Constitutional Dynamics in Federal Systems

Constitutional Dynamics in Federal Systems: Sub-national Perspectives

MICHAEL BURGESS
G. ALAN TARR
Copyright Date: 2012
Pages: 352
https://www.jstor.org/stable/j.ctt8048x
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    Constitutional Dynamics in Federal Systems
    Book Description:

    Providing a comprehensive view of the constitutional architecture of federations, contributors address change and development in federal states from the standpoint of constitutional revision and reform. Oftentimes change comes from the constituent units that together form a federation. With this in mind, political scientists and legal scholars from across Europe and North America address three important questions. First, what is the scope of national space - the range of discretion and autonomy in constitutional design and development - that is available to the sub-national units in federal system? Second, to what extent have the sub-national units occupied the constitutional space available to them? Third, what have been the effects of constitutional initiatives by sub-national units within their constitutional space on national constitutional development (vertical federalism), on constitutional development in other sub-national units (horizontal federalism), and on political development within their own borders? A comparative, interdisciplinary approach to constitutionalism in federal systems, this volume will be of particular interest to scholars studying federalism, comparative politics, public law, and political development. Contributors include Michael Burgess (University of Kent) and G. Alan Tarr (Rutgers University-Camden), John J. Dinan (Wake Forest University), Arthur Gunlicks (University of Richmond), Peter Bujäger (University of Innsbruck), Jens Woelk (University of Trento), Nicolas Schmitt (University of Fribourg), Patrick Peeters (University of Leuven), Gerald Baier (University of British Columbia), Stephen Tierney (University of Edinburgh), Carlos Viver (University of Barcelona), Francesco Palermo (University of Verona), Anneli Albi (University of Kent), Ornella Porchia (University of Turin).

    eISBN: 978-0-7735-8701-4
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
    Rupak Chattopadhyay
  4. Acknowledgments
    (pp. xi-2)
  5. 1 Introduction: Sub-national Constitutionalism and Constitutional Development
    (pp. 3-40)
    MICHAEL BURGESS and G. ALAN TARR

    Among the most important factors affecting the success and survival of federal states is their capacity to respond to change and to the challenges associated with it. The constitutional arrangements within a federal system for dividing power, resolving disputes, safeguarding rights, and providing for reform and renewal are crucial in responding to these challenges. This volume brings together leading political scientists and legal scholars to examine how the constitutional architecture of various federal and quasi-federal systems has inluenced their evolution and development, their success and survival. More speciically, this volume looks at the constitutional architecture of these systems from “below,”...

  6. PART ONE SUB-NATIONAL CONSTITUTIONALISM IN TERRITORIALLY BASED FEDERATIONS
    • 2 State Constitutions and American Political Development
      (pp. 43-60)
      John J. Dinan

      Although American constitutional development is often understood as encompassing the drafting, amendment, and interpretation of the US Constitution, this represents only part, and not necessarily the most important part, of the story, because of the prominent role played by the fifty state constitutions. My purpose is to examine the role of state constitutions in producing political change in the US federal system and, in doing so, to address three questions. First, what accounts for the fact that state constitutions have figured so prominently in bringing about political changes in the United States? Second, what specific political changes have been achieved...

    • 3 Legislative Competences, Budgetary Constraints, and the Reform of Federalism in Germany from the Top Down and the Bottom Up
      (pp. 61-87)
      ARTHUR B. GUNLICKS

      Following the federal elections in Germany in September 2005, a Grand Coalition of the Christian Democratic Union (CDU) and its sister party, the Christian Social Union (CSU), together with the Social Democratic Party of Germany (SPD) was formed under the leadership of Chancellor Angela Merkel (CDU). Given the results of the election, this was the only feasible combination. The expected coalition of the CDU/CSU and the Free Democratic Party (FDP) did not materialize, because of the failure of the two parties to achieve a predicted combined majority of seats in the federal assembly (Bundestag), and the previous coalition of the...

    • 4 Sub-national Constitutions and the Federal Constitution in Austria
      (pp. 88-106)
      PETER BUßJÄGER

      The Austrian Federation was created in 1920 as a compromise between the Social Democrats and the Christian-Social-Party. While the former wanted to establish a strong unitary state, the latter supported the formation of a federation similar to Switzerland’s. These entirely different attitudes towards federalism resulted in the Austrian Federation, which was conceptualized primarily by the famous legal scholar Hans Kelsen. Article 2 of the Federal Constitution (Bundes-Verfassungsgesetz, orB-VG) stipulates that Austria is a federal state consisting of nine autonomous member-states (Länder): Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria, Tyrol, Vorarlberg, and Vienna. But this federal state retains strong...

  7. PART TWO SUB-NATIONAL CONSTITUTIONALISM IN MULTINATIONAL FEDERATIONS
    • 5 Bosnia-Herzegovina: Trying to Build a Federal State on Paradoxes
      (pp. 109-139)
      Jens Woelk

      The basis for federalism in Bosnia-Herzegovina (BiH)¹ is rather peculiar owing to the unique complexity of the situation: a multiethnic population consisting of three major groups (Bosniaks/Muslims, Croats, and Serbs) and a number of smaller minority groups,² the experience of “ethnic federalism” in former Yugoslavia, the experience of democratization and transition to a free-market and liberal-democratic system, and the post-conflict situation involving massive intervention by the International Community.

      After more than three years of war, military intervention by NATO finally ended the Bosnian War in 1995. It had been characterized by brutal atrocities against the civilian population for the purpose...

    • 6 New Constitutions for All Swiss Cantons: A Contemporary Challenge
      (pp. 140-163)
      NICOLAS SCHMITT

      In recent years, Switzerland has been witnessing a mushrooming of cantonal constitutions as several new constitutions have entered into force: Graubünden (1 January 2004), Fribourg (1 January 2005), Zurich (1 January 2006), Basel-Stadt (13 July 2006), and Luzern (1 January 2008). On 19 October 2008 a constituent assembly was elected in the canton of Geneva,² which published a pilot study for the new cantonal constitution on 13 January 2011.

      Last but not least, a popular vote on the new constitution of the canton of Schwyz took place on 15 May 2011. This is the culmination of a phenomenon that started...

    • 7 The Constitutional and Institutional Autonomy of Communities and Regions in Federal Belgium
      (pp. 164-173)
      PATRICK PEETERS

      Five successive state reforms, in 1970–71, 1980, 1988, 1993, and 2001, have transformed the formerly unitary but territorially decentralised Belgian state into a federal entity. This transformation is expressly acknowledged in the Belgian Constitution. Following the constitutional reform of 5 May 1993, Title I of the constitution is now entitled “Federal Belgium, Its Composition and Territory.” According to Article 1 of the Constitution, Belgium is “a federal state, composed of communities and regions.”

      This progressive transformation from a unitary to a federal state makes clear that federalisation in Belgium is essentiallydevolutionary. In most federal states, previously independent or...

    • 8 Canada: Federal and Sub-national Constitutional Practices
      (pp. 174-192)
      GERALD BAIER

      Canadian provinces are commonly regarded as some of the most powerful subunits among contemporary federations. Much of what governments do in Canada takes place at the subunit rather than at the state level, primarily as a consequence of the considerable scope of permissible legislative activities accorded to the provinces by the constitution. Canadian provinces are nearly unparalleled among subnational governments in the range of their law-making responsibilities. But for all of the Canadian federation’s decentralized legislative power, Canada’s constitutional tradition is almost wholly centralized. To all but the closest observers, the “action” in Canadian constitutionalism takes place exclusively at the...

  8. PART THREE CONSTITUTIONAL DEVELOPMENT IN TERRITORIALLY DECENTRALIZED STATES
    • 9 Quiet Devolution: Sub-state Autonomy and the Gradual Reconstitution of the United Kingdom
      (pp. 195-217)
      STEPHEN TIERNEY

      The United Kingdom is not a federation, but it has passed, or more accurately, continues to pass¹ through a process of “rolling devolution,” whereby substantial central government powers, both legislative and executive, have been transferred, and continue to be transferred, to sub-state parliaments and executives. The result is that in terms of the autonomy now enjoyed by Wales, Northern Ireland, and, particularly, Scotland, together with the strong political consolidation of these devolved arrangements, the United Kingdom resembles in many ways a federalised polity.² The seismic shift in constitutional culture since 1997 has inevitably created conditions whereby the evolving dynamics of...

    • 10 Spain’s Constitution and Statutes of Autonomy: Explaining the Evolution of Political Decentralization
      (pp. 218-236)
      CARLES VIVER

      The Spanish Constitution of 1978 has not been reformed during its thirty years of existence, apart from one minor retouch in 1992 to recognize the right of nationals of European Union member states to vote in local authority elections. There has therefore been no formal reform of the Spanish Constitution concerning the territorial power structure. But this does not mean that this structure, only partially designed by the Spanish Constitution, has not been completed, made concrete, or specified in more detail, and adapted during the past three decades, both from the “top down” (i.e., by the central government and central...

    • 11 Italy: A Federal Country without Federalism?
      (pp. 237-254)
      FRANCESCO PALERMO

      Federalism has both an institutional and a political dimension. Italy has developed the institutional dimension well, but it lacks the political dimension almost completely. Even though regionalism and subsequently federalism have been on the political agenda for decades, Italy’s advanced institutional setting is scarcely implemented by the political system, which still seems rather inadequate to cope with a fully ledged federal structure. The practical outcome of such a discrepancy is a remarkable disproportion between “federalism in the books” and “federalism in action,” which increasingly disconnects political practice from normative reality and calls for the continual involvement of the Constitutional Court...

  9. PART FOUR SUPRANATIONAL CONSTITUTIONALISM AND CONSTITUTIONAL FUTURES IN EUROPE
    • 12 Member State Constitutions in the European Union
      (pp. 257-279)
      ANNELI ALBI

      The European Union (EU) is not a federal state. Indeed, any aspirations that may have been harboured to this end in some parts of Europe in line with the visions of Altiero Spinelli, Walter Hallstein, and others were dealt a near-fatal blow by the fiasco of the ratification of the European Constitution. Nonetheless, based on the distinction drawn between a “federation” and “federalism,” where the latter can exist without the former,¹ it is widely accepted that the architecture of the EU contains numerous elements of federalism. According to Michael Burgess, in the European context “federalism is both a dynamic process...

    • 13 Sub-national Units, Member States, and the European Union
      (pp. 280-298)
      ORNELLA PORCHIA

      Since the 1980s many European Union (EU) Member States have undergone a process of territorial reform that involves either the establishment of elected regional institutions or a change in their existing political role, confirming their position as an intermediate tier of self-government between the central state and the local authorities. In general, a broad range of different models from decentralization to federalization can be observed. In Italy, for example, only recently (since the 2001 Constitutional Reform) a series of reforms have changed the political system to such an extent that it now approximates a federal one.¹

      This dynamic change of...

  10. Contributors
    (pp. 299-302)
  11. Index
    (pp. 303-338)