties on new constitutional provisions. No climate clause was adopted.

An important breakthrough may emanate from the jurisprudential front; in its landmark ruling in Neubauer et al v. Germany (March 2021), the German Federal Constitutional Court (FCC) struck down parts of Germany’s Federal Climate Protection Act as they set insufficient greenhouse gas emissions reduction targets beyond 2030, thereby failing to properly considering future generations’ constitutional rights to life and physical integrity. The Court found that Article 20(a) of the Basic Law obliges the legislature to protect the climate.[9] However, in the follow-up case the FCC refused to hear a case claiming that subnational-unit climate change legislation was insufficient, noting the constitutional complaints lacked “any prospect of success.”[10] It determined that, while the federal government is obligated to implement emissions reduction targets, this obligation does not exist at the state-level. A second follow-up case, Steinmetz et al v Germany, was filed in 2022. Claimants argue the emission reduction measures taken by the federal government post-Neubauer are insufficient.

Another vivid illustration of the “Northern stagnation vs. Southern innovation” pattern in contemporary constitutional design is the North/South constitutional split concerning urbanization and cities. Urban agglomeration is one of the most significant phenomena of our time. The figures are striking. Within the last century, the world’s urban population has increased nearly thirtyfold.[11] Reflecting these extensive urbanization trends, official UN projections suggest that by 2100, the world’s 100 largest cities will host a quarter of the planet’s population. Megacities of 50 million or even 100 million inhabitants will emerge by the end of the century, mostly in the Global South. In many Global South megacities, density has already reached near-dystopian levels.[12] In short, what has been termed the “urban era” and “the century of the city” marks a major and unprecedented transformation of the organization of society, both spatially and geopolitically.

Although we live in the century of the city, mainstream constitutional theory and its overarching Global North tilt are still the captives of constitutional structures, doctrines, perceptions, and expectations that were developed alongside the modern nation-state and evolved in a historical process that saw the sovereign city become increasingly subjugated to those states. Most current constitutional orders and virtually all those adopted prior to the great urbanization of the last few decades, 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.[13] The constitutional orders of the United States and Canada, for example, are “exhibit A” and “exhibit B” respectively in the constitutional oversight of cities and the subjugation of the urban to dated spatial constitutional imagination. (In contrast with the area of climate change and environmental protection where the conceptualizing US states as laboratories of democracy and innovative experimentalism has some purchase, when it comes to urbanization and city power, that conceptualization has proven futile, at best; in fact, resistance for city constitutional emancipation and constant curbing of city power emanates from states/provinces.)[14]

When we turn our gaze to constitutional orders in the Global South, a different picture emerges. Major attempts to bolster the constitutional status of cities have taken place in Global South countries as diverse as Brazil (1988)—the first national constitutional to recognize Henri Lefebvre’s Right to the City [Le droit à la ville]; India (the 73^rd and 74^th amendments, 1992); and South Africa (1996)—arguably the most extensive constitutional design experiment to date in the context of nation-wide constitutional empowerment of cities.[15] At the same time, we have seen the constitutional empowerment of large cities in both federal countries in the Global South (typically by designating them as autonomous states, as with Mexico City, Buenos Aires, and Addis Ababa) and formally unitary countries such as South Korea, Vietnam, China, and Taiwan.^[16] While not all the attempts in the Global South to constitutionally bolster city status have proven equally successful (some in fact have been outright failures; a notable example of this is India), the fact remains that constitutional innovation in this key area occurs almost exclusively outside of North America or Europe.[17]

A similar pattern is evident when we look at the closely related urban/rural divide—one of the most significant social, economic, cultural and political rifts of our time.[18] Here, too, constitution-drafters in the Global South have taken the lead in institutionalizing formal constitutional recognition of the urban/rural divide in national constitutions as a response, largely symbolic as it may be, to spatially anchored “left behind” sentiments. In several Global South constitutional orders, direct reference is made to the need to balance urban and rural interests. In other Global South settings, most notably in Latin America, the “rural” intersects with other constitutionally recognized categories, notably peasant and indigenous populations. In fact, the core economic objectives listed in the constitutions of at least two dozen countries in Africa and Asia include improvement in the quality of life in rural communities and redressing economic imbalances between rural and urban communities.

Southern innovation in addressing the urban/rural challenge goes even further. One obvious characteristic of what counts as “urban” or as “rural” is high and low human density. The massive urban swelling has brought about considerable density gaps between cities and rural areas, as well as within metropolitan areas. An interesting possibility in this context is to give people living in dense inner-city neighborhoods or remote rural areas added power in key policy decisions related directly to the density conditions in which they live. We can plausibly speculate that these measures, when applied to policy issues directly affected by very high or very low density, hold some potential in alleviating alienation in both poor, densely populated city neighborhoods and left-behind, sparsely populated rural areas. The idea of enhancing the voice of people based on density is also likely to increase pressure on elected officials to pay attention to, and allocate more resources for, the grievances of those whose quality of life and range of opportunities are affected. This idea is not purely hypothetical. Initial experimentation with density-sensitive representation matrices is already endorsed by several national constitutions worldwide. As of 2021, 27 national constitutions—25 of which are of countries in the Global South—recognize density-based deviation from the baseline principle of equal number of voters per electoral district in order to enhance representation of high-density neighborhoods in cities or in remote, sparsely populated regions. A few recent examples include the constitution of Sierra Leone (2013), Nepal (2015, revised in 2020), Jamaica (2015), the Dominican Republic (2015), Botswana (2016), Malawi (2017), Uganda (2017), and the Gambia (2020). Likewise, the constitutions of several small island nations (e.g. Bahamas, Trinidad & Tobago, Saint Vincent and the Grenadines, St. Lucia, Tuvalu) entrench enhanced representation to sparsely populated areas. In Nepal, to pick one example, a constitutionally protected (and non-challengeable for twenty years) corrective of 10 percent in seats allocation is granted to sparsely populated provinces where the proportional space share far exceeds the overall population share. Consequently, the province of Gandaki with 15 percent of the country’s total area but only 9 percent of the population, has 11 percent (18) of the seats in parliament (165). Likewise, the province of Karnali (18 percent of the territory, 6 percent of the population) has 7.2 percent (12) of the seats in parliament.[19]

The list of recent Global South constitutional innovations, some admittedly more successful than others, goes on and on. From experimenting with constitutionally entrenched gender equality quotas across government and the public sector (e.g. the constitution of Kenya 2010),[20] to embarking on massive public participation campaigns of constitution-making at the national (e.g. Brazil 1987–1988, South Africa 1993–1996, most recently in Chile 2021–2022) or at the local level (e.g., extensive solicitation of public input in the constitutional transformation of Mexico City from a federal district to an autonomous state within the Mexican confederation—the largest constitution-making crowdsourcing at the local/municipal level to date), Global South constitution-making, politically subservient as it sometimes is, is filled with fresh ideas and daring experimentation. Very little such creativity is evident in the constitutionally stagnant Global North.

Coda: Parts Unknown

In contrast with constitutional silence in much of the Global North concerning some of the most acute challenges facing humanity in the twenty-first century, many Global South national constitutional settings have served as innovation labs for addressing these challenges. What may explain this trend? One obvious factor is necessity. The effects of climate change or extensive urbanization are considerably more pronounced in the Global South. A second factor is constitutional newness or susceptibility to change. It is plausible to assume that constitutional orders adopted in the late twentieth century onward—virtually all Global South constitutions referenced here fit that bill—are more likely to address the environmental challenge or the urban challenge than are older constitutional orders. It is likewise plausible that constitutional orders that are more amenable to change (for example, through flexible amendment structures) are more likely to effectively address new challenges than constitutional orders that are dated yet rigid and near-impossible to change. A third factor is politics. It is hard to envision significant constitutional renewal, whether through revolution, replacement, or amendment, without the considerable support, genuine or strategic, of political leaders, political elites, pertinent constituencies, and other key stakeholders. 

Either way, if we are serious about the potential of constitutional design to offer effective remedies to some of the burning challenges of our time, closer attention to Global South constitutionalism is the call of the hour. This is not merely or even primarily a matter of justice or representation. Rather, it is a matter of practical utility. Alongside other non-canonical constitutional orders (e.g., supranational, sub-national), the Global South constitutional universe has become a bustling lab of innovation that in many respects is more promising than its often-stagnant Global North counterpart. To remain relevant in an ever more challenging world, constitutional design scholars will not only have to take core challenges such as climate change or urban agglomeration more seriously. They will have to set their global gaze southward. 

Ran Hirschl is a Professor of Government and Earl E. Sheffield Regents Chair in Law at the University of Texas at Austin. You can contact him at ran.hirschl@austin.utexas.edu.