Constitutional Dynamics in Federal Systems: Sub-national Perspectives 9780773587014

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c o n s t i t u t i o n a l dy n a m i c s i n f e d e r a l s y s t e m s

C ON ST I T U T I ONA L DYNA M I C S I N FEDER A L SY ST EM S Sub-national Perspectives e di t e d b y mi chael burges s a nd g. al an tarr

and McGill-Queen’s University Press Montreal & Kingston • London • Ithaca

© McGill-Queen’s University Press 2012 isbn 978-0-7735-3954-9 (cloth) isbn 978-0-7735-3955-6 (paper) Legal deposit irst quarter 2012 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the inancial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication Constitutional dynamics in federal systems: sub-national perspectives/edited by Michael Burgess and G. Alan Tarr. Co-published by: Forum of Federations. isbn 978-0-7735-3954-9 (bound). – isbn 978-0-7735-3955-6 (pbk.) 1. Federal government. 2. Constitutional law. I. Burgess, Michael, 1949– II. Tarr, G. Alan (George Alan) jc355.c6685 2012

321.02

c2011-907190-8

This book was typeset by Interscript in 10/12 Baskerville.

To Marie-Louise and to Susan

Contents

Preface by Rupak Chattopadhyay Acknowledgments 1

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Introduction: Sub-national Constitutionalism and Constitutional Development 3 Michael Burgess and G. Alan Tarr part one sub-national constitutionalism in territorially based federations

2 State Constitutions and American Political Development John J. Dinan

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3 Legislative Competences, Budgetary Constraints, and the Reform of Federalism in Germany from the Top Down and the Bottom Up 61 Arthur B. Gunlicks 4 Sub-national Constitutions and the Federal Constitution in Austria Peter Bußjäger

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Part Two Sub-national Constitutionalism in MultiNational Federations 5 Bosnia-Herzegovina: Trying to Build a Federal State on Paradoxes Jens Woelk

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6 New Constitutions for All Swiss Cantons: A Contemporary Challenge Nicolas Schmitt 7 The Constitutional and Institutional Autonomy of Communities and Regions in Federal Belgium 164 Patrick Peeters

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8 Canada: Federal and Sub-national Constitutional Practices Gerald Baier

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Part Three Constitutional Development in Territorially Decentralized States 9 Quiet Devolution: Sub-state Autonomy and the Gradual Reconstitution of the United Kingdom 195 Stephen Tierney 10 Spain’s Constitution and Statutes of Autonomy: Explaining the Evolution of Political Decentralization 218 Carles Viver 11 Italy: A Federal Country without Federalism? Francesco Palermo

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Part Four Supranational Constitutionalism and Constitutional Futures in Europe 12 Member State Constitutions in the European Union Anneli Albi

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13 Sub-national Units, Member States, and the European Union Ornella Porchia Contributors Index

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Preface

This collection is an important contribution to the comparative study of constitutions. The editors and each author tease out in great detail the complex interplay between national constitutions, on the one hand, and constitutional processes at the sub-national and, in the case of the European Union, at the supranational level on the other. While much comparative work has been done on national constitutions, the political dynamics of federal and devolved countries can be understood only by relecting on institutions and processes that exist at each level. To this extent, Michael Burgess and Alan Tarr quite correctly note that “in most federal systems the federal constitution is an ‘incomplete’ framework document, in that it does not prescribe all constitutional processes and arrangements.” Ultimately, constituent units in each system have some degree of lexibility to shape their own institutions, regardless of whether they adopt formal constitutions or not. This volume is quite unique, since it approaches the study of federal constitutions from the perspective of sub-national units, whereas other studies approach the topic with a top–down view of the problems of federalism and constitutions. The chapters systematically deal with issues such as what counts as a constitution at the sub-national level and with how such constitutions differ from federal constitutions and from each other; and they evaluate the extent to which sub-national entities have developed constitutions within the constitutional space allowed by national constitutions. While the editors have brought together twelve case studies drawn from Europe and North America, the indings of this volume have much relevance beyond this transatlantic community. In many post-conlict countries where the Forum of Federations (a global network on federalism and multilevel governance) has worked over the last decade, including Iraq, Sudan, and Ethiopia, there is a real demand for comparative knowledge not just on how to develop sub-national constitutions but also on approaches to

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Preface

delineating and managing boundaries between national and sub-national constitutions. The interest in sub-national constitutions in these countries is very clearly motivated by the way in which enhanced and codiied authority for sub-national units provides a greater degree of protection for minority rights. What marks this survey as being different from previous ones lies in how it approaches the study of the European Union. The impact of European statutes in homogenizing values across member states has effectively constrained the constitutional choices of national governments. On behalf of the Forum of Federations, I express my appreciation to McGill-Queen’s University Press and its executive director Philip Cercone for proposing collaboration on the subject. It was quite appropriate that Alan Tarr, on a visit to Ottawa in 2009, provided the Forum with its initial glimpse into this project when he presented preliminary indings at one of our “lunch and learn” events. Rupak Chattopadhyay President and CEO Forum of Federations

Acknowledgments

Most of the contributions to this volume began as presentations at a workshop held in Kent, England, co-sponsored by the Centre for Federal Studies at the University of Kent and the Center for State Constitutional Studies at Rutgers University-Camden. We wish to thank the James Madison Trust, which provided crucial inancial support for this meeting. Marie-Louise Burgess supervised the organizing of the workshop and saw to the myriad details so essential to its success. Sylvia Somers made crucial contributions in contacting contributors and overseeing the production of the manuscript. Our home institutions – the University of Kent and Rutgers University-Camden – provided us with much-needed support throughout. To these and others not named, we offer our heartfelt appreciation.

c o n s t i t u t i o n a l dy n a m i c s i n f e d e r a l s y s t e m s

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Introduction: Sub-national Constitutionalism and Constitutional Development Mi cha e l B ur ge s s 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,” from the point of view of sub-national constitutions and the polities that they govern. To many readers, the term “constitutional architecture” may sound odd, but it points to an important, if often overlooked, feature of constitutionalism in federations. In every federal system, political arrangements at the national level are structured by a federal constitution, and in some federal systems, the federal constitution prescribes the political institutions and processes for the country’s constituent units as well, thus dictating the constitutional architecture for the entire federal system.1 India, Belgium, and Nigeria, for example, have altogether dispensed with sub-national constitutions external to the federal constitution.2 And the South African Constitution both serves as a national constitution and provides a model provincial constitution that operates unless a province adopts its own constitution. But in most federal systems the federal constitution is an “incomplete” framework document, in that it does not prescribe all constitutional processes and arrangements. Rather, it leaves “space” to be illed by the constitutions of its sub-national units. The scope of this sub-national

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Constitutional Dynamics in Federal Systems

constitutional space varies from one federal system to another – typically, the less detail that the federal constitution provides or that it requires of sub-national constitutions, the greater the sub-national constitutional space. Federal constitutions also set parameters that constrain the choices available to those drafting sub-national constitutions.3 Nonetheless, this system of dual constitutionalism furnishes an opportunity for constituent units to deine their own goals and establish their own governmental institutions and processes. Thus it is part of the “self-rule” that is fundamental to a federation. Our emphasis on self-rule should not obscure the fact that sub-national constitutions also form part of the overall constitutional framework for the federation. As Daniel Elazar has observed, sub-national constitutions are “part and parcel of the total constitutional structure of federal systems and play a vital role in giving the system direction.”4 For present purposes, this means that dual constitutionalism can promote constitutional adaptation to changing circumstances. Constituent units may use the constitutional space available to them to initiate reforms that respond to the problems they confront, and these experiments may have consequences beyond their own borders. A successful experiment in one constituent unit may promote emulation by other constituent units that confront the same problems: what has often been referred to as horizontal federalism. In addition, successful experiments in the constituent units may induce the federal government to adopt the same reforms at the national level, a form of vertical federalism in which the pattern of inluence is bottom-up rather than top-down. Thus, to understand fully constitutional evolution and development in federal and quasi-federal systems, one must constantly be mindful of the interplay of federal and sub-national constitutions.

D e f i n i n g S u b - n at i o n a l C o n s t i t u t i o n a l i s m Before one can study the interplay of federal and subnational constitutions, however, one must consider what qualiies a document as a sub-national constitution. In some federal systems – for example, Australia, Austria, Germany, and the United States – the question is easily answered. In each federation, distinct identiiable documents structure political life in its constituent units. In other federal systems, such as Belgium’s and Nigeria’s, the question is likewise easily answered, though for a different reason: there are no documents distinct from the federal constitution that perform that function.5 However, in some federal systems the answer is not so clear. For one thing, in some systems constitutions are not enshrined in a single document. In Canada, for example, several documents make up the federal constitution, and the same is true for provincial constitutions. Thus, there are elements of provincial constitutions in Part V and in other provisions – for

Introduction

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example, Section 133 – of the Constitution Act of 1867.6 Other elements are found in the Charter of Rights and Freedoms – for example, Section 5 mandates that provincial legislatures must sit at least once every twelve months. Still other elements can be found in ordinary provincial statutes, such as electoral laws, bills of rights, and so forth. Indeed, some provincial laws are even denominated by the term “constitution” – for example, the British Columbia Constitution Act.7 And unwritten elements of provincial constitutions, such as responsible government, are enshrined in constitutional conventions. The situation is further complicated by the emergence of supra-national entities such as the European Union. In some ways the interactions between the national governments of EU members and the EU resemble those between federal governments and their constituent units. The relationship between the sixteen länder governments represented in the Bundesrat (Federal Council) and the federal government in Germany is often used by scholars of comparative federalism to illustrate this point. Beyond that, the constituent units of federations ind themselves subject to two levels of authority – they can violate neither EU law nor national law in the constitutional arrangements they devise or the policies they pursue. Yet because sub-national units perform a consultative role in the formulation of EU policy through the Committee of the Regions, the low of inluence is bottomup as well as top-down. Finally sub-national constitutions might be different in kind from the national constitution. For example, are the “Autonomy Statutes” of the Autonomous Communities in Spain and the basic laws in China governing Hong Kong and Macau constitutions or not? They certainly exhibit attributes of constitutions, structuring political life within constituent units, but that term is studiously avoided in both countries.8 In Italy, would part of the move toward decentralization, including even the possibility that the regions would participate in the drafting of their “Statuti,” qualify as subnational constitution-making?9 Asymmetrical federal systems pose a particular dificulty in this respect. Some federal systems allow only some constituent units to devise sub-national constitutions – for example, the Indian Constitution permits only one state, Kashmir, to have its own sub-national constitution. Others have special arrangements for some constituent units for historical reasons. In Italy, for example, even before the current movement toward some sort of federal arrangement, the province of South Tyrol enjoyed a much wider range of autonomy than did other regions, based on the international agreement that brought this territory from Austria to Italy after World War I.10 Other federal systems grant different constitution-making authority to various constituent units. For example, by statute the United States Congress has authorized some territories, such as Guam and the Virgin Islands, to draft

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Constitutional Dynamics in Federal Systems

their own constitutions. But unlike the states, these territories are obliged to submit their proposed charters to Congress for approval or revision before they can be submitted to their residents for ratiication. Native American tribes can also devise their own constitutions, but both congressional legislation and their status as “internal dependent nations” effectively circumscribes the range of constitutional choice available to them.11 The early years of Russia’s federal system illustrate how complex matters can become.12 Under the Federation Constitution, six different types of subnational units – republics, oblasts, krais, autonomous oblasts, autonomous okrugs, and federal cities – composed the Russian Federation. Although the Constitution proclaimed the equality of its then eighty-nine component units, each type of unit had its own distinctive status and powers. Among the factors differentiating republics and oblasts was the fact that a republic had legal authority to devise its own sub-national constitution, whereas an oblast could only adopt a charter (ustov). Yet these charters resembled constitutions in many respects, raising the question of whether, for purposes of analysis, they were to be treated as sub-national constitutions. Beyond that, the president of the Russian Federation could enter into treaties with the executive of a component unit to reallocate powers between the national government and that unit, and President Boris Yeltsin entered into numerous such treaties. Once again, should these treaties, which in important ways altered the powers of sub-national units, be accorded constitutional status? The situation became even more complicated during the presidency of Vladimir Putin. Under Putin seven “federal districts” were created and superimposed on the existing federal structure, with presidential appointees chosen to lead each of the new units. In addition, changes in the formation of the Federation Council and federal supervision of regional executives and parliaments created a far more centralized federal system, raising further questions about the scope and importance of sub-national constitutional space within the Russian Federation.13 Although the complexities of the Russian Federation may be extreme, the problem of determining what qualiies as a sub-national constitution is likely to arise in most asymmetrical federal systems. Should the determining factor be whether the federal government or the sub-national unit has the legal authority of enactment? Or might it involve the range of discretion available to those within a sub-national unit in designing their governmental processes and institutions? This latter criterion implies that it might be useful to think of sub-national constitutionalism in terms of a continuum rather than a deinition. Sufice it to say that for the purposes of this volume, we have opted for a capacious understanding of sub-national constitutionalism, one relective of the diversity of current and developing political practices.14

Introduction

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Constitutional Federalism from a S u b - n at i o n a l P e r s p e c t i v e The study of constitutional federalism is usually approached from the vantage point of the federal constitution. Analyzing constitutional arrangements in such a top-down fashion encourages one to frame questions from the perspective of the federal government: what powers does the federal government have, what constitutional impediments stand in the way of it achieving its objectives, and to what extent does the federal constitution mandate certain constitutional structures for the sub-national units of the federation? Much less common is the view from below; indeed, subnational constitutions remain as low-visibility constitutions to citizens and scholars alike.15 Yet the sub-national perspective yields insights that tend to be ignored or slighted by the national perspective.16 More speciically, it highlights four questions: (1) what range of discretion (“constitutional space”) is available to constituent units in designing their constitutional arrangements, and how are the boundaries of that space policed, (2) what factors inluence the scope of sub-national constitutional space in various federal systems, (3) why have sub-national units occupied or failed to occupy the constitutional space available to them, and (4) what have been the consequences of sub-national constitutionalism for horizontal and vertical relations within the federal system?17

Establishing and Maintaining the Scope o f t h e S u b - n at i o n a l C o n s t i t u t i o n a l S pac e Approaching constitutionalism in federations from the sub-national perspective requires, irst, an essentially legal assessment of the scope of subnational constitutional space, the autonomy that the constituent units are allotted within the federal system. This obviously varies dramatically from one federation to another. If one thinks of constitutional space in terms of a continuum, Switzerland and the United States will be at one end, as systems that permit constituent units wide leeway, and South Africa and Sudan will be at the other end, as systems in which sub-national constitutional space is very restricted.18 The scope of sub-national space is typically determined by federal law – the federal constitution – as well as federal statutes and administrative regulations insofar as they preempt state law. It is also typically federal law as construed by federal authorities, such as the judges or other oficials charged with interpreting the federal constitution and other federal law. However, some federal systems allow a limited sub-national participation in the deinition of sub-national constitutional space. For example, Section 33 of the Canadian Charter of Rights and Freedoms – the so-called

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Constitutional Dynamics in Federal Systems

“notwithstanding clause” – permits provinces to act despite their express acknowledgment that their action violates a provision of the Charter. Thus, to that extent the provinces determine the range of action available to them.

S u p e rv i s i o n o f S u b - n at i o n a l Constitutional Choices Once the scope of the sub-national constitutional space is determined, the question becomes how federal systems ensure that constituent units respect the outer limits of the sub-national constitution-making space allotted to them. One way to minimize conlict between national and sub-national constitutions is for the federal constitution to give the federal government some control over the content of sub-national constitutions at the time they are being created. This, of course, requires that the federal government predate the creation of those constitutions, which is not always the case. In Australia, for example, state constitutions were established before the adoption of the Commonwealth Constitution, and that constitution speciically provided for the continued operation of the existing state constitutions.19 In the United States, the situation was more complicated. The thirteen states that declared independence from England in 1776 devised their initial constitutions before the adoption of the nation’s irst constitution, and thus there was no possibility of a federal authority imposing conditions on what would be contained in their constitutions. Most of the other thirty-seven states, however, were formed from territory governed by the United States, with Congress controlling the admission of states.20 This gave the federal government an opportunity to inluence the contents of state constitutions at the point that prospective states were applying for admission to the Union. The United States Constitution implicitly confers on Congress the power to impose such conditions. In empowering Congress to admit new states to the Union, it in effect gives Congress the power to establish the conditions under which they will be admitted.21 Acting under this authority, Congress imposed conditions on what state constitutions should contain in the acts by which it authorized prospective states to devise constitutions and apply for statehood. State constitution-makers knew that they must meet those conditions in order to gain admission.22 If a proposed constitution contained provisions of which Congress or the president disapproved, either of them could refuse their consent to legislation admitting the state until the offending provisions were altered or removed. This congressional and executive power, together with the states’ eagerness to attain statehood, served a deterrent function. State constitution-makers refrained from including certain provisions in their charters lest they excite opposition in Congress and jeopardize or delay admission to the Union.

Introduction

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The system just described is not common to all federal countries.23 Germany, for example, imposed no special requirements on the constitutions drafted by the ive länder that became part of the country following the collapse of the German Democratic Republic.24 Russia established no principles to guide constitution-making in the eighty-nine constituent units that comprised the Russian Federation.25 And in Australia, “with a few exceptions, there is no obvious framework of national principles with which state institutions must comply.”26 However, in countries in which the federal legislature has responsibility for crafting the functional equivalent of the sub-national constitution, such scrutiny is built into the ordinary process of legislation. This is true, for example, in China, Italy, and Spain. In addition, Switzerland requires that the Federal Parliament “guarantee” that the cantonal constitution be consistent with federal law, and this requirement has had real force: in the late nineteenth century, the Parliament rejected several cantonal constitutions that failed to provide equal political rights.27

P r e - e m p t i o n o f S u b - n at i o n a l Constitutional Choices Another way to minimize conlicts between federal and sub-national constitutions is to prescribe the contents of the sub-national constitutions in the federal constitution. Indeed, the federal constitution may obviate the need for sub-national constitutions altogether by mandating the form of government for sub-national units, thus creating a “complete” federal constitution, with no sub-national constitutional space. Formerly unitary countries that have decentralized into federal systems – that is, countries that exemplify devolutionary rather than integrative federalism – may be particularly likely to include sub-national constitutional arrangements in the national constitution.28 But even if a country permits the creation of sub-national constitutions external to the federal constitution, mandates in the federal constitution can restrict the range of choice for sub-national constitution makers or induce the sub-national units to alter their constitutions to bring them into conformity with national requirements.29 For example, the Brazilian Constitution mandates in detail the content of state constitutions, extending to such matters as the number of state legislators and their pay ceilings; and the Mexican Constitution prescribes a separation of powers in state government and limits state governors to a single six-year term.30 A less speciic, though still important, kind of mandate is the “homogeneity clause” found in both the German and Austrian federal constitutions, which requires that the constitutional order in the länder conforms to the principles of a republican, democratic, and social state of law.31 And the Austrian Constitution further requires that länder constitutions not “affect” the federal constitution.32

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In many federations, federal constitutional provisions not directly addressed to sub-national constitutions also have an indirect effect on state constitution-makers. Perhaps the most important of these is the “supremacy clause” found in most federal constitutions. These clauses conirm that federal law is superior to state law, so that in cases of conlict, valid federal enactments – be they constitutional provisions, statutes, or administrative regulations – prevail over state enactments, including state constitutional provisions. This limits sub-national constitutional space, and it may deter sub-national constitution-makers from adopting provisions they favour. Likewise important may be the lists of competences awarded either exclusively or concurrently to the federal government. The broader the range of competences granted exclusively to the federal government, the fewer the opportunities available to sub-national units to address matters in their constitutions or statutes; while the broader the range of concurrent competences, the greater the opportunities for the federal government to occupy the ield and thereby reduce sub-national policy-making.

R e v i e w o f S u b - n at i o n a l Constitutional Choices Complementing strategies for preventing constitutional disputes are mechanisms for policing or resolving them. One widely used mechanism for policing the boundaries between the federation and its constituent units is review by federal supreme courts or constitutional courts. In the United States, the Supreme Court has invalidated several provisions of American state constitutions, even though the federal Constitution contains few express restrictions on the states’ constitution-making powers.33 In South Africa, the Constitutional Court rejected the entire draft provincial constitutions of Kwazulu-Natal and the Western Cape Province, noting in the former case that some provisions in the proposed constitution appeared to have “been passed by the kzn legislature under a misapprehension that it enjoyed a relationship of co-supremacy with the national Legislature and even the Constitutional Assembly.”34 In Russia in 2000 the Constitutional Court struck down sovereignty provisions in the constitutions of several Russian republics.35 And the Constitutional Court in Austria declared unconstitutional a provision of the Land Constitution of Vorarlberg concerning direct democracy as violating the federal constitution’s “homogeneity clause.”36 Although most federal systems rely on the judiciary to resolve competence disputes, other procedures are possible. The constitution of the Russian Federation, for example, authorizes the president of the Federation to suspend the acts of sub-national executives if he believes them to be in violation of the federal law or human rights. The Justice Ministry also has the power to revoke regional laws that are in violation of the Federation

Introduction

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Constitution, and even before the accession of President Putin, it had used that power to revoke nearly 2000 regional laws.37 Finally, in addition to legal mechanisms for resolving disputes about sub-national constitutional space, there are various informal mechanisms as well. For example, in Spain the prior formal, legal/litigation model of resolving competence disputes between the national government and the autonomous regions has been transformed into a process of consultation and negotiation.38 In Italy, by contrast, which is at an earlier stage of creating and recognizing regional autonomy, the legal/litigation model is dominant. These examples raise a question whether the transition from the legal/litigation model of policing sub-national constitutional space to the consultation/negotiation model is one of the hallmarks of a maturing federal system.39

F ac to r s A f f e c t i n g t h e S c o p e o f S u b - n at i o n a l Constitutional Space If the scope of sub-national constitutional space varies among federal systems (and sometimes even within federal systems), what produces this variation? Several factors might be expected to inluence the scope of subnational constitutional space. The process by which the federal system was created would be one such factor. Scholars distinguish between federal systems created by uniting pre-existing political entities (aggregative or coming-together federations)and those created by the transformation of a previously unitary political system (devolutionary or holding-together federations).40 Admittedly, this dichotomy oversimpliies, since there are federations whose formation has involved both aggregative and devolutionary processes. For example, the Swiss Federation was formed by the merger of pre-existing political societies, but the subsequent creation of the canton of Jura could be seen as devolutionary. Similarly, the thirteen original states of  the United States came together to form a federation, but subsequent states were carved out of the territory of a pre-existing federation. Despite these caveats, the distinction remains useful. One would expect that aggregative federal systems would be likely to allow more sub-national constitutional space than would devolutionary federal systems. In part, this would simply relect the historical context or pre-coming-together realities. When political units form a federation, they already have in place their own institutions and political practices, and attempts to interfere with them or to prescribe unnecessary uniformities might threaten the process of federation. For example, the United States Constitution allowed each state to determine voting qualiications within its borders for federal elections rather than risk opposition to a federal mandate of uniformity in this sensitive area.41 In addition, one would expect

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Constitutional Dynamics in Federal Systems

that the political units joining together to create a federation would seek to retain self-rule to the extent consistent with achieving the ends of federation. This likewise suggests maintenance of broad constitutional space. Prospective constituent units might also demand concessions expanding or safeguarding sub-national constitutional space as the price for joining the federation. For example, several Southern states threatened not to join the American Union unless states were free to determine their own laws with regard to slavery. And in Ethiopia, the Oromo Liberation Front agreed to cease armed resistance and join the Ethiopian Federation only after the constituent states were guaranteed the right to secede.42 Finally, as a matter of constitutional design, aggregative federal systems are more likely to lodge residual powers in the constituent units rather than in the federal government, and this too may ensure a broader sub-national constitutional space. One would expect the dynamics to be quite different in devolutionary federations. The national authority would be unlikely to surrender powers beyond those necessary to achieve the ends of federation. Moreover, because constituent units are being created rather than pre-existing, they typically would not be able to make demands about the scope of subnational constitutional space. Often they would lack a strong political identity – sometimes intentionally so. When South Africa created its nine provinces, for example, it split the provinces that had constituted the original Union of South Africa, incorporated the homelands established by the apartheid government, and drew provincial boundaries so that most provinces were ethnically heterogeneous, which dissipated the power of ethnically based political groups.43 Finally, in contrast to aggregative federal systems, devolutionary systems are likely to lodge residual powers in the federal government, thereby circumscribing the powers – including the constitution-making powers – of the constituent units. Another factor that might inluence the scope of sub-national constitutional space is whether the federation has a system of symmetrical or asymmetrical federalism. In a symmetrical federal system, all constituent units have the same powers of self-government, but in an asymmetrical system one or more constituent units are vested with special or greater self-governing powers. Federations typically create asymmetrical arrangements to “take account of the fact that within a state there are signiicant cultural or societal differences among the constituent units.”44 This is particularly important when there are groups that desire a degree of autonomy but are destined to be permanently in the minority at the national level. Incorporating asymmetrical elements may reduce the conlict that this could produce by allowing minorities concentrated in particular constituent units a greater measure of self-rule, thereby wedding them more closely to the federation. This greater self-rule would likely have constitutional dimensions, so recognizing the diversity that led to the asymmetrical arrangement in the irst place

Introduction

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would usually require extensive sub-national constitutional space. Yet it may be dificult to limit such self-rule to the distinctive constituent units within the federation. Other constituent units might well resent the “privileges” that are given -- think, for instance, of the reaction of the Rest of Canada to the claims of Quebec – and demand the same opportunity for self-rule, a conversion from asymmetry to symmetry.45 But whatever the eventual outcome, one would expect that there would be broader sub-national constitutional space in asymmetrical federations. A further factor affecting the scope of sub-national constitutional space might be the purposes underlying federation. Some federations – such as Switzerland, Nigeria, and Belgium, as well as quasi-federations such as Spain – were designed to recognize and accommodate the multi-ethnic character of the population and to provide space for the expression of diversities. One would expect in such instances that the constituent units would largely correspond with the diversities within the population and that the federation would accord broad constitutional space to the constituent units. This expectation is only partially borne out: although constituent units do mirror the political saliency of ethnicity in the federations, neither Belgium nor Nigeria has sub-national constitutions, and Catalonia and the Basque Country in Spain have only autonomy statutes. Some federations established to accommodate a multi-ethnic population, such as Switzerland, provide broad sub-national constitutional space, but others, such as Malaysia, do not. In those that do not, greater representation in the councils of the federal government may substitute for self-rule. Finally, some federations or quasi-federations have been designed to de-emphasize the ethnic or religious divisions in the society and to replace fragmentation with national solidarity and a common national identity. In such federations broad sub-national constitutional space may be seen as a threat to national unity, particularly if (as in India) the boundaries of current constituent units relect the language groupings within the population. Thus, it is hardly surprising that in India and South Africa, two prime examples of multi-ethnic federations committed to forging a common national identity, there is little sub-national constitutional space, and the national governments are authorized to invade even those powers that the federal constitution gives exclusively to the constituent units when this is necessary to serve the purposes of national economic unity, national security, and the need for national uniformity.46 Most federations are not focused primarily on dealing with ethnic or religious diversity. Some countries, such as Argentina, Brazil, and the United States, have embraced federalism primarily as a way to govern large territorial expanses more effectively. In such circumstances, one might expect that constituent units would be granted broad constitutional space in order to permit locally appropriate responses to diverse conditions. Other

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countries, such as Austria and Germany, have embraced federalism as a way to promote administrative eficiency, with the constituent units having primary responsibility for implementing federal policy.47 James Gardner has argued that this sort of cooperative federalism “is largely incompatible with sub-national constitutionalism,” in that it understands “Land governments as agents of the central government in areas of national competence” rather than as polities with their own political identities.48 Whether or not one accepts this judgment, one would expect that such federations would emphasize concurrent rather than exclusive powers and accord their constituent units a limited constitutional space. These expectations are only partially fulilled. Whereas the American states have broad constitutional space, the same is not true for constituent units in Argentina and Brazil. In Brazil, despite the marked socio-economic diversity among the constituent units, the detailed 1988 Constitution and judicial rulings have virtually eliminated state experimentation in constitution-making.49 On the other hand, although the homogeneity clauses in the German and Austrian constitutions and their emphasis on concurrent powers have limited constitutional experimentation in the länder, they have not foreclosed it. Since the beginning of the 1980s, the Austrian länder have revised their constitutions to incorporate more elements of direct democracy, identify goals for state activity, and expand controls over the use of public funds.50 Similarly the German länder have adopted constitutional provisions for referenda, and since the late 1980s they have also revised their constitutions, following the lead of Schleswig Holstein, to identify goals for state activity and to expand protections for social rights.51 Some of this constitutionalizing of policy goals may arguably exceed the constitutional space available to the länder – for example, the protection given by the Brandenburg and Berlin constitutions to “permanent forms of common living arrangements” other than marriage, and Brandenburg’s committing the Land to working to return military bases to civilian use.52 Nonetheless, the developments in Austria and Germany suggest that cooperative federalism does not necessarily preclude signiicant use of sub-national constitutional space.

T h e U s e o f S u b - n at i o n a l C o n s t i t u t i o n a l S pac e If law deines the formal constraints on sub-national constitutional space, what determines the extent to which constituent units occupy – or fail to occupy – the space allotted to them? Four general points should be made at the outset. First, determining whether or not constituent units have made use of the constitutional space available to them is somewhat tricky. To do so, one might look for differences between sub-national constitutions and the federal constitution, as well as for differences among sub-national constitutions within a federal system. For such differences would indicate

Introduction

15

that the constituent units had in fact considered alternative constitutional arrangements rather than thoughtlessly adopting provisions enshrined in the federal constitution or the constitutions of other constituent units. However, this approach is not foolproof. Constituent units may seriously consider alternatives to what is found in the constitutions of other constituent units or in the federal constitution but conclude that there is no reason to diverge from those models. Despite the identity of constitutional arrangements, this would seem to qualify as occupying the constitutional space, because the constitution-makers had made a self-conscious choice rather than merely copying what they found. Second, occupying constitutional space is not an either/or proposition: constituent units may make use of some, but not all, of the space available to them. For example, John Dinan’s comparative analysis of institutional innovation in sub-national constitution-making found little divergence from national constitutions with regard to presidentialism and parliamentarism. However, he discovered that sub-national constitutions in several federations were easier to amend than their federal counterparts, that many provided more opportunities for direct democratic participation, and that many had over time instituted unicameral legislatures, despite bicameral federal legislatures.53 Third, constituent units within the same federation may vary in the use they make of the constitutional space available to them, and this variation may occur in both symmetrical and asymmetrical federal systems. The structure of American state constitutions illustrates this point. These constitutions differ dramatically in their length and detail (the Alabama Constitution is more than twenty-six times as long as Vermont’s); in their frequency of amendment (the Alabama Constitution has been amended more than seven hundred times, but the New Hampshire Constitution fewer than forty); in their durability or frequency of revision (Louisiana has had eleven constitutions, but nineteen states have had only one); and in their contents.54 Fourth, political factors – ranging from the prevailing political ideas of the era to the nature of the party system to the level of dominance of a particular party throughout the country to the nature of popular demands on sub-national governments – ultimately determine the use of sub-national constitutional space. Let us explore these political factors in greater detail. The willingness of constituent units to occupy the constitutional space allotted to them may turn in part on timing. That is to say, the similarities and differences among sub-national constitutions, as well as their similarity to or divergence from the federal constitution, may relect the political era in which they were written. Because different sets of political ideas tend dominate in different eras, sub-national constitutions are likely to relect the reigning ideas of the era in which they were written.55 One sees this in

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Constitutional Dynamics in Federal Systems

American state constitutions. During the eighteenth and early nineteenth centuries, Americans viewed state legislatures as voicing the popular will and concentrated power in them. Later in the nineteenth century and in the early twentieth century, their distrust of the idelity and probity of state legislators led them to impose numerous constitutional restrictions on legislative power, to augment executive and judicial powers, to insert policy pronouncements directly into state constitutions so as to foreclose legislation, and to expand the use of direct democracy. During the twentieth century, the concern shifted to enhancing the ability of government to address the new problems confronting the states, and thus state constitutions adopted during that period sought to streamline government and remove barriers to effective action. And during the late twentieth century states began to reimpose restrictions on state legislatures, setting limits on the growth of state revenues, requiring super-majorities for tax increases, imposing term limits on legislators, and so on. So the period in which states adopted their constitutions inluenced what those documents contained, and this variation itself testiies to states’ use of the constitutional space available to them.56 Arthur Gunlicks has identiied a similar pattern in Germany. The Länder constitutions that preceded the adoption of the German Basic Law tended to include “the whole array of political and social provisions, including basic human rights.” Those drafted after the adoption of the Basic Law focused on organizational principles, because social concerns and rights guarantees had already been dealt with in the Basic Law. Finally, the Länder constitutions drafted since 1990 have relected “modern values,” seeking to guide political practice through the inclusion of social rights and state goals.57 Yet in order for changing political ideas to encourage constituent units to make use of the constitutional space available to them, there must be some time lag between the adoption of the federal constitution and the adoption of its sub-national counterparts, in order for a shift in political ideas to take place. In many federations, this is simply not the case, either because the federation is of relatively recent origin (e.g., Russia and South Africa) or because it has adopted a new constitution in the recent past (e.g., Argentina, Brazil, Nigeria, and Switzerland). Also, insofar as the federal constitution can be relatively easily changed, the federation may itself respond to changing political ideas with constitutional amendments, thereby keeping the federal charter “up to date” and reducing the need for sub-national constitutions to take the lead in pioneering new directions. On the other hand, if the federal constitution is substantially more dificult to change than the sub-national constitution, then even if the two constitutions were adopted at the same time, over time their contents are likely to diverge. This may have broader implications as well, since the frequency or infrequency of constitutional change may affect how political actors view the constitutions that are amended or revised. In the United

Introduction

17

States, for example, the infrequency of formal constitutional change at the national level has imbued the federal Constitution with a sense of being above politics, whereas the frequency of amendment at the state level has encouraged the public to view changes in state constitutions as merely part of “normal politics.”58 Another factor encouraging constituent units to occupy the constitutional space available to them may be regional differences relecting distinctive political or legal cultures or traditions, sometimes linked to ethnic diversity. Daniel Elazar has identiied regional differences in political culture in the United States and demonstrated how they have inluenced American state constitutions.59 Much greater diversity can be found in many other federations, and this can lead constituent units either to enshrine their residents’ distinctive culture in their constitutions or to provide additional protections to ethnic minorities situated within their borders. These efforts to occupy constitutional space may involve matters such as the oficial language of the constituent unit, as in Ethiopia; or the language rights of minority populations, as in Germany; or the rights of native peoples concentrated in the state, as in Mexico.60 Sometimes a change at the sub-national level may precipitate other changes as well. This is particularly likely when the establishment of new avenues for sub-national constitutional change empowers groups that had previously been stymied. A prime example is the addition of mechanisms of direct democracy to sub-national constitutions. The availability of this new avenue of change may enable groups that were relatively ineffective in other arenas to pursue their objectives, thereby opening up the possibility of a succession of constitutional amendments. More generally, the more numerous the mechanisms for constitutional change, the more likely such change, and thus the more likely that constituent units will occupy the constitutional space available to them. Finally, the distribution of political forces within a federation affects the likelihood that constituent units will occupy the political space available to them by creating either incentives or disincentives for political mobilization for sub-national constitutional change. If the party that is in control at the national level is in control within the various constituent units, then it is more likely that constitutional reform will be pursued at the national level or that constituent units will model their constitutions on the federal charter. While the pri held power both nationally and within the Mexican states, centralization of power was the norm, and federalism and sub-national constitutions were largely ignored. Insofar as there was signiicant constitutional change, it was concentrated at the national level: from 1917 to 2000, there were four hundred amendments to the federal constitution.61 But if political parties that are in political opposition at the national level control the governments of some constituent units, they use that political control to

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Constitutional Dynamics in Federal Systems

advance their own agenda, and this may include constitutional innovations in the space available to them. Thus, when the Progressives gained control of the California government in the early part of the twentieth century, they constitutionalized a number of reforms that were anathema to the more conservative Republicans who dominated the federal government.62 More recently, faced with a conservative US Supreme Court, American state courts have interpreted their state declarations of rights to provide greater constitutional protection than was available under the federal charter.63 The existence of strong national political parties may also discourage distinctive initiatives from constituent units, reducing their interest in occupying the constitutional space available to them. Indeed, some constituent units may make deliberate, rational choices not to fully occupy the space legally allotted to them. South Africa provides a particularly telling example. The African National Congress, as a matter of party policy, mandated that the provincial governments it controlled should not draft provincial constitutions, with the result that only Western Cape Province now has a provincial constitution.64 One could speculate that, conversely, the existence of regional or ethnically based parties might have the opposite effect.

C o n s e q u e n c e s o f t h e U s e o f S u b - n at i o n a l Constitutional Space Dissenting in New State Ice Co. v. Liebmann, Justice Louis Brandeis of the US Supreme Court noted that “it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, without risk to the rest of the country.”65 Brandeis’s underlying assumption was that a multiplicity of policy experiments would be more likely to discover good public policy than would a single effort. If the experiment in one constituent unit failed, the damage would be limited to a single jurisdiction. But if it succeeded, then other jurisdictions could emulate the successful experiment in their own law and public policy. Brandeis’s depiction of states as laboratories of democracy has been endlessly repeated by proponents of federalism and has spawned a rich literature documenting the diffusion of innovations within federations.66 Our inquiry into the consequences of constituent units’ occupying their subnational constitutional space can be understood as a sub-category within that literature. Thus, much of what has already been written about policy diffusion in federal systems applies to the diffusion of sub-national constitutional innovations as well. Let us highlight a few points about the horizontal and vertical diffusion of such innovations. Existing sub-national constitutions serve as models, either positive or negative, for constitution-makers in other constituent units. This is hardly surprising. The practice of drawing upon or copying provisions relects in part

Introduction

19

a respect for the efforts of earlier constitution-makers. As Willard Hurst explained in describing the evolution of American state constitutions: “There was a sort of stare decisis about this making of constitutions; it was altogether natural in a country in which men moved about readily taking with them the learning and institutions of their former homes.”67 This willingness to draw on the experience of other states is enhanced by the recognition that constituent units face common constitutional and policy problems. In symmetrical federal systems in particular, the constituent units share the same powers and confront the same policy concerns, so they tend to be open to what has worked in other constituent units. Although Brandeis focused on the United States, sub-national constitutional borrowing is not conined to a single country. Peter Quint has documented that similar borrowing occurred as part of sub-national constitution-making during German reuniication: Even the most modest of these new state constitutions relect the lessons of the gdr past and the 1989 revolution, and – with all their similarities to the Basic Law – can still be said to represent a distinctly different, and distinctly eastern, constitutional consciousness. One important question of future constitutional development in Germany is the extent to which the consciousness … may ultimately make its way, through constitutional revision or judicial interpretation, into the constitutional consciousness of the uniied nation and the west itself.68

There is even evidence of the borrowing of constitutional innovations beyond the borders of a single federation. For example, the initiative and referendum provisions added to the Oregon Constitution in 1902 were based on an idea of direct democracy relected in the constitutions of the cantons of Switzerland.69 Yet if commonalities among constituent units encourage borrowing of constitutional provisions, differences among constituent units may discourage such borrowing. Put differently, insofar as conditions and values differ within a federation, it is less likely that constituent units will emulate the sub-national constitutional innovations pioneered in “different” units. Thus, when constituent units are organized to relect differences within the population of a federation, those differences – and the attempt to give them constitutional expression – may lead to the creation of distinctive constitutional provisions that are appropriate only within the particular unit. And if some constituent units in an asymmetrical federal system have greater constitutional space than others do, then that too may retard the diffusion of constitutional innovations. When constituent units occupy the constitutional space available to them, this may also affect constitutional politics at the federal level, because the process of imitation and emulation can work vertically as well

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Constitutional Dynamics in Federal Systems

as horizontally. Our analysis here focuses on the United States, but presumably it has broader application as well. State constitutional provisions played an important part in the drafting of the United States Constitution, as the framers both borrowed ideas from state constitutions (for example, the president was modeled quite closely on the governor of New York) and rejected state constitutional experiments that they found misguided (for example, the power of citizens to “instruct” their representatives).70 State constitutional provisions also inluenced the federal Bill of Rights.71 And since the founding, both federal statutes and amendments to the federal Constitution have drawn on state constitutional models. For example, the right to vote for African-Americans, women, and eighteen-year-olds was pioneered in state constitutions before being incorporated into the federal charter.72 So, too, were provisions guaranteeing equal protection of the laws, banning poll taxes, and prohibiting the sale or use of alcohol.73 Thus, one ironic consequence of this is that states occupying constitutional space with successful innovations may encourage the federal government to adopt those innovations. But this federalizing of the issue may diminish the scope of sub-national constitutional control. The American experience also reveals that when states occupy the constitutional space available to them, this can produce active avoidance rather than emulation. This result has occurred when states have sought to occupy constitutional space by creating state constitutional rights broader than what was available under the federal Constitution. A recent highly publicized example involved rulings by state supreme courts in Massachusetts, California, Connecticut, and Iowa recognizing same-sex marriage as mandated by their state constitutions. Instead of emulation, these rulings prompted actions by other states to prevent the diffusion of these innovations, to pre-empt similar rulings within their own borders by constitutionally prescribing that marriage is limited to male-female couples. The rulings also prompted an unsuccessful effort to deine marriage in the federal Constitution, an attempt to federalize the issue not in order to follow the states’ lead but in order to circumscribe state constitutional space.

T h e E s s ay s i n T h i s V o l u m e The principal purpose of this collection of essays is to show how constitutional sub-national autonomy in federal states and federal or quasi-federal political systems has contributed to their change and development. It seeks to explain how and why they have managed to evolve and adapt in both similar and different directions. Consequently the essays in this volume have been selected principally for their signiicance in demonstrating the variety of constitutional sub-national experience from various comparative perspectives.

Introduction

21

The book is divided into four parts. Part 1 addresses sub-national constitutionalism in what are commonly referred to in the literature on comparative federalism as territorially based federations. These include the United States of America, the Federal Republic of Germany, and the Federal Republic of Austria. John Dinan begins his case study of the United States in chapter 2 with the concept of “constitutional space,” whereby state governments have the opportunity to operate autonomously largely because of the federal constitution’s brevity and its narrow focus on the structure of the federal institutions and enumerated powers. Their combined impact has left unoccupied a potentially large and expansive area for state government activity. Dinan’s chapter brings into focus the prominence of state constitutionalism, political change through state constitutional processes, and the consequences of state constitutional vitality for US political development. He shows how state constitutional processes have been an important avenue for promoting political change in the design of governing institutions, in the regulation of the suffrage, in the extension of individual rights, and in public policy reforms. He concludes his chapter by weighing the perceived advantages and disadvantages of normative variation in the US federal polity as against a national decision-making process that emphasizes uniformity in the pursuit of policy optimality. His conclusion is that any disadvantages associated with the vitality of state constitutionalism are largely outweighed by the many and various beneits. If Dinan’s essay furnishes clear evidence of the link between constitutional sub-national autonomy and the overall evolution and adaptation of the US federal political system, the chapter on Germany that follows it, written by Arthur Gunlicks, shows how the pressures for more “constitutional space” in pursuit of sub-national autonomy have simultaneously a top-down and a bottom-up character. Gunlicks’s description of the evolution of BundLänder relationships provides the historical background to contemporary change and development in German federalism. His survey highlights the concept of “dual federalism,” the division of legislative powers and the administration of federal laws that together enabled the federal government to expand its powers and competences in the legislative and administrative arenas at the direct expense of the Länder. These factors in turn have inluenced the growing contemporary pressures for constitutional reform, in which the demand for a redistribution of competences between the sixteen Land executives and the federal government has come not so much from these executives as from the elected members of the Land parliaments, with some conspicuous support from local authorities. Since the Land executives were already represented in the Bundesrat, where they participated in making federal legislation, it was the Land parliaments and local governments that were effectively marginalized and had only a weak relationship to federal policy-making. In other words, a sense of exclusion from the whole

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process of policy-making and coordination between executives prompted the renewed critique of “executive-administrative” federalism in Germany. This momentum for a wide-ranging reappraisal of German federalism led in the early years of the new millennium to a series of efforts to reexamine the operation of the federal system that brought into sharp focus the interrelated questions of territorial reform, legislative competences, the role of the Bundesrat, and major issues regarding federal inancial relations. Gunlicks concludes with some relections on how far the constitutional proposals of 2006 and 2009 have served to highlight the conlicting objectives of maintaining the commitment to solidarity in a social welfare state while promoting stronger iscal discipline that will create more centralizing provisions to control deicit spending and debts. This in turn exposes the inherent tensions between the provision of more constitutional space for the Land governments and parliaments, coupled with the desire to strengthen “competitive” federalism, and the underlying political economy of German federalism, which conirms the economic weakness of the poorer Länder. Turning to Austria in chapter 4, Peter Bußjäger emphasizes the strong historical and constitutional pressures toward homogeneity among the nine Länder constitutions, which are supposed to harmonize with the federal Constitution. The lip side of this is that Länder constitutions and governments cannot contradict federal law. Consequently, while the constitutional position of the Länder is guaranteed, Bußjäger’s essay stresses the express restrictions that serve to curb their constitutional autonomy within the basic principles and framework of the federal Constitution. The Federal Republic of Austria, then, is a highly centralized federation with conspicuous unitary features, and this vice-like constitutional grip that the federal power exercises over the constituent Länder units is one of its obvious hallmarks. But according to Bußjäger, this is not the whole story. The political role of the Länder is much stronger than their limited constitutional powers might suggest. He reminds us of the pivotal role of the Landeshauptleute (governors of the Länder) as formidable veto players holding key positions in the federal political system. Moreover, since the early 1980s there has been a shift in the perception of the Länder constitutions across important sections of Austrian society. This revised perspective no longer construes them as passively subservient but rather as the basic law within the various Länder, and this in turn suggests a more positive role for constituent state autonomy, insofar as the Länder can codify anything provided that it does not formally contradict federal law. In particular, it has been a recognized that Länder constitutions can be vehicles of policy and institutional innovation and experimentation, and this has had an impact both horizontally among the Länder and vertically on the federal government itself. Indeed, some informed observers and commentators see in this contemporary trend a political opportunity

Introduction

23

for the Länder to occupy constitutional space and strengthen their “relative constitutional autonomy” within the general framework that is applicable to both the Federation and the Länder. Bußjäger’s survey therefore depicts Austria as a federation in which the federal government remains dominant but in which the constituent Länder units have experienced a rejuvenation of their constitutional and political roles. In part 2, the volume turns to federations characterized by social heterogeneity rather than by the relative social homogeneity of the territorially based federations. It is principally for this reason that we have included Switzerland under the broad rubric of sub-national constitutionalism in the multi-national federations that include Bosnia and Herzegovina, Belgium, and Canada. Strictly speaking, Switzerland is not a multi-national federation, but its conspicuous social heterogeneity – evident in its rich linguistic diversity, its deep-rooted religious cleavages, its strong historical cantonal (territorial) identiication, and its contemporary multiculturalism – has resulted from a long process of historical integration that has woven together disparate threads in a close and tightly knit manner to produce a complex federal political culture that is dificult to classify for our purposes in a broad comparative context. In chapter 5 Jens Woelk presents a survey of Bosnia and Herzegovina (B iH), which he intriguingly depicts as a state built upon a series of paradoxes. Whereas our primary focus has been on the adjustment and adaptation of a federal state or federal political system from below, B iH operates in many ways as the exact reverse of this dynamic. There, the impetus for change and development has not been brought about internally by subnational constitutional means used by constituent state units or federated entities, but rather has been imposed by external forces and international actors. Consequently, the chapter offers a unique insight into the remarkable evolution of a largely ethnically based and territorially decentralized dyarchy into a putative multinational federal political system in which a weak central authority remains at the mercy of its two constituent units. The idea of constitutional space in this particular case study has therefore been turned on its head. The institutionalization of ethnicity and the partition of power along territorial lines together have solidiied a bottomheavy ethnic federalism in which the constituent units deiantly refuse to surrender their powers and competences to an anaemic and fragile central authority. Woelk thus highlights an emergent multi-national federal state based on a series of paradoxes that appear to defy our conventional understanding of state- and (multi)nation-building processes and challenge our imaginative powers of constitutional and institutional engineering and design. In B iH three distinct historical processes appear to be evident: competitive state building at two levels; nation building in terms of three ethnic nations at the level of the discrete entities; and the larger (multi)nation

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Constitutional Dynamics in Federal Systems

building at the federal level. From a comparative perspective, then, B iH comes close to the case of the European Union (EU), with strong constituent units in the member states and a relatively weak centre in Brussels. But it stands in stark contrast to the case of Belgium, often associated with a hollowing out of the centre by the two main linguistic constituent units, where contemporary trends suggest a movement in the opposite direction. The case of Switzerland in chapter 6, described by Nicolas Schmitt, exempliies a constituent sub-national autonomy rooted in the twenty-six cantonal constitutions. This multilingual, multicultural federation is still revered as one of the classical models of federal order and stability in conditions that would appear, prima facie, to be quite unpromising. Schmitt’s focus on the constitutional world of the cantons connects directly with the renowned social diversity of the federation, serving ultimately to conirm the variety and complexity of this fascinating array of unitary actors in the Swiss federal political system. The chapter also updates the constitutional revisions and amendments in each of the cantons and identiies in admirable detail the reasons and arguments that triggered these contemporary reforms. Rather like the cases of the US states and the Austrian Länder, the Swiss cantons have historically undertaken constitutional and political initiatives well in advance of the federal authorities, especially in terms of popular rights and liberties and in their role as laboratories for democracy and good governance. The overall conclusion of the chapter is that the cantonal constitutions help to fulill the important role of self-rule in the federation, meet the contemporary challenges of political life, and reinforce the legitimacy of cantonal law and authority in the daily life of Swiss citizens, which links them closely to the socio-political, legal, and ultimately federal reality. In chapter 7, Patrick Peeters examines the constitutional and institutional autonomy of the regions and communities in Federal Belgium, a country based on three main territorially concentrated linguistic communities, namely, the Flemish speakers (Flanders), the French speakers (Wallonia and Brussels), and the German speakers (Eupen and Malmedy in Wallonia). This essay describes the long, piecemeal, incremental process of federalization that has characterized constitutional evolution in Belgium for more than four decades, a process that Peeters calls devolutionary federalism. This gradual movement from a long-established unitary but territorially decentralized state to a new federation has dramatically changed the nature of the relationship between the federal authority and the various federated entities. From a formal legal perspective, Peeters claims that the constituent regional committees and community councils have never had the sort of constitutional, sub-national autonomy found in most federations, largely because of the absence of any residual powers allocated to them. This power has been retained by the federal government, while the constituent units

Introduction

25

have only the enumerated powers awarded to them in the federal constitution. He contrasts this with the more familiar cases of integrated federalism, such as the examples of Switzerland, Germany, and the United States, whereby the residual powers are located in the constituent states, as original entities that antedated the federation, such as is illustrated in the case of the Tenth Amendment to the US Constitution. This legal understanding of the Belgian federal model prompts Peeters to conclude that its federated constituent units enjoy only a form of “constitutive autonomy,” rather than any substantive sub-national constitutional autonomy, and that it certainly does not furnish a robust legal basis that is suficiently developed for the regions and communities to adopt their own constitutions. Their status is already irmly entrenched in the federal Constitution, which serves as the legal basis for the federal state, the federal government, and the regions and communities. In this devolved federal model, then, the logic applied is exactly opposite to what pertains in the so-called integrative federal model. Nevertheless, it has served to accommodate the main linguistic identities that continue to shape the federation. Peeters’ survey of the Belgian federal model therefore implies that the process of federalization is a continuous one and that the progressive transformation from a unitary to a federal state in 1993 was just the next stage in this process. The underlying question, however, remains whether this process should be described as one of federalization or confederalization. Chapter 8, written by Gerald Baier, explores Canada as an example of subnational constitutionalism in multinational federations. As in the Belgian case, the constituent units of the Canadian federation do not have formal written sub-national constitutions, and much of their constitutional identity is subsumed within the Canada Act (1867), which remains the bedrock of the parliamentary federal tradition and serves as the legal basis for the federation, the federal government, and the provincial governments. The formation – or reformation – of Canada as a federation in 1867 contained both aggregative and devolutionary elements. Ottawa replaced London as the new imperial political authority, but the residual powers were retained not by the provincial governments but by the central (federal) power. In this way the Canada Act (1867) reinforced the unitary character of the new federal model. But taking this unique combination of the Westminster model of parliamentary government and the federal principle into account at the outset, Baier explores the essentially fragmentary nature of provincial constitutions – or their equivalents – in multiple sources that include, inter alia, portions of written state constitutions, ordinary provincial legislation, and the variety of unwritten conventions characteristic of Westminster-style government. He construes this as a curious story. The peculiar nature of Canada’s federal constitution that combined strong unitary elements with signiicant decentralist federal features –

26

Constitutional Dynamics in Federal Systems

subsequently given greater, if unanticipated, legal expression – established in practice an ambiguous relationship between sub-national provincial autonomy and federal authority. Baier suggests that the lack of formal constitutional entrenchment of provincial political authority has produced a distinctive provincial constitutionalism in Canada. The pressures to develop a sub-national constitutional culture have been much less apparent, or it has been much less consciously pursued by provincial elites, than in either the United States or German federal models. Alternative political channels for asserting provincial interests – both formal and informal – have been exploited instead, and Baier’s essay ably demonstrates how historically the status and nature of provincial constitutions have been adapted and adjusted to achieve a variety of different policy goals. In the absence of formal subnational constitutional autonomy, the provinces have utilized an opportunist political strategy to promote their own discrete interests. The sense of sub-national constitutional space in Canada, then, has emerged gradually through the interaction of largely unwritten provincial constitutions and constitutionalism and the constitutional culture at the level of the federation. But Canada’s constitutional tradition remains centralized, so that the federal constitutional culture sits alongside an array of distinct sub-national constitutional cultures that are conservative. The provinces have been reluctant to deine and express themselves constitutionally. According to Baier, even Quebec has not sought consciously to develop a singular constitutional tradition, despite its own distinctive Charter of Human Rights and Freedoms. His essay encourages us to look beyond the familiar understandings of what is a constitution and emphasizes the mixed constitutional heritage that characterizes Canada and has produced overall governmental and political stability. The curious story that Baier tells about Canada presages part 3 of the book, which shifts the focus of sub-national constitutional change to the territorially decentralized states of the United Kingdom, Spain, and Italy. Although these countries are not formally federal states, each has pioneered legal and political practices that, in creating constitutional space and promoting constitutional sub-national autonomy, have developed strong federal or quasi-federal elements. Together they prompt us, as in the Canadian case, to distinguish not only between constitutional theory and practice but also between constitutional and political practice. In chapter 9 Stephen Tierney describes the process of constitutional change in the United Kingdom as a “quiet devolution” and places the recent devolutionary arrangements largely in proper historical context. The marked shift in the constitutional culture of the United Kingdom since 1997 has its roots in the past as well as in the consolidation of recent institutional changes. Tierney explains the factors that have created conditions or opportunities for Wales, Northern Ireland, and Scotland to occupy

Introduction

27

constitutional space and to iniltrate the central organs of the state in order to inluence and shape this new constitutionalism in ways unimaginable only a decade ago. This historical perspective enables Tierney to identify the peculiarly bilateral approach to incremental union building and to show how the different experiences of administrative devolution have affected the notable asymmetry of the 1998 devolution project. However, he also emphasizes the important shift in what he refers to as the cultural autonomy of the territorial societies of Scotland, Wales, and Northern Ireland that served to prepare the ground for the relatively smooth political transition to devolution. There was in this sense an organic dimension, springing from below, which indicated that a signiicant change in the constitutional culture was already in place, making it receptive to the emergence of devolution. Accordingly, this largely subterranean aspect of United Kingdom devolution predisposed him to speculate about its intellectual implications for the broader study of constitutionalism in general. This would also have to include the impact of devolution on the United Kingdom constitution, and Tierney’s essay traverses this path with short surveys of parliamentary sovereignty and ad hoc devolution, which together serve to underline its knock-on effects on traditional understandings of both the doctrines and practices of United Kingdom constitutionalism. Some of the trends and circumstances surveyed in the case of the United Kingdom are similar in important respects to those in Spain, as Carles Viver shows in chapter 10. Looking at the Spanish Constitution and the statutes of autonomy of the seventeen Autonomous Communities (AC s) that together comprise the Spanish state, he describes a series of “bottom-up structural changes” to the constitutional rules that regulate the organization of territorial power. While acknowledging the reality of a two-way process of constitutional change, from the top down as well as from the bottom up, Viver nonetheless focuses on the reforms derived solely from the various statutes of autonomy. Viver begins by explaining the barriers to reforming the Spanish Constitution, despite a consensus across the political spectrum that such reform is long overdue. These obstacles include a combination of procedural barriers, party political differences at both national and AC levels, the absence of an arithmetical parliamentary consensus, and factors related to the Spanish political culture. But Viver emphasizes that the dificulties of formal constitutional reform have not precluded territorial reforms. Indeed, he shows that in such awkward circumstances it is important that alternative means exist to adapt the constitutional system, such as legislative and de facto approaches, and these have assumed a special signiicance in Spain. Turning to the statutes of autonomy, Viver focuses on their crucial role in helping to complete the content of the constitutional text in concretizing

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Constitutional Dynamics in Federal Systems

general aspects of the Spanish Constitution related to the territorial power structure and – especially during the 1970s and 1980s – in shaping the system of political decentralization that was referred to only as a possibility by the Spanish Constitution. Given the initial non-constitutionalization of the territorial organization of power in the state, coupled with the comparatively open nature of the constitutional rules, the AC s have been cast in the role of leading actors and opportunists in the quest to consolidate and adapt the Spanish system of political decentralization. Their strategic position has been at the very heart of constitutional and political change in post-Franco Spain. The Spanish model thus appears to involve a parliamentary monarchy with an uninished constitution that needed to be completed principally by its constituent units using their own statutes of autonomy to “lesh out” the territorial structure of the larger state. This has left open to debate a huge number of legal, political, and constitutional questions. Viver’s account thus highlights the ambiguous and sometimes confusing relationship that appears to exist between what the Spanish Constitution states but does not deine, and how far the AC s can legally stipulate their own powers, thereby indirectly affecting the scope of the central government’s speciied powers in the Constitution. Ultimately, the original constituent power, Viver insists, lies neither with the AC s nor with the state-wide and AC-based political parties, which cannot reform and approve their own constitutions unilaterally, but with the Spanish Parliament, and only after a process of detailed negotiations with the central institutions. So the proverbial buck stops with the Parliament, which with a Spanish-wide purview has the constitutional power to give its initial approval to the statutes of autonomy and then formally to approve their subsequent reform. Viver construes the overall position of the AC s to be potentially strong in terms of having the strategic capacity to initiate the process of establishing and reforming their statutes of autonomy, which gives them an important inluence on the central institutions’ inal decision, but it must also be seen as the only way that they are able to participate in the reform of the Spanish Constitution itself. This curious position is a direct result of the relative silence and incomplete nature of that constitution. Viver concludes his account of the process and substance of constitutional sub-national autonomy in Spain by emphasizing the asymmetrical nature of the territorial structure of power relationships and the current political pressures for inancial reform. And in the midst of the competing perspectives of Spain’s future, so vividly outlined in this chapter, it transpires that there is, after all, something resembling a holistic vision of Spain: the leveling out of asymmetry as the AC s gradually acquire similar powers and competences. Chapter 11, written by Francesco Palermo, invites us to consider Italy as another formally non-federal but territorially decentralized state. The gist

Introduction

29

of Palermo’s argument is that Italy has already instituted some important and advanced federal elements in the state structure that enable us to label it quasi-federal, but there is still no real understanding among mass publics about precisely what being federal means. There is therefore no common vision of what a federal Italy might look like or what it should stand for. While not suggesting that a federal political culture is completely absent, he emphasizes its regional character: some parts of the country appear to have developed a federal political culture, while other parts are still anchored in the culture of a centralized past. His chapter takes as its departure point the historical and constitutional developments that have led to this paradoxical situation. Shedding its Napoleonic blueprint of a highly centralized and bureaucratic state, followed by the more recent fascist legacy of a totalitarian regime, Italy adopted its current postwar republican Constitution in 1948 and implemented its regional prescription only in the 1970s. Italian regionalism – the idea of a regional state – is therefore of recent origin and has from its inception been characterized by an asymmetrical design. With ifteen “ordinary” regions and ive “special” regions, it was clearly territorially organized, and this structure has often been construed as a kind of “third way” between a conventional federal system and a unitary political system. Palermo notes that the road toward the regionalization of Italy has been long and winding, with the main inluences being constitutional adjudication, shifting political priorities, and political party preferences. Bringing these developments up to date, Palermo refers to the important constitutional amendments of 1999 and 2001, which provided for the direct election of regional presidents, enhanced the constitutional subnational autonomy of the regions, and reorganized relations between the national government and the regions. These amendments transformed the Italian state, introducing the concept of “functional spheres,” rather than hierarchical levels of government, and authorizing ordinary regions to request additional powers so that they could catch up in some policy areas with the special regions, thus following the Spanish model of a potential leveling out of asymmetry in the future. Unfortunately, a decade after its adoption, the 2001 reform has still not been completed. Some of the legislative proposals from that package were inally implemented in 2003 and 2005, but the inancial details were shelved, and further progress has in some cases been delayed by judicial decisions and in others halted by governmental instability. Moreover, the failure to complete the 2001 reform and the contested nature of some of its content has allowed the Constitutional Court to play an enhanced role in clarifying and determining the precise meaning of the disputed elements, sometimes making judgments that favored the national government at the expense of the regions. Currently the federalization process has

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Constitutional Dynamics in Federal Systems

been convulsed by several outstanding issues, not least the new inancial arrangements that will not now be implemented until 2016. Noting the many problems that still confront Italy in its federal quest, Palermo’s chapter concludes with a solemn and almost despairing recognition of Italy’s current fate: it is at the mercy of the Constitutional Court. The implications have been far-reaching. The Court appears to be the sole actor. In processing a huge increase in intergovernmental litigation as a direct result of the failure fully to implement the 2001 reform, the Court has in practice begun to rewrite the division of legislative and administrative powers originally laid down in the reform. Judicial interpretation, rather than the democratic political process, is shaping the constitutional future of Italy. In part 4 we shift our focus from territorially decentralized states to supranational constitutionalism and constitutional futures in Europe. This part of the book, comprising two closely related chapters, considers constitutional dynamics in federal systems from the particular standpoint of the European Union. In doing so it necessarily reconigures the concepts of constitutional space and sub-national autonomy as the sovereign states themselves become the constituent parts of a larger union of states. Anneli Albi, in chapter 12, looks at how far the national constitutions of the EU Member States have been adjusted and adapted in relation to the transfer of powers that membership entails. Its precise purpose is to explore the impact of EU membership on national constitutions, but it also considers how far the national constitutions have served as a catalyst of change at the EU level. This required a detailed investigation into the speciic EU-related constitutional amendments in the various Member States and a consideration of how and why these constitutions should be updated. In contrast, Ornella Porchia focuses in chapter 13 on the internal territorial and constitutional character and choices of the Member States. She looks at the adaptation of the domestic institutions and intergovernmental relationships within the Member States as a result of EU membership. Referring in particular to the Italian experience, linked to Palermo’s chapter 11, Porchia addresses three distinct issues related to the impact of EU membership: the scope of the constitutional space available to the sub-national units within the state; the extent to which the Italian regions have occupied the constitutional space; and the effects of the initiatives of sub-national units on internal changes in the state or to the EU. Together these two chapters point up the essentially two-way nature of the process of adjustment and adaptation that EU membership has entailed. How do we make sense of what has happened here, and what are its implications for the future? Albi provides a set of useful distinctions between the constitutional processes that exist in the various Member States, and this in turn presages a classiication in terms of the extent to which

Introduction

31

national constitutions relect EU membership. The overall picture of adjustment and adaptation is both patchy and uneven; many Member States are apparently ill-equipped to address the ramiications of EU membership. Albi’s chapter explains why this is so and also indicates where future problems might arise. And in turning to look at the limits imposed on the transfer of powers by national constitutional courts, it also briely engages in the endless debate about the erosion of national sovereignty in the legal and political relationship between the constituent parts and the larger whole that is the EU. Albi concludes with a consideration of how far the question of national constitutions and the EU has triggered a new debate about the nature of constitutionalism itself, an issue already introduced in a different context by Stephen Tierney’s chapter 9, on the United Kingdom. This naturally leads Albi to conclude with a focus on the role that the national constitutions have played in driving constitutional reforms at the EU level and that in consequence have shaped an emerging constitutionalism in the EU. Porchia’s chapter introduces the concept of “Europeanization,” which fastens onto both top-down and bottom-up perspectives on the constitutional dynamics of change in domestic state structures, which also go hand in hand with the process of deepening European integration. She underlines the wide-ranging multidimensional impact of top-down EU pressures on sub-national Member State actors, the competences of the regions, the overall domestic balance of power, and, in the Italian case, the pivotal role of the Constitutional Court. But this impact also extends to regional policy implementation of EU law and has important implications for the unity of the state. As to the bottom-up perspective of Europeanization, Porchia identiies factors that assist this process in terms of the representation and participation of both national and sub-national actors in the supranational decision-making process. This raises, inter alia, important questions about the constitutional status of the sub-national level and its relationship to national government, the potential enhancement of regional identity, and the various mechanisms of access to EU policy-making. Her observation that EU policies have generally served to strengthen national executives at the expense of national and regional parliaments is a familiar one, but her contribution makes clear how this has altered the constitutional dynamics of sub-national autonomy in Italy. Porchia summarizes her survey of sub-national units, Member States, and the EU with a irm conclusion: the EU as the current institutional expression of European integration has in one way or another provoked signiicant constitutional changes in its Member States, largely but not solely in favor of the sub-national units. There are huge changes between and within Member States, but their overall impact has been to establish some sort of role for these units in EU affairs through both new and old channels. These

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Constitutional Dynamics in Federal Systems

two case studies of the EU and its Member States therefore provide us with a unique insight into the adjustment and adaptation of federal states and federal political systems both from above and from below in the arena of European integration. This analytical survey of the twelve chapters that comprise the book emphasizes the general theme of change and development in federations and federal political systems. In particular, it calls attention to the sub-national perspectives of constitutional change and the signiicance of constitutional space for the evolution of these states and systems. The issues and questions raised in the book emphasize the close relationship between constitutional law and political science, and it is hoped that it will be of great interest to both intellectual disciplines.

Notes 1 The term “subnational” is intended to distinguish the constitutions of component units in federal systems from the constitution of the nation-state. The authors recognize that many federal systems contain various nationalities, or “nations,” within them. 2 The province of Kashmir does have a separate constitution. 3 Donald S. Lutz, “The United States Constitution as Incomplete text,” Annals of the American Academy of Political and Social Sciences 496 (March 1988): 23, 26; Donald S. Lutz, “From Covenant to Constitution in America Political Thought,” Publius: The Journal of Federalism 10 (fall 1980): 101–2. 4 Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press 1987), 174. 5 See Ronald L. Watts, “Provinces, States, Länder, and Cantons: International Variety among Subnational Constitutions,” Rutgers Law Journal 31 (2000): 941–59; and Wouter Pas, “A Dynamic Federalism Built on Static Principles,” in G. Alan Tarr, Robert F. Williams, and Josef Marko, eds., Federalism, Sub-national Constitutions, and Minority Rights (Westport, CT: Praeger 2004). Of the federations discussed in this chapter, the following have separate sub-national constitutions in most or all of their constituent units: Argentina, Australia, Austria, Brazil, Ethiopia, Germany, Malaysia, Mexico, Russia, Switzerland, and the United States of America. For an earlier comprehensive listing of those federal systems that have sub-national constitutions and those that do not, see Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama 1987): 178, table 5.1. 6 For a striking conirmation of the effect of Section 133, see Attorney General of Quebec v. Blaikie, 2 S.C.R. 1016 (1979). 7 For discussion, see Campbell Sharman, “The Strange Case of a Provincial Constitution: The British Columbia Constitution Act,” Canadian Journal of Political

Introduction

8

9

10

11

12

13

33

Science 17 (March 1984): 87–108. Sharman notes (97), however, that “there is no indication in format or wording that the Act is anything more than an ordinary act of the legislature.” See, e.g., Luis Moreno, The Federalization of Spain (Portland, OR: F. Cass 2001). The “Autonomy Statutes” in Spain, at least for Catalonia and the Basque Country (“Euskadi”), share many of the characteristics of written, sub-national constitutions. They set forth the structure of government in the autonomous region and delineate its competencies. To the extent these differ among the autonomous regions, Spain relects a system of asymmetrical federalism. Finally, the Autonomy Statutes of both the Basque Country (Article 46) and Catalonia (Article 56) require a favorable vote of the electorate in a referendum in order for the Autonomy Statute to be amended. Jaoquim Solé-Vilanova has referred to the Spanish Autonomy Statutes as “internal constitution[s].” Jaoquim Solé-Vilanova, “Regional and Local Finance in Spain: Is Fiscal Responsibility the Missing Element?” in Robert J. Bennett, ed., Decentralization, Local Governments, and Markets: Towards a Post-Welfare Agendat (New York: St Martin Press 1990). See also Eduardo J. Ruiz Vieytez, “Federalism, Sub-national Constitutional Arrangements, and the Protection of Minorities in Spain,” in Federalism, Sub-national Constitutions, and Minority Rights; and Jaoquim Solé-Vilanova, “Spain: Developments in Regional and Local Government,” in Robert J. Bennett, ed., Territory and Administration in Europe (New York: St Martin Press 1989): 205, 209–13. Indeed, one scholar has described the situation in Italy as “the introduction of a de facto federal system by means of ordinary legislation.” See Francesco Palermo, “Asymmetric, ‘Quasi-Federal’ Regionalism, and the Protection of Minorities: The Case of Italy,” Federalism, Sub-national Constitutions, and Minority Rights, 110. See, e.g., Melissa Magliana, The Autonomous Province of South Tyrol: A Model for Self-Government (Bozen/Bolzano, Italy: European Academy of Bozen/Bolzano 2000); Francesco Palermo, “Self-Government (and other?) Instruments for the Prevention of Ethnic Conlicts in South Tyrol,” in Mitia Zagar, Boris Jesih, and Romana Bester, eds., The Constitutional and Political Regulation of Ethnic Relations and Conlict (Ljubljana: Institute for Ethnic Studies 1999); and Jens Woelk, “From Minority-Protection to Governance of Cohabitation? The Case of South Tyrol.” See G. Alan Tarr, “Symmetry and Asymmetry in American Federalism,” delivered at the 2007 annual meeting of the International Association of Centers for Federal Studies (iacfs), available at http://camlaw.rutgers.edu/statecon/. G. Alan Tarr, “Creating Federalism in Russia,” South Texas Law Review 40 (summer 1999): 689. On more recent developments, see Cameron Ross, Federalism and Democratisation in Russia (Manchester, England: Manchester University Press 2002), chap. 8, and Mark A. Smith, “Putin: An End to Centrifugalism?” in Graeme P. Herd and Anne Aldis, eds., Russian Regions and Regionalism: Strength through Weakness (London: Routledge Curzon 2001). See Andreas Heinemann-Gruder, “Russian Federalism: Legacies, Reforms, and Prospects,” Indian Journal of Federal Studies 3 (2002): 69–100; and Marat Salikov,

34

14

15

16

17

18

Constitutional Dynamics in Federal Systems

“Russian Federation,” in John Kincaid and G. Alan Tarr, eds., Constitutional Origins, Structure, and Change in Federal Countries (Montreal: McGill-Queen’s University Press 2005), 290–1. See Ann L. Grifiths, ed., Handbook of Federal Countries 2002 (Montreal: McGillQueens University Press, 2002), for up-to-date information on constitutional arrangements in various federalist systems. In 1982, Daniel Elazar, observed that “Students of federal systems have tended to focus their attention on the federal constitutions that frame the entire polity while neglecting the constitutional arrangements of the constituent polities … In fact, the constitutions of constituent states are part and parcel of the total constitutional structure of federal systems and play a vital role in giving the system direction.” See Daniel J. Elazar, “The Principles and Traditions Underlying State Constitutions,” Publius: The Journal of Federalism 11 (winter 1982): 18–22. In this respect the study of the sub-national perspective serves the same function as does the study of comparative constitutionalism more generally, namely, to broaden our understanding by making problematic and contingent what seemed obvious. As Kim Scheppele has put it: “One reason [for studying comparative constitutionalism] is that many of the taken-for-granted ixed starting points of our ield are actually variables connected to time and space, variables whose variable quality is obscured if we do not know the counterexamples.” Kim Lane Scheppele, “The Agendas of Comparative Constitutionalism,” Law and Courts (spring 2003): 5. This paper focuses on the legal role of sub-national constitutions as independent sources of law. But this is not their only importance. Sub-national constitutions may serve important political purposes, regardless of the contents of the documents. They may be instruments of conlict management during periods of political stability, and the process of sub-national constitution-making itself may contribute to political socialization. For an insightful discussion of how events in South Africa served these purposes, see Jonathan L. Marshield, “Authorizing Subnational Constitutions in Transitional Federal States: South Africa, Democracy, and the KwaZulu-Natal Constitution,” Vanderbilt Journal of Transnational Law 41 (March 2008): 585–638. Sub-national constitutions may also be important as vehicles for making political statements about the character of the federation. See, for example, the quasi-constitutional Bill 99 enacted by the National Assembly of Quebec in 2000. Sub-national constitutions may also be drafted in order to differentiate the constituent unit from other units within the federation – i.e., as a way of emphasizing asymmetry. Note that this is likely not a comprehensive list of the political functions of sub-national constitutions and sub-national constitutiondrafting and that those who devise a sub-national constitution may be divided as to the purposes the constitution is designed to serve. Watts, “Provinces, Länder, and Cantons,” 945. On South Africa, see Bertus de Villiers, ed., Birth of a Constitution (Kenwyn: Juta & Co. 1994); on the Sudan, see Christina Murray and Catherine Maywald, “Subnational Constitution-Making in Southern Sudan,” Rutgers Law Journal 37 (summer 2006): 1203–34; and on

Introduction

19

20

21

22

23

24

25 26 27

35

Switzerland, see Giovanni Biaggini, “Federalism, Subnational Constitutional Arrangements, and the Protection of Minorities in Switzerland,” in Federalism, Subnational Constitutions, and Minority Rights. Christine Fletcher and Cliff Walsh, “Comparative Fiscal Constitutionalism in Australia and the US – The Power of State Politics,” in Bertus de Villiers, ed., Evaluating Federal Systems (Dordrecht: Martinus Nijhoff Publishers 1994): 348. Six states are exceptions to this statement. Texas was an independent republic before its annexation by the United States, and ive states – Vermont, Kentucky, Tennessee, Maine, and West Virginia – were carved out of the territory of existing states. This represents a form of devolutionary federalism. The main provision dealing with the admission of new states is Article IV, section 3, of the US Constitution. Further constitutional support for congressional conditions on admission is provided by Article IV, section 4, of the US Constitution, which directs the federal government to “guarantee to each State in the Union a Republican Form of Government.” In addition to imposing conditions on prospective states, Congress also supervised the constitutions that Southern states adopted in the aftermath of the Civil War, requiring an acceptable constitution as a condition for “readmission” to the Union. However, the effects of these congressional efforts were short-lived. Most Southern states repudiated their Reconstruction constitutions as soon as they could, typically replacing them with documents that by the late nineteenth century entrenched white political control, and Congress did nothing to prevent this undermining of republican government. See Don E. Ferenbacher, Constitutions and Constitutionalism in the Slaveholding South (Athens, GA: University of Georgia Press 1989); Kermit L. Hall and James V. Ely, Jr, eds., An Uncertain Tradition: Constitutionalism and the History of the South (Athens, GA: University of Georgia Press 1989). Some prospective states – for example, Wyoming in 1889 – called conventions and drafted constitutions even without congressional authorization. In such circumstances, however, Congress had to approve the proposed constitution and confer statehood. On the Wyoming example, see Robert B. Keiter and Tim Newcomb, The Wyoming State Constitution: A Reference Guide (Westport, CT: Greenwood Press 1993): 4–5. For a discussion of somewhat similar processes in other countries, such as Switzerland and Spain, see Bertus de Villiers, “The Constitutional Principles: Content and Signiicance,” in de Villiers, Birth of a Constitution. For a discussion of this process of reuniication and constitution making, see Peter E. Quint, The Imperfect Union: Constitutional Structures of German Uniication (Princeton, nj: Princeton University Press 1997): 73–99. See Tarr, “Creating Federalism in Russia.” Cheryl Saunders, “Commonwealth of Australia,” in Constitutional Origins, Structure, and Change in Federal Countries, 22. Biaggini, “Federalism, Subnational Constitutional Arrangements, and the Protection of Minorities in Switzerland,” 220.

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Constitutional Dynamics in Federal Systems

28 Watts, “States, Provinces, Länder, and Cantons,” 945. 29 Anna Gamper writes: “Federal constitutions usually provide a large number of legal instruments in order to secure homogeneity among the various units. These include the determination of explicit constitutional rules that must neither be violated by the constitutions nor by the ordinary legislation or administration of the constituent states. The federal constitution may also determine that certain policies or law-making of the constituent units need the consent of the federation or an agreement between the units.” Gamper, “Austrian Federalism and the Protection of Minorities,” in Federalism, Subnational Constitutions, and Minority Rights, 59. 30 John Kincaid, “Comparative Observations,” and Juan Marcos Gutierrez Gonzalez, “United Mexican States,” in Constitutional Origins, Structure, and Change in Federal Countries, 438 and 223. Under nineteenth-century Mexican constitutions, states had more leeway in designing their political institutions. 31 Austrian Basic Law, Art. 28, para. 1, and German Basic Law, Art. 28. However, the Federal Constitutional Court of Germany has noted that the Länder “are states vested with their own sovereign powers … The basic law requires only a certain degree of identity between the federal constitution and state constitutions. To the extent that the basic law [does not provide otherwise], the states are free to construct their own constitutional orders.” Quoted in Norman Weiss, “The Protection of Minorities in a Federal State: The Case of Germany,” in Federalism, Subnational Constitutions, and Minority Rights, 76. 32 Austrian Basic Law, Art. 99. 33 See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967); Hunter v. Underwood, 471 U.S. 222 (1985); Romer v. Evans, 517 U.S. 620 (1996). 34 See In re: Certiication Interim Constitution of the Province of KwaZulu-Natal, 1996 1996 (11) bclr 1419 (CC), at para. 15. For discussion of this litigation, see Robert F. Williams, “Comparative Subnational Constitutional Law: South Africa’s Provincial Constitutional Experiments,” South Texas Law Review 40 (summer 1999): 648–59, and Dirk Brand, “The Western Cape Provincial Constitution,” Rutgers Law Journal 31 (summer 2000): 961, 966. 35 M. Faroukshin, “The New Trends in the Russian Federalism, Back to Unitary States?” Paper delivered at the International Political Science Association Comparative Federalism Research Committee Conference in Javea, Spain, 4–7 December 2001. 36 Anna Gamper, “The Principle of Homogeneity and Democracy in Austrian Federalism: The Constitutional Court’s Ruling on Direct Democracy in Voralberg,” Publius: The Journal of Federalism 33 (winter 2003): 45–58. 37 Constitution of the Russian Federation, Article 85, section 2. The estimate of subnational laws invalidated was supplied by State Prosecutor Yuri Skuratov, quoted in “Constitution Watch,” Eastern European Constitutional Review 7 (winter 1998): 32. Indeed, President Putin identiied harmonization of the constitutions and laws of the Federation’s constituent units with those of the Federation as a major element in his federalism initiative. See Smith, “Putin: An End to Centrifugalism,” 27–8.

Introduction

37

38 See Tanja A. Bürzel, “From Competitive Regionalism to Cooperative Federalism: The Europeanization of the Spanish State of the Autonomies,” Publius: The Journal of Federalism 30 (spring 2000): 17; “Toward Convergence in Europe? Institutional Adaptation to Europeanization in Germany and Spain,” Journal of Common Market Studies 37 (1999): 573; and States and Regions in the European Union: Institutional Adaptation in Germany in Germany and Spain (Cambridge: Cambridge University Press 2002): 103–47. 39 The “principle of consideration” within the Austrian federation seems to play a similar role. See Gamper, “Austrian Federalism and the Protection of Rights,” 62–3. 40 See Ronald L. Watts, Comparing Federal Systems, 3d ed. (Montreal: McGillQueen‘s University Press 2008); Peter Pernthaler, “Asymmetric Federalism as a Comprehensive Framework of Regional Autonomy,” in Forum of Federations, Handbook of Federal Countries 2002 (Montreal: McGill-Queen’s University Press 2002); and Alfred Stephan, “Federalism and Democracy: Beyond the U.S. Model,” Journal of Democracy 10 (October 1999): 19–34. 41 U.S. Constitution, Art. I, sec. 2. 42 See Yonatan Tesfaye Fessha, “Institutional Recognition and Accommodation of Ethnic Diversity: Federalism in South Africa and Ethiopia” (unpublished phd diss., University of the Western Cape 2008), 425–31. The pertinent provision is Ethiopian Constitution, Art. 39. This right cannot be curtailed even in emergency situations – Ethiopian Constitution, Art. 93(4)c. 43 Ibid., 244. 44 Stephen Tierney, Constitutional Law and National Pluralism (Oxford: Oxford University Press 2004), 188. 45 See Vieytez, “Federalism, Subnational Constitutional Arrangements, and the Protection of Minorities in Spain,” 149. 46 South Africa Constitution, Ch. 4, sec. 44(2); India Constitution, secs. 249, 250. 47 See Austria Basic Law, Arts. 102(1), 103(1). 48 Gardner, “In Search of Sub-National Constitutionalism,” 333. 49 Celina Souza, “Federal Republic of Brazil,” in Constitutional Origins, Structure, and Change in Federal Countries, 85. 50 Peter Bußjäger, “Subnational Constitutions and the Federal Constitution in Austria: A Case Study,” 6–7 (unpublished paper available from author). 51 Arthur B. Gunlicks, “Land Constitutions in Germany,” Publius: The Journal of Federalism 28 (fall 1998): 111–12. 52 Brandenburg Constitution, Art. 26, para. 2, and Art. 40, para. 5. More generally, see ibid., 120–4. 53 John Dinan, “Patterns of Subnational Constitution-making in Federal Countries,” Rutgers Law Journal 39 (summer 2008): 837–62. 54 Tarr, Understanding State Constitutions, chap. 1; and Book of the States 2008 (Lexington, KY: Council of State Governments, 2008), 10, table 1.1. 55 There is an alternative version of this as well. Sometimes constituent units use their subnational constitutions to preserve what has been jettisoned at the national

38

56 57 58 59 60

61 62

63

64

65

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Constitutional Dynamics in Federal Systems

level. In the United States, for example, controls over liquor were maintained even after the federal government rejected prohibition with the ratiication of the Twenty-irst Amendment. In addition, state courts have interpreted state constitutions to maintain substantive due process after its repudiation by the US Supreme Court and have recognized rights claims, such as the requirement of public funding for abortions, after the Supreme Court rejected such claims as a matter of federal constitutional law. See Tarr, Understanding State Constitutions, chaps. 3–5. Gunlicks, “Land Constitutions in Germany,” 111–12. See G. Alan Tarr, ed., Constitutional Politics in the States: Contemporary Controversies and Historical Patterns (Westport, CT: Greenwood Press 1996). Elazar, Exploring Federalism, 18–22, and more generally, Daniel Elazar, American Federalism: A View from the States, 3d ed. (New York: Harper & Row 1984). On Ethiopia, see Fessha, “Institutional Recognition and Accommodation of Ethnic Diversity: Federalism in South Africa and Ethiopia,” 399–406; on Germany and the protection of language rights of minorities within particular Länder , see Weiss, “The Protection of Minorities in a Federal State,” 80–1; and on Mexico, where the Oaxaca Constitution extended protections for native people before the federal constitution did, see Gonzalez, “United Mexican States,” 214. Gonzalez, “United Mexican States,” 233. For discussion of these reforms, see Spencer C. Olin, Jr, California’s Prodigal Sons: Hiram Johnson and the Progressives, 1911–1917 (Berkeley: University of California Press 1968). On this so-called “new judicial federalism,” see G. Alan Tarr, “The Past and Future of the New Judicial Federalism,” Publius: The Journal of Federalism 24 (spring 1994): 63–79. For a valuable comparative assessment, see Celine Fercot, “Diversity of Constitutional Rights in Federal Systems: A Comparative Analysis of German, American, and Swiss Law,” European Constitutional Law Review 4 (2008): 302–24. See Rassie Malherbe and Dirk Brand, “South Africa: Sub-National Constitutional Law,” in Andre Alen et al., eds., International Encyclopedia of Laws, Constitutional Law, Sub-National Constitutional Law (Leiden: Kluwer Law International 2001). New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932). For a discussion of Brandeis’s argument, see A.E. Dick Howard, “Does Federalism Secure or Undermine Rights?” in Ellis Katz and G. Alan Tarr, eds., Federalism and Rights (Lanham, md: Rowman & Littleield 1996). On the problematic roots of Brandeis’s idea, see G. Alan Tarr, “Laboratories of Democracy? Brandeis, Federalism, and Scientiic Management,” Publius: The Journal of Federalism 31 (winter 2001): 37–46. For studies focusing on the United States, see Jack L. Walker, “The Diffusion of Innovations among the American States,” American Political Science Review 63 (September 1969): 880–9; Robert L. Savage, “Diffusion Research Traditions and the Spread of Policy Innovation in a Federal System, Publius: The Journal of Federalism 15 (fall 1985): 1–27; and Virginia Gray, “Competition, Emulation, and

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67 68

69

70

71 72 73

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Policy Innovation,” in Lawrence C. Dodd and Calvin Jillson, eds., Perspectives in American Politics (Washington, DC: CQ Press 1994). James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown 1950): 224–5. Peter E. Quint, Imperfect Union, 99. For a survey of judicial interpretations of the new German Länder constitutions, see Peter E. Quint, “The Constitutional Guarantees of Social Welfare in the Process of German Uniication,” American Journal of Comparative Law 47 (1999): 303, 310–21, 325. See also Igna Markovits, “Reconcilable Differences: On Peter Quint’s The Imperfect Union,” American Journal of Comparative Law 47 (1999): 189, 194–7, 206–9. David Schuman, “The Origin of State Constitutional Direct Democracy: William Simon U’Ren and the ‘Oregon System’” Temple Law Review 67 (fall 1994): 947, 950. See, e.g., Robert F. Williams, “Experience Must Be Our Only Guide: The State Constitutional Experience of the Framers of the Federal Constitution,” Hastings Constitutional Law Quarterly 15 (fall 1988): 403. Donald Lutz, “The State Constitutional Pedigree of the U.S. Bill of Rights,” Publius: The Journal of Federalism 22 (1992): 19–45. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books 2000). On equal protection, see Robert F. Williams, “Equality Guarantees in State Constitutional Law,” Texas Law Review 63 (1985): 1195, and Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (Lawrence: University Press of Kansas, 1990); on poll taxes, see Keyssar, The Right to Vote; and on prohibition, see Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880–1920 (Chapel Hill: University of North Carolina Press 1995).

Pa rt O n e Sub-national Constitutionalism in Territorially Based Federations

2

State Constitutions and American Political Development J ohn J . Di nan

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 ifty 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 igured so prominently in bringing about political changes in the United States? Second, what speciic political changes have been achieved through the drafting, revision, and interpretation of state constitutions? Third, what are the main consequences of the prominent role played by state constitutions in American political development? To preview the argument on each of these points: the prominence of state constitutionalism in US politics can be attributed to several factors. It is due in part to the fact that the federal constitution is a short and spare document that leaves the regulation of many important issues to state governments and constitutions. State constitutions are also much easier to amend than the federal constitution, thereby enabling groups to make frequent use of state constitutional processes to achieve their policy goals. Still another contributing factor is a dual court system that permits state courts to independently interpret state constitutions and provide more protection for rights than is afforded by US Supreme Court interpretation of the US Constitution. As for the changes achieved through state constitutional processes, state constitutions have igured prominently in a number of eras in American political development. State constitutions preceded the federal constitution and served as a testing ground for many institutional arrangements

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Territorially Based Federations

adopted in the federal constitution in 1787 and reconsidered in later years. State constitutions have also been an important, and at times the only, vehicle for the expansion of the suffrage. Particularly in the post1970s era, state court interpretations of state constitutions have also provided more extensive protection for individual rights than is guaranteed at the federal level. In several major eras in American political development, reformers also achieved key public policy reforms in part through state constitutional changes. Finally, the main consequences of the prominence of state constitutionalism are twofold. The lexibility of state constitutional processes has affected state politics by giving groups unable to achieve their goals through state political processes an opportunity to secure their aims through state constitutional processes, and it has affected the federal system by giving groups unable to achieve their goals through federal constitutional processes an outlet for achieving their goals through state constitutional processes. Although in both cases it is possible to identify disadvantages associated with permitting a ready reliance on state constitutional processes – and scholars have often highlighted these disadvantages – they are largely outweighed by the beneits of permitting a full range of institutional outlets for the realization of policy goals in the federal system.

T h e P r o m i n e n c e o f S tat e C o n s t i t u t i o n a l i s m in US Politics An understanding of the prominence of state constitutionalism throughout American history requires taking account of three key features of the US political system: the federal constitution’s brevity and its creation of a federal government of enumerated powers; the rigidity of the federal amendment process and contrasting lexibility of state processes; and the ability of state courts to interpret state bills of rights in ways that exceed federal guarantees. One factor contributing to the vitality of state constitutionalism is the federal constitution’s brevity and the fact that it serves primarily to specify the structure of federal institutions and enumerate federal powers. The federal constitution therefore leaves unoccupied a signiicant extent of constitutional space – to a greater degree perhaps than any other federal system – in which state governments are capable of operating autonomously.1 States are free to structure and arrange their own governing institutions (subject only to the federal guarantee of a republican form of government) and these structural arrangements are generally treated in state constitutions. States have also drafted their own bills of rights, although by virtue of the federal Supremacy Clause they cannot be interpreted as affording less protection than is guaranteed by comparable federal guarantees.

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Most important, states retain responsibility for policy issues not included in the federal constitution’s list of powers delegated to the federal government. It is true that over time the federal government has gained signiicant power by virtue of the passage of the post-Civil War amendments and has also, with the acquiescence of the US Supreme Court, extended its power beyond the strict language of these enumerated powers. However, the federal government continues to be limited in the powers it can exercise, whereas state governments possess plenary power and are therefore free to act unless speciically constrained from doing so. In part because state governments possess plenary power and therefore any restraints on state power must be made explicit in the state constitution, but also because state constitution-makers have been more willing than their federal counterparts to elevate policy matters to constitutional status, state constitutions address many issues not treated in the federal constitution. The federal constitution of 1787 contained only 4,400 words and even today it contains only 7,700 words; it is exceeded in length by every one of the current state constitutions. The New Hampshire Constitution is the shortest, at just over 9,000 words. Many others are between two and ten times longer than the federal constitution. The Alabama Constitution is the longest, weighing in at over 350,000 words.2 State constitutions are longer in part because they contain more detailed treatments of topics addressed only briely in the federal constitution, such as the process of law-making and the mode of judicial selection. State constitutions also include more prohibitions on governmental power, such as prohibitions regarding balanced budget requirements and debt limitations. Many state constitutions also deal with subjects such as education and conservation that are entirely absent from the federal constitution.3 State constitutions are not only longer and cover a wider range of issues in more detailed fashion than the federal constitution, they are also easier to amend and have become even more so over time. The federal constitution was designed to be dificult to amend (though easier than under the previous Articles of Confederation) out of a concern that an overly lexible process would lead to the politicization of the document and detract from the veneration seen as essential for governmental stability. The rigid amendment process, together with the understanding that the federal constitution should not be lightly changed (as best expressed by James Madison’s response to Thomas Jefferson’s call for a more lexible process),4 has endured to the present day. There have been no changes to Article V of the federal constitution, which stipulates that amendments can be proposed by a two-thirds vote of both houses of Congress or through a convention called by petition of two-thirds of the state legislatures. Amendments must then be ratiied by three-fourths of the state legislatures or by three-fourths of conventions called in the various states. Nor has there been any notable change in the original understanding

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by which the federal amendment process should be utilized only on rare and signiicant occasions. Only thirty-three amendments have been formally proposed by Congress, and only twenty-seven have been ratiied, including only seventeen since 1791, when the irst ten amendments (the bill of rights) took effect. No conventions have been called since the 1787 convention.5 State constitution-makers have been more drawn to the Jeffersonian view that each generation should have an opportunity to revise its constitution and thereby legitimize its continued operation and take due account of progress.6 State constitutions are therefore more easily amended and through a wider range of procedures that have become even more lexible through the years.7 Originally, most states required constitutional changes to be proposed by a supermajority legislative vote in successive sessions and approved by voters. Some states have retained these requirements. But many states now permit amendments to be proposed by a mere legislative majority, occasionally without a successive-session requirement, and then approved by voters (only in Delaware can amendments take effect without approval in a popular referendum). Most states also make explicit provision for the legislature to call conventions, whether by a majority or a supermajority vote, which then must be approved by voters. Fourteen states also follow Jefferson’s speciic call for generational constitutional revision, by requiring that citizens be given a chance to vote at regular intervals (often every twenty years) on whether to call a constitutional convention. One state, Florida, has since 1968 required constitutional revision commissions to meet at regular intervals and empowered them to submit amendments directly to voters for their approval. Eighteen states, beginning with Oregon in 1902, have also made provision for the people to initiate and ratify amendments directly, in most cases without any participation of the legislature.8 States have not only made their constitutions easy to amend but have also been willing to use these amendment processes on a regularly. From 1776 to the present, the 50 states have held a total of 233 state constitutional conventions; 146 state constitutions have been adopted; and over 6,000 amendments have been enacted to the current documents. States vary in their willingness to change their constitutions; but in virtually every instance states have been more willing to engage in constitutional change than is the case at the federal level. On one end of the spectrum, Massachusetts still retains its original 1780 Constitution, although the document has been amended 120 times. At the other extreme are Louisiana and Alabama. Louisiana has had 11 constitutions, ranging from its inaugural 1812 Constitution to its current 1974 Constitution, which has itself been amended 154 times in the last three decades. Alabama’s 1901 Constitution has been amended 807 times.9 In the course of this extensive experience with constitutional change, state constitution-makers have encountered little of the stigma attached to proposals for constitutional change at the federal level, even if these proposals deal at times with “policy” matters. The one “policy” provision

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added to the federal constitution was a 1919 amendment prohibiting the manufacture and sale of intoxicating liquor. However, this is also the only federal amendment to be repealed, through a 1933 amendment, and the lesson drawn from this episode at the federal level is not just that prohibition was an unwise policy but that policy provisions of any sort are ill-suited for the federal constitution.10 No such lesson has taken hold at the state level, where various policy provisions have been added to state constitutions, even in the face of claims that such issues are better handled through political rather than constitutional processes. A inal factor contributing to the vitality of the US state constitutional tradition is the ability of state courts to independently interpret state constitutions, especially concerning civil liberties. The Supremacy Clause of the federal constitution makes clear that state law is invalid to the extent that it conlicts with federal law. However, the US Supreme Court has maintained that state courts can engage in independent interpretation of state constitutions; moreover, state court rulings are not reviewable by federal courts as long as they rest on adequate and independent state grounds.11 Consequently, although state judges cannot interpret state constitutions to provide less protection for individual rights than is guaranteed by federal court rulings, they are free to provide for their citizens a greater degree of protection than the US Supreme Court is willing to establish as a national rule. Through interpretation of state constitutions, therefore, state judges can bring about political changes in the same fashion as other state oficials have done through drafting and amending state constitutions, and state judges have been particularly active in this regard since the 1970s. Before the mid-twentieth century, state courts had undertaken distinctive interpretations of state bills of rights, and because US Supreme Court interpretations of similar federal constitutional guarantees did not yet at that time constrain state governments, these state court rulings constituted prevailing law. However, it was not until the 1970s, after the US Supreme Court had largely applied the guarantees in the federal bill of rights to the states and then began retreating from its more expansive interpretations of some of these rights, that state courts began engaging in a widespread fashion in independent state constitutional interpretation with the intent of securing added protection for rights. Since the 1970s, state courts have relied on state constitutions to provide heightened protection for defendants in criminal proceedings and also regarding the death penalty and same-sex marriage, to name several leading areas.

Political Changes Achieved through S tat e C o n s t i t u t i o n a l P r o c e s s e s It is important to keep in mind that a number of political changes achieved through state constitutional processes were also achieved in part through

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other mechanisms. As has been the norm in American political development, groups press their case at various levels (with federal, state, and local governments) and through various institutions (legislative, executive, judicial, administrative, direct democratic, and constitutional processes), and they gravitate to the levels and institutions where they are most successful. State constitutional processes have been an important avenue for bringing about change in several areas, most notably in the design of governing institutions, the regulation of the suffrage, the extension of individual rights, and public policy reforms. The Design of Governing Institutions Americans have engaged in an extended inquiry over the past 235 years into how best to structure governing institutions, and state constitutions have igured prominently in various ways. In the irst place, the original state constitutions in the 1770s and 1780s served as important vehicles for working out the consequences of alternative institutional arrangements, and delegates to the Federal Convention of 1787 drew heavily on these experiments when drafting the federal constitution. In creating a separation-of-powers system with an independent and strong executive, federal constitution-makers in 1787 were following the lead of state constitutions such as the Massachusetts Constitution of 1780, which were quite different from constitutions such as the Virginia Constitution of 1776. In determining that the executive would be selected in an indirect fashion through an electoral college mechanism, the federal founders were drawing in part on a provision in the Maryland Constitution of 1776 establishing an indirect method of selecting state senators through an intermediate body of electors. In establishing a bicameral Congress, federal convention delegates were following the vast majority of original state constitutions that opted for bicameral state legislatures, thereby rejecting the unicameral experiments undertaken by the Pennsylvania Constitution of 1776, the Vermont Constitution of 1777, and the Georgia Constitution of 1777. Even when the federal founders departed from prevailing institutional arrangements contained in original state constitutions, they proited from the experience of state governance in this formative period, such as when they opted for six-year US Senate terms, which were longer than any state elected oficials’ terms but which were seen as necessary in order to give the federal Senate more stability than many state Senates.12 State constitutions have also igured prominently in post-1787 debates about the design of governing institutions, in that movements to democratize governing institutions have had little success in breaching the rigid federal amendment process but have enjoyed signiicant success at the state level through the more lexible state processes. Few federal amendments

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have brought important alterations in the design of governing institutions, with the notable exception of a 1913 amendment instituting direct election of US senators. The other federal amendments dealing with institutional design made technical changes to the Electoral College(1804), shortened the time between the presidential election and Inauguration Day (1933), imposed a two-term presidential limit (1951), and provided for presidential disability and succession (1967). The lexibility of state constitutional processes, by contrast, has permitted state constitution-makers to experiment regularly with alternative arrangements and to adopt a number of signiicant democratizing reforms without any federal counterpart. State constitutions have been amended in several ways to make judges more responsive to the popular will. The Mississippi Constitution of 1832 was the irst to provide for popularly elected judges, and it soon became the norm for state constitutions to require state judges to stand for competitive election or (in many states in the twentieth century) retention election. Then during the second decade of the twentieth century, several state constitutions were amended in response to concerns about excessive judicial power. The Colorado Constitution was amended in 1912 to permit the people to overturn state court decisions by popular referendum; however, this was invalidated nine years later by the state supreme court. And the Ohio Constitution was amended in 1912, as were two other state constitutions in that decade, to require the support of a supermajority of state court judges – rather than the usual majority – in order to exercise judicial review. State constitutional processes have also been a vehicle for making legislatures more responsive to public opinion. The South Dakota Constitution, by virtue of an 1898 amendment, was the irst to institute the popular initiative and referendum, and just under half the states, including most of the newer Western states, followed suit during the twentieth century. More recently, the Oklahoma Constitution, by virtue of a 1990 amendment, became the irst since the founding period to impose term limits on state legislators, and a number of other states enacted similar amendments during the 1990s. In each of these cases, reformers have sought to enact similar democratizing amendments at the federal level but have been frustrated by the rigidity of the federal amendment process.13 Expansion of the Suffrage Another set of major changes accomplished in large part through state constitutional processes, but in part also through federal amendments, statutes, and judicial rulings, concerns the gradual expansion (and occasional contraction) of the suffrage. The federal constitution did not originally set a national suffrage requirement; it merely stipulated that individuals permitted

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by state law to vote in elections for the more numerous chamber of the state legislature were eligible to vote in US House elections (the only federal ofices popularly elected at the time). As a result, states have long possessed primary responsibility for deining who can vote in state and federal elections, and they have generally exercised this power by establishing suffrage requirements in state constitutions (though occasionally in state statutes). In some cases, state constitution-makers have been entirely responsible for extending the franchise to certain groups. No question was more heavily debated in state constitutional conventions during the irst half of the nineteenth century than whether to eliminate property and tax-paying suffrage requirements. (The only other question debated as heavily in this period was whether to eliminate legislative malapportionments that favored the older tidewater regions to the detriment of the growing piedmont regions; this goal was also accomplished through state constitutional amendments rather than through a federal amendment.)14 State constitution-makers gradually removed these suffrage restrictions and achieved universal white male suffrage by the 1850s, without passage of any federal constitutional amendments.15 In another set of cases, constitution-makers in one or several states took the lead in extending the suffrage to previously disfranchised groups, and then a federal constitutional amendment was later enacted to extend the franchise on a uniform basis throughout the country. Several northeastern states were the leaders in permitting African Americans to vote, although some of these states required African Americans to meet stricter property requirements than whites.16 When the US Constitution was amended in 1870 to prohibit denial of the franchise based on race, federal constitutionmakers were following the trail-blazing states of Massachusetts, Vermont, New Hampshire, Maine, and New York. However, constitution-makers in many southern states then sought at the turn of the twentieth century to frustrate the intent of this federal amendment by drafting state constitutional amendments preventing African Americans from exercising their right to vote, by imposing “understanding” clauses, literacy tests, poll taxes, or other requirements that were administered in a discriminatory fashion. It was only through federal court decisions, congressional statutes, and a federal amendment in the 1960s that these disenfranchising state provisions were all eliminated and African Americans were inally able to exercise the franchise across the country.17 State constitution-makers also took the lead in enfranchising women and eighteen- to twenty-year-olds. Led by Wyoming, Utah, Idaho, and Colorado, all of which acted in the late 1800s, a number of mostly western states extended the suffrage to women in the late nineteenth century and early twentieth century. In fact, in 1920, when a federal amendment prohibited denial of the franchise on account of sex, twenty-eight states already

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granted women the right to vote.18 Meanwhile, the Georgia Constitution in 1943 became the irst to reduce the voting age from twenty-one to eighteen, and the Kentucky Constitution was later amended to the same effect, along with three other states that reduced their voting age to nineteen or twenty. The federal Constitution was eventually amended in 1971 to establish eighteen as the national minimum age for voting, following in the path taken by these ive states.19 Extension of Individual Rights Another change achieved in part through state constitutional processes was the extension (and occasional contraction) of individual rights. Before a series of US Supreme Court rulings from 1925 onward applying most federal bill of rights guarantees to the states, state constitutional processes were the primary means of deining and extending rights. Therefore before the US Supreme Court’s mid-twentieth-century nationalization of the federal bill of rights, state courts routinely issued decisions interpreting state bills of rights and deining in concrete fashion the meaning of free speech, religious liberty, and the rights of criminal defendants. Additionally, state constitution-makers occasionally registered changes in understandings of these rights through amendments to state constitutions. Among the more notable nineteenth-century changes was the adoption in many state constitutions of “Blaine amendments” explicitly prohibiting public funding of religious schools. US Representative James Blaine irst proposed an amendment to the federal Constitution along these lines in the 1870s but failed to obtain the necessary support from Congress. However, supporters of a strict interpretation of the religious establishment clause that would prohibit government funding of mostly Catholic schools turned to the more lexible state amendment processes and won passage of the Blaine amendments in over half the state constitutions from the 1870s onward.20 For a time in the mid-twentieth century, particularly during the 1960s, the US Supreme Court was mainly responsible for expanding protection for individual rights through interpretation of federal Bill of Rights guarantees. However, with the retirement of Chief Justice Earl Warren and the appointment of Warren Burger to succeed him in 1969, the US Supreme Court became less willing to interpret federal constitutional guarantees in an expansive fashion. To be sure, the Burger Court issued a landmark abortion ruling in 1973 identifying a federal constitutional right to an abortion that could not be denied during the irst two trimesters of a woman’s pregnancy. And the Court’s interpretation of the federal cruel-and-unusual punishment clause in a 1972 death penalty case led to a four-year moratorium on capital punishment across the country. In these and various other cases the US Supreme Court continued to lead the way in the post-1970 era

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in issuing expansive interpretations of federal constitutional guarantees. But in other areas, the Burger Court disappointed groups who had come to expect during the Warren Court that the federal judiciary would continue to take the lead in expanding individual rights. The Burger Court declined, for instance, in a 1973 case to recognize a federal constitutional right to inter-district equity in school funding. And in 1976 it issued a key ruling permitting states to re-impose the death penalty. It also proved less willing than its predecessor to issue expansive interpretations of the rights of criminal defendants, especially regarding admission of evidence obtained from an improper search. Whereas the Warren Court had established the exclusionary rule as a national standard, the Burger Court concluded in several key cases that improperly seized evidence could still be admitted at trial if, for instance, police oficers had operated in good faith when conducting a search. At this point, a number of state supreme courts turned to their state constitutions to expand rights protection in areas where the US Supreme Court was unwilling to do so. The California Supreme Court, in a 1972 ruling echoed by several other state courts, interpreted the Cruel-or-Unusual Clause of the California Constitution as prohibiting capital punishment. And in a 1973 ruling that gave rise to many other state court rulings, the New Jersey Supreme Court ruled that although inter-district school spending disparities might not violate the federal Constitution, they ran afoul of the New Jersey Constitution. With encouragement from US Supreme Court Justice William Brennan and various law professors, state courts around the country also began to rely on state bills of rights to go further in protecting the rights of criminal defendants than the US Supreme Court was willing to go.21 Thus, several state courts declined to abide by the federal goodfaith exception to the exclusionary rule, on the ground that the relevant clauses in their state constitutions did not countenance such an exception. In the most controversial rulings in what has been termed the “new judicial federalism” or the “renaissance in state constitutional law,” the Vermont Supreme Court (1999) was the irst to interpret a state constitution as permitting same-sex couples to form civil unions; the Massachusetts Supreme Court (2003), California Supreme Court (2008), Connecticut Supreme Court (2008), and Iowa Supreme Court (2009) went even further in recognizing a right to same-sex marriage.22 State constitutions can serve as a vehicle for judicial expansion of individual rights beyond federal guarantees; however, the lexibility of state amendment processes also renders these rulings more vulnerable to reversal than comparable federal court rulings. In fact, the “new judicial federalism” rulings issued by state courts in the post-1970s era have generated numerous state constitutional amendments intended to pre-empt or overturn them. Thus, in response to the California Supreme Court’s anti-death

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penalty decision, Californians initiated and ratiied a state constitutional amendment authorizing reinstatement of the death penalty. Expansive state court interpretations of criminal defendants’ rights were greeted with similar state constitutional amendments overturning the rulings and preventing state courts from exceeding the level of protection provided by US Supreme Court decisions. And the Massachusetts Supreme Court’s 2003 same-sex marriage ruling generated constitutional amendments preventing imposition of similar outcomes in over half the states, including in California, where voters in 2008 initiated and approved a constitutional amendment overturning the California Supreme Court’s decision legalizing same-sex marriage issued earlier in the year.23 In short, the post-1970s era brought a resurgence of state constitutionalism at irst on account of expansive state court rulings and then as a result of state constitutional amendments enacted to limit these rulings. Enactment of Public Policy Reforms Finally, state constitutional processes have brought about political changes by permitting enactment of public policy reforms at key moments in American history. This phenomenon is best understood as a constant feature of US politics, in that groups and individuals of all types have consistently sought to secure policy goals through the adoption of state constitutional provisions.24 But this reliance on state constitutional processes has been particularly notable during some of the key periods of American political development – the Jacksonian Era (1830s–1840s), the Populist and Progressive Eras (1890s–1910s), the New Deal Era (1930s–1950s), and the Conservative Ascendance (1980s–2000s). A principal concern of Jacksonian reformers was eliminating political privileges enjoyed by banks and by corporations who were able to secure governmental support for costly internal improvements. At the federal level, debates over a national bank and internal improvements were largely resolved through the political process; no federal constitutional amendments were adopted on these subjects. However, at the state level, opponents of banks, internal improvements, the loaning of state credit, and special incorporation laws concluded that state oficials could not always be counted on to restrict these practices. And this was true even when proposed restrictions enjoyed broad popular support, whether because legislators were overly responsive to special interests or because legislators themselves had an interest in perpetuating these practices. As a result, reformers frequently took advantage of lexible state constitutional amendment processes to prohibit legislators from chartering banks, funding internal improvements, loaning state credit, and passing special incorporation laws, as well as to prevent legislators from incurring debt through their participation in these

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sorts of ventures. Thus, in this Jacksonian period, when the vast majority of governance took place at the state level, state constitutions were a primary means for reformers to overcome legislative resistance and enact their policy goals.25 The Populist and Progressive movements of the late nineteenth and early twentieth centuries were concerned with regulating railroads and other corporations and protecting workers by limiting their hours, increasing their wages, and compensating them for workplace injuries. Reformers achieved some of these goals at the federal level, where they proceeded entirely through political rather than constitutional processes. For instance, Congress passed several statutes prohibiting monopolistic trade practices and regulating railroads and the rates they charged and their treatment of railway workers. But states still retained responsibility for regulating the hours and wages of most workers and establishing workers’ compensation programs for non-railroad employees. And on various occasions reformers turned to state constitutional amendment processes to secure protection for these workers. At times, such as when the California Constitution of 1879 established an eight-hour day on public works, reformers were bypassing legislatures seen as beholden to corporate interests. On other occasions, such as when the New York Constitution was amended in 1913 to authorize a compulsory workers’ compensation system, reformers were seeking to reverse state court rulings that were blocking passage of such protective measures.26 State constitutional processes played a relatively minor role in efforts by New Deal reformers in the 1930s and 1940s to secure protection for labor unions and assistance for the indigent, sick, unemployed, and elderly. For the most part, these goals were achieved through congressional statutes, many of which were adopted in the 1930s under President Franklin Roosevelt. However, in some cases, reformers also sought enactment of these policies on the state level and at times through constitutional amendments.27 Such was the case with the right to bargain collectively, which was secured for private-sector workers in intra-state commerce by a 1938 amendment to the New York Constitution and for private-sector and occasionally public-sector workers by subsequent amendments to four other state constitutions. Several state constitutions, most notably the New York Constitution in 1938, were amended during this period to make the aid and care of the needy a public concern. Old-age pension programs, which had been adopted on a statutory basis in a number of states in the early 1900s, were also occasionally authorized through state constitutional processes, as with a 1936 Colorado amendment. State constitutional processes have igured somewhat more prominently in the ascendance of modern conservatism in the late twentieth and early twenty-irst centuries, as reformers have tried to limit governmental power,

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primarily by limiting taxes and spending. In fact, the passage of an initiated amendment to the California Constitution in 1978, an amendment limiting increases in property taxes (Proposition 13), is seen as a harbinger of the national movement that led to major tax cuts at the federal level under President Ronald Reagan in the early 1980s. Individuals seeking to reduce the rate of government growth have continued to press their case through state constitutional processes, most notably with passage in 1992 of the Colorado Taxpayer Bill of Rights Amendment (tabor), which requires popular referendums on tax increases and imposes spending limits on states and localities. Colorado’s tax and spending limits are the strictest of any state, but other states have enacted more modest restrictions, to go along with the balanced budget amendments now in place in thirty-six states but with no parallel in the federal constitution.28 Although state constitutional amendment processes have not been used exclusively for achieving conservative public policy ends in recent decades – liberal groups have won adoption of education-spending and minimumwage amendments – conservatives have been particularly active in using these processes of late. Among other things, Californian Ward Connerly has won passage of state amendments banning racial preferences in California (1996), Michigan (2006), and Nebraska (2008). Meanwhile, property rights groups such as the Castle Coalition won enactment of amendments banning the use of eminent domain for economic development purposes in a host of states from 2006 to 2009, after the US Supreme Court declined to interpret the federal bill of rights as prohibiting such practices.29

C o n s e q u e n c e s o f S tat e C o n s t i t u t i o n a l V i ta l i t y for American Political Development In assessing the consequences of the vitality of state constitutionalism in the United States, it is helpful to consider two effects. First, the lexibility, length, and detail of state constitutions has affected state politics by empowering groups blocked or frustrated by ordinary state political processes. Second, the lexibility of state constitutional amendment processes, together with the willingness of state courts to independently interpret state constitutions, has affected the federal system by empowering groups blocked or frustrated by federal governmental processes. In both cases, one can identify – and scholars have identiied – disadvantages associated with the vitality of state constitutionalism. However, these disadvantages need to be balanced against, and can be seen as largely outweighed by, various beneits. In state politics, groups that have been unable to achieve their goals in ordinary state political process have clearly been advantaged by the lexibility of state amendment processes and by a Jeffersonian understanding that encourages frequent resort to these processes. In fact, it has become

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progressively easier for groups to resort to state amendment processes, owing to the introduction of the constitutional-initiative procedure in onethird of the states. State constitutional change is now driven not only by broad-based movements acting in conventions, as was often the case in the nineteenth century, but increasingly by groups that can place an issue on the constitutional agenda merely by securing signatures on an initiative petition. Because there is little stigma attached to frequent use of state amendment processes, groups have frequently resorted to these processes to correct what they view as deiciencies in the operation of ordinary state politics. On one hand, the consequences of this easy availability and frequent resort to state constitutional amendment processes might be viewed as problematic. Michael Colantuono, for instance, has commented that “[e]stablishing simple and expedient procedures for change, threatens basic values of American constitutionalism.”30 And Kermit Hall has expressed concern that “[p]opulist and majoritarian impulses in the states produced documents of ever greater length that were more like codes than fundamental laws.”31 From this vantage point, the length and detail of these state documents indicates that it has been too easy for groups to entrench their policy views through constitutional processes. On this view, many issues addressed in a constitutional fashion would have been better addressed in the political process, whether because they are essentially statutory or because they need the sorts of frequent adjustments easily made in the political process. One need only look to a failed cigarette tax-increase amendment in Oregon in 2007 for a recent illustration and validation of this concern. Supporters of raising the state cigarette tax and using the revenue to fund an uninsured children’s health program found that they needed more legislative votes to enact a tax hike as a statutory change (a 60 percent legislative vote requirement) than to refer the measure to the people as a constitutional change (a 50 percent legislative vote requirement), and so that is the path they followed, only to see the measure defeated at the polls.32 Insofar as groups advocating for policy change of this sort have seen their efforts diverted into constitutional channels, it would be hard to deny that the consequences are detrimental for state politics. This disadvantage would have to be balanced, however, against the beneits of permitting groups to overcome blockages and deiciencies in ordinary state political processes. At times, state constitutional processes have been a means of securing reforms that entrenched interests had succeeded in blocking in state legislatures. Such was the case when residents of growing piedmont regions secured more equitable legislative apportionments through conventions in the 1820s and 1830s and when the California Convention of 1878–79 required an eight-hour day on public works. At other times, state constitutional processes permitted enactment of reforms blocked by intransigent state judges, as when the New York Constitution

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was amended in 1913 to authorize a workers’ compensation program in response to a contrary state court ruling. At still other times, state constitutional processes have been a means of adopting reforms that constrain political oficials from taking short-sighted and potentially self-interested actions, as with the adoption of balanced budget requirements in thirty-six state constitutions. The main effect for the federal system has been that groups who are otherwise unable to achieve their goals through federal governmental processes have been advantaged by the lexibility of state constitutional processes and the willingness of state courts to interpret state constitutions independently. In some instances, groups irst sought to achieve their goals at the federal level, including through federal constitutional processes, but were blocked at that level and only then turned to state constitutional processes. This was the case, for instance, with efforts to secure court decisions protecting rights of criminal defendants in the 1970s. In other instances, groups pressed their case at both the federal and the state levels but had quicker success through state constitutional processes, as with adoption of women’s suffrage in the late 1800s. In still other instances, groups did little to press their case at the federal level; rather, they sought to achieve their goals primarily through state constitutional processes, as with the elimination of property and tax-paying suffrage requirements in the early 1800s and the legalization of same-sex marriage in some states in the early 2000s. From one perspective at least, this state of affairs might be seen as suboptimal. Edward Rubin and Malcolm Feeley have presented the clearest and starkest form of this argument in their article “Federalism: Some Notes on a National Neurosis,” where they contend that it makes most sense to view the United States as “a single, functioning nation, and that it generally deines good policy through a national decision-making process.”33 Although they see some virtues in a system of decentralization, Rubin and Feeley discern little value in maintaining a truly federal system. Against contrary claims that there might be some value in permitting state variation and that this might in fact lead to proitable experimentation, Rubin and Feeley respond that “very few people argue that normative variation within a polity is inherently desirable,” and, moreover, that arguments from experimentation have “the odd effect of consigning some people to bad policies so that others may beneit from good ones.”34 To take a recent illustration that might support this view, one can well understand why some scholars and citizens might be troubled by a system that permits same-sex marriage to be legalized through state court interpretation of state constitutional provisions in certain states but not others. Other examples could be adduced from previous eras to further illustrate critics’ concerns along these lines. Critics might well inquire, for instance, how one can countenance the fact that women were given the right to vote through constitutional

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amendments in some states in the late nineteenth and early twentieth centuries but not in other states, before passage of a federal amendment. From another perspective, though, one might conclude that these concerns about a lack of uniformity owing to the vitality of state constitutionalism are outweighed by the advantages. Thus, it might in fact be possible, contra Rubin and Feeley, to view normative variation in a polity as inherently desirable, especially if it permits a better it between diverse state political cultures and their public policies and governmental institutions. For instance, the ability of a number of state courts to interpret their state constitutions as permitting a good-faith exception to the exclusionary rule while other state courts chose not to provide this exception could well be seen as a virtue of the US federal system, in that this came closer to approximating the optimal policy preferences of the various states than would have been provided by a uniform national policy. The same could be said of the fact that citizens in almost half the states have relied on their state constitutional amendment processes to establish the popular initiative and/or referendum, whereas the other half of the states opted against adopting these reforms. Second, and also in response to critics’ concerns, one might well appreciate the virtues of permitting state constitutional experimentation without necessarily concluding that such a system consigns some people to bad policies so others can enjoy good ones. For instance, one might view state constitutional experimentation as advantageous because it permits good policies to be adopted for more people more quickly than if the only possible means of adopting such policies was through federal constitutional processes. One might view the adoption of women’s suffrage in this way. Precisely because western states were initially able to grant women the right to vote and the experiment was deemed a success and then adopted at the federal level, more women were able to vote more quickly than if they had been forced to wait until a consensus had been obtained in favor of federal action and if there had not been a testing ground for dispelling critics’ fears about this innovation. Nor are the beneits of state constitutional experimentation conined to cases where state innovations are deemed successful and later adopted through federal constitutional processes. State constitutional experimentation can be just as valuable when it leads to rejection of a failed state innovation, as when Colorado amended its constitution to permit popular recall of judicial decisions, but this reform was not adopted in any other state constitution or in the federal Constitution. Better to have a chance for this reform to be tested and shown wanting in a single state, one might conclude, than for it to have been adopted as a federal amendment and imposed on the entire country. In conclusion, although the prominence and vitality of state constitutionalism in the United States might be seen by some scholars as problematic, these disadvantages should be balanced against and can be seen as outweighed by the beneits associated with such an arrangement, both for state politics and for the federal system.

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Notes 1 This concept of subnational constitutional space is developed by Robert F. Williams and G. Alan Tarr, “Subnational Constitutional Space: A View from the States, Provinces, Regions, Länder, and Cantons,” in G. Alan Tarr, Robert F. Williams, and Josef Marko, Federalism, Subnational Constitutions, and Minority Rights (Westport, CT; Praeger, 2004), 3–24. 2 John Dinan, “State Constitutional Developments in 2009,” in The Book of the States, 2010, vol. 42 (Lexington, KY: Council of State Governments 2009), 11. 3 G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press 1998), 20–3. 4 Federalist No. 49. 5 David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1787–1995 (Lawrence: University Press of Kansas 1996). 6 The Jeffersonian view is set out in his “Letter to James Madison,” (6 September 1789), in Merrill D. Peterson, ed., The Portable Thomas Jefferson (New York: Penguin Books 1975), 444–51, and his “Letter to Samuel Kercheval,” (12 July 1816), ibid., 552–61. 7 John J. Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas 2006), chap. 2. 8 See Gerald Benjamin, “Constitutional Amendment and Revision,” in G. Alan Tarr and Robert F. Williams, eds., State Constitutions for the Twenty-irst Century, vol. 3: The Agenda of State Constitutional Reform (Albany, suny Press 2006), chap. 7; G. Alan Tarr and Robert F. Williams, “Getting from Here to There: Twenty-irst Century Mechanisms and Opportunities in State Constitutional Change,” Rutgers Law Journal 36 (summer 2005), 1075–1124. 9 Dinan, “State Constitutional Developments in 2009,” 11. 10 Kathleen M. Sullivan, “Constitutional Amendmentitis,” The American Prospect, 21 September 1995. 11 Michigan v. Long, 463 U.S. 102 (1983). 12 This initial period of state constitution-making is analyzed in, among other works, Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press 1980); Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press 1980); Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (Chapel Hill: University of North Carolina Press 1997). 13 These institutional innovations are treated in Dinan, The American State Constitutional Tradition, chaps. 3–5. 14 Merrill D. Peterson, ed., Democracy, Liberty, and Property: The State Constitutional Conventions of the 1820s, foreword by G. Alan Tarr (1966; Indianapolis, IN: Liberty Fund 2010). 15 Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books 2000), chap. 2.

60 16 17 18 19 20 21 22

23 24

25 26 27 28 29 30

31

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Ibid., 54–9. Ibid., 257–68. Ibid., chapter 6. Ibid., 277–81. Dinan, The American State Constitutional Tradition, 235. William J. Brennan Jr, “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90 (January 1977), 489–504. A comprehensive treatment of independent state court interpretation of state constitutions is Robert F. Williams, State Constitutional Law: Cases and Materials, 4th ed. (Saddle River, nj: lexis-nexis 2006); see also Robert F. Williams, The Law of American State Constitutions (New York: Oxford University Press 2009), chap. 5. John Dinan, “Court-Constraining Amendments and the State Constitutional Tradition,” Rutgers Law Journal 38 (summer 2007), 983–1039. The use of state constitutional amendment procedures to achieve public policy reforms throughout American history is discussed in various works, including James Q. Dealey, Growth of American Constitutions from 1776 to the End of the Year 1914 (New York: Ginn and Co. 1915); Morton Keller, “The Politics of State Constitutional Revision, 1820–1930,” in Kermit L. Hall, Harold M. Hyman, and Leon V. Sigal, eds., The Constitutional Convention as an Amending Device (Washington, DC: American Historical Association and American Political Science Association 1981). Tarr, Understanding State Constitutions, 109–13. Dinan, “Court-Constraining Amendments and the State Constitutional Tradition.” Tarr, Understanding State Constitutions, 148–9. Ibid., 157–61. Dinan, “State Constitutional Developments in 2009,” 5. Michael G. Colantuono, “The Revision of American State Constitutions: Legislative Power, Popular Sovereignty, and Constitutional Change,” California Law Review 75 (1987): 1473, 1512. Kermit L. Hall, “The Irony of the Federal Constitution’s Genius: State Constitutional Development,” in Peter F. Nardulli, ed., The Constitution and American Political Development (Urbana/Champaign: University of Illinois Press 1992), 236. John Dinan, “State Constitutional Developments in 2007,” in The Book of the States, 2008, vol. 40 (Lexington, KY: Council of State Governments 2008), 8. Edward L. Rubin and Malcolm Feeley, “Federalism: Some Notes on a National Neurosis,” UCLA Law Review 41 (1994) 903, 935. Ibid.

3

Legislative Competences, Budgetary Constraints, and the Reform of Federalism in Germany from the Top Down and the Bottom Up A rt hur B. Gunli cks Introduction 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 spd and Greens also failed to regain their previous majority of seats. The new Left party (die Linken) was too close to former communists and radical socialists to be a viable partner even for the center-left spd and Greens, and these parties also had too many differences with the center-right fdp to form a coalition. There was some brief talk about a “Jamaica coalition” with the “black” cdu/csu, the “yellow” fdp, and Greens, but there were too many disagreements on several issues between the irst two parties and the Greens.1 On 11 November 2005 a coalition agreement was signed that contained a section on the reform of federalism and an appendix of 226 pages, including 56 pages that presented the results of coalition discussions in the form of numerous proposals for constitutional changes in the federal system. The proposed changes represented a revival of the core elements of a package of proposals put together by a Federalism Commission that had

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been formed in the fall of 2003 and had met until December 2004, when the co-chairs announced that the commission was unable to reach agreement on several issues.2 The purpose of this chapter is to review the major features of the German federal system and to describe and analyze the reform proposals and amendments culminating in what are now being designated in Germany as Federalism Reform I and Federalism Reform II. The irst reform package was passed in 2006 and concerns the division of legislative competences of the federal and Land (or “state”) levels of government, the reduction of the veto powers of the Bundesrat (chamber of state governments) through consent legislation (Zustimmungsgesetzgebung), and the new rights of the Länder to deviate from federal regulations in a number of areas. Other aspects of the reform, including some limited measures regarding joint federal-Land inancing and federal-Land policies relating to the EU, will receive only limited attention. Federalism Reform II was passed in March 2009 and focuses on budgetary issues at the federal, Land, and local levels, but with particular emphasis on the Länder.

An Overview of the German Federal System Federal systems may share certain features, such as a central government serving a common territory but divided into a number of smaller territorial units headed by their own governments that have some degree of autonomy in the functions they exercise. Federal systems, however, like parliamentary or presidential arrangements, can and do vary widely in a number of ways: with respect to the geographical size of the common territory (for example, the United States vs Switzerland); the number of territorial units; the ethnic, religious, and linguistic composition of the population and the extent to which people live in territorial units that contain mostly one group with a special identity; the scope of legislative and taxation competences; and other matters.3 Germany is not a large country geographically or, in comparison to many other federations, even in terms of population size. Nor is it made up of different ethnic groups with their own cultural identity, although some Bavarians might disagree. Germany is a federation primarily because of history. The old Holy Roman Empire was a unique league of princes and ecclesiastical leaders, not a state, and it was dissolved under pressure by Napoleon in 1806. The German Confederation emerged in 1815, consisting of thirty-nine mostly small states that formed a customs union in 1834 (which excluded Austria). In 1867 the North German Federation was formed by more than twenty German states (without Austria and Switzerland), and in 1871 the four independent South German states joined with these states to create a united Germany for the irst time.4 The twenty-ive states of

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the Bismarck Reich of 1871, which collapsed in 1918 at the end of World War I, were consolidated into seventeen states, now called Länder, with the formation of the Weimar Republic in the autumn of 1919, but these states were dissolved by Hitler during the Third Reich of 1933–45. The Federal Republic of Germany, established in 1949 under a new democratic constitution, consisted of eleven Länder by the end of 1955 (West Berlin was technically under Allied control, but in practice it was a West German city-state, along with Bremen and Hamburg). Five new Länder were added in 1990, when East and West Germany were united (East and West Berlin were also united, and the whole of Berlin remained a city-state). Since 1990, then, Germany has consisted of sixteen Länder.5 There have been proposals and efforts to consolidate some of them (e.g., Berlin and Brandenburg in 1996) and to reduce the number to ten or twelve), but these efforts have failed, and the prospects for future consolidations are rather dim.6 The ive new Länder introduced constitutions that represented the third generation of Land constitutions. The irst generation was characterized by “full constitutions” written before the federal constitution, or Basic Law, went into effect in 1949. The second generation, after 1949, focused more on organizational principles, relying on the Basic Law (Grundgesetz) for the protection of human rights. And the constitutions of the third generation were written after uniication in 1990. While the third generation in the new Länder followed the Western models in large part, they were inluenced far more by “modern values,” including social rights and state goals that are not generally enforceable by law. Another feature of the constitutions in the new Länder was direct democracy, which exists in the old Länder as well; however, the new Länder generally followed the 1990 constitutional model of Schleswig-Holstein, which provided more generous provisions for referenda of various kinds. (There is no provision for referenda in the Basic Law, except in Article 29, which deals with the reorganization of Land boundaries.)7 While the Land constitutions of the third generation differed from those of the previous generations, the impact on the federal system was limited. More extensive changes would have to wait until the reforms of 1994 and, especially, the reforms of 2006 and 2009 discussed below.

The Concept of Dual Federalism In both the United States and Germany, one speaks of “dual federalism.” In the United States this means that the federal government and the states have separate political and administrative responsibilities and their own sources of revenues. In Germany, by contrast, dual federalism means that the federal executive and legislative branches of government are responsible for most legislation, and that the Länder generally administer the laws (in large part through their local governments) as their own responsibility. In both

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federal systems “dual federalism” has been undermined or weakened by “cooperative federalism,” which is generally associated with the New Deal and the Great Society in the United States and the Finance Reform of 1969 in Germany, which led to a greater degree of intermingling between federal and Land functions. In the meantime the concept of “intergovernmental relations” has more or less replaced the concept of “cooperative federalism” in the United States, while Politikverlechtung (political/policy interconnection and coordination)is the more commonly used term in Germany today.8 The German concept of dual federalism is not new; indeed, Gerhard Lehmbruch traces it back to the abortive 1849 federal constitution and to Bismarck and his North German Federation of 1867 and Kaiserreich of 1871.9 According to Article 30 of the constitution, or Basic Law (Grundgesetz), of the Federal Republic, “state [Americans would say “governmental”] powers and the implementation of state [governmental] tasks are the responsibility of the Länder.” But, as with the Tenth Amendment to the American Constitution,10 Article 30 is somewhat misleading. Indeed, Fritz Scharpf has suggested that the provisions of Article 30 are a “living lie [Lebenslüge] of federalism,”11 since other provisions of the Basic Law give to the federation most legislative powers and to the Länder most administrative responsibilities.

T h e D i v i s i o n o f L e g i s l at i v e P ow e r s For a more realistic picture of the division of legislative powers between the federal and the Land governments, one must go to Section VII of the Basic Law, which contains ifteen articles dealing with legislation.12 The irst of these, Article 70, paragraph 1, is related to Article 30 in providing that “the Länder have the right to pass legislation insofar as this Basic Law does not grant legislative authority to the federation.” A problem for many critics of German federalism is that the Basic Law does grant a signiicant amount of this authority in a number of articles. Thus Article 70, paragraph 2, grants the federation two kinds of legislative powers: exclusive and concurrent (revised in 2006, as we will see below). A third source of federal legislative powers was found in Article 75 in the form of framework legislation (eliminated in 2006, however). European Union law is an important fourth source of legislation that affects both the federal and the Land levels. Areas that were left to the Land governments were local government law; culture, including schools as well as the visual or performing arts and electronic media; public safety, for example, the police; and some aspects of the civil service and health care. The exclusive legislative powers of the federation are listed in Article 73. These are generally obvious responsibilities of the federal government,

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for example, foreign affairs and defense; national citizenship; currency, weights, and measures; customs and foreign trade; and other matters. The list is not complete, because other federal responsibilities can be found in other provisions of the Basic Law. For example, the authority to regulate political parties and political inance is found in Article 21. Articles 72 and 74 contain provisions concerning concurrent powers. These were subject to some changes after uniication, and they became candidates for change again in 2006. According to the Basic Law, any action the federal government takes in the area of concurrent legislation under Article 72 preempts any Land legislation covering the same subject, not just those provisions that may be in conlict, as in the United States (although federal pre-emption has occurred with increasing frequency in the United States). That is, there is no “dual authority” in Germany. Therefore, some legal scholars suggest that “precedence” legislation might be a better term than “concurrent” legislation. The federation has the right to pass concurrent legislation in order to secure “equivalent” living conditions (no longer “uniform” living conditions as before 1994)13 or to secure legal or economic unity in the country as a whole. “Equivalent” replaced “uniform” in 1994, in part to relieve pressures toward a more “unitary” federal state, which will be discussed below. Another change in 1994 was to permit the federation to pass concurrent legislation only when it was “essential” and not just because it perceived a “need” to do so. These changes were largely the result of pressure from the Länder that saw increasing federal encroachment in their territorial spheres of activity. On the other hand, the federation and the poorer Länder resisted too much change. Article 74 contains a rather long list of areas in which the federation may pass legislation and, in fact, has done so. In theory, at least some of these areas could have remained with the Länder, but the pressures for “uniform” living conditions and the view that national regulations were needed have always been very powerful. The result is that the legislative competences the Länder do have pale in comparison to the concurrent powers of the federal government, not to speak of the exclusive federal powers. Some of this loss of legislative authority was even yielded voluntarily by the Länder in order to eliminate inancially damaging competition: thus in 1971 the Länder agreed through the Bundesrat to grant the federation, in Article 74a, the concurrent power of regulating salaries and beneits of civil servants (Beamte), including the Land civil service (these competencies were returned to the Länder in 2006). The third source of legislative authority for the federal government was, until 2006, framework legislation found in Article 75 of the Basic Law. Laws passed under Article 75 differed from exclusive and concurrent legislation in that they were directed at Land legislators for further legislative

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action. This purpose was to give the Land legislators the right to adapt the framework laws to local circumstances; however, complaints by some of the Länder of federal intrusiveness led to a constitutional change in 1994 stating that framework legislation may go into detail only in exceptional cases.

A d m i n i s t r a t i o n o f F e d e r a l L aw s Section VIII of the Basic Law deals with the implementation of federal laws.14 The irst article (Article 83) of this section states simply that “[t]he Länder implement federal legislation on their own responsibility so long as the Basic Law does not provide otherwise.” The language of this article shows its relationship to Articles 30 and 70 above in granting sweeping authority to the Länder unless the Basic Law provides otherwise. As such, it is a relection of the German concept of “dual federalism” or the more commonly used term “administrative” or “executive” federalism. The division of responsibilities is not one of strict separation, however; rather, it is a system of co-operation, interconnections, and interrelationships. The federation does, indeed, carry the greatest responsibility for legislation, but the Länder (or at least their executives) participate in the legislative process through the Bundesrat, the “Länder chamber.” The Länder are generally responsible for administration, but in carrying out federal laws, they may be subject to many federal instructions and restrictions that they can usually inluence in the Bundesrat. Again, this system differs from the American concept of “dual federalism” or “dual sovereignty,” according to which a duality exists between the federal government and its executive and legislative competences, on the one hand, and the states and their executive and legislative powers, on the other hand. Even though the “state” (der Staat) at the Land level is an administrative state, there is considerable federal involvement in administration; indeed, Section VIII of the Basic Law provides three methods of administering federal law. The irst is administration solely by federal oficials, which takes place directly in state agencies (for example, in inance administration) or indirectly (for example, in social insurance agencies). The federal government is also responsible for administration of the foreign service, federal inances, federal waterways and shipping, certain police functions, border control, constitutional protection, military forces, air transportation, and the Bundesbank. A second method is administration by the Länder of federal laws delegated to them for administration according to federal instructions. Nevertheless, it is still Land administration. The federal government pays the functional costs, but the Länder pay the administrative costs. This delegated administration occurs only if provided by the Basic Law or because of a constitutionally authorized federal law. For example, the Land administration of

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the federal autobahns and other federal long-distance highways is provided by Article 90 of the Basic Law. The delegation of federal laws to the Länder for administration increased as a result of the Finance Reforms of 1969, for example, through Article 104a, which states that when the federation pays 50 percent or more of the costs of a program, that program will be administered for the federation by the Länder. The third and most common type of administration is carried out by the Länder themselves. The Länder and their local governments, to which the Länder send most of their federal and Land laws for execution, have the right to administer higher-level laws on their own responsibility. According to Article 84, if the Länder execute federal legislation, they establish the agencies and regulatory procedures. This is generally referred to as autonomous Land administration. However, a federal law, to which the Bundesrat has consented, may provide for federal involvement in the establishment of agencies or in administrative procedures. If the Länder administer federal laws on their own responsibility, they pay both the administrative and the functional costs, but in cases where the Länder pay more than 25 percent of the functional costs, consent of the Bundesrat is required. There is broad opportunity for federal involvement in administrative matters, but it occurs only with the approval of the Bundesrat. This means that in the inal analysis the Land governments (cabinets) control the extent to which the federation becomes involved in Land administration. In implementing federal laws, the Länder are supervised by federal authorities to ensure compliance and uniformity. However, whereas supervision in the case of delegated laws is both legal and functional, in the case of implementing federal laws on their own responsibility the Länder are under legal supervision only. If there is a conlict and no satisfactory resolution occurs, either side may take the case to the Bundesrat for a decision. If dissatisied with this decision, either side can appeal to the Federal Constitutional Court. As a general rule, German law does not permit a combination or mixture of federal and Land administration in a hierarchical relationship (Mischverwaltung), any more than it accepts dual legislative powers over the same subject. However, as already noted, there are forms of co-operation now generally referred to as Politikverlechtung, or interconnections and intermingling. This has always been the case when the Länder executives have participated in federal policy-making through the Bundesrat. It has also become more apparent in the co-operation that takes place under the category of “joint tasks” that are speciied in the Basic Law in Articles 91a and 91b. For example, although Article 91a gave the federal government the right of co-decision with the Länder in the construction of university buildings, this provision was removed in 2006, while the rights of co-decision over improving regional economic structures and improving conditions in agricultural and coastal areas were left unchanged. Article 91b concerns

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joint planning in education (repealed in 2006) and co-operation in the promotion of scientiic facilities and research.

C o n s i d e r at i o n s o f R e f o r m The German system of dual federalism as it has actually been practised has led many observers to complain about the role of the federal government and its expansion into legislative and administrative arenas at the expense of the Länder, that is, to complain about the reduction of Land “constitutional space” by the federal government. While the complaints have come mostly from Land and local authorities, it was the elected members of the Land parliaments more than the executive oficials who argued for a redistribution of competences; the Land executives, after all, participated in federal legislation through the Bundesrat, which could practically ignore the Land parliaments. Local governments also felt as though their interests were often ignored by the Land executives. The weakness of the Land parliaments in policy-making is also relected in the coordination that takes place among the Land executives, for example, in conferences of minister-presidents (prime ministers) and ministers of education, as well as conferences between Land and federal executive oficials concerning numerous issues. These developments led one prominent scholar in the 1960s to speak of a “unitary federal state” in Germany,15 and later another scholar went further to write of a “hidden unitary state.”16 After the passage of the Finance Reform of 1969, it became fashionable to talk about Politikverlechtung, which refers not only to the interconnection between federal and Land executives in decision making in the Bundesrat and to the coordination among bureaucratic oficials noted above but also to the system of public inance. In this system the Länder have no autonomous tax authority, and the local governments have very limited authority to raise revenues on their own. Instead, most important taxes are shared. Thus the individual income tax, the corporation tax, the value added tax (vat), and the local business tax and their distribution are determined by the federal government and Bundestag (parliament), but only with the approval of the Bundesrat, that is, the legislative chamber that represents the Länder (or, more accurately, their executives). In addition, sizeable sums are transferred from the richer to the poorer Länder in a complicated procedure to bring the poorer Länder up to 95 percent of the average per capita revenue of all Länder. Finally, federal supplementary grants are provided to the poorer Länder.17 The German system of dual federalism and Politikverlechtung has been criticized for ineficiency and ineffectiveness in decision making, especially in the legislative process in the Bundesrat. This process is cumbersome and lacks transparency, the opportunities for forcing changes in or even blocking legislation in the Bundesrat are numerous, and the room for maneuver for

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the Länder is limited. Gerhard Lehmbruch has suggested that the deeper reasons for these conditions lie in the contradictions of the federal order and the party systems of the Federal Republic. The competitive logic of the party system promotes the idea of opposing majorities in the Bundestag and Bundesrat in cases of divided government, that is, when one party coalition has a majority in one chamber that is opposed by a different coalition of parties in the other chamber. Negotiations in the Bundesrat require cooperative strategies, whereas party competition often leads to confrontational strategies. When the Bundesrat is used as an instrument of opposition, there is a “structural break” between the federal state and party competition and a limitation on the policy-making capacity and ability to act of the federal government.18 This problem is, of course, well known to Americans in their system of separation of powers and checks and balances. The numerous criticisms of the federal system led to a lood of complaints and proposals for reforms from many scholars, various political elites (especially at the Land and local levels), and the attentive public. Only modest reforms had occurred in 1994 after uniication; two reform packages, of 1993 and 2005, concerning public inances (Solidarity Pacts I and II) had resulted in the incorporation of East Germany into the complex West German system and a redistribution of revenues rather than real reform;19 territorial reform failed to take place as a result of a special commission report in 1976;20 and even the expected consolidation of Berlin and Brandenburg failed in a referendum in 1996.21 Finally, a commission was formed in the fall of 2003 to consider new reforms of the federal system. This Federalism Commission (Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung [KOMBO ]) consisted of thirty-two voting members, sixteen each from the Bundestag and the Bundesrat. Members from the Bundesrat were prime ministers from the Länder and their deputies. That this was not a top-down reform exercise was demonstrated by the fact that the federal government had no voting members, although it was represented by several government oficials and, perhaps indirectly, by some of the members of the Bundestag. Other non-voting members included two Land parliament presidents, four party group leaders from Land parliaments, and three representatives of local government associations. The inclusion of these representatives demonstrated the desire to include their “bottom-up” views in the reform process. Twelve professors who were experts on federalism were also included, for a total of 102 participants. Two highly controversial issues, territorial reform and public inance, were omitted from the Commission’s deliberations.22 As indicated in the introduction to this chapter, the co-chairs of the commission, the then national leader of the spd, Franz Münterfering, and the then csu prime minister of Bavaria, Edmund Stoiber, announced in December 2004 that they could not present a common reform proposal, largely because of disagreement on the issue of education, a classic top-down

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versus bottom-up conlict. There were also other areas of disagreement, but these were not decisive factors. There was widespread disappointment and frustration over the failure of the commission to present comprehensive reform proposals, and when new elections were called for September 2005, hopes were raised that the new government would revisit the effort; indeed, leaders of the government and the opposition had met in May 2005 to revive the issue. As noted in the introduction, the elections did take place but with unexpected results. Because of them, the only feasible combination of parties for the new government was a Grand Coalition of cdu/csu and spd. Federalism reform, which Edmund Stoiber, one of the co-chairs of the Federalism Commission of 2003–4, had called “the Mother of all Reforms,” was now put back on the agenda by the new government. Not surprisingly, the government proposals were based on the Federalism Commission’s proposals; indeed, according to my own analysis, there were changes – from signiicant to minor editorial changes – in twenty proposed amendments, while four proposed amendments were not contained in the coalition agreement. There were no changes in fourteen other proposed amendments. These were submitted for review by the prime ministers of the Länder in December 2005 and by the appropriate Bundestag and Bundesrat committees throughout the winter and spring of 2006. The committee deliberations and debates revealed some opposition to the reform proposals, but they passed the Bundestag at the end of June and the Bundesrat a week later, in both cases with large majorities.23

Federalism Reform I: The Reform of Dual Federalism and POLITIKVERFLECHTUNG? The main thrust of the proposed amendments concerned two goals: “strengthening the legislation of the federation and Länder through a clearer distinction of their legislative competences and eliminating framework legislation”; and “reducing mutual blockades by the Bundestag and Bundesrat through a re-designation of federal legislation requiring the consent of the Bundesrat.”24 Re-distributing and Distinguishing Legislative Competences and Eliminating Framework Legislation E x c l u s i v e a n d C o n c u r r e n t P o w e r s . In the section above discussing the division of legislative powers, it was noted that the federal government had exclusive, concurrent, and framework legislative powers under Articles 71, 72, and 75, respectively. One of the reform goals was to redistribute these powers in such a way as to give the Länder additional responsibilities and therefore strengthen the role and status, or “constitutional space,” of

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the Land parliaments, that is, the “middle level”; however, another goal was to provide a clearer distinction between federal and Land competences. This meant that in addition to granting the Länder parliaments more powers, other powers were granted the federal government. Thus, several powers were added to the exclusive powers of the federation under Article 73: the protection of German cultural artifacts from transfers abroad, the defense by federal police against international terrorism under certain conditions, the control of weapons and explosives, the care of those injured or affected by war, and the manufacture and use of nuclear energy for peaceful purposes and protection against dangers from nuclear accidents. As also noted in the section on “the division of legislative powers,” many of the powers assumed by the federation have come from the concurrent powers contained in Articles 72 and 74. Article 72, paragraph 1, states that the Länder have the right to legislate so long as and insofar as the federation has not made use of its legislative authority; paragraph 2 gives the federation legislative powers that are essential (erforderlich) in promoting equivalent living conditions in the federation or in protecting legal and economic unity in the general interest of the federation.25 This second paragraph was changed so that the federation no longer has the right to pass legislation under its general concurrent powers; rather, it retains the competence to pass “essential legislation” in ten areas only (see Article 74, paragraph 1, items 4, 7, 11, 13, 15, 19a, 20, 22, 25, and 26). In sixteen areas it has concurrent powers without having to meet the “essential” condition. A new paragraph 3 of Article 72 states that in six other areas (listed also in Article 74, paragraph 1, items 28–33) the Länder have the right to deviate (abweichen) from federal laws covering these topics and that these laws go into effect at the earliest six months after passage, unless the Bundesrat has agreed to a different timetable. It should be noted that the tendency of the federation to pass concurrent legislation on the grounds that there was a “need” and, after 1994, that it was “essential” according to Article 72, paragraph 2, was limited even before the reform of federalism of 2006 was passed as the result of decisions of the Federal Constitutional Court that narrowed considerably the meaning of “essential.”26 As was seen above, Article 74 has been amended by the addition of several items. In the irst item on the list of concurrent legislation that deals with a series of legal issues, punishment for crimes was given to the Länder. In the items that follow, the regulation of assembly and the regulation of nursing homes and homes for the elderly and disabled were removed as a federal concurrent power, while powers dealing with weapons and explosives and the care of those injured or affected by war were also removed from concurrent legislation and added to the exclusive powers of the federation. Several other items were revised, and seven new items were added after item 26, so that there are now thirty-three areas listed under concurrent legislation.

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Article 74a, added to the Basic Law in 1971, proved to be particularly contentious. It gave the federation concurrent powers over the salaries and beneits of all public employees, with the purpose of ending the competition among the Länder for public employees, including professors, school teachers, and police, as well as administrative employees. It was cited for decades as an example of the Länder voluntarily giving up core legislative competences to the federation. Article 74a was deleted in the 2006 reform of federalism, and provisions concerning the status and duties of civil servants (Beamten) of the Länder, local governments, and other public corporations, as well as judges, were transferred to the concurrent powers of Article 74 as item 27. Salaries and beneits for all public employees in the Länder and local governments, however, are now the responsibility of the Länder.27 In the cases where the Länder may deviate from federal legislation passed in accordance with federal concurrent powers, the federal law is not to go into effect for six months. This not only allows the Länder time to consider to what extent, if any, they wish to deviate from the federal legislation; it also prevents a kind of legislative “ping-pong” between federal and Land laws. On the other hand, a two-thirds majority of the Bundesrat can allow the federal law to go into effect immediately.28 F r a m e w o r k P o w e r s . Before the 2006 reform, the third source of federal powers was Article 75, which provided for federal framework legislation. Over the years complaints multiplied that Article 75 was one of the many causes of the decline of the role of the Länder parliaments. Federal elements were supposed to be allowed only when it was “essential,” but this was interpreted rather broadly until the Federal Constitutional Court ruled in two cases in 2004 (Junior Professor Decision) and 2005 (Student Fees Decision) that the interpretations by the federal lawmakers were indeed too broad.29 The authority of the federal government in these cases had been taken from “general principles of higher education,” one of six areas for which it could pass framework legislation. Article 75 had long been a target of reformers, so it was not surprising that it was eliminated by the 2006 reform of federalism. Of the remaining areas, the right to regulate cultural artifacts was transferred to the federal government’s exclusive powers in Article 73, while the status and duties of Land and local civil servants, hunting, nature conservation and landscape management, land distribution, land-use planning, water resource management, and admission and graduation requirements in higher education have been added to the federal concurrent powers.30 S u m m a r y o f C h a n g e s i n L e g i s l a t i v e C o m p e t e n c e s . In his analysis of legislative changes, Karl-Michael Reineck noted that in the past it was clear that legislative competences lay mostly with the federation. It had important exclusive powers and had used its concurrent powers to the full extent. It also had signiicant framework legislative powers that it

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was interpreting broadly. With the federalism reform of 2006, the Länder received additional law-making authority over a number of environmental matters31 and in areas such as punishment for crimes, higher-education law (except for admission and graduation requirements and with the right of deviation) and inancing for higher education,32 retirement and nursing homes, store-closing hours,33 restaurants (especially regarding smoking),34 the promotion of public housing, and the salaries and beneits for judges and public employees at the Land and local levels. Federal framework legislation no longer limits the room for legislative maneuver by the Länder in selected important areas, and they have the right to deviate from federal legislation in a number of areas. On the other hand, formidable legislative competences remain with the federation, and the reform of federalism did not change the fact that the reality of legislative competences is almost the opposite of what Article 70, paragraph 1, suggests.35

The Goal of Reducing Mutual Blockades and R e - D e s i g n at i n g C o n s e n t L e g i s l at i o n As noted above, over the past decades about 55–60 percent of federal legislation came to be designated as consent legislation requiring the approval of the Bundesrat. The Bundesrat can also “object” to the remaining 40–45 percent of legislation, but this is a suspensive veto that can be overridden by a majority of the Bundestag. So long as the governing parties have a majority in both chambers, there is usually little dificulty in getting bills through the legislative process. But on rare occasions a Land government that has the same majority may vote against a measure proposed by the federal government because it sees a conlict with Land interests. The real problem, according to many observers, is that in recent decades one or both parties in newly formed federal coalitions have usually lost votes in subsequent Land elections, with the result that parties that formed the coalition government have then sometimes lost the majority they had in the Bundesrat.36 In this case there has been a tendency for the Bundesrat majority to block37 or force modiications38 in the legislative proposals of the federal government. The resulting “blockade politics,” somewhat similar to conditions in the United States when the Senate and House of Representatives have different party majorities or when there is “divided government” as a result of different party control of Congress and the White House, has been strongly criticized in Germany because of its lack of transparency and accountability, ineficiency, and hindrance of the “responsible” party government that should be found in a parliamentary “party state” like Germany.39 “Blockade politics” has been blamed in part for the apparent inability of German politicians to deal with the challenges that face them and to introduce necessary reforms, and it is seen as one of the causes of popular discontent with the parties and politicians in Germany.40

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As noted above in the section on the administration of federal laws, under Article 84, paragraph 1, the Länder have the right to administer federal laws on their own responsibility by establishing the appropriate agencies and regulatory procedures. However, this “autonomous Land administration” is based on consent legislation that requires majority approval of the Land governments in the Bundesrat. Majority approval of the Bundesrat is also required under Article 84, paragraph 2, when the federal government establishes general administrative rules. A rather loose interpretation of these provisions was responsible for about half the consent legislation.41 Achieving the goal of reducing mutual blockades and re-designating consent legislation was not easy for a number of reasons. One of was the impact such a reduction would have on the Land prime ministers, whose involvement in consent legislation in the Bundesrat meant more inluence for them. The solution was found by providing any Land government with the right to “deviate” (abweichen) from federal rules regarding the establishment of agencies and procedures, when these were part of the legislation, by passing its own regulations. In this case the federal regulations do not go into effect for six months, in order to give other Länder the opportunity to consider passing their own regulations as well. In exceptional cases, where the federal government believes there is a special need for uniform federal regulation or procedures, the law providing such uniformity requires approval by the Bundesrat (Article 84, paragraph 1). Other Reform Goals and Results The constitutional reform proposals of the Federalism Commission and, later, of the Grand Coalition government established in the fall of 2005 were not conined to issues concerning dual federalism. “Reducing joint inancing and revising the conditions for receiving federal aid” while recognizing the promises made to the new East German Länder in Solidarity Pact II (a revenue and aid distribution package that ends in 2019) was a goal, as was “strengthening the ability of the Basic Law to deal with European integration.” It was also agreed to add a “Berlin clause” designating Berlin as the national capital and recognizing the federal government’s inancial responsibility for the representative functions it performs for the Federal Republic. The latter provision was a clear example of bottom-up pressure in the reform process. The results of these particular reform goals were disappointing insofar as a reform of the complex public inance system was put off for a second reform package that became a focus of special discussions in the Bundesrat at the beginning of 2007 and lasted until measures were passed in March 2009 (see below); nevertheless, some provisions of the Basic Law dealing with issues of inance were included in the 2006 reform of the joint tasks in Articles 91a and 91b. Article 91a dealt with federal participation in the

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improvement of living conditions when they were necessary and important for society as a whole. The joint tasks that were designated included the construction of facilities for higher education, the improvement of regional economic structures, and the improvement of the agrarian structure and of coastal preservation. The problem, according to many critics, was that the Länder were in effect being bribed to engage in various activities at the risk of losing federal funds and that some Länder could ill afford these activities even with federal help. It was also argued that the joint inancing of what, after all, were Land responsibilities increased the federal role at the expense of the Länder and reduced their autonomy. The 2006 reform of federalism deleted paragraph 1, section 1, of Article 91a regarding the improvement and construction of higher-education facilities. This change complements and conforms to the deletion of Article 75, which provided for framework legislation regarding higher education. The other two sections of Article 91a, concerning regional economic structures and agrarian structures and coastal protection, were left unchanged. A number of changes were also made in Article 91b: educational planning, which had never really occurred, was deleted, but provisions remain that permit joint participation in promoting and inancing facilities and projects of scientiic research at universities and university research institutes. However, federal involvement in scientiic projects and research in the universities must be approved now by all the Länder.42 There were also some changes regarding inances contained in Article 104a. In the last sentence of paragraph 3, the need for Bundesrat consent for certain legislation was removed; a new paragraph 4 replaced the old one and required Bundesrat approval of federal laws that involve Land administration, as well as Land funds; and a new paragraph 6 concerning the EU was added. The old paragraph 4 regarding federal grants-in-aid was revised and now forms the basis of a new Article 104b. Amendments to the Basic Law focusing on the EU concerned the mutual responsibilities of the federation and the Länder for meeting the requirements of the Growth and Stability Pact, Land enforcement of EU regulations, and Länder participation in EU policy-making. Finally, a Berlin clause was added that not only designated Berlin as the nation’s capital but also provided in very general language federal aid to help it meet the costs of serving as the capital.43

Federalism Reform II: A Real Finance Reform? General Considerations As we have seen, Federalism Reform I dealt mostly with the arrangement of law-making authority between the federation and the Länder. With the

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exception of some changes noted above in Articles 91a and 104a and provisions concerning the EU’s Growth and Stability Pact, it largely ignored inancial issues. Federalism Reform II focused on inances, but it did not deal with the complicated and politically dificult issues of tax autonomy for the Länder, the distribution of tax revenues between the federal and the Land governments, or the controversial iscal equalization procedures by which the richer Länder transfer funds to the poorer Länder, all of which would be the subjects of real inance reform. Instead, it concentrated on the public debt incurred by all levels of government over decades of deicit spending and the apparent inability or unwillingness of governments to function without continuously borrowing large sums of money. Concern over the public debt had been growing for many years, but the world-wide recession that began in 2007 led to growing alarm over the levels of deicit spending and accumulating debt. In March 2007 a Federalism Commission II (Kommission zur Modernisierung der Bund-Länder Finanzbeziehungen) was set up with sixteen voting members from the federal and Land levels, respectively.44 Four members representing the federation were appointed by the federal executive, while the other twelve members were appointed by the federal parliament, the Bundestag. All sixteen of the Länder representatives were appointed by the individual Land governments. There were seven nonvoting members: four from the Land parliaments and a representative from each of the three local government associations for the cities, towns, and counties. Two chairmen were elected by the commission members: Peter Struck, the spd party leader in the Bundestag, and Günther Oettinger, the prime minister of Baden-Württemberg. The Regulation of Budget Deicits and Debts The central part of Federalism Reform II is a rearrangement or new regulation of constitutional limitations on debt. The core provisions of this “debt brake” consist of signiicant changes in Articles 109 and 115, as well as the additions of Articles 109a and 143d.45 The irst paragraph of Article 109 was not changed in the 2009 reforms. It states that the federation and the Länder are independent and autonomous from each other in budgetary matters, although this does not prevent federal inancial assistance in certain areas. Local governments also enjoy budgetary autonomy from the federation but not from the Land of which they are legal parts. Paragraph 2 is largely new and obliges the federation and the Länder to meet the requirements of the Growth and Stability Pact of the European Union that “contribute in this framework to the overall economic balance.” According to these requirements, governments are to construct budgets

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that are close to being balanced without borrowing or that even show some surplus. The total of the budget deicits from all levels is not to exceed the EU standard of 3 percent of gdp. The federation is responsible for eventual deicits in social services, and the Länder are accountable for deicits incurred by their local governments. The new paragraph 3 is the key revision of Article 109.46 It states that the budgets of the federation and the Länder are in principle to be balanced without borrowing. Some exceptions are to be allowed for abnormal economic circumstances or for the results of natural catastrophes or for other emergency situations beyond the control of the state and in which government inancial capacity has been signiicantly reduced. An appropriate repayment scheme must be provided for the emergency regulations. Only the federation may borrow up to 0.35 percent of gdp to balance its budget in normal times. Article 115 permits borrowing more than 1.5 percent of gdp when abnormal economic circumstances call for it, but such deicits must be made up as soon as economic conditions allow. Budgets must also relect countercyclical spending. For example, during recessions deicit spending is permitted, but in better economic times there must be surpluses. The detailed regulations governing any deicit spending above 1.5 percent of gdp must be set out by the Bundestag. Natural catastrophes and other emergencies beyond the control of the state may call for deicit spending, but it must be authorized by the Bundestag and include a repayment schedule. Paragraph 4 of Article 109 authorizes the federation (with approval of the Bundesrat) to place certain limits on the budget autonomy of the Länder that is guaranteed in paragraph 1 through general principles and regulations concerning budgets and long-range inancial planning. These measures are to ensure that uniform, comparable procedures are used in the budgets of the federation and the Länder. Paragraph 5 of Article 109 concerns sanctions resulting from the violation of the EU’s Growth and Stability Pact that sets a deicit limit of 3 percent of gdp for annual budgets of the member states. In case this limit is breached and sanctions are imposed, the federation is responsible for 65 percent and the Länder (including their local governments) for 35 percent of the penalty, based on their population. However, Länder that share responsibility for exceeding the 3 percent limit must pay proportionately more, up to the 65 percent rate. The new Article 109a calls for federal legislation with Bundesrat approval that provides for a Stability Council to oversee the federal and Land budgets, to prepare procedures for dealing with a threatening budget emergency, and to set principles for programs designed to counter iscal emergencies. The new Article 143d deals with the timing of the inance reforms and federal grants to selected Länder. For the federation, the provisions of

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Articles 109 and 115 are to go into effect in 2011, although a transition period is allowed until the end of 2015, by which time any federal deicit is not to exceed 0.35 percent of gdp. The Länder and their local governments may continue to borrow in order to balance their budgets until the end of 2019, which is also when the Solidarity Pact II for the current system of public inance ends. Budgets of the Länder prepared for 2020 must relect the constraints of Articles 109 and 115 and be balanced without borrowing. To assist the poorer Länder in meeting the debt requirements of Articles 109 and 115 by the end of 2019, the federation may provide grants to Berlin, Bremen, Saarland, Saxony-Anhalt, and Schleswig-Holstein totaling 800 million euros annually. These grants may range from 300 million euros for Bremen, 260 million euros for the Saarland, and 80 million euros for each of the other Länder listed above. Funds will be distributed based on administrative agreements between the federation and affected Länder, in accordance with stipulations set by federal law and with the approval of the Bundesrat. The assumption is that all deicit inancing in the above Länder as well as in the others will cease by 2020. The costs of the grants to the poorer Länder are to be shared equally by the federation and the Länder. Finally, a new provision was added to Article 104b that allows the federation without speciic law-making authority to grant aid to Länder that are affected by natural catastrophes or unusual emergency situations that are beyond the control of the state and create inancial stress. This provision was the result of conditions created by the world-wide recession of 2008–9. Other, relatively minor changes in the Basic Law concerning a number of administrative themes such as tax administration, public information technology, and studies of administrative quality and effectiveness are not discussed in this chapter.

General Assessment Federalism Reform I There was and still is, of course, a considerable amount of controversy concerning many of the provisions of the 2006 federalism reform that amended the Basic Law. Some of the objections are based on principle or ideology, while other critics have expressed skepticism concerning the extent to which the reforms can really change or even have much effect on particular aspects of the federal system and, in particular, the “constitutional space” of the Länder.47 One reason for skepticism concerned the important issues that were left out of the 2006 reform. This reform was called Federalism Reform I because it did not deal with the important issues of public inance. As suggested above, a real reform of public inance would have to attack some very

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controversial issues, in particular iscal equalization transfers from richer to poorer Länder and taxation powers (autonomy) for the Länder, which were ignored in 2006. The success of Federalism Reform I depends to a considerable extent on the tax revenues the Länder have at their disposal. So long as own-source revenues are inadequate to provide a level of services and infrastructure that would be acceptable to the general population, there will be opposition, especially in the Bundesrat, to reducing signiicantly the dependency of the poorer Länder on federal grants and iscal equalization transfers.48 Some observers would argue further that the ability of the Länder to secure more own-source revenues and therefore to become less dependent inancially on federal aid and transfers from the richer Länder (and to take advantage of their new rights to deviate from federal laws) cannot be separated from the question of territorial or boundary reform. They argue that the population or geographical area of some Länder is simply too small to secure inancial independence and that the only rational solution is to redraw the boundaries and consolidate the Länder. Not surprisingly, there is ierce opposition to such suggestions by most of the smaller Länder, which insist on retaining their autonomous existence. Skeptics add that it is not clear that consolidation would necessarily bring about more iscal capacity and suggest that putting together two or even three poor Länder would not create something equal to one rich Land. They also suggest that the provisions of Article 29 of the Basic Law that regulate the redrawing of boundaries are, in fact, barriers to any territorial changes.49 In any case, the discussions that began in early 2007 concerning Federalism Reform II soon made clear that territorial reform was off the table. All three of these basic issues – more legislative competences, more inancial independence, and a consolidation of the smallest and weakest Länder into larger and stronger units – are closely interconnected.50 One very general goal of the 2006 reforms was to promote more “competitive federalism” by giving the Länder greater law-making authority. This goal suggests that the Länder are not only willing but also inancially able to assume more responsibility for a variety of tasks. The southern Länder, especially Bavaria and Baden-Württemberg, now the richest of the Länder, have been pushing for more “competitive federalism.” But some other Länder, such as the new Länder or Bremen and the Saarland, argue that they cannot compete, given their own weak revenue potentials and that they do not have the same chances to start with. Needless to say, they emphasize the strongly entrenched German value of solidarity, which is not easily reconciled with a more competitive federalism or constitutional space for the Länder.51 Gerhard Lehmbruch suggests that an understanding of German federalism rests on a path analysis of historical developments during the past 160 years and argues that any reform must take place within the framework of

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the traditional form of German federalism (Verbundföderalismus). Any radical form of competitive federalism, which presumably would be modelled on the American and Swiss federal systems, would have no serious chance of being accepted. German executive federalism, which Lehmbruch characterizes as involving primacy for the federation in law-making and the implementation of federal laws by the Länder, has its roots in the Frankfurter Assembly’s proposed constitution of 1849. While this constitution did not become the legal foundation of a German state, it did serve as a general model for the German states formed in 1867 and 1871. The only major reforms of German federalism that have taken place since 1849 have been associated with the consequences of war, as in 1867, 1871, 1919, and 1945.52 The fact remains, however, that the major purpose of Federalism Reform I was to increase the legislative competences or constitutional space of the Länder, reduce the “unitarizing” effects of the interconnections and intermingling of federal-Land relations, and create the conditions for a federalism at least more competitive than before, even if not going as far perhaps as some Länder – for example, Bavaria and Baden-Württemberg – would have liked. An important part of the reform related to these considerations was reducing the potential for gridlock in the Bundesrat. I have already noted that in the 1970s Gerhard Lehmbruch pointed out the contradiction between the competitive party system, on the one hand, and the legislative process in the Bundesrat based on co-operation, on the other. This contradiction becomes most apparent under conditions of “divided government,” conditions that have become more common since uniication in 1990 owing to changes in voting behavior and the rise of a new party system based now on ive parties that make less likely the traditional cohesive majorities common to both chambers. In this case the reform goal was to reduce the proportion of legislation requiring the consent of a majority in the Bundesrat. The question, of course, is whether and to what extent these goals were achieved. Federalism Reform II From the beginning there were, of course, criticisms of the inance reform of 2009.53 Some of them concerned the manner in which the reform commission was formed, the lack of inluence of certain groups, limited publicity, or other rather technical issues. The real problem, according to some, was the focus on budgets, deicits, and debt and the failure to address the basic issues of the public inance system.54 The reason public inance was ignored, however, is clear: no one was eager to tackle the issues of taxation powers, tax distribution, iscal equalization, and federal supplementary grants, especially when Solidarity Pact II provides for the continuation of the current system until the end of 2019. It was also clear that even before the recession of 2008–9 there was growing concern about public debt, the apparent inability

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or unwillingness to deal with it in a serious manner, and the obligations under the EU’s Stability and Growth Pact to limit deicits and debt. Some experts have noted that while exceptions to the strict prohibition against borrowing were necessary, they raise questions about the extent to which they might weaken the iscal discipline that Articles 109 and 115 seek to impose. They note that the 0.35 percent deicit allowed the federation in normal times is likely to become standard practice and thus contribute automatically to rising debt. The prohibition of deicit spending for the Länder except in various emergency situations may lead to more dependence on the federation, since there has been no expansion of taxing powers for the Länder. A basic problem is maintaining the commitment to solidarity while promoting more iscal discipline. Another problem may be that the imposition of Keynesian anti-cyclical budgetary policies assumes an ability to predict and plan in uncertain economic conditions.55 Another line of criticism is that the inance reform focuses on the single goal of stopping new indebtedness without dealing with the huge existing debt. One might have expected that sanctions would have been provided on the model of the EU’s Growth and Stability Pact (although in fact these were not imposed in the past, perhaps because it was the larger, more inluential states, such as Germany and France, that were the irst to violate the 3 percent deicit limit). It can also be argued that sanctions do not help the government that has violated the rule. Furthermore, some have questioned the necessity of creating the Stability Council and raised some concern about the weakening of budgetary autonomy that it implies. That may, of course, depend on whether the Council has a primarily consultative and supportive role or can require acceptance of its plans.56 In their analysis of the inance reform, Waldhoff and Dieterich conclude that Federalism Reform II attempts to provide constitutional restraints in an area in which parliaments have not exercised suficient oversight.57 The seriousness of the recession of 2008–9 is relected in the reform proposals that consist of compromises that will require the goodwill of participants. But in spite of certain weaknesses, the new incomplete rules are better than the earlier ones. The criticism that there was no real comprehensive reform raises questions about the ability of federal systems (or perhaps any system?) to enact reforms that create “winners” and “losers” among “strong” and “weak” political units. Federalism Reform I was concerned mostly with the goal of increasing Land autonomy, while Federalism Reform II establishes more centralizing provisions to control deicit spending and debts.58

Conclusion It should be remembered that the reform of federalism seemed severely wounded, if not dead, in December 2004, when it was announced that the Federalism Commission had failed to reach consensus. It was only the new

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elections and the formation of the Grand Coalition in the fall of 2005 that made possible the revival and actual passage of large-scale reform in the summer of 2006. There may have been some hyperbole in Bavarian prime minister Edmund Stoiber’s claim that federalism reform was “the Mother of all Reform.” However, agreement on the reform proposals required a twothirds majority in the Bundestag and Bundesrat and a great deal of compromise among federal and Land politicians with often conlicting ideological, political, regional, and even personal interests. Federalism Reform II was completed in a shorter period than its predecessor and with less controversy during a world-wide crisis that inluenced the thinking of the reformers and conirmed many of their concerns and fears regarding budgets in Germany. Given the current high and even alarming levels of indebtedness in most of the American states, an American observer might express approval of the provisions of the German inance reform of 2009. On the other hand, much of the debt incurred by American states has been the result not only of rising costs, such as Medicaid, or of alleged proligate spending but also of resistance by states to raising suficient revenues. Given the legal inability of states to borrow money to balance their budgets, drastic cuts, including cuts in core services such as education, have been made since the current recession began in 2008. It is unlikely that Germans would accept such cuts. In his review of the inance reform of 2009, Joachim Wieland notes the effects of the recession and costs of uniication on German inances, but he adds that bankruptcy is not appropriate or feasible for the social welfare state provided by the Basic Law (constitution). Police, ire departments, hospitals, courts, and schools cannot be closed down as in a private irm.59 Assessments of the reform of 2006 have been made since it was enacted, and they are continuing. However, they are still preliminary and must await developments in the coming years before they can be seen as deinitive. Assessments of the reform of 2009 are even more preliminary, since some provisions affecting the federation will go into effect only in the next few years, and others concerning the Länder will not be applicable for as long as a decade from now. The public debt crises and resulting drastic cuts in the budgets of Greece and Ireland and the cuts imposed by other EU governments, especially the government of British Prime Minister David Cameron, occurred in the spring and fall of 2010, after the 2009 inance reform was passed, but they may represent a challenge to the assertion that such cuts could not occur in Germany.

Notes 1 For analyses of the 2005 federal elections, see “Special Issue: The German Election of 2005,” German Politics 15, no. 4 (December 2006); “Special Issue:

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3

4

5 6

7

8

9

10 11

12 13 14 15

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The 2005 Bundestag Election,” German Politics and Society 24, no. 1 (spring 2006), and the “Wahlanalyse 2005” in Aus Politik und Zeitgeschichte (APuZ) 51–52/2005 (19 December 2005). For an analysis of the failed federalism reform of 2004, see Arthur B. Gunlicks, “German Federalism and Recent Reform Efforts,” German Law Journal, no. 10 (1 October 2005) http://www.germanlawjournal.com/article.php?id=634. Cf. Ronald L. Watts, Comparing Federal Systems in the 1990s (Kingston: Queen’s Institute of Intergovernmental Relations 1996), 1–2 and by the same author, “Comparative Conclusions,” in Distribution of Powers and Responsibilities in Federal Countries, edited by Akhtar Majeed, Ronald L. Watts, and Douglas M. Brown (Montreal & Kingston: McGill-Queen’s University Press 2006): 322. See also Michael Burgess, Comparative Federalism: Theory and Practice (London and New York: Routledge 2006). For a brief overview of the Holy Roman Empire, the German Confederation, the North German Federation, and the uniication of the Germany under Bismarck, see Arthur B. Gunlicks, The Länder and German Federalism (Manchester and New York: Manchester University Press 2004), chap. 1: 7–26. For a review of the changes in regime over the past two centuries, see ibid.: 26–42. Ibid., 43–4 and Uwe Leonardy, “Territorial Reform of the Länder: A Demand of the Basic Law,” in Arthur B. Gunlicks (ed.), German Public Policy and Federalism: Current Debates on Political, Legal, and Social Issues (New York and Oxford: Berghahn Books 2003), chap. 3. Arthur B. Gunlicks, “The Land Constitutions,” in The Länder and German Federalism, chap. 4; “State (Land) Constitutions in Germany,” Rutgers Law Journal 31, no. 4 (summer 2000): 971–98; and “The Land Constitutions in Germany,” Publius: The Journal of Federalism 28, no. 4 (autumn 1998): 105–25. The originators of this term are Fritz W. Scharpf, Bernd Reissert, and Fritz Schnabel, Politikverlechtung: Theorie und Empirie des kooperativen Föderalismus in der Bundesrepublik (Kronberg: Scriptor Verlag 1976). Gerhard Lehmbruch, “Der unitarische Bundesstaat in Deutschland: Pfadabhängigkeit und Wandel,” in Föderalismus: Analysen in entwicklungsgeschichtlicher und vergleichender Perspektive, edited by Arthur Benz and Gerhard Lehmbruch (Westdeutscher Verlag 2002): 53–110, especially 71. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” Fritz Scharpf, “Kann es in Europa eine stabile föderale Balance geben?” in Fritz Scharpf, Optionen des Föderalismus in Deutschland und Europa (Frankfurt: Campus Verlag 1994): 125. This section is based on Gunlicks, The Länder, 55–60. And certainly not “equal living conditions,” the oficial English translation of the Basic Law. This section is based on Gunlicks, The Länder, 60–4. Konrad Hesse, Der unitarische Bundesstaat (Karlsruhe: C.F. Müller 1962).

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16 Heidrun Abromeit, Der verkappte Einheitsstaat (Opladen: Leske + Budrich 1992). 17 See Gunlicks, The Länder, 173–90; Gunlicks, “Financing the German Federal System: Problems and Prospects,” German Studies Review 23, no. 3 (October 2000): 533–55. 18 Gerhard Lehmbruch, Parteienwettbewerb und Bundesstaat. Regelsysteme und Spannungslagen im Institutionsgefüge für die Bundesrepublik Deutschland, 3d ed. (Opladen: Westdeutscher Verlag 2000). 19 For a brief overview of Solidarity Pacts I and II, see Gunlicks, “The Impact of Uniication on German Federalism,” in The Berlin Republic: German Uniication and a Decade of Changes, edited by Winand Gellner and John D. Robertson (London and Portland, OR: Frank Cass 2003): 140–2. 20 Bundesministerium des Innern, Bericht der Sachverständigenkommission für die Neugliederung des Bundesgebiets (Ernst-Commission) (Bonn 1976). 21 Joanna McKay, “Berlin-Brandenburg? Nein danke! The Referendum on the Proposed Länderfusion,” German Politics 5, no. 3 (December 1996): 485–502. A new attempt at a referendum was originally planned for 2006, but it has now been deferred to 2013. See “Wir werden arm sein, aber glücklich,” Das Parlament (24 January 2005): 9. 22 Gunlicks, “German Federalism and Recent Reform Efforts.” 23 Gunlicks, “German Federalism Reform: Part One,” German Law Journal 8, no. 1 (1 January 2007): www.germanlawjournal.com/article.php?id=792. 24 Much of the discussion below is based on ibid. 25 “Equivalent living conditions” do not exist “when the living conditions in the Länder have developed apart from and affected negatively the federal social order or such a development appears concretely to be occurring.” BVerfGE 112, 226/244. For a critical view of the concept of “uniform” or “equivalent” living conditions and what the author sees as unjustiiably broad and generous interpretations usually applied to both terms, see Timo Hebeler, “Die Einheitlichkeit der Lebensverhältnisse im Grundgesetz,” Zeitschrift für Gesetzgebung 21 (2006): 301–20. 26 BVerfGE 106, 62; BVerfGE 110, 141; and BVerfGE 111, 10. These decisions from 2002 and 2004 rejected the federal government’s contention that it was “essential” to pass certain laws regulating, respectively, nursing homes, dangerous dogs, and store closing hours. Some legal commentators have suggested in their analyses that the above decisions and others had raised questions even before the federalism reform of 2006 about the federation’s continued exercise of concurrent powers. See Christoph Degenhart, “Die Neuordnung der Gesetzgebungskompetenzen durch die Föderalismusreform,” Neue Zeitschrift für Verwaltungsrecht 25, Heft 11 (15 November 2006): 1210. 27 For a criticism of these changes, see Lothar Knopp, “Föderalismusreform–zurück zur Kleinstaaterei?” Neue Zeitschrift für Verwaltungsrecht 25, Heft 11 (15 November 2006): 1219–20. 28 For analyses of the changes in concurrent powers, see Thomas Mayen, “Neuordnung der Gesetzgebugskompetenzen von Bund und Ländern,”

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30 31

32

33

34

35

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Deutsche Richter Zeitung 85 (February 2007): 51–2; Walter Franz, “Gesetzgebungskompetenzen nach der Föderalismusreform,” Jura 29, Heft 3 (2007): 165–7; Peter Selmer, “Die Föderalismusreform – Eine Modernisierung der bundesstaatlichen Ordnung,” Juristische Schulung 46, Heft 12 (Dezember 2006): 1056–7. BverfGE 111, 226, and BVerfGE 112, 226. These decisions in 2004 and 2005 questioned, respectively, the authority of the federal government to regulate the details of junior professor positions in German universities and to regulate university tuition fees. For a critical assessment of the repeal of Article 75, see Knopp, “Föderalismusreform–zurück zur Kleinstaaterei?” 1216–20. For a moderately critical view: Michael Kotulla, “Umweltschutzgesetzgebungskompetenzen und ‘Föderalismusreform,’” Neue Zeitschrift für Verwaltungsrecht 26, Heft 5 (15 May 2007): 489–95; more positive: Michael Kloepfer, “Die neue Abweichungsgesetzgebung der Länder und ihre Auswirkungen auf den Umseltbereich,” in Wege gelebter Verfassung in Recht und Politik: Festschrift für Rupert Scholz zum 70. Geburtstag, edited by Rainer Pitschas and Arnd Uhle (Berlin: Duncker & Humblot 2007): 651–75. For analyses of the federalism reform on science and research, see Eberhard Schmidt-Aβmann, “Die Bundeskompetenzen für die Wissenschaftsförderung nach der Föderalismusreform,” in Staat im Wort: Festschrift für Josef Isensee, edited by Otto Depenhauer et al. (Heidelberg: C.F. Müller Verlag 2007): 405–21, and Jörg Ennuschat and Carsten Ulrich, “Neuverteilung der Kompetenzen von Bund und Ländern im Schul- und Hochschulbereich nach der Föderalismusreform,” Verwaltungsblätter für Baden-Württemberg, Heft 4 (1 April 2007): 121–5. For a detailed analysis of current law concerning store closing hours, see Thorsten Kingreen and Bodo Pieroth, “Verfassungsrechtiche Grenzen einer Aufhebung der Landenschlusszeiten,” Neue Zeitung für Verwaltungsrecht 25, Heft 11 (15 November 2006): 1221–6. Also Holger Schmitz, “Die Ladenöffnung nach der Föderalismusreform,” Neue Zeitschrift für Verwaltungsrecht 27, Heft 1 (15 January 2008): 18–24. For analyses of the smoking ban in restaurants and some continuing problems of interpretation, see Carsten Wendtland, “Das Rauchen in Gaststätten: Ein Härtetest für die Kompetenzordnung nach der Föderalismusreform,” Die öffentliche Verwaltung (döv) 60, Heft 15 (August 2007): 647–52; Wolfram Försterling, “Kompetenzrechtliche Probleme nach der Föderalismusreform,” Zeitschrift für Gesetzgebung 22 (1, 2007): 36–61, and, for a view critical of giving this competence to the Länder, see Helmut Siekmann, “Die Zuständigkeit des Bundes zum Erlass umfassender Rauchverbote nach In-Kraft-Treten der ersten Stufe der Föderalismusreform,” Neue Juristische Wochenschrift 59, Heft 47 (20 November 2006): 3382–5. Karl-Michael Reineck, “Die Föderalismusreform 2006,” Deutsche Verwaltungspraxis 57 (12/2006): 488.

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36 Since 1949 all German governments have been coalition governments. The cdu/ csu gained an absolute majority in 1953, but it formed a coalition government anyway. 37 Actual vetoes are small in number, though they do occur. 38 More common are forced compromises put together by members of the Bundesrat and Bundestag in the mediation committee. 39 See, for example, Peter M. Huber, “Klare Verantwortungstellung von Bund, Ländern und Kommunen?” Gutachten D zum 65. Deutschen Juristentag 33 (2004). 40 Of course popular discontent with politicians and parties is hardly limited to Germany. 41 Irene Kesper, “Reform des Föderalismus in der Bundesrepublik Deutschland,” Niedersächsishce Verwaltungsblätter 6 (1 June 2006): 146; Stephanie Schmahl, “Bundesverfassungsrechtliche Neujustierung des Bund-Länder-Verhältnisses im Bereich der Gesetzgebung,” in Jahrbuch des Föderalismus 2006 (Tübingen: Europäisches Zentrum für Föderalismus-Forschung 2006): 233 ff. 42 See note 32, above, on assessments of amendments regarding inancing of scientiic facilities and research. 43 An overview, discussion, and analysis of Federalism Reform I can be found in Ralf Thomas Baus, Henrik Scheller, and Rudolf Hrbek (Hrsg.), Der deutsche Föderalismus 2020 (Baden-Baden: Nomos Verlagsgesellschaft 2009). 44 The oficial report of the Commission, including its organization, deliberations, and results, can be found in Die gemeinsame Kommission von Bundestag und Bundesrat zur Modernisierung der Bund-Länder Finanzbeziehungen: Die Beratungen und ihre Ergebnisse (Berlin: Deutscher Bundestag und Bundesrat 2010). 45 For a general review of the provisions of the reform of 2009, see, for example, Christian Waldhoff and Peter Dieterich, “Die Föderalismusreform II–Instrument zur Bewältigung der staatlichen Finanzkrise oder verfassungsrechtliches Placebo?” Zeitschrift für Gesetzbegung 24 (2009): 97–123. A more comprehensive discussion of the changes can be found in the constitutional commentary of Dieter Hömig (Hrsg.), Grundgesetz für die Bundesrepublik Deutschland, 9th edition (Baden-Baden: Nomos Verlagsgesellschaft 2010). 46 Waldhoff and Dieterich, Föderalismusreform II: 100. 47 For a series of articles in English assessing the 2006 federalism reform, see “Special Issue: German Federalism in Transition?” ed. by Wade Jacoby and Carolyn Moore, German Politics 17, no. 4 (December 2008). 48 For a discussion of the pros and cons of iscal equalization transfers between iscally stronger and weaker Länder, see Clemens Fuest, “Würde mehr Steuerautonomie die inanzschwachen Bundesländer benachteiligen?” Kritische Vierteljahresschrift für Gesetzgebung und Rechtwissenschaft 91 (2008): 200–12. 49 See, for example, Leonardy, “Territorial Reform of the Länder,” chap. 3; Gunlicks, “The Impact of Uniication on German Federalism,” 142–4. 50 For an argument that the federalism reform of 2006 will fail because of the unwillingness to address the inancial and territorial reform required for more

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52

53

54 55 56 57

58 59

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competitive Länder, see Christian Schimansky and Bernhard Losch, “Warum die Föderalismusreform keinen Erfolg haben wird,” Recht und Politik 43, (1, 2007): 18–25; criticism of this assessment on the grounds that it is too simplistic and ignores the question of how far competition can go without giving up the advantages of being part of a larger unit can be found in Hans Peter Bull, “Föderalismusreform auf falscher Fährte,” Recht und Politik 43, (2, 2007): 67–72. Hans Peter Bull, cited above, raises questions about just how more Land autonomy would improve the lives of citizens and makes the point that globalization, climate change, nuclear power, and other challenges, including pressures from the EU, require responses at higher levels, not more Land autonomy. See also Fuest, “Würde mehr Steuerautonomie die inanzschwachen Bundesländer benachteiligen?” 200–11. Lehmbruch, “Der unitarische Bundesstaat in Deutschland: Pfadabhängigkeit und Wandel,” 55–80; also Lehmbruch, “Strategische Alternativen und Spielräume bei der Reform des Bundesstaates,” Zeitschrift für Staats- und Europawissenschaften 2, no. l (April 2004): 82–93. For an overview in English, see Beate Jochimsen, “Fiscal Federalism in Germany: Problems, Proposals and Chances for Fundamental Reforms,” German Politics 17, no. 4 (December 2008): 541–58. For an overview in German, see, for example, the relevant selections in Der deutsche Föderalismus 2020. Waldhoff and Dieterich, “Die Föderalismusreform II”: 109–10. Ibid.: 111–17. Ibid.: 120. The Federal Constitutional Court said in a 2007 decision concerning the public inance system that “clearly there can hardly be any doubt that the current constitutional regulations need to be revised.” (BVerfGE 119, 96 [141]). Ibid., 122. Joachim Wieland, “Modernisierung der Bund-Länder-Finanzbeziehungen,” Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 91 (2008): 128.

4

Sub-national Constitutions and the Federal Constitution in Austria P e t e r Bu ß j äger I n t r o d u c t i o n : T h e A u s t r i a n F e d e r at i o n and Its Autonomous Länder 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, or B - 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 unitary features. The division of competencies provides relatively few opportunities for the Länder to enact legislation, and the constitution creates a weak federal council, the Bundesrat, that has no veto power against ordinary federal legislation. Constitutional changes since the formation of the federation have further accentuated this unitary emphasis, as most amendments to the constitution since 1920 have modiied the division of competencies by transferring additional powers to the federal level. In the main legislative realms, as well as in the administration of laws, the federal level plays a pivotal role. For example, the courts are regulated by federal law, and judges and other employees are civil servants of the federation. Matters of internal security are likewise addressed by federal legislation and administered by federal oficials. Although the constitutional powers of the Länder are circumscribed, their constitutional position is guaranteed. The Austrian Constitution enshrines several principles, usually referred to as the structural principles

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of the federal constitution, and federalism is among those principles. The Federal Constitutional Court has deined the federal principle as incorporating three substantive elements: (a) the distribution of legislative and administrative competencies; (b) the participation of the Länder in federal legislation and administration (so-called indirect federal administration, mainly executed by the governors of the Länder); and (c) the constitutional autonomy of the Länder. Both legal theory and judicial rulings conirm that a substantial alteration of any of these principles would be considered a “total revision” of the constitution, and under Article 44, paragraph 3, of the Federal Constitution, such a total revision of the constitution requires approval by popular referendum. Thus, abolishing the federal principle would require the consent of the people in a referendum, in addition to a two-thirds majority in both chambers of parliament.1 Moreover, besides the National Council, the Federal Council, the second chamber of parliament (the Federal Council represents the Länder parliaments), has to assent if the competence of the Länder concerning legislative or executive powers is to be restricted. Passing such regulations also requires the presence at least of half the deputies and a two-thirds majority. Two other aspects of Austrian constitutionalism also bear mention at the outset. First, Austrian constitutional law embodies a long tradition of legal positivism, which has played an important role in the interpretation and execution of Austrian laws. This tradition has encouraged an understanding of the constitution that is focused on the wording of provisions more than on the spirit of the document. As a result, Austrian constitutional law tends to be very casuistic and detailed. Second, the political role of the Länder is much stronger than their limited constitutional powers might suggest. In particular, the Landeshauptleute (governors of the Länder) are powerful veto players in the Austrian political system, because they have strong political positions in the Länder. Owing to the centralized structure of the party system, they also play an important role at the federal level.

Constitutional Autonomy in Austria Relative Constitutional Autonomy Articles 10–15 of the Federal Constitution regulate the separation of legislative and executive powers between the federation and the members. Because federal and Länder statutes have the same rank, if one legislature enacts a statute that contradicts the constitutional distribution of powers, it remains valid until annulled by the Constitutional Court. In terms of the distribution of powers, four possibilities exist: (1) exclusive Bund (federal) legislation and execution, (2) Bund legislation and Länder execution, (3) fundamental legislation by the Bund, with enabling legislation and

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execution by the Länder, and (4) exclusive Länder legislation and execution. Although the Länder enjoy residual powers in areas not expressly assigned to the federation, the federation exercises the most important powers, as enumerated in Article 10 of the constitution. Because constitutional autonomy is one of the central elements of the federal principle, each of the nine Länder has its own constitution. Yet although the Länder have their own legal systems and enjoy relative constitutional autonomy, it is of course limited by the powers of the federal government. In addition, there is some pressure toward homogeneity among the Länder constitutions, because they are supposed to harmonize with the Federal Constitution and commonalities among the Länder constitutions facilitate such harmonization. Since the early 1980s, after a long period of inactivity, various reforms of the Länder constitutions have been introduced. Reform efforts began with deep-reaching changes in the constitution of Vorarlberg in 1984 and with debates about constitutional reform in Styria at the same time. Other Länder, including Tyrol, Salzburg, and Upper Austria, followed within ifteen years with important modiications of their constitutions. The constitutions of other Länder were also modernised in various ways. These amendments have included the establishment of more mechanisms for direct democracy, the introduction of goals for state activity, and an expansion of the range of instruments, such as public auditing, for supervision of the operation of government. Some observers have also noted a “wider self-consciousness” among the Länder in making use of the constitutional space available to them.2 Coinciding with these changes was a change in the common understanding of the role of Länder constitutions among legal scholars and practitioners. Länder constitutions were no longer seen as subservient to the Federal Constitution but were seen instead as the basic law within the various Länder. This changed understanding, however, raised a new question about the scope of constitutional autonomy for the Länder. According to Article 99, B - VG , the Länder constitutions may not “affect” the Federal Constitution. This provision safeguards the homogeneity of federal and Land constitutional law. In the past, there was extensive debate about the meaning of this provision. However, the Constitutional Court has clariied matters, ruling for many years that “affect” means that subnational constitutions may not contradict the Federal Constitution.3 This means that the constitutional autonomy of the Länder resulting from Article 15, paragraph 1, B - VG (in which all competencies in legislation or administration that are not explicitly transferred to the federation remain within the autonomous ield of the Länder) has its limits in the fundamental principles of the Federal Constitution, on the one hand, and in explicit provisions of the Federal Constitution, on the other. This implies that constitutions of the Länder may codify anything insofar as they do not contradict federal constitutional law.

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The Federal Constitution provides a general framework that applies to both the federation and the nine Länder. This framework is based not only on fundamental constitutional principles such as democracy, republicanism, the rule of law, and human rights but also on certain more general constitutional provisions, such as the duties of administrative bodies or the structure of state organization.4 Scholars have therefore characterized the constitutional autonomy of the Austrian Länder as a “relative constitutional autonomy.”5 Consequently, Article 99 B - VG serves as a speciic rule for the homogeneous relationship between federal and Länder constitutional law.6 It guarantees a certain standard of fundamental rights or democratic instruments. Basic Principles of the Federal Constitution and Their Impact on Länder Constitutions Based on Article 99, B - VG , discussed in the previous section, the Constitutional Court has ruled, as we saw, that the basic principles of the Austrian Federal Constitution may not be contradicted by the Länder constitutions.7 This requirement of homogeneity raises dificulties, however, in that the content of the basic principles is shaped less by express provisions of the constitution than it is by the case law of the Constitutional Court. This can be seen in the Court’s ruling in 2001 dealing with Article 33, paragraph 6, in the constitution of Vorarlberg that allowed the people of Vorarlberg to demand the enactment, amendment, or abolition of state laws (including state constitutional laws) by way of citizen petitions. Under this provision, if a petition relating to Land legislation is supported by a certain number of voters or at least ten municipalities, the Land parliament must decide if the petition is to be considered or not. If the Land parliament refuses to consider a petition that is supported by at least 20 percent of the voters, a referendum must be held on the same question, and if it turns out to be successful, the Land parliament is obliged to pass a bill in accordance with the demands formulated in the petition. The provision thus compels the Land parliament to enact legislation even if its members do not wish to do so. The crucial question for the Court was whether the mere possibility of forcing the Land parliament to enact a certain piece of legislation represented a level of direct democracy that was incompatible with the democratic principle codiied in the Federal Constitution. The fact that Article 33, paragraph 6, of the Vorarlberg Constitution had never been of practical signiicance in the past played no role in the Court’s decision making. In earlier rulings, the Constitutional Court had already emphasized that the democratic principle stands mainly for representative democracy.8 Elements of direct democracy, insofar as they are explicitly provided for by federal constitutional law, were regarded as exceptions to this basic principle. In its judgment in the Vorarlberg case, the Court held that the

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fact that the (historical!) federal constitutional lawmakers wanted to provide for a referendum only to a limited extent (in the year 1920!) formed not only a federal constitutional standard that bound the federation, but also an essential element of the basic constitutional principle of representative democracy (parliamentarism) that bound the Länder constitutions as well. Express Restrictions on the Constitutional Autonomy of the Länder The Austrian Federal Constitution – unlike those in Germany, Switzerland, and the United States, for example -- regulates in detail the structure and operation of subnational governments. Article 95, B - VG , mandates the same principles for state parliamentary elections as for elections at the federal level (principles of common, equal, secret, and direct elections). Article 96, B - VG , states that the status of the deputies of the Landtage may not deviate from the status of the deputies to the National Council. Other provisions prescribe legislative procedure in the Länder (e.g., Article 98, B - VG ). Article 101, B - VG , requires that the Land government be elected by the Land parliament and consist of a governor, his representatives, and other members. The Federal Constitution also contains special regulations for the capital, Vienna, because of its dual status as a state and a municipality, as well as detailed regulations for the institutional structure and operation of municipalities. According to Article 117, B - VG , there must be a municipal council that is elected on the basis of proportional representation, a mayor who may – depending on the respective Land constitution – be elected directly by the people, and an executive body, the Gemeindevorstand. The Federal Constitution authorizes the Länder to allow municipalities to make use of direct democracy, such as initiatives and referenda, at the municipal level. Article 118, paragraph 2, B - VG includes a deinition of local self-government along the lines of the subsidiarity principle. Paragraph 3 enumerates those matters for which local self-government is guaranteed.

C h a n g e a n d D e v e l o p m e n t i n A u s t r i a n S tat e Constitutions The Structure and Content of Länder Constitutions Austria’s subnational constitutions are quite uniform in their regulation of the structure of Land governments and the procedures by which they operate. This is hardly surprising, because these provisions largely predate the recent reforms of Länder constitutions discussed above. There are no bicameral systems on the Länder level, and the election of the Landtage is based on the same electoral principles as the election of the National Council (Article 95, B - VG ). The Federal Constitution basically determines the selection, composition, and role of the Länder parliaments, but the Länder

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constitutions make detailed provisions for the selection and composition of the legislature that supplement those found in the Federal Constitution. Länder constitutions also regulate the internal structures of the Länder parliaments, that is, party factions, standing committees, and instruments of political and inancial control of the executive (for example, the right of interpellation, the appointment of investigative committees, and the vote of no-conidence, as well as the audit ofices of the Länder). Because of its obvious political importance, Länder constitutions address in great detail the election of the government by the Land parliament. Länder constitutions also provide for various instruments of direct democracy, and they regulate the use of “authorizations” of the Federal Constitution. For instance, onethird of the deputies of a state parliament may request judicial review of Land legislation before the Constitutional Court (Article 140, paragraphs 1 and 3, B - VG ). Furthermore, Land parliaments have to be informed on all EU matters that fall within the competence of the Länder and have the right to adopt binding opinions on those matters (Article 23d, B-VG). The Länder constitutions also repeat provisions of the Federal Constitution, such as the right to conclude international treaties.9 Constitutional Reform Initiatives in the Länder Recent constitutional reform initiatives in the Länder have addressed “state goals,” fundamental rights, direct democracy, instruments of parliamentary control, and government systems in the Länder. Let us survey each in turn. S t a t e G o a l s . The constitutions of the Austrian Länder characteristically include as a sort of preamble provisions of a general kind dealing with the Land’s legal status, the basic values underlying its constitution and politics, the fundamental rights it recognizes, and the aims it seeks to pursue. With the exception of Vienna’s, each Land constitution emphasizes the autonomy of the Land within the Federal State. While the term “State of the Federal Republic” is usually used, the Vorarlberg Constitution calls the State of the Federal Republic an “independent State.” Among the states of the Federal Republic, Tyrol stands out in particular with its proclamation of idelity to God, making it the only member of the Federal Republic to include a religious confession in its preamble. In the late 1970s and the early 1980s, the Austrian Länder began to introduce so-called state goals into their constitutions. Lower Austria and Burgenland pioneered these efforts with the latter, for example, declaring itself a democratic welfare state based on the rule of law. However, these were only the irst small steps. The irst wide-ranging modiication of a Land constitution took place in Vorarlberg 1984. Lower Austria, Upper Austria, Tyrol, Salzburg, and Carynthia have all followed the lead of these Länder, constitutionalizing a large number of political, economic, and social principles that

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guide governmental action within their borders. Through these state goals, the Länder have committed themselves to basic values such as democracy, justice, the rule of law, social justice, the welfare state, economic well-being, tolerance, and the support of disadvantaged people within society. One common state goal is the liberal principle of the free development of each person. This is understood to require state attention to (1) appropriate living conditions throughout the Land, (2) safeguards for human dignity and the free development of personality, (3) the creation of suficient living possibilities, (4) the creation of suficient jobs, (5) support for the interests of the elderly, (6) social welfare assistance, and so on. The constitutions of Tyrol and Vorarlberg expressly provide that any Land action must respect human dignity, equal protection before the law, and proportionality of the means applied. They also contain provisions requiring the state to protect and foster marriage and the family. The constitutions of Salzburg, Carinthia, and Upper Austria elaborate in considerable detail state goals for the protection of the environment, and Salzburg emphasizes as well as one of its state goals the protection of animals. In 2006 Salzburg also declared the protection and preservation of water resources as a new state goal, in order to be able to ensure a supply for future generations. Thus Salzburg has added to its extensive environmental goals a commitment to sustainability.10 To be clear, these state goals provisions do not grant fundamental rights to the citizens. There is considerable dispute as to the appropriateness of including state goals in Länder constitutions. Some commentators have insisted that because these declarations lack binding legal effect, they are unenforceable. Others maintain that they serve as action directives to the legislature and thus do have normative effect. In Das Verfassungsrecht der österreichischen Bundesländer, Friedrich Koja examined this question closely, concluding that state goals are designed to be legally binding on legislators.11 However, this does not mean that a court can issue a direct order for legislation (Gesetzgebungsauftrag) or require individual legislators to take action. Rather, it appears that the achievement of these state goals rests with the populace, which, through instruments of direct democracy such as the popular initiative, can force legislators to enact appropriate legislation. The Federal Constitution, designed under the inluence of legal positivism, was meant merely to serve as a legal framework for the political process and thus lacked similar provisions for a long time. Nowadays, however, the Federal Constitution also contains state goals (for example, for protection of the environment or in favour for disabled persons). F u n d a m e n t a l R i g h t s . The Austrian Federal Constitution contains an extensive listing of fundamental rights dating back to the Basic Law of 1867, and it also includes the European Convention on Human Rights,

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which, even though it is a multilateral concordat, has the status of federal constitutional law. Nevertheless, the Federal Constitution does leave room for the recognition of additional individual rights in Länder constitutions, as long as these protections do not contradict the Federal Constitution. This concern about contradiction likely means that the Länder should not include in their constitutions “classic” fundamental rights that have already been enshrined in the Federal Constitution, because – under Article 99, B - VG – provisions dealing with fundamental rights in Länder constitutions may not affect or limit the fundamental rights guarantees of the Federal Constitution.12 However, the formulation and adoption of new social and cultural requirements as fundamental rights does not threaten the requirement of conformity with the Federal Constitution, because the Federal Constitution has not codiied such rights, and so the Federal Constitution’s legal limit, Article 99, B - VG , does not apply. However questions of legal authority remain. Debate has focused on whether the Federal Constitution reserves the right to adopt fundamental rights exclusively for the federal level on ground of the provision of Article 10, pararagraph 1, point 1, B - VG . This provision stipulates that “Federal Constitution” is a competence of the federation. The competence “Federal Constitution,” however, refers only to certain realms of ordinary legislation and the execution of federal constitutional law, and thus adopting fundamental rights by the Länder parliaments is legally allowed.13 Some examples may illustrate how the Länder have made use of this constitutional space, that is, of their authority to extend rights beyond those recognized at the federal level. Three Länder – Salzburg, Tyrol, and Vorarlberg – have expressly constitutionalized the right to property. The constitutions of Tyrol (Article 11, paragraph 2), Vorarlberg (Article 11, paragraph 2) and Salzburg (Article 10, paragraph 3) require that when coniscation of property occurs as a result of state law, adequate compensation must be provided. A provision of the Tyrolean Constitution further guarantees individuals the right to obtain social aid, the only constitutional provision in Austria that recognizes a fundamental social right. There are not only fundamental rights in Land constitution but also fundamental obligations of the citizens: the constitutions of Tyrol (Article 14) and Vorarlberg (Article 12) oblige persons who are residing on Land territory to provide assistance in case of emergencies and disasters “in accordance with condition of the laws.” D i r e c t D e m o c r a c y. The Federal Constitution does not expressly regulate direct democracy in the Länder. The provisions in the Länder constitutions dealing with direct democracy result primarily from constitutional reforms that began in 1983 in Vorarlberg and continued over the next two

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decades in the other Länder. During this period, political debate revealed widespread popular concern about how well legislators represented the interests of the public, and strengthening the instruments of direct democracy seemed to be an answer to this concern. The constitutional changes commenced in Vorarlberg and later on spread to Tyrol, Styria, Salzburg, Upper Austria, and Lower Austria. They included the standard forms of direct participation in legislation: the referendum (Volksabstimmung), the popular initiative (Volksbegehren), and the requirement of public consultation (Volksbefragung). In addition, some Länder have also introduced procedures for citizen investigation of government bills.14 Whatever the impact of these amendments, they have not changed the dominant position of the parliaments and the executive organs in the political systems of the Länder.15 Although all Länder constitutions authorize some use of direct democracy, they differ in the forms that they authorize. All constitutions contain the popular initiative, so that the Land parliament has to deliberate. Some Länder permit a Land parliament to conduct an optional referendum concerning any statute that has been adopted but not yet promulgated. Some Länder constitutions also provide for referenda to be held on the municipal level. Such plebiscites have become increasingly popular and have been used in dealing with a broad range of issues, in particular seeking popular support for building permits for large housing projects or other construction projects. The constitutions also provide for a referendum if the Land parliament decides to authorize one. In addition, Burgenland, Lower Austria, Upper Austria, Styria, Tyrol, and Vorarlberg also provide for referenda on bills adopted by the Land parliament if this is requested by a suficient number of voters. It is unclear whether this “veto-referendum,” as it is called, contradicts the democratic principle of the Federal Constitution, which, as mentioned previously, emphasizes representative rather than direct democracy.16 Salzburg more or less follows the model of the Federal Constitution, with the initiative and both forms of referenda obligatory. Furthermore, in the case of a partial revision of the constitution, one-third of the representatives of the Land parliament have to decide if a referendum is necessary. In the case of an optional referendum the Land parliament may decide if a referendum shall take place. Upper Austria and Vorarlberg have established a combination of the initiative and the referendum under which an initiative becomes law if a majority votes for it in a referendum. However, the Constitutional Court has declared this provision of the constitution of Vorarlberg unconstitutional.17 Upper Austria has also introduced a variant of this: if an initiative is ratiied by a majority of voters, the Landtag can, by a two-thirds majority, prevent the result of the referendum from becoming law. Finally, all Länder constitutions provide for the consultative referendum

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with regard to legislative and executive matters, upon the request of the Land parliament or of the Land government or of a certain number of voters. Instruments of Parliamentary Control The Länder constitutions have established various instruments of parliamentary control over the Land government, the validity of which are addressed in Article 127c, B - VG , as amended in 1999. Among these instruments are the right of legislators to question members of the Land government and the right of the Landtage as a whole to pass a no-conidence resolution, leading to the resignation of a speciied member of the government or of the government as a whole. Another instrument of parliamentary control is the right to establish investigative committees. Interestingly, in some parliaments, such as those in Salzburg and Tyrol, the right to establish investigative committees belongs to the parliamentary minority. Each Land parliament regularly uses the right of interpellation in the form of a question period at the beginning of a state parliament session. This so-called Aktuelle Stunde (the English translation could be “topical hour”) is meanwhile also a popular instrument of parliamentary control in the Land parliaments. Land Audit Ofices Among the most important instruments of parliamentary control are independent Land audit ofices (Landesrechnungshöfe), now established in the Länder, which have the right to examine the inancial management of state administrations. (The terminology is slightly different in Vienna, where the ofice is designated as the Kontrollamt because it is the mechanism of control not only in the Länder but also in the municipality of Vienna. It is in fact an ofice of the municipal council (Gemeinderat), which is organizationally assigned to the municipal board (Magistrat)). Initially there was some dispute about the constitutionality of Land audit ofices. Some scholars argued that establishing them in the various Länder would contradict the Federal Constitution by interfering with the work of the federal audit ofice and promoting inadmissible competition with audit ofices at the federal level. However, other scholars accepted the (relative) constitutional autonomy of the Länder, which the mechanism of a federal audit ofice would permit. Ultimately, the adoption of a federal constitutional amendment (Article 127c, B - VG ) in 1999 conirmed the validity of creating audit ofices in the various Länder. This amendment expressly authorizes them to create their own audit ofices as similar types of institutions to the federal audit ofice, and they are allowed to establish regulations regarding their organization and as functions. They create audit ofices as

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an auxiliary authority of Land parliaments, which means that they are an ofice of control paralleling the federal audit ofice, especially in its organizational structure. The control of public accounts and the administration of public funds in the sphere of the Länder is therefore exercised both by the federal audit ofice and by the Land audit ofices. Even if the ofices in the Länder do not interfere with the work of the federal audit ofice, their creation raises other legal questions. For example, which governmental authorities are under the supervision of the audit ofice and responsible to it? Obviously, as an auxiliary organ of the Land parliament, it may examine the inancial management of the Land. With regard to municipalities, however, the legal situation is more complicated. Article 119a, paragraph 2, B - VG , indicates that the Land has the right to examine the inancial management of the municipalities within its borders with regard to economy, eficiency, and appropriateness. Since the control of inancial management is control in the sense of the supervision of municipalities, the authorities of the Länder and the federal government are entitled to undertake it. Thus the executive and not the legislature has the competence. In the past there were lengthy debates about whether the Land constitution could allow audit ofices to examine the inancial management of the municipalities. The prevailing opinion was that they were not allowed to exercise control because control by an auxiliary body of a parliament would contradict Article 119a, B - VG . But now a recent modiication of the Austrian Federal Constitution has clariied certain points.18 Although the federal audit ofice may examine the inancial management only of municipalities that have more than ten thousand inhabitants, nevertheless, if they are called on by the Land government to supervise a municipality, the federal and the Land administration may audit inancial management in their responsibility as supervisors. Moreover, the Land constitutions are now explicitly entitled to allow Land audit ofices to examine the inancial management of municipalities that have less than ten thousand inhabitants. In this change the Federal Constitution follows the arguments of Norbert Wimmer, according to which there could be only one solution to the problem: codifying a “competence clause” (Kompetenztatbestand) through federal constitutional regulations.19 Obviously the argument that the constitutional autonomy of the Länder allows them to entrust their audit ofices with the control of inancial management of municipalities was neglected. As of December 2010 the Länder had not modiied their constitutions in respect of this new situation. Nevertheless, it can be expected that the audit ofices in more or less all the Länder will be allowed to audit the municipalities. Presently, in some cases their constitutions do entitle them to entrust their ofices with the control of the inancial management of municipalities. In this function the audit ofice is then acting as an auxiliary

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body of the government. But in the literature this construction was not approved. Therefore a different construction was considered, namely, that the audit ofice acts as an expert on behalf of the government (compare the Landesrechnungshofgesetz Oberösterreich: the Upper Austrian Law on the Land Audit Ofice).20 On a vote by, or rather by a request of a Länder institution like the government, parliament, or a certain number of deputies, the audit ofices carry out special investigations. The requirements for investigation are different in the respective Länder. Requests may be authorized by the following: •

•

•

•

•

•

•

•

•

•

• •

The Land parliament – in Styria, Salzburg, Burgenland, Tyrol, Carinthia, Lower Austria, and Vorarlberg. The Land government – in Burgenland, Salzburg, Carinthia, and Vorarlberg. The control commission – in Salzburg, Burgenland, Tyrol, Carinthia, Lower Austria, and Vorarlberg. A member of the Land government in the context of concerns of the member’s department – in Styria, Burgenland, and Carinthia. Individual members of the control commission – in Burgenland and Carinthia. A party that fails to have a quarter of the members of the state parliament – in Salzburg. A third/a quarter of the delegates of the Land parliament – in Burgenland, Tyrol, Lower Austria, Styria, Salzburg, and Vorarlberg. A “Landtagsclub” that does not have a third of the members of the Land parliament – in Burgenland. A quarter of the delegates if they belong to a group of voters that is not represented in the Land government – in Tyrol. The Land government, if it requires an examination, and the control commission – in Styria and Tyrol. The governor – in Salzburg. A popular initiative – in Vorarlberg and Styria.

Only Styria and Vorarlberg permit a popular initiative on the request for an investigation by the the Land audit ofices. In these Länder public control is also an aspect of direct democracy. Finally, it should be stressed that so far no major problems have resulted from possible duplication of work by federal and Land audit ofices. In addition, the Länder ofices sometimes serve a supplementary function, because some special areas of inancial management control can be undertaken only by the member state ofices – for instance, for enterprises where state involvement is less than 50 percent.21

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O m b u d s m a n . An amendment to the Federal Constitution in 1977 (Article 148a, B - VG ) established the ofice of Federal ombudsman (Volksanwalt), which was modelled after the ombudsman ofice in Sweden. The ombudsman represents an auxiliary body of the parliament for controlling the administration. Under the Federal Constitution, each Land has the option of authorizing the federal ombudsman to oversee the administration of the state. Most Länder have availed themselves of this possibility. However, Vorarlberg and Tyrol have made use of the constitutional space extended by the Federal Constitution to create their own ombudsman ofices. The Vorarlberg ombudsman resembles its federal counterpart in terms of internal organization and the scope of its authority. In contrast, Tyrol created a somewhat different institution. For one thing, the ombudsman of Tyrol is under the authority of the Land parliament and cannot otherwise be removed before the expiration of its term of ofice, and the ombudsman of Tyrol differs from the federal ombudsman in the scope of its activities. For example, the ombudsman can be “called” even if other legal remedies remain available, and the ombudsman can examine “indirect federal administration.” From the perspective of the Federal Constitution, the authority of the ombudsman of Tyrol to control the indirect federal administration may be problematic, because Article 148a, B - VG , appears to allow the federal ombudsman or the Land ombudsman to examine only the execution of laws enacted by their level of government.22 Government Systems in the Austrian Länder The most important differences in governmental structures are concerned with the rules about the composition of the executive body, the state government. After 1945, seven of the nine Länder constitutions – all but those of Vorarlberg and Vienna – have provided for proportional representation. These constitutions are based on a power-sharing model under which the political parties – in particular the conservative People’s Party, the Social Democratic Party, the national-liberal Freedom Party, and the Greens – can appoint members of the government based on their share of the popular vote. Moreover, in Burgenland, Carinthia, Lower Austria, Upper Austria, and Styria, only the candidates nominated by the political parties can be elected, since the only valid votes are those cast for their nominees (the socalled Fraktionswahl). This mechanism, which in practice has transformed the election into an appointment process for the various parties, has nonetheless been accepted by the Constitutional Court.23 An important element of competition does remain in the election of the governor, which is, under all Länder constitutions, based on a majority vote. Like Vienna in 1921 and Vorarlberg in 1923, Salzburg and Tyrol modiied their constitutions at the end of the 1990s in order to accommodate

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the election of their state governments by a majority rather than a proportional voting system. Thus, since 1998 there have been four Länder with majoritarian governments: Vorarlberg (since 1923), Vienna (since 1921), Salzburg, and Tyrol. These reforms were meant to spur political competition, but it is debatable whether this goal has actually been achieved. This might be why other Länder have so far retained their systems of proportional representation.

Constitutional Reforms on the Federal Level: A Never-Ending Story? History Commissions have periodically been established to reform and modernize the Austrian federal system, but their efforts have always failed, mainly because of the anti-federal attitude of the bureaucratic staff in the administration and the reluctance of the Länder to take on new competencies and responsibilities that might spark political conlict. One crucial reform project was the Structural Reform of Competencies of 1989 to 1994, which was initiated because of Austria’s possible accession to the European Union. The Länder called for a fundamental redistribution of competencies within the federal system in order to compensate for their anticipated loss of legislative power and inluence. Both sides, Bund and Länder, agreed as well not to deal with a reform of the inancial constitution and the rather complicated system of inancial equalisation. Thus, a deep-reaching modiication of the Austrian Federal Constitution was excluded from the beginning of the discussions. The Political Agreement on the Reorganization of the Federation was signed in 1992 by the federal chancellor (on behalf of the federal government) and by the chairman of the Conference of State Governors (on behalf of the Länder). This agreement stipulated that a government bill dealing with federal reform was to be drafted before the date of the referendum on membership in the European Union, so that it could be enacted no later than the constitutional amendment authorizing Austria‘s accession to the EU. Even though a bill entitled Structural Reform of the Federation was indeed drafted, it proved impossible for the national parliament to enact it. In the general election of 1994 the incumbent spö/övp grand coalition lost the necessary two-thirds majority in the National Council, and in the end the Länder rejected the compromise that the government was obliged to negotiate with the opposition, on whose support the bill then depended. A second effort at structural reform of the federal system was the Austrian Convention, which met from June 2003 to January 2005. While the Structural Reform of Competencies had been initiated by Austria’s

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forthcoming accession to the European Union, the Austrian Convention was an apparent result of Austria’s EU membership. Although the convention was tasked with submitting proposals for reforming the Austrian political system and constitution, it inished its work without reaching a consensus on the most intensively debated matters, which included the division of competencies and the restructuring of the inancial relationships among the federal level, the Länder, and the local governments, as well as the creation of a new charter of fundamental rights that was to include social guarantees. It became clear that only a grand coalition formed by the two main parties, the Social Democrats and the People’s Party, could succeed in reforming Austria’s federal system. Although both reform projects had similar goals there was one important difference: during the late 1990s and the irst years of the twenty-irst century, the paradigms of the discussion about the Austrian federal system had changed. Reform discussions no longer dealt with the strengthening of the powers of the Länder but with the future of the federal system itself.

Reforming Austria’s Federal System: At the Heart of the Work of the Grand Coalition? After the elections to the National Council in October 2006, which almost resulted in a tie between the Social Democrats and the People’s Party, it took until January 2007 for the two parties to craft a co-operation agreement for the legislative period. The new chancellor, Alfred Gusenbauer, declared that the reform of the federal state and of the administration was at “the heart” of the agreement and of the government’s work. But in fact, the chapter that deals with constitutional reform does not aim to create a new constitution (like the Austrian convention) but rather seeks (1) the establishment of administrative courts in the Länder, which would allow for Länder participation in courts, (2) the organization of a new system of administration in education that would allow the Länder to play a more important role in the Austrian educational system, (3) the enhancement of the constitutional autonomy of the Länder and the reduction of the supervisory powers of the federation, and (4) the creation of a new distribution of competencies by a so-called third pillar that would facilitate cooperative legislation between the federation and the Länder. The last reform is undoubtedly the most dificult, and many observers doubt whether a consensus can be reached on a distribution of competencies. An essential difference between the Austrian Convention and the new approach towards constitutional reform under Chancellor Gusenbauer was that the proposals for the reform projects were to be crafted by a small group of experts that included politicians as well as scholars. This approach had played an important role in debates on the reform of Austria’s

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federal system in the past. The agreement between Social Democrats and the People’s Party explicitly mentioned four experts. On the side of the spö, Theo Öhlinger, professor of constitutional law at the University of Vienna, and Peter Kostelka, former speaker of the section of the spö in the National Council and later ombudsman, were nominated to be on the expert commission. On the side of the övp, Andreas Khol, former president of the Austrian National Council, now retired but still one of the most prominent political experts in Austrian federalism, and Franz Fiedler, former president of the Austrian Court of Audit and President of the Austrian Convention were selected for the expert group. In addition, two experts had to be delegated from the conference of the governors. The irst was Gabriele Burgstaller, governor of Salzburg and member of the spö, and the second was Herbert Sausgruber, governor of Vorarlberg and member of the övp. Both could be represented in part by other experts. Georg Lienbacher, the head of the Constitutional Service of the Federal Chancellory, served as general secretary of the group. The group of experts was supposed to have developed its proposals by the end of June 2007. In July 2007, the expert group presented a draft paper containing proposals for the introduction of administrative courts in the Länder, and in March 2008 it proposed a new division of competencies, a new role for the Federal Council, and a reorganization of the administration of elementary and secondary education. As a whole, these proposals would have strengthened “executive federalism” in Austria. But in the following months the coalition of the spö and the övp broke apart. As a result of the election held in the autumn of 2008 a new coalition of the spö and the övp under the leadership of federal chancellor Werner Faymann was formed, but the new government abandoned the project of a new division of competencies. So it is not surprising that as of late 2010, no bill had passed in parliament giving life to the proposals of the former expert group, although agreement may be possible on both the federal and Länder levels with regard to administrative courts and the administration of education. The opposition parties – the Greens, the Freedom Party, and the bzö – will undoubtedly object to proposals on these topics, but they will not be able to block them should the spö and the övp work out a compromise. In addition to controlling the federal government, those parties govern in eight of the nine Länder, the exception being Carinthia, which is governed by the bzö. However, the prospects for a new distribution of legislative competencies remain poor. As formulated in the report of the Austrian Convention and in proposals of the federal government, there are huge differences between the positions of the Länder and the federal government. It is remarkable that the positions of the Länder towards the federal government have remained quite uniform, even though there have been differences over federalism and various economic positions between the Länder. It may be that the efforts to

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achieve legislative co-operation between the federation and the Länder in dealing with matters such as hospitals and certain components of youth and social welfare policy could serve as a model for expanding the sharing of competencies between federal and Länder authorities in other areas.

Conclusions This survey of constitutional developments in the Austrian federal system has demonstrated the increasing importance of Länder constitutions. While they played only a minor role for many years, this began to change in the early 1980s with the recognition that Länder constitutions could be venues for innovation and policy or institutional experimentation. The effects of changes in Länder constitutions have been felt within the borders of the various Länder, beyond the borders of individual Länder as innovation in one Länd has encouraged emulation and experiment through the processes of horizontal federalism, and – to some extent – even at the federal level. For example, the decision to lower the voting age to sixteen, with the result that nearly every citizen has the right to vote in all elections and referenda on the federal, Land, or municipal level, was enshrined in the federal constitution as a result of learning from experiments undertaken in various Länder since the 1990s.24 However, reforms on the Länder level should not be overestimated. The federation still plays the dominant role in the Austrian political system, and the Federal Constitution’s restrictions on state constitutional space do not allow for deep-rooted reforms such as the change from proportional to majority voting in elections to Länder parliaments. To sum up, in recent decades reform has proceeded step-by-step at the Länder level, while at the federal level efforts at constitutional reform have failed. One reason is that the federal reform projects are very general and aim to realize deep structural changes in the federal system. Another reason is that Austria is what Jan Erk has called “a Federation without federalism.”25 Austrian citizens would like to have both strong regional entities and a uniform legal system. While the irst goal is an essential element of federalism, the second is incompatible with it. As long as Austrian politics and society are unable to overcome this paradox, all deepreaching reform projects are likely to fail. Only reform projects dealing with speciic matters, such as the administration of education or administrative courts in the Länder seem to have a chance to be realized.

Notes 1 Although such “revisions” are infrequent – there has been only one since 1945 – they do occur. Austria’s accession to the EU and the constitutional changes this required qualiied as a total revision of the Federal Constitution, so these

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2

3 4

5 6 7 8 9

10 11 12 13 14

15

16

17 18

105

modiications required approval by referendum in accordance with Art. 44, par. 3, B - VG . In June 1994, about two-thirds of the voters approved of Austria’s accession to the EU and consented to the total revision of the Federal Constitution. Friedrich Koja, Das Verfassungsrecht der österreichischen Länder (Vienna/ New York: Springer 1988), 23–4; Joseph Marko and Klaus Poier, Die Verfassungssysteme der Bundesländer: Institutionen und Verfahren repräsentativer und direkter Demokratie, in Dachs et al., eds., Politik in Österreich (Wien: Manz 2006), 943–58; Peter Pernthaler, Die Verfassungsautonomie der österreichischen Bundesländer, Juristische Blätter (1986), 477; Richard Novak, “Die relative Verfassungsautonomie der Länder,” in Rack, ed., Landesverfassungsreform (Graz: Böhlau 1982), 35–49. See VfSlg 5676/1968; 9547/1982. See also Anna Gamper, “The Principle of Homogeneity and Democracy in Austrian Federalism: The Constitutional Court’s Ruling on Direct Democracy in Vorarlberg,” in Peter Bußjäger and Anna Gamper, eds., The Homogeneity of Democracy: Rights and the Rule of Law in Federal or Confederal Systems (Vienna: Braumüller 2003), 126. Richard Novak, “Kommentar zu Art. 99, B - VG ,” in Korinek and Holoubek, eds., Bundesverfassungsrecht (Vienna and New York: Springer 2005), 12–13. Gamper, Principle, 134. See VfSlg 16.241/2001. Constitutional Court (VfGH) 28.6.2001, G 103/00, JBl 2002, 31; VfGH 1.7.1993, G 75/93. See also Joseph Marko, Federalism, Sub-national Constitutionalism, and the Protection of Minorities, at http://camlaw.rutgers.edu/statecon/subpapers/ marko.pdf. Compare Institut für Föderalismus, 31: Bericht über den Föderalismus in Österreich (Vienna: Braumüller 2006), 145. Koja, Verfassungsrecht, 89–90. Ibid., 71–2. Peter Pernthaler, Österreichisches Bundesstaatsrecht (Vienna: Verlag Österreich 2004), 473–4. Burgenland (Art. 68, par. 4); Lower Austria (Art. 25, par. 3); Upper Austria (Art. 58, par. 3); Styria (Art. 36, par. 1 in c.w. par. 4);Tyrol (Art. 36); Vorarlberg (Art. 34). Compare Friedrich Koja, “Instruments of Direct Democracy in the Austrian Federal State and in its Länder,” Austrian Journal of Public and International Law 45 (1993), 35. Ibid., 38. Taking the Constitutional Courts ruling on the “Volksgesetzgebung” in Vorarlberg into account (VfSlg16.241/2001), such doubts should not be neglected. VfSlg 16.241/2001. On 2 December 2010 the Federal Council gave its consent to the relevant amendment of the Federal Constitution. Before that, on 9 November the National Council had passed the law.

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19 Norbert Wimmer, “Die verfassungsrechtliche Unzulässigkeit der Gemeindegebarungskontrolle durch einen Landesrechnungshof,” Österreichische Gemeinde-Zeitung (1991), no. 9, 2. 20 Gerhard Baumgartner, “Kommentar zu Art. 127c, B - VG Rz 13,” in Rill and Schäffer, eds., Bundesverfassungsrecht (Vienna: Verlag Österreich 2004). 21 Tanja Koller, “Die Neuerungen für den Rechnungshof – insbesondere die Überprüfung der Gebarung von gemeinden und Gemeindeverbänden durch Landeskontrolleinrichtungen,” Journal für Rechtspolitik 2007, 322. 22 Rudolf Thienel, “Kommentar zu Art. 148i, B - VG ” in Rill and Schäffer, eds., Bundesverfassungsrecht (Vienna: Verlag Österreic 2002). 23 VfSlg 12.229/1989. 24 See also Ferdinand Karlhofer, “Wählen mit 16: Erwartungen und Perspektiven,” in Der WählerInnenwille: Forum Politische Bildung, Informationen zur Politischen Bildung Nr. 27 (2007), 37. Further Marko and Poier, Verfassungssysteme, 945. 25 Jan Erk, “Austria: A Federation without Federalism,” Publius: The Journal of Federalism, 34, no. 1 (2004): 1–20.

Pa rt T wo Sub-national Constitutionalism in Multinational Federations

5

Bosnia-Herzegovina: Trying to Build a Federal State on Paradoxes J e ns W oelk

Introduction The basis for federalism in Bosnia-Herzegovina (B iH)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-conlict situation involving massive intervention by the International Community. After more than three years of war, military intervention by nato inally ended the Bosnian War in 1995. It had been characterized by brutal atrocities against the civilian population for the purpose of “ethnic cleansing,”3 and the International Community’s4 most important short-term objective was creating security through stability, which was to be accomplished by physical reconstruction as well as by preserving Bosnia and Herzegovina as one country. For this purpose, a peculiar federal system was established that forced the former warring parties together, made them recognize each other, and provided for some common institutions.5 However, the International Community’s medium-term objective went far beyond merely overcoming the direct consequences of war: it was to create a viable state in which all ethnic groups could live peacefully together and the rights of all citizens would be effectively guaranteed. This objective was seen as the essential precondition for reaching the long-term goal of Bosnia’s integration into the European Union (EU) as an equal member.6 These objectives required a functioning state, and in the daunting task of state-building, federalism was seen as an essential tool. Bosnia’s path towards accession to the EU was complicated by its triple transition. Like the countries of Central and Eastern Europe after the fall of

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communism, Bosnia was also undergoing profound changes in the processes of democratization and transformation into a free-market economy. Unlike the Central and Eastern European countries, however, its multiethnic society and the legacies of war and ethnic cleansing posed additional problems for physical and institutional reconstruction and thus for state-building.7 Consequently, the basic focus of this volume – namely, constitutional change from below, with change and development brought about by constituent units or federated entities – has to be reframed for the Bosnian case, where, at least so far and in line with historical experience, change has been brought about or even imposed by external forces. This peculiar situation can be explained only by a number of paradoxes underlying and conditioning the process of state-building in Bosnia, as well as the evolution of its federal system. The basic paradox is plainly visible in the tensions and dysfunctional features created by the two fundamental but contrasting objectives of the International Community: stability through territorialisation and the institutional entrenchment of ethnicity, on the one hand, and the reconstruction of a multinational state, on the other.8 This chapter illustrates the main paradoxes of state-building in BosniaHerzegovina, as well as the evolution from a postwar situation towards the objective of European integration, and it analyzes the constitutional change this brought about. The decisive questions are whether it will be possible to build a viable and sustainable multinational federal state on these paradoxes, what the incentives are for doing so, and where change might come from. As of 2010, the agents of change have mostly been external. The challenge for Bosnia-Herzegovina if it is to become a sustainable multinational state is therefore for it to reach consensus and rally support for this state from within its borders.

I n t e r n at i o n a l I m p o s i t i o n R at h e r t h a n Domestic Legitimacy of the Constitution Some months after nato’s air strikes, in November 1995 a peace agreement was negotiated at a US Air Force base in Dayton, Ohio, which guaranteed the unity of the state of Bosnia-Herzegovina in a federal arrangement.9 The “state” of Bosnia-Herzegovina is identical in its territorial extension with the former Yugoslav Republic of Bosnia-Herzegovina and consists of two “Entities”: the Republika Srpska (Serb Republic, RS) and the Federation of Bosnia and Herzegovina (fbh). Both Entities had been founded during the war as “states” with proper constitutions and full-ledged, state-like institutional systems; thus, the Entities are actually older than the current state of which they are compound units. The RS had been proclaimed on 7 April 1992 as a separate State of Serbs in a clear act of secession.10 The constitution of the fbh had been adopted in June 1994 on the basis of

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the Washington Agreement of March 1994, which brought an end to the hostilities between Croats and Bosniaks and provided the foundation for a federal system.11 The construction of the State of Bosnia-Herzegovina relects the logic of a ceaseire: in order “to end a war,”12 it is necessary to avoid creating winners or losers; no side should gain anything. This approach led to a package deal with the warring parties, as well as to the partition of the territory according to the situation on the battleield after the international air strikes: 51 percent for the fbh and 49 percent for the RS. The ceaseire line became the Inter-Entity Boundary Line (iebl), which mirrored the position of the troops on the ground at the end of war but did not take into account other factors that were important for the reconstruction and development of the country, such as demographic, geographical, and economic considerations. International (i.e., American) pressure was decisive for the conclusion of the Dayton Peace Agreement (dpa), which was signed by the three presidents: ´ of Croatia (F. Tudjman), and of of Bosnia-Herzegovina (A. Izetbegovic), ´ Thus, the three warring groups (Bosniaks, Croats, Yugoslavia (S. Miloševic). and Serbs) were all represented, but there was no direct recognition of the RS or the fbh, which would have been in contrast with the International Community’s main objective of the continuity and unity of Bosnia as a state. The objective of keeping Bosnia together also explains why the presidents of the neighbouring states, Croatia and Serbia, were involved in the agreement even though they were not directly and formally representing combatants in the conlict.13 Their inclusion was meant to dissuade them from further intervention in Bosnian affairs, as well as to secure de facto approval within the Entities (of Croats and Serbs in Bosnia represented by the heads of their respective kin-states). While the involvement of neighbours and the pressure of the International Community (IC) were crucial for the International Peace Treaty, which consisted of a long list of eleven annexes on various military and civilian issues, among them the Constitution of the State (annex 4 of the dpa), there was no involvement of Bosnian citizens at all. Although it is the basis for reconstruction and normalization, the Dayton Constitution has never been directly approved by the population of B iH; even now, an oficial version of the English document in local language(s) does not exist.14 It is no wonder that under such conditions there is not much acceptance of this constitution, either by the population or by local politicians.

The Bosnian Federal Geometry: Three Peoples, Two Strong Entities, One Weak Centre The Constitution recognizes the pre-existing constituent units, the RS and the fbh, as “Entities” (not Member-States).15 Their institutional design is

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strongly asymmetrical: while the RS is organized as a centralized and unitary system, the fbh is itself a federal system,16 consisting of ten cantons (homogenous in ethnic terms, only two are “mixed”) with a wide range of powers and their own constitutions. Bosnia’s federal system is based on the constituent role of these Entities, which are vested with the residual powers and exercise all powers and functions that are not expressly assigned to other authorities (article III.3.a, Constitution). Their dominant position within the system is best demonstrated in the ield of foreign affairs, where the Entities are able to establish and maintain independent relations with neighbouring states, including agreements with these states and with international organizations.17 This obviously preserves and facilitates the “special relations” between the RS and Serbia proper, as well as between fbh (in particular Herzegovina) and Croatia.18 But it is above all the almost complete iscal and inancial autonomy of the Entities that permits their independent action. Regarding the necessary support of the central government, the B iH Constitution contains only basic principles providing that one-third of its resources have to be borne by the RS and two-thirds by the fbh.19 Both Entities have created complete state-like institutional structures with a president, a government, legislative institutions, and a judicial system. While initially the RS had only one parliamentary chamber (the National Assembly, whose members were elected by a proportional electoral system), the federal structure of the fbh has always been relected by its bicameral system consisting of the House of Representatives and of the House of Peoples, the latter representing the interests of the ten cantons.20 The equal constitutional status of Bosniaks and Croats in the fbh is symbolically expressed by the rotation between the president and the vice-president of the two Houses, as well as in the ofice of the prime minister of that entity. However, despite their strong position vis-à-vis the state of BosniaHerzegovina, neither the RS nor the fbh has been able to effectively control all of the respective territory. The highly decentralised cantonal structure of the fbh has facilitated the creation of parallel institutional structures and the preservation of Croat military units, as well as direct political, institutional, and inancial relations with Croatia.21 In the RS, political centralisation has not been matched with geographical integration, since it consists ˇ in of two separate areas that are connected only through the city of Brcko ˇ Northern Bosnia. Because of its strategic importance, in 1999 the BrckoDistrict was declared a territory under direct international administration in an international arbitration award.22 According to the original design of the Dayton Peace Accord, the powers of the state of Bosnia-Herzegovina were rather modest, extending only to foreign policy, foreign trade relations, customs, currency, refugee policy, some elements of inancial policy, the prosecution of crimes, air trafic control,

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and communications (article III.1). Further functions and powers could be transferred by agreement between the Entities, which were also responsible for the budget of the Common Institutions. Thus, these institutions were from the outset “underdeveloped” compared to those of the Entities. The head of the state consisted of a tripartite presidency (article V.2) whose members, one for each constituent people, were directly elected and rotated in the ofice of the acting president. Each of them was vested with civilian command authority over the armed forces.23 The presidency nominates the Council of Ministers after approval by the House of Representatives (article V.4). The weak position of the government is already apparent in the lack of a separate constitutional article dealing with it: it is, in fact, part of the article on the presidency. The constitution expressly mentions only two ministries (foreign affairs and foreign trade relations); only after 2000 were other ministries added, so that by 2010 there were nine. From the perspective of the structural elements characteristic of a federal system,24 in Bosnia-Herzegovina there are certainly two orders of government each acting directly on its citizens. The constitution even recognizes distinct citizenships of the State and of the Entities (article I.7), but questions also remain about the voluntary adherence of the constituent units, because the State of Bosnia-Herzegovina was established and is mainly held together by pressure from beyond its borders. Regarding the distribution of legislative and executive authority, the asymmetry between the constituent units (the one federal, the other unitary) is striking, and the weakness of the underdeveloped State institutions seems to be the expression of a bare minimum of a State. This is particularly true given the initial lack of State powers regarding defense, as well as the total dependence of the State on inancial transfers from the Entities. The transfers, for defense and for resources, were mainly guaranteed by the International Community itself. The dominant position of the Entities as holders of the residual powers in relation to the limited list of State powers and correspondingly weak Common Institutions has required a gradual increase of State functions in order to create eficient and functional institutions. Important examples include the creation of a single army at the State level, as well as the creation of self-generated inancial resources for the State with the introduction of a value-added tax (vat) in 2006. The participation of the constituent units in the decision-making process of the State is guaranteed through a second chamber for the representation of territorial interests, a chamber that also participates in amendments to the State Constitution. However, its designation as the House of Peoples indicates the predominant importance of the ethnic interests of the three peoples in this institution. Although a supremacy clause does guarantee the legal integration of B iH by establishing the supremacy of the State Constitution over all other sources of law, including the Entity Constitutions (article III.3.b),

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the obligation to bring the latter in line with the State Constitution (article XII.2) has been substantially disregarded. The Constitutional Court of the State rules on disputes between the State and the Entities (article VI.3). Horizontal coordination and intergovernmental collaboration of the Entities is to be guaranteed by their members within the Presidency (article III.4), but the formulation of this stipulation is quite weak (“might facilitate coordination”), and coordination is subject to a veto by the Entities. As we have seen, a transfer of powers from the Entity to the State level is possible (article III.5) but dependent on the – improbable – political will of the Entities. This brief examination of the characteristic elements of the federal systems reveals that the Dayton Peace Accord created an extremely weak framework of common institutions that depend completely on the two Entities. The territorial representation of the Entities in the State institutions is in fact primarily the ethnic representation of the three constituent peoples. This “ethnic federalism” is above all a guarantee of the autonomy of the constituent units and, implicitly, of the groups that comprise them rather than the integration of those units and groups into the State with an emphasis on eficient governance. Thus, the Bosnian case its into the category of “keeping-together federalism” or, rather, “forced-together federalism.”25

Power Sharing Based on Ethnic Sovereignty Leading to “Ethnic Democracy” The effect of the creation of “ethnic homelands” through federal arrangements is additionally strengthened by a system of power sharing between the various groups. The institutional recognition of these groups is seen as a necessary “correction” to liberal democracy in a context where ethnicity is an important factor. Put differently, “consociationalism” is established on all levels of government in Bosnia and Herzegovina. Power sharing seeks to facilitate elite co-operation in a segmented society through the representation and participation of all groups in public life, giving them autonomy regarding decisions that particularly or only affect them and providing veto rights for the protection of important interests.26 On the State level, the parity of the three major groups, the “constituent peoples,” and the equal participation of their representatives in government are guaranteed through the tripartite Presidency and the rotation of its chair, the requirement that ministers and deputy ministers must not be of the same group, and the prescription that no more than two-thirds of the members of the government can be from the fbh.27 As in the Federation, the bicameral Parliamentary Assembly of the State is comprised of a House of Representatives and a House of Peoples. The forty-two representatives are elected in separate caucuses: one-third by the population of the Republika Srpska, two thirds in the Federation. This scheme is repeated for the House

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of Peoples; ive members are delegated by the National Assembly of the RS and ten members by the fbh. The representation of all three constituent peoples is extended to the chair of the two parliamentary chambers with a rotating system of one chair and two vice-chairs. Thus, the Bosnian system of power sharing is based on the principle of parity in the representation of the “constituent peoples.” By contrast with the theoretical model of power sharing, according to which proportionality should be the basic standard of political representation, public service, appointments, and the allocation of public funds, the Bosnian system excludes minority representation and participation: neither the constitution nor the Dayton Peace Accord deine roles for citizens who do not belong to one of the three peoples or who are of mixed ethnic heritage. Thus, members of other ethnic groups and individuals refusing to declare their afiliation with one of the three peoples cannot stand as candidates for the post of delegate or member of the Presidency, a clear violation of minority-protection standards. (This was judged to be discriminatory by the European Court of Human Rights on 22 December 2009, as will be seen below.) A high degree of autonomy for the groups, especially on issues that are not of common concern, is guaranteed by the federal system, which assigns most of the responsibilities traditionally related to “statehood” (such as responsibility for the military, the police, and so on) to the Entities. However, the lack of the political will to do anything that could strengthen the common institutions of the State contradicts the basic assumption on which consociational systems are founded, namely, the co-operation of the elites. A minority veto is the ultimate weapon for the protection of essential group interests in case normal consultation procedures fail. One indication of the “institutionalized mistrust” in Bosnia is that there are three different kinds of veto mechanisms. All legislative decisions need to be approved by both chambers of Parliament. Decisions are generally taken by a simple majority vote, but a quorum is required for action: in the House of Representatives a majority has to be present, and in the House of Peoples at least nine members must be present, three from each of the constituent peoples. However, a kind of suspensory veto can be invoked by the representatives of each Entity: if cross-community approval by at least one-third of the deputies from each Entity cannot be achieved, the chairs of each House are obliged to present a rewritten draft within three days. If it fails to win approval, a simple majority is suficient for the adoption of the decision. The suspensory veto can turn into an absolute one if in the second voting procedure two-thirds of the members representing one Entity vote against the decision (article IV.3d). In addition, each of the constituent peoples can block any decision in the House of Peoples with a declaration that an issue touches on a “vital interest.”28 If a majority of another group challenges the vital-interest statement,

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a Joint Commission (with one member selected by the delegates of each ethnic group) is established to work out a compromise. If no compromise can be achieved within ive days, the Constitutional Court determines whether a vital interest has been affected (article IV.3f). Of course, this practice leaves a large number of unresolved political controversies to the Constitutional Court. This complex institutional design for legislation, budgetary issues, the ratiication of international treaties, and coordination with the Entities is complicated by the extensive de facto veto powers of the Presidency. Decisions in the Presidency have to be taken unanimously (article V.2c), but this is often impossible, since the institution is composed of three representatives elected independently with no obligation to function as part of a coalition. In the event of disagreement, decisions might be taken by majority vote, but at the risk of an appeal to the Parliament of the relevant Entity by the outvoted member of the Presidency. The support of a two-thirds majority of either the National Assembly of the RS or the fbh’s House of Peoples can block the majority decision by the Presidency, thus in effect creating a veto right for each member of the Presidency. In sum, the Bosnian model of power sharing involves the institutionalization of ethnicity in all its main elements: direct and separate election of the members of the Presidency, the division of the electorate into groups corresponding to the populations of the Entities, numerous and invasive veto rights, broad autonomy for the Entities, and their decisive inluence in the common institutions of the State. Thus, it is appropriate to characterize the Bosnian federal systems as based on “ethnic sovereignty” instead of popular sovereignty.29

S tat i c v e r s u s D y n a m i c E l e m e n t s i n t h e ( R e - ) c o n s t r u c t i o n o f t h e S tat e While probably necessary for ending hostilities, the institutionalization of ethnicity and the continued ethnic identiication of territory have further entrenched ethnic divisions and prevented progress in establishing peaceful relations and the reconstruction of the country.30 The combination of federalism and power sharing established by the Dayton Peace Accord has contributed to a negative elite consensus (divide et impera) directed toward obstruction rather than reconstruction. The extensive veto rights established in Dayton have been (ab)used by the groups that have no interest in strengthening the common State, especially Croat and Serb nationalists, to block each step towards integration. Often the primary loyalty of political representatives in State-level institutions lies with the Entities, where the “real power” is exercised, with the national groups they represent, and – most importantly – with the nationalist political party they represent. Thus,

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numerous efforts to block State action have further weakened an already structurally weak central government, contributing to the continuous disintegration of the State, while both Entities have operated nearly independently from each other. The complexity of the institutional system further encouraged obstructionist and divisive behaviour: the establishment of thirteen governments and constitutions, parliaments, constitutional courts, and so on, at the levels ˇ of State, Entity, and Canton, along with the special district of Brcko, in a country of roughly four million inhabitants, risks the creation of “institutional overkill” in the face of scarce inancial resources and of limited capacities and staff at each level of government.31 The dysfunctional and disproportionate institutional arrangement has proved extremely costly: it is estimated that government expenditure, which is necessary in large part needed to maintain the huge institutional apparatus and bureaucracy at all levels, is around 50 percent of the gdp.32 Instead of creating beneicial checks and balances for controlling and containing power by distributing it among various institutional players, this system has allowed players to defend the status quo by regularly using power to block initiatives advanced by other players. The action-frustrating effect of these ethnically based institutional structures stand in sharp contrast to the declared objectives of the international community, which were to restore the multi-ethnic society and structures of 1991 as a means of promoting “justice” and long-term stabilisation. It was expected that this transformation into a multi-national State would be progressively achieved by encouraging and actively promoting the return of refugees and displaced persons to their pre-war residence (“minority returns”). Even before their effective return, therefore, these persons were allowed to vote in their pre-war residence in order to make political representation more diverse than the actual population distribution. The aim was to add a virtual community of former inhabitants to the current, often ethnically more homogenous one and thereby to change, at least virtually, the ethnic composition of local communities.

C o n t i n u o u s I n t e r n at i o n a l I n t e rv e n t i o n as a Substitute for Domestic Legitimacy? Five years after the war ended, it seemed possible that the nationalist ethnic parties, democratically elected in frequent elections, would reach in the Entities the objectives they had been striving for during the war, employing strategies of discrimination rather than military violence. With this prospect in view, no meaningful co-operation took place at the State level, and whatever progress occurred was the result of international intervention. During the irst years after the war, the International Community directly guaranteed security (through nato’s contingent military Stabilisation

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Force, or sfor) and stability through special international bodies, such as the Electoral Commission and the International Police Task Force.33 Interestingly, for key institutions in the reconstruction, a softer and more durable way was chosen with a “mixed” composition of international and domestic members: in the Human Rights Chamber, the Constitutional Court, and the Commission for Real Property Claims of Displaced Persons and Refugees (crpc), two-thirds of the decision makers are domestic members and one-third are international members. According to the pattern of parity, two-thirds of the domestic members are nominated by the fbh and one-third by the RS.34 But the direct or indirect involvement of the International Community inevitably increased institutional complexity. Human rights protection may serve as an instructive example. As set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols, human rights have priority over all other law. Special emphasis is placed on the rights of refugees and displaced persons to return to their places of origin and on the related right of the restoration of property lost because of the war (article II.2 and article II.5). Human rights protection is thus directly linked to international standards and principles and constitutes an important source of legitimacy for international intervention and interference. However, numerous bodies on the State level deal with the protection of human rights in general or in speciic cases, such as with property rights, and the same is true at the level of the Entities. In the three constitutions ten different organs have been expressly charged with dealing with human rights violations.35 But instead of ensuring effective protection of the rights of individuals, this institutional proliferation has created confusion about which remedy to use and has prolonged the process of reaching a inal and binding decision, not to mention the dificulties of enforcing such a decision in an often hostile environment. It has also raised the question of which institution has the inal say.36 From the Dayton negotiations onwards, the International Community has tried to maintain equal distance from all parties in order that it might be recognized by all as a neutral intermediary.37 In particular, the question of responsibility for war and ethnic violence has never been addressed other than in terms of individual responsibility, with the prosecution for war crimes through extradition to the International Criminal Tribunal for Yugoslavia or through processes of vetting and lustration for members of the security forces and the judiciary.38 Yet over time it became clear that in order to preserve the unity of the State and promote eficiency in institutions and services, the creation of two “de facto States” had to be halted and the process of nation-building within the Entities had to be contained while State structures were being strengthened. The main dilemma was how to make the institutions function and how to guarantee the rights of

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minorities and the multinational character of the country. The IC responded by assisting and supervising institution building at all levels and by trying to promote and foster democracy, human rights, and the rule of law,39 while at the same time emphasizing eficiency, i.e., technical governance instead of political government.40 The key institution of the International Community in Bosnia is the High Representative, which is responsible for the coordination of all activities related to the civilian implementation of the dpa and is also the highest authority regarding the interpretation of the agreement.41 These functions have provided the basis for an extension of the mandate by the Peace Implementation Council (pic)42 in order to overcome the obstructionist behaviour of local politicians regarding the full implementation of the dpa. The “Bonn Powers” enable the High Representative to unilaterally impose legislation and administrative provisions, as well as to dismiss public oficials and politicians who have impeded progress in the implementation process.43 With these extraordinary powers of substitution and direct interference, the High Representative’s role has changed from that of a supervisor of the peace implementation process to its main actor. Making use of these far-reaching powers, the High Representative could do – and actually did – what Bosnian politicians were not willing to do or even tried to block by the use of their veto powers. Between 1998 and 2005, in the period of frequent use of the extraordinary powers, 757 decisions altogether have been adopted by the High Representative. Of these, 119 regarded the removal of non-cooperative persons and 286 the imposition of laws or the amendment of laws. In fact, all major laws have been adopted as unilateral decrees by the High Representative, for example, laws reforming the judicial system, laws on citizenship, laws establishing the symbols and lag of the State, laws concerning passports and ID cards, laws regulating licence plates, and so on.44 Despite its success in passing the necessary legislation and dismissing obstructive oficials, this “international protectorate” has not signiicantly reduced the role of the nationalist parties. Rather, it has further weakened the institutional structures based on power sharing, since the probability of the imposition of decisions has relieved the institutional representatives of the need to negotiate and compromise. As a result, the Ofice of the High Representative (ohr) became a superimposed layer of government without being accountable within the institutional system and subject merely to political control of the Peace Implementation Council.45 However, given the political situation and the continued strength of nationalist political parties, less international intervention would probably have left legitimate national and minority rights unprotected in the face of unacceptable nationalist demands.

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R e f o r m i n g D ay t o n ( f ) o r O v e r c o m i n g D ay t o n ? The frequent interventions by the High Representative clearly demonstrated that some “corrections” to the system established by the Dayton Peace Accords were necessary in order to unblock it and make it work. The two most important problems were the multinational character of the country, which was contradicted by the realities created on the ground, and its dysfunctional institutions. In 2000, both issues were addressed by the Constitutional Court in a landmark judgment known as the “constituent peoples” case.46 The case had been brought before the Court in 1998 by ´ then the Bosniak chair of the Presidency, who argued that Alija Izetbegovic, fourteen provisions of the RS Constitution and ive provisions of the fbh Constitution violated the Constitution of Bosnia and Herzegovina.47 The essential question the Court had to resolve was whether the list of Bosnia’s constituent peoples in the preamble to the State constitution – “Bosniaks, Croats and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina …” – gave these three peoples equal status throughout Bosnia and Herzegovina or whether they were equal only at the State level. At that time, no Serb had been elected to the institutions of the fbh or as a representative of the fbh in the institutions of the State, and the same was true for Bosniaks and Croats in the RS. Thus, the political question raised was whether a multinational system could legitimately be grounded on an absolute partition of power along territorial lines, that is, on three de facto mono-ethnic sub-systems. In effect, the Court had to decide on nearly all basic questions of a multinational democracy, such as the normative meaning of the Constitution, the concepts of “constituent people” and of “minority group,” the right to self-determination, the federal structure of the State, and, last but not least, the political representation of groups. With regard to the last issue, the Court irst clearly distinguished between constituent peoples and minorities, thus identifying the constitutional mandate to treat differently what ought to be different. For the Court “the adopters of the Dayton Constitution would not have designated Bosniaks, Croats and Serbs as constituent peoples, in marked contrast to the constitutional category of a national minority, if they wanted to leave them in such a minority position in the respective Entities as they had, in fact, obviously been placed in at the time of the conclusion of the Dayton Agreement.”48 The Entities thus have a constitutional obligation not to discriminate against those constituent peoples of the State who are as a matter of fact a numerical minority within their territory (that is, the Serbs in the Federation, the Bosniaks and Croats in the Republika Srpska). The principle of nondiscrimination thus applies not only to individuals,49 but also to groups as such, prohibiting special adverse treatment. For the Court, a principle of

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“collective equality” of the constituent peoples exists that “prohibits any special privilege for one or two of these peoples, any domination in governmental structures or any ethnic homogenization through segregation based on territorial separation.”50 The judgment focused on the violation of human rights as a common practice in the Entities and in particular on the right of refugees and displaced persons to “voluntary return and harmonious reintegration, without preference for any particular group” as provided for in Annex 7 of the General Framework Agreement for Peace (article II.1, the so-called minority-returns). The Court cited the domination of institutions in the Entities (especially courts and police)51 by privileged peoples to illustrate the discriminatory effect of the contested provisions in the Entities’ constitutions. It pointed to population igures in order to demonstrate that these constitutions established discriminatory frameworks aimed at discouraging return.52 As a result, the provisions of the Entities’ constitutions that declared only one or two peoples as constituent in a particular Entity and ensured a more favorable treatment of those peoples in the governmental structure of the Entities violated the constitutional principle of collective equality, as well as article 5 of the UN Covenant against racial discrimination of 1966 (the right to equal access to governmental posts) and were thus unconstitutional. A second important and often-overlooked aspect of the judgment was the judicial recognition of State framework legislation in some subject matters that, according to the text of the Constitution, would be exclusive competencies of the Entities. According to the Constitutional Court, the particular importance of some matters for the (economic) integration of the whole system and for strengthening the powers of the State institutions in order to avoid separation and to guarantee the minimum conditions for functioning as a State require joint and shared responsibility of all levels of government.53 Going beyond the limited catalogue of State powers (article  III) and based on systematic arguments, the Court interpreted the constitutional competence lists as “open,” in particular, competencies for guaranteeing equal levels of human rights protection throughout the country (for example, by determining minimum standards)54 and for guaranteeing a functioning level of economic integration that would realize and guarantee the fundamental economic freedoms in the Constitution of the State.55 The Court also gave indications on the implementation of the decision: in addition to the necessary amendments, further measures would be required to guarantee the protection of equal rights and to promote minority returns. Fair representation would need to be assured in the constitutional institutions and, in particular, in the judiciary and the police. Special attention would have to be paid at the sub-entity level to avoid ethnic homogenization of cantons or municipalities.

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The composition of the Constitutional Court follows the parity pattern found in other institutions, with two judges appointed by the RS and four by the fbh. However, the Court also includes three international judges nominated by the President of the European Court of Human Rights (article VI.1a). This addition relects international concerns about the fragility of the Dayton scheme and its implementation. The ruling would not have been possible if a minority veto had existed within the Court. In fact, the decision was taken with a narrow majority: the three international and the two Bosniak judges voted for it, four judges (Croat and Serb) against. The Court’s decision was condemned by most Serb parties but welcomed by the Bosniak and Croat parties, as well as by the International Community. It offered “a probably unrepeatable chance to push the Dayton Peace Agreement to its limits and to permit Bosnia and Herzegovina to become a functional multinational state” by reforming the existing Entities within the Dayton architecture.56 The Court not simply conirmed the static elements of the territorial and ethnic compromise found in Dayton but strengthened the dynamic elements contained in the dpa: the return of refugees and Internally Displaced Persons (idp s), a means for rebuilding a truly multiethnic society. With this interpretation, the Court went well beyond the text of the Constitution by integrating it with sources of international law.57 Furthermore, by addressing not only the constitutionality of the institutionalization of ethnic dominance but also its impact on the quality of democracy, the ruling raised fundamental questions at the State level. Apart from the excessive institutionalization of ethnic identities, a whole segment of the population, the “Others” (i.e., minorities, persons from ethnically mixed marriages, or persons simply unwilling to afiliate with one of the three peoples) remain generally excluded from the power-sharing structures.58

Imposing Change Instead of C r e at i n g L o c a l O w n e r s h i p In the aftermath of the Constitutional Court’s ruling, constitutional commissions for each Entity were created in January 2001 and charged with drafting amendments complying with the Court’s ruling. But there was virtually no progress, and a series of deadlines set by the High Representative were missed by both Entities. After negotiations called for by the High Representative, an agreement on the principles of the Court decision that the parties would comply with was inally reached in March 2002, although it was not signed by all parties. In the end, the High Representative imposed three decisions in order to bring the two Constitutions fully in line with the Court ruling.59 In essence, the agreement and the imposed constitutional amendments recognized Bosniaks, Croats, and Serbs as constituent peoples in

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both Entities. The institutional diversity within the Entities was reduced, as an upper house was created in the Republika Srpska, as well as two vicepresidential posts in each Entity for the representation of all three constituent peoples, with a requirement that those occupying the three ofices should come from different constituent peoples. The agreement deined “vital interests” – examples include education, religion, language, culture, the promotion of tradition, and equal representation in government institutions – and the procedures to protect such interests. This detailed elaboration of the vital-interest clauses was intended to limit their abuse for the sole purpose of obstruction. Finally, the constitutional principle of proportional representation for all ethnic groups in public institutions, i.e., in ministries at the Entity, cantonal, and municipal levels, as well as in the courts within both Entities, was introduced. The main principle of the imposed amendments can be described as symmetry in substance: most important is the identical level of protection throughout the country, which is not necessarily to be achieved by identical mechanisms, a reasonable approach in the face of a political elite in both Entities in profound disagreement over the issue of mechanisms.60 In order to further strengthen the government of the State, in December 2002 the High Representative also adopted a decree that reformed the Council of Ministers, ending the rotation of its chairmanship, introducing a four-year term corresponding with the legislature, and establishing two new ministries (Justice and Security). The Constitutional Court conirmed its orientation regarding the multinational organization of the country at all levels of government in further important decisions on place names, symbols of the Entities, and so on.61 While these decisions apply the principle of institutional and collective equality of the constituent peoples in order to avoid any discrimination or the creation of ethnic homelands, they do not suficiently consider the individual rights of those who are not afiliated with one of the three major groups and thus ind themselves excluded from a number of ofices that are reserved to members of one of the three groups. Since this exclusion is in conlict with the guarantees of the European Convention of Human Rights and Fundamental Freedoms, which is the highest source of law in Bosnia (article II.1), it raises important questions about whether Bosnia is actually a State of all of its citizens, independently of their afiliation with particular ethnic groups, and whether this precedence of collective guarantees over individual rights can be justiied. Although some attempt to recognize the rights of “Others” has occurred – at Entity level the constitutional amendments of 2002 reserved some seats in the House of Peoples for “Others” – a complaint to the European Court of Human Rights (ECtHR) has been iled challenging the continuing reservation of many other ofices and positions to members of the three constituent peoples.62 On 22 December 2009 the

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Grand Chamber of the European Court of Human Rights applied the farreaching general prohibition of discrimination in Protocol No. 12 to the European Convention of Human Rights to electoral discrimination based on ethnicity in Bosnia’s post-conlict society. The implementation of the Court’s judgment requires an amendment to the Bosnian Constitution.63 The frequent and wide use made of the Bonn Powers by the High Representative also included reforms of the judiciary (with the establishment of a State Court and of a High Judicial and Prosecutorial Council), of defence (with the imposition a merger of forces into one army and the creation of a ministry of defence at the State level), of the Council of Ministers, and so on, all aimed at strengthening State institutions. A Mission Implementation Plan adopted by the Peace Implementation Council in 2003 provided the basis and the priorities for these “corrections,” which were, however, established without consultation with or participation by Bosnian politicians. In addition to creating resistance by local elites and frustration among the citizens, these measures triggered an intense debate on the legitimacy of the international semi-protectorate, raising the question of the accountability of the International Community.64 The Constitutional Court denied that it had authority to control the exercise of the extraordinary Bonn Powers, but it emphasized that measures not originating with domestic actors had to be adopted in conformity with the Constitution. For these reasons, the International Community has rightly been referred to as the “fourth constituent” element in Bosnia and Herzegovina.65

T h e P a r a d ox o f E u r o p e a n I n t e g r at i o n : C r e at i n g a n E f f i c i e n t S tat e a n d Q u e s t i o n s a b o u t t h e D ay t o n S y s t e m In recent years European integration has clearly become the central goal of the transition process in the Western Balkans. In the framework of the Stabilization and Association Process, all States have to respect and fulil concrete conditions set by the European Union.66 These conditions translate principles such as the Copenhagen criteria into speciic and detailed parameters that have to be met and implemented,67 while the process of implementation is assisted and monitored by EU institutions. The risk of this “conditionality” is a limited and formal adherence through the mere adoption of legislation without any guarantee of effective implementation in practice and of the penetration of the legal and administrative system. By contrast with the previous phase of the transition, when the reception of the principles and the related reforms was determined and imposed by external actors, the Stabilization and Association Process requires an authentic and persuasive domestic initiative, with support that is summarized in the concept of “local ownership.”

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Local ownership would signify the transition from imposed reforms linked to the Dayton Peace Accord to a reform process driven by domestic actors and directed toward the objective of EU accession. That objective might also require changes not covered by the Dayton system, which would therefore also exceed the High Representative’s power of substitution. As a result, since 2002 the High Representative has also acted as an EU Special Representative with a complementary mandate based on persuasion through conditionality in ields related to EU integration. Thus, the change from an externally imposed to a generally accepted constitutional system can be considered as the true deining moment for Bosnia-Herzegovina in the process of transition. This moment should be formally marked by a constituent act, such as the adoption of a new constitution or amendments to the Dayton Constitution, legitimated by the people. Ten years after Dayton, the time seemed to have come for constitutional reform. In March 2005, the Venice Commission expressed its opinion on the constitutional reforms necessary to make the system compatible with European standards. Since neither the Dayton Constitution nor the Entity Constitutions “provide a sound basis for the future, it is desirable for the citizens at some state to have an entirely new Constitution based on their own wishes.”68 The commission identiied ive areas in which constitutional changes were needed: (1) the transfer of competencies from the Entities to the State, (2) the reform of ineficient legislative and executive structures at the State level, (3) the elimination of “prerogatives for ethnic or group rights,” (4) the strengthening of citizens’ rights, and (5) the clariication of the Entities’ future relationship to the State. Among the initial attempts in this direction was the creation of a constitutional working group agreed on by the leaders of seven major political parties through negotiations brokered by the United States Embassy. In March 2006, a political agreement on constitutional amendments in four areas was reached.69 The constitutional changes imposed by the High Representative regarding the distribution of competencies were to be conirmed, including a category of shared powers between the State and the Entities.70 A second amendment was related to changes in the Parliamentary Assembly’s composition, powers, and procedures, including, in particular, abolishing the perfect symmetry between the two Houses and changes in the deinition of the “vital interests veto.” A third amendment transformed the collective Presidency into a single president with two vice-presidents, and a fourth amendment focused on the reform of the Council of Ministers. These constitutional amendments required approval by the Parliamentary Assembly, including a two-thirds majority in the House of Representatives (article X), but despite the political agreement, the so-called April Package of 2006 failed to win approval by two votes in the House of Representatives.71 After this failure and with the prospect of general elections in October

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2006, nationalistic rhetoric rose again. Two subsequent attempts by the International Community to re-initiate constitutional reform failed in 2007 and 2009, revealing a lack of coordination and the absence of a uniform position within the IC.72 With the constitutional reform process stalled, the efforts of the International Community concentrated on police reform, which, as part of the conditions for signing a Stabilisation and Association Agreement (saa) between the European Union and Bosnia-Herzegovina, was viewed as a functional reform. However, the long dispute over this reform, which was aimed at unifying and coordinating the Entities’ police forces in order to make them more eficient and ready for the EU, clearly showed that even “technical” reforms might touch upon constitutional issues. Strong resistance came from the RS, which would not agree to the transfer of police powers to State or inter-entity institutions.73 In December 2007, a compromise was inally reached that permitted an “initialing” of the Stabilisation and Association Agreement.74 However, the compromise also showed the law in the objective of EU integration: whereas integration requires eficient State institutions both for the negotiation and for the implementation of EC law, the creation of such institutions may conlict with the status quo of the Entities’ powers and ethnic iefdoms. Even though European integration is a shared goal, it cannot be considered neutral to the positions of the Entities: strengthening the State threatens the full autonomy of the RS and favours the position of Bosniaks (and, to a lesser extent, of Croats). There is still no common vision for the country, and the polarization produced by war has been preserved and prevails in the political positions of the various groups. Bosnian Serb politicians insist on the integrity of the RS and regularly seek to undermine State institutions, even questioning the State itself,75 whereas for many Bosniaks, the very existence of the RS, the “Serb entity,” remains a provocation that should be overcome by transforming Bosnia into a “civic” and unitary State, that is, one not based on ethnicity and without the current Entities.76 As the smallest group, Croats seek above all to consolidate their status as one of the constituent peoples and insist on their equal standing. While in the past a “Croat Entity” had been demanded, nowadays Croats link any reform of the fbh to an overall constitutional and institutional reform of the country and ask for at least four constituent units, one of which would have a Croat majority.77 The institutional and territorial entrenchment of ethnicity combined with the limited number of institutional players regularly creates antagonism, rather than fostering creative solutions.78 The fact that the changes required by EU conditionality, which go beyond the Dayton Peace Accord, cannot be imposed by the High Representative might create a power vacuum, especially when there is a lack of coordination within the International Community.79 For this reason, in February 2008, the Peace Implementation

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Council set ive objectives to be reached before closing the Ofice of High Representative. There needed to be an acceptable and sustainable resolution of (1) State property and (2) defence property and (3) completion of ˇ Final Arbitration Award. Furthermore, (4) iscal sustainability the Brcko was required and (5) entrenchment of the rule of law. In addition, two conditions were set: the signing of the Stabilisation and Association Agreement (which happened in June 2008) and a “positive assessment” of the situation in Bosnia-Herzegovina by the Steering Board of the Peace Implementation Council (pic). Failure to meet these conditions would mean the continuation of the Ofice of the High Representative; in fact, in its subsequent meetings, the pic has extended ohr’s mandate.

The Dependence of Internal Change o n C o o r d i n at e d E x t e r n a l S u p p o rt According to George Schoeplin, “States require cohesive ideas and identities to legitimate themselves.”80 He is referring to the lack of such ideas and identities, which facilitated the breakup of Yugoslavia in the 1990s, but his statement could also be applied to Bosnia-Herzegovina today. Throughout history, while Bosnia has mostly been a distinct entity, it has also usually been ruled from the outside and been subject to interference by its neighbours. The regional context has changed much in only a decade: regional co-operation is improving and Croatia and Serbia are on their way to EU membership. Yet although EU accession is a shared goal, it still seems secondary to the aim of preserving the relative power of one’s own group. It is too weak, too abstract, and too far in the future to trigger a concrete common vision of the State. Thus, the IC and the EU will have to be involved in the process leading to constitutional reform by guaranteeing the procedures and facilitating the process without imposing the outcome. The much-needed incentive for reform might be provided by clarifying that there will be neither closure of the Ofice of the High Representative nor transfer of full sovereignty to Bosnian authorities nor implementation of the Stabilisation and Association Agreement without a sustainable and open reform process. To sustain local ownership, such a process will have to take place in Parliament as a public and transparent process and include civil society and the (technical) assistance of international and EU experts.81 Currently, Bosnia remains an “assisted State” with dysfunctional institutions and an “ethnic democracy” that does not guarantee equal rights and beneits to all citizens. In order to be integrated into the European Union, it has to become a “normal,” i.e., democratic and uniied, State. However, “normality” in and for Bosnia is and will remain different from normality in other candidate States, since ethnicity still matters and will continue to matter. The current degree of the institutionalization of ethnicity brings

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the risk that territorial claims might endanger the very existence of the State and that guarantees will be used in an obstructionist fashion for the protection of speciic groups. The aim of peacefully living together in a multiethnic society and integration into a multinational constitutional order require changes to the democratic principle (in its narrow sense). These changes in favour of groups and respect for ethnic diversity must not, however, limit individual rights disproportionately nor question or challenge the very foundations on which the multinational system is built upon, i.e., the equality of its citizens, the equal standing of groups, and loyalty towards the common institutions. In making its choices and shifting these balances, Bosnia will continue to need support from the International Community, as well as from the European Union.82 The process of establishing a viable multinational State has to start with the implementation of the judgment of the European ´ Court of Human Rights in the Sejdic-Finci case, which requires a constitutional amendment aimed at ending the discrimination against “Others.” This would emphasize the importance of “civic” elements and individual rights as counterweights to ethnicity. At the beginning of 2009, after only one and a half years, the High Representative Miroslav Lajcak unexpectedly resigned from ofice, after being nominated as foreign minister of Slovakia. Also unexpectedly, the leaders of the three major parties (the Bosniak sda, the Serb snsd, and the Croat hdz), in what was known as the Prud Process, agreed on constitutional amendments that recognized that Bosnia-Herzegovina was a decentralized country with four territorial units, as opposed to the current three territorial units. However, controversy immediately surrounded the creation and the shape of these territorial units, the territorial continuity and integrity of the RS, and the division of fbh.83 With the international “interregnum,” the moment for undertaking such an initiative and demonstrating local ownership was certainly well chosen, but the proposals did not become concrete and have not been introduced into the constitutional amendment procedure.84 Other recent attempts to overcome the current stalemate regarding constitutional reforms have also proved insuficient. On 9 and 20 October 2009, the EU and the United States initiated talks at the eufor military headquarters in Butmir, but no agreement was reached. The parallel crisis looming in the fbh has recently become more acute and mirrors all the problems present at the level of the State. The need for reform of the fbh is evident: its fragmented and dysfunctional administrative system and continuous disputes among and between Bosniak and Croat leaders has brought the Entity close to bankruptcy and caused social unrest. While constitutional reform at the State level does not seem feasible, reform of the fbh might be achievable and provide an impetus for statelevel reform: “a well-functioning Entity would be more attractive to Bosnian

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Croats and Serbs and would be more convincing in negotiations with RS at the State level.”85 So far, the Entities as constituent units have predominantly tried to block any change, since they understand themselves as “ethnic homelands.” Only by international imposition have their (pre-existing) constitutions been amended in order to reach conformity with the State Constitution and the multinational system of Bosnia-Herzegovina. If a viable multinational federal State is to be built, the exclusive identiication of territory with one of the three constituent peoples has to be ended (the necessary introduction of civic elements in favour of “Others” could be useful in this regard). Accordingly, the representation of ethnic and territorial interests needs to be distinguished: the former would be speciic and group-related, the latter general and related to the whole population. And they need to be guaranteed in different ways and with different procedures. Bosnia remains a construction site, but the paradoxes in the plans for building a viable multinational federal State have been clearly identiied. Although they will have to be resolved by domestic forces, international assistance on the way to compromise and agreement will be crucial owing to the distance separating the various positions, the extent of change that is required, and the lack of experience in change from the bottom up.

Notes 1 In the following the abbreviated forms “Bosnia“ or “B iH” will be used to refer to the State of Bosnia and Herzegovina. 2 Bosnia and Herzegovina was rightly described as a “Yugoslavia in miniature” on account of its demographic structure: in the last census, 1991, Muslims (to use the Yugoslav terminology, which since the 1990s has fallen into disuse in favour of “Bosniaks”) made up 43.7 percent of the population, Serbs 31.45 percent, and Croats 17.3 percent, while 5.5 percent considered themselves “Yugoslavs.” In addition to the three largest ethnic groups, members of other nations and nationalities (according to the terminology of communist constitutional law) lived in the country and were entitled to equality under the Constitution. However, none of these groups was settled in a separate, territorially deined or closed area. 3 Mainly through air-strikes in summer 1995. The war left more than 110,000 people dead or registered as missing, led to the displacement of an estimated 1.8 million persons, and to extensive physical and economic destruction. The long siege of Sarajevo and the massacre of Muslim men in Srebrenica shook world public opinion. 4 Despite its generic character and its reference to a wide variety of international organizations and ngo s, “International Community” is generally used as an umbrella term in Southeastern Europe. It creates a clear – psychological, de jure,

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9

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and de facto – distinction between “internationals” (members of the international organizations) and “locals” (citizens of states in the Balkans), which reminds one of the distinction between “masters” and “natives” in the colonial epoch. Because of its direct or indirect powers of intervention, especially after conlict (such as in Bosnia, Macedonia, and Kosovo), the “International Community” is often perceived as a quasi-legal person; the term also suggests a uniform approach to a subject (which too often, however, is not accurate). While the goal of Bosnian Serbs had been the independence of “their” selfproclaimed Republika Srpska (Serb Republic) in order at a later stage, to possibly join Serbia proper and while the Bosnian Croats had also hoped to create an autonomous territorial unit of their own in Herzegovina in order to prepare for joining Croatia in future, only the third major group, the Muslim-Bosniaks, shared and supported the International Community’s objective of preserving BosniaHerzegovina’s statehood and territorial integrity. The Stabilisation and Association Agreement (saa) was concluded between B iH and the EU in Luxemburg on 16 June 2008; it provides a clear expression of interest in Bosnia’s future membership. On the differences between the post-communist transition in the cee and the see, see Judy Batt, “Introduction: The Stabilisation/Integration Dilemma,” in Judy Batt, ed., The Western Balkans Moving On, Chaillot Paper no. 70 (Paris: EU Institute for Security Studies, October 2004), 7–20 [www.iss-eu.org]. While the sociological concept of a “multiethnic society” is related to the concept of a society characterized by the presence of different ethnic groups and their interaction, in legal terms, the concept of a “multiethnic state” is based on the legal recognition of an ethnically diverse population. However, it depends on the general orientation of the constitutional system whether as a consequence of this recognition, (ethnic) diversity is guaranteed and protected or even promoted: according to the classic liberal constitutional approach, only individual rights are recognized; in a “promotional” system, members of minority groups can also exercise speciic rights, in particular regarding language use, religion, or political participation. The peculiar feature of a “multinational” system, as a subspecies of a “multiethnic” system, is the legal and institutional parity of its (constituent) groups independently of their social or demographic situation. See for these concepts in particular Roberto Toniatti, Minorities and Protected Minorities: Constitutional Models Compared, in Tiziano Bonazzi and Michael Dunne, eds., Citizenship and Rights in Multicultural Societies (Keele: Keele University Press 1995), 206–10. The Dayton Peace Agreement (dpa) was signed in December 1995 in Paris; for the “General Framework Agreement of Peace – gfap” see http://www.ohr.int/ dpa/default.asp?content_id=380. Before B iH’s independence, in a referendum held on 1 January 1992, i.e., after and in response to the referendum on the independence of B iH as a whole, in which practically only Bosniaks and Croats took part.

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11 The Washington Agreement was signed on 1 March 1994 (see text at http://www. usip.org/library/pa/bosnia/washagree_03011994_toc.html); cf. Noel Malcolm, Bosnia: A Short History (Basingstoke and Oxford: Macmillan 2002), 253ff. 12 Richard Holbrooke, To End a War (New York: Random House, 1999), 292ff. 13 The International Court of Justice (icj), which deals with controversies between states (while the International Criminal Tribunal for the former Yugoslavia, icty, holds speciic individuals criminally responsible), was faced with Bosnia’s ´ massacre. Although the icj claim that Serbia was responsible for the Srebrenica ruled that genocide had taken place, it decided that Serbia was not responsible under international law; icj, judgment of 26 February 2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). However, the Court also found that Serbia had violated its obligation under the Genocide Convention to prevent ´ and that it had also violated its obligations under the genocide in Srebrenica Convention by having failed fully to co-operate with the icty. In late March 2010, Serbia’s Parliament passed a resolution condemning the massacre and apologizing for Serbia not doing more to prevent the tragedy. 14 This has given rise to controversies regarding some parts of the version published on the website of the High Representative of the IC (www.ohr.int) regarding their conformity with the original text adopted in Dayton and Paris. However, so far there has been no publication of an authorized translation of the Constitution in the Oficial Gazette of the State. Although linguistically very close to each other and even known as “Serbo-Croatian” in former Yugoslavia, the oficial languages of B iH are nowadays three, known as “B-C-S”: Bosniak, Croatian, and Serbian. Despite some smaller differences, people usually understand each other perfectly; however, reversing the famous saying by the linguist Weinrich (“a language is a dialect with an army and a navy”), currently, a politically guided process of linguistic differentiation takes place. With the existing differences being highlighted and new ones being deliberately introduced, three distinct languages will be created to strengthen the distinct “national” character of the three constituent groups in Bosnia. 15 In fact, the abstract term “Entities” shall avoid any reference to a “State”-like character of these territorial units. 16 In fact, the term “federal” in Bosnia is reserved for the fbh, while the federal level is referred to as the “State” and its institutions are the “Common Institutions,” as distinct from those of the Entities. In the same way, “sub-national” is inappropriate for referring to the Entity level, since Bosnia is a “multi-national” State; i.e., it is composed of three “constituent peoples” and the Entities are not supposed to be ethnically homogenous. In addition, the name of the State, Bosnia and Herzegovina, is composite. 17 These relations and agreements are subject to the approval by the State Parliament (art. III.2.d) and are counterbalanced by the obligation of the Entities to provide the necessary support to the central government necessary for the respect and the implementation of international obligations (art. III.2.b).

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18 In fact, such agreements were concluded between the fbh and Croatia in 1998 and between the RS and the then Federal Republic of Yugoslavia in 2001. 19 Articles III.2.b and VIII, B iH Constitution. 20 The seventy-four members of the House of Peoples are elected by the Cantonal assemblies; quotas guarantee the equal representation of Bosniaks and Croats (thirty members each, plus fourteen “Others”). 21 Florian Bieber, Governing Post-War Bosnia and Herzegovina, in Kinga Gál, ed., Minority Governance in Europe (Budapest: Local Government and Public Service Reform Initiative 2002), 328 ff. ˇ Arbitration Tribunal for the Dispute over the Inter-Entity Boundary in 22 The Brcko ˇ Area, Final Award (5 March 1999), para. 1e 11, attributed to Brcko ˇ a the Brcko status similar to the District of Columbia in the United States, but with an international supervisor. 23 The candidates for ofice have to declare their group afiliation, and they are elected in “their” territories: the Serb member is elected by voters in the RS, and the voters of the fbh elect the Bosniak and Croat member. 24 According to the generally common structural characteristics of a federal system as identiied by Ronald L. Watts, Comparing Federal Systems, 2d ed. (Montreal: McGill– Queen’s University Press 2001), 7. 25 Since its federal system has been imposed by the International Community as an instrument of “crisis federalism.” Cf., for the concept of “forced-together federalism,” Nancy G. Bermeo, “The Import of Institutions,” Journal of Democracy, 13, no. 2 (April 2002): 96–110. 26 According to Arend Lijphart, Democracy in Plural Societies (New Haven: Yale University Press 1977); and Arend Lijphart, “The Power Sharing Approach,” in Joseph V. Montville, ed., Conlict and Peacemaking in Multiethnic Societies (New York: Lexington Books 1991), 492–4. See also Florian Bieber, Recent Trends in Complex Power-Sharing in Bosnia and Herzegovina, in Eurac/ecmi, eds., European Yearbook of Minority Issues, vol. 1, 2001–2 (The Hague: Kluwer Law International 2003), 269–82. 27 For a comparative analysis, see Florian Bieber, “Institutionalizing Ethnicity in Former Yugoslavia: Domestic vs. Internationally Driven Processes of Institutional (Re-)Design,” The Global Review of Ethnopolitics 2 (January 2003), 3–16. 28 A majority within the three groups of present members is required (art. IV.3e). This means that for a veto on legislation, an ethnic group of delegates constituting only 20 percent of the House of Peoples is suficient. 29 Sienho Yee, “The New Constitution of Bosnia and Herzegovina,” European Journal of International Law 7 (1996): 179 ff. 30 In fact, the school system and the media are also divided along ethnic lines. 31 The term “institutional overkill” is used by Joseph Marko, Bosnia and Herzegovina: Multi-Ethnic or Multinational? in European Commission for Democracy through Law, ed., Societies in Conlict: Science and the Technique of Democracy, no. 29, (Strasbourg: Council of Europe Publishing 2000), 92–118.

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32 International Monetary Fund, Bosnia and Herzegovina: 2008 Article IV ConsultationStaff Report, imf Country Report 08/327 (Washington, DC, October 2008), 13. See ´ Fiscal Federalism in Bosnia also Jan Werner, Laurent Guihéry, and Ognjen Djukic, and Herzegovina: Ten Years after the Dayton Treatment and Still Not in a Steady Condition, ilpf (Institute for Local Public Finance), Working Paper 01–2006 (January 2006), at http://www.ilpf.de/en/download/wp-01–2006.pdf. 33 On the basis of the dpa and its annexes, these international bodies worked for a transitional period, after which their functions were transferred to local institutions: the osce has handed over the Electoral Commission to the State of B iH, and the iptf has been replaced by the EU Police Mission, which, however, does not have any operational functions but only consultative and monitoring ones. 34 The international constitutional judges and members of the hrc have been nominated by the President of the European Court for Human Rights in Strasbourg. Also, the president of the National Bank, responsible for the stability of the currency, has to be a foreign national. The work of the hrc has been directly based on annex 6 dpa (see: http://www.hrc.ba/), the work of the crpc on annex 7 dpa (http://www.law.kuleuven.be/ipr/eng/CRPC_Bosnia/CRPC/new/en/main.htm). 35 At State level, the Constitutional Court, the Ombudsperson, the Chamber of Human Rights (annex VI), and the crpc (annex VII); in the Federation the Constitutional Court, the Supreme Court, the Human Rights Court, the Federation Ombudsmen, and the Federation Implementation Council; and in the Republika Srpska the Constitutional Court and the Supreme Court. 36 It is by no means clear from text of the Constitution, whether this authority is vested with the Human Rights Chamber or the Constitutional Court of Bosnia and Herzegovina. The Constitutional Court declared appeals against decisions of the Human Rights Chamber inadmissible in cases U 7/98 through U 11/98 in the Oficial Gazette of Bosnia and Herzegovina, no. 9, 1999. 37 In annex 10 of the dpa, establishing the Ofice of the High Representative (ohr), the function of monitor and mediator is expressly foreseen as the coordinating and inal authority for the interpretation of the civilian aspects of the implementation of the dpa. 38 These processes have been carried out by the IC itself: between 2002 and 2004, the iptf and a special High Judicial and Prosecutorial Council, composed of international members, screened members of the security forces, and judges as well as prosecutors for human rights violations during the War. 39 Since the Council Meeting in 1993, the well-known Copenhagen criteria have made up the political condition for membership in the EU. Economic reforms and transformation into a market economy, as well as building up suficient administrative capacity, are further criteria to be respected and fulilled by (potential) candidates for membership. 40 This is the main thesis of David Chandler, “Introduction,” in David Chandler, ed., Peace without Politics? Ten Years of International State-Building in Bosnia (London and New York: Routledge 2006), 13.

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41 The legal basis for the mandate of the High Representative is annex 10 of the dpa – and therefore agreement by the Parties; However, it is also “entrusted by a UN Security Council resolution” (annex 10, art. I), which can be seen as an act of approval by the UN (S/res/1031, 15.12.1995). 42 The Peace Implementation Council (pic) is an international forum of 55 States supporting the peace process in Bosnia with different means. It monitors the activities of the High Representative and, through a steering board of a smaller group of countries, provides strategic guidelines for the IC’s action in Bosnia; see http://www.ohr.int/pic/default.asp?content_id=38563. 43 The Bonn Powers were conferred by the pic at its meeting in Bonn in December 1997. 44 Until January 2010, altogether nearly nine hundred decisions had been adopted over thirteen years by the High Representative. See for an analysis Bart M.J. Szewczyk, “The EU in Bosnia and Herzegovina: Powers, Decisions and Legitimacy,” euiSS Occasional Paper, no. 83 (March 2010) [www.iss.europa.eu]. From 2000 to 2005, the international presence was at times highly interventionist: the total number of annual decisions under High Representative Lord Paddy Ashdown between 2003 and 2005 exceeded those of any of his predecessors and successors. See Matthew T. Parish, “The demise of the Dayton protectorate,” J Interv State Build 2007/1(special supplement), 11–23, and for a list of all decisions adopted, see www.ohr.int/decisions/archive.asp. The removals from ofice even included presidents and prime ministers. 45 See in particular Gerald Knaus and Felix Martin, “Travails of the European Raj, Lessons from Bosnia and Herzegovina,” Journal of Democracy 14, no. 3 (July 2003), 60–74 (http://www.journalofdemocracy.org/KnausandMartin.pdf), and for the subsequent debate, provoked by the authors’ main thesis that “you can’t create a stable democracy by these authoritarian methods,” see http://www.esiweb.org/ europeanraj/reactions.php and David Chandler, ed., Peace without Politics? 46 Constitutional Court Bosnia and Herzegovina, Judgment, Case No. U 5/98–III (1 July 2000), in Službeni glasnik (oficial gazette) no. 23/2000, 14 September 2000 (http://www.ustavnisud.ba/english/default.htm). 47 The Court decides on all controversies between the State and the Entities; as well as on issues referred to it by each member of the Presidency, the president of the Council of Ministers, the chair or deputy chair of each chamber of Parliament, or a quarter of all members of each chamber, at either the State or the Entity level (article VI, 3a). Decisions of the Court are to be inal and binding, but the Constitution does not specify how decisions are to be taken or whether they are subject to an ethnic or other veto. The Court, however, when determining its rules of procedure by majority vote, decided that decisions are taken by a simple majority without any further requirement; see Constitutional Court, Rules of Procedure, article 35. 48 Constitutional Court Bosnia and Herzegovina, Judgment, Case no. U 5/98–III (at 63).

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49 As established in article II.3 and 4 of the Bosnia and Herzegovina constitution. 50 Constitutional Court Bosnia and Herzegovina, Judgment, Case no. U 5/98–III, at 59 and 60. The Court ruled that “despite the territorial delimitation of Bosnia and Herzegovina by the establishment of the two Entities, this territorial delimitation cannot serve as a constitutional legitimation for ethnic domination, national homogenization or a right to uphold the effects of ethnic cleansing” (at 61). 51 For instance, the government of the RS was composed only of Serbs (twenty-one members out of twenty-one), and the same was true for police forces (93.7 percent) and judges (97.6 percent); analogous igures were applied in the fbh. 52 See Constitutional Court Bosnia and Herzegovina, Judgment, Case no. U 5/98–III, at 92 (RS) and at 137 (fbh). 53 Constitutional Court Bosnia and Herzegovina, Judgment, Case No. U 5/98–IV (fourth partial decision); the decision is based on the precedent of the “Framework Law on Privatisation of Enterprises and Banks in Bosnia and Herzegovina” (oficial gazette B iH, no. 14/98) imposed by the High Representative. 54 In the case decided, the Court conirmed an (implicit) power of the State to determine minimum standards regarding the regulation of the oficial use of languages, which was part of the exclusive competencies of the Entities, but had been used in a discriminatory way; Constitutional Court, case U 5/98–IV, sub 24 and 34. 55 Art. I.4. of the B iH Constitution guarantees the free movement of persons, goods, services, and capital. Framework legislation of the State might be necessary to guarantee the fulillment of the Entities’ obligations and to remove obstacles to the common market; Const. Court, case U 5/98–IV, sub 31 and 34. 56 International Crisis Group (icg), Implementing Equality: The “Constituent Peoples” Decision in Bosnia & Herzegovina, icg Balkans Report no. 128 (2002) (www. crisisweb.org). 57 Referring to the other annexes of the dpa and to the international sources mentioned in the Constitution, in particular those related to human rights protection, which consequently, owing to their supremacy, can be considered as supreme constitutional principles. 58 Florian Bieber, Governing Post-War Bosnia, 332. 59 On 19 April 2002, High Representative Wolfgang Petritsch, in his last days in ofice, imposed all the amendments to the fbh Constitution with the irst decision, while the second corrected shortcomings of the RS Constitution. The third decision amended the election law according to the previous constitutional amendments (in view of the October 2002 elections). See, for a critical analysis, Valery Perry, Constitutional Reform and the “Spirit” of Bosnia and Herzegovina, ecmi Brief 7, February 2002 (http://www.ecmi.de/doc/download/brief_7.pdf), and European Stability Initiative (esi), Imposing Constitutional Reform? The Case for Ownership (2002) (www.esiweb.org). 60 See www.ohr.int for further information, as well as for the content of the Sarajevoagreement (27/03/2002). For a detailed and critical analysis see icg, Balkans Report no. 128, especially 12–14 (http://www.crisisweb.org).

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61 For example, the judgment on place names that prohibited and annulled “ethnic preixes“ (Srpsko Sarajevo and others), which had been introduced during the war in order to indicate the ethnic character of a town (often after operations of ethnic cleansing), in contrast to older, historical place names; Constitutional Court Bosnia and Herzegovina, Judgment, Case no. U 44/01 (27/2/2004), in Službeni glasnik (oficial gazette), no. 23/2000, 14/9/2000. For a profound analysis of ´ the Constitutional Court’s case law, see Christian Steiner and Nedim Ademovic, Kompetenzstreitigkeiten im Gefüge von Dayton, in Wolfgang Graf Vitzthum, Ingo Winkelmann, eds., Bosnien-Herzegowina im Horizont Europas (Berlin: Duncker & Humblot 2003): 109–47; Joseph Marko, “Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A First Balance,” European Diversity and Autonomy Papers, Bolzano/Bozen 7/2004 (www.eurac.edu/edap); and Christian Steiner and ´ eds., Constitution of Bosnia and Herzegovina: Commentary, Konrad Nedim Ademovic, Adenauer Stiftung e.V., Rule of Law Program South East Europe (Sarajevo 2010) (http://www.kas.de/wf/doc/kas_19629–1522–1–30.pdf?100531103302). 62 See the comment by the European Commission for Democracy through Law (Venice Commission), Opinion no. 483/2008, Strasbourg, 22 October 2008, Amicus Curiae Brief in the cases of Sejdic´ and Finci v. Bosnia and Herzegovina (Applications no. 27996/06 and 34836/06), which criticizes the continuous discrimination against “Others” owing to their exclusion from the State Presidency and the House of Peoples. 63 ec thr, Sejdic´ and Finci v. Bosnia and Herzegovina (27996/06 and 34836/06). The Court has found that the applicants’ ineligibility to stand for election to the House of Peoples violates Article 14 of the echr (the ban of discrimination in the area of convention rights), read in conjunction with Article 3 of Protocol No. 1 (free elections), and that their ineligibility to stand for election to the Presidency violates Article 1 of Protocol No. 12 (general ban of discrimination). 64 See Knaus and Martin, “Travails of the European Raj,” as well as Chandler, Peace without Politics. Besides the accountability issue (including the lack of legal remedies against overriding measures of international institutions), the disproportion between the intensity and the duration of the extraordinary powers has been criticized, as has their often paternalistic use. Particularly instructive is the vetting process regarding police oficers carried out by the iptf without any possibility of appeal by the de-certiied police oficers who had lost their jobs according to a decision of the international institutions. For details see European Stability Initiative (esi), On Mount Olympus: How the UN violated Human Rights in Bosnia and Herzegovina, and Why Nothing Has Been Done to Correct It (February 2007) (www. esiweb.org). 65 Sumantra Bose, Bosnia after Dayton: Nationalist Partition and International Intervention (Oxford: Oxford University Press 2002). 66 For an overview of the Stabilization and Association Process in the Western Balkans, see Christian Pippan, “The Rocky Road to Europe: The EU’s Stabilisation and Association Process for the Western Balkans and the Principle

Bosnia-Herzegovina

67

68

69

70

71

72

73

137

of Conditionality,” European Foreign Affairs Review, 9, no. 2 (2004): 219–45, and Soia Sebastián, The Stabilisation and Association Process: Are EU Inducements Failing in the Western Balkans? fride – Fundación para las Relaciones Internacionales y el Dialogo Exterior, Working Paper 53 (February 2008). Any country seeking membership in the European Union (EU) must conform to the conditions set out by Article 49 and the principles laid down in Article 6(1) of the Treaty on European Union. Criteria for membership in the EU were deined in 1993 at the Copenhagen European Council (they are often referred to as the Copenhagen criteria). They require that the candidate country must have (1) stable institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities; (2) a functioning market economy, as well as the capacity to cope with competitive pressure and market forces within the EU; (3) the ability to satisfy the obligations of membership, including adherence to the aims of political, economic, and monetary union. Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, 11–12 March 2005 (http://www.venice.coe.int/docs/2005/ CDL-AD(2005)004–e.pdf). The European Commission for Democracy of Law (“Venice Commission”) is the Council of Europe’s advisory body on constitutional matters and is currently composed of ifty-four “independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science” (article 2 of the revised statute); see (http://www.venice.coe.int). See www.daytonproject.org/publications/printer.php?id=140 and the analysis and comments by Joseph Marko, Constitutional Reforms in Bosnia and Herzegovina 2005– 6, in European Yearbook on Minority Issues, vol. 5 (2005/6) (Leiden/Boston: Martinus Nijhoff 2007), 207–18; Matthias Hartwig, Gutachten zu dem Entwurf der Verfassungsänderung der Verfassung von Bosnien-Herzegowina (Heidelberg: May 2007) (www.kas.de/db_iles/dokumente/7_dokument_dok_pdf_10998_1.pdf). Responding to EU and CoE requirements, these shared powers would have included taxation, the electoral system, the judiciary, agriculture, science and technology, the environment, and local self-governance. On 24 April 2006, owing to the opposition of the second largest Bosniak party (sb iH) and a fraction of the Croat party (hdz), which had split from that party in April 2006 in protest against the April Package and had formed a new party called hdz 1990. In May 2007, the United States proposed a substantially revised version of the April Package. In June 2007, High Representative Schwarz-Schilling tried to establish an open dialogue on reforms without predetermining their content, but without success. His term was already close to an end, and his efforts were not supported by all States. International Crisis Group (icg), Bosnia’s Stalled Police Reform: No Progress, No EU , Europe Report no. 164 (Sarajevo/Bruxelles: 6 September 2005) (www.crisisweb. org).

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74 The initialling took place in a ceremony in Sarajevo, as a irst step towards responding positively to the political agreement on police reform. The actual signing of the saa, which was decisive in legal terms, actually occurred months later, in June 2008, after police reform had been deinitely adopted by the Parliament of Bosnia-Herzegovina in April 2008. 75 The unilateral declaration of independence of Kosovo in 2008 and the renewal of Russia’s activism in the Balkans have encouraged the Serbs to press their case in Bosnia, including with threats to call for a local referendum on the status of the Dayton Peace Agreement and the RS secession from Bosnia; see the RS Government’s Position of 14 December 2009 and the RS National Assembly Conclusions of 28 December 2009. 76 This is the position of Haris Silajdzic´ and his party (sb iH). The decision on the ´ by the icj in February 2007 (icj, judgment of 26 February genocide in Srebrenica 2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v. Serbia and Montenegro]) has further widened the divide and sparked nationalist rhethoric between Bosnian Serbs and Bosniaks. 77 Often a special status for Sarajevo is proposed: as a fourth unit or a federal district. 78 Already in 2004, in order to overcome the deadlock resulting from this antagonism by increasing the number of institutional actors representing territorial interests, in a provocative proposal the abolition of the Federation and a territorial design of Bosnia based on twelve constituent units (ten cantons, the RS, and ˇ Brcko-District) had been proposed by the European Stability Initiative (esi), Making Federalism Work: A Radical Proposal for Practical Reform (January 2004) (www. esiweb.org). 79 For instance, between the West and Russia, but also between the US and the EU. Constantine Arvanitopoulos and Nikolaos Tzifakis, “Implementing Reforms in Bosnia and Herzegovina: The Challenge of the Constitutional Process,” European View (2008) 7:15–22 (http://www.springerlink.com/content/1mg60j00gr23rt21/ fulltext.pdf). 80 George Schoeplin, “The Rise and Fall of Yugoslavia,” in John McGarry and Brendan O’Leary, The Politics of Ethnic Conlict Regulation: Case Studies of Protracted Ethnic Conlicts, (London and New York: Routledge 1993; reprint 1995), 192 ff. Schoeplin continues, “The principal national communities never sought genuinely to understand the other’s perspectives, interests or aspirations. The consequences were predictable.” 81 These conclusions are rightly identiied as lessons to be learned from the failure of the April Package. See Edward P. Joseph and R. Bruce Hitchner, “Making Bosnia Work: Why EU Accession Is Not Enough,” usiPeace Brieing (June 2008), 7. 82 According to recent declarations, the EU is willing to adapt its strategy and instruments for preparing for membership to the speciic situation of a multinational State, as well as to actively promote and facilitate the process of constitutional reform. See the communication “2009 the year of the Western Balkans” by the EC

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Commission, Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2008–2009, Brussels, 05.11.2008, com(2008)674 inal, 14; summary note on the joint report by Javier Solana, EU high representative, for the cfsp; and Olli Rehn, EU commissioner for enlargement, “EU’s Policy in Bosnia and Herzegovina: The Way Ahead,” Brussels, 10 November 2008, S 367/08. For interesting relections on the lessons (to be) learned, see Matthew Parrish, A Free City in the Balkans: Reconstructing a Divided Society in Bosnia (London and New York: I.B. Tauris 2010), especially chapters 1 and 9. 83 The Prud Agreement (January 2009) is based on a irst and broader Joint Statement of the same political leaders (Odžak Declaration, 8 November 2008), which also dealt with the controversial issues of State property, the constitutional status of the Brcko-District, the creation of a Fiscal Council and reforms of the ˇ Council of Ministers. 84 The three political parties alone fall short of having a suficient (two-thirds) majority in the House of Representatives. 85 International Crisis Group, Federation of Bosnia and Herzegovina: A Parallel Crisis, Europe Report no. 209 (28 September 2010) (www.crisisgroup.org/). So far, any reform of the fbh has been impossible because of the contrasting concepts of Croats (insisting on a fourth Entity) and Bosniaks (fearing any weakening of their positions).

6

New Constitutions for All Swiss Cantons: A Contemporary Challenge Ni c ol as S chmi tt To read and to study a cantonal constitution currently appears as a hobby, a kind of rare and even eccentric pastime. Andreas Auer1

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), BaselStadt (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 several decades ago. During the last thirty years, almost all Swiss cantons have given themselves new constitutions that required a huge legal and political effort that allowed the cantons to preserve their role as laboratories for democracy and good governance. Consequently, it seems perfectly legitimate for us to pay some considered attention to this “eccentric” topic and to try to answer some important questions: Why do Swiss cantons have constitutions? How are they drafted? How are they amended and why? Trying to answer these questions means also trying to provide insights into a ield that is usually neglected.

Preliminary Remarks What is a constitution?3 The deinition encompasses at least three elements. From a material point of view, a constitution is a group of rules that organize

Swiss Cantons

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and structure the state; this notion is consubstantial with the state. From a formal point of view, it is composed of norms that are superior to the others because of the process by which they are amended; the complexity and/or the speciicity of that process is enough to deine a constitution. From an instrumental point of view, a constitution is comprised of a coherent group of rules whose main criterion is its form: the rules are grouped together in a written document. But beyond the deinition, a constitution has several functions: it has to legitimate the legal order (the ideological function); it has to deine the respective ields of state and civil society; it has to limit the powers of politics (the “Montesquieu” function), and it has to organize the state and provide it with some goals (the educational function). Consequently, the constitution contains a political component that is more or less national and more or less open towards the world and whose political vision may be more or less liberal, socialist, dictatorial, or reactionary and whose symbol may be national (or regional) independence, ethnic unity, peace, or permanent revolution. But if constitutions are national in their scope, they are not supposed to be only national: they may also be regional. Federations can grant to their constituent units a certain constitutional sovereignty. Not surprisingly, the level of sovereignty available varies among federations.4 In Australia, Brazil, arguably Canada, Germany, Mexico, the Russian Federation, South Africa, Switzerland, and the United States of America, the constituent political communities have, or can have, their own constitutions. Most of them have substantial constitutional autonomy and broad legal discretion to establish their own governments, political institutions, governmental processes, and public policies, subject only to certain limits and prohibitions set forth in the federal constitutions. The very fact that it possesses its own constitution undoubtedly reinforces the “sovereignty” of the member state of a federation. Nevertheless, in some federations this sub-national constitutional autonomy remains quite limited. In Mexico, for instance, state constitutions are not especially important, because most of the details of state government are mandated by the federal document. In South Africa, provinces can adopt a constitution, but they are sharply circumscribed by the national constitution, and a provincial constitution must be certiied by the national Constitutional Court. Thus only the Western Cape has so far adopted a provincial constitution. This is not the case in Switzerland, where, since the irst constitution of 1848, the Federal Constitution has required all twenty-six cantons to have their own constitutions (Article 6). But the cantons have certainly not kept them unchanged since then: beginning in the 1960s, they have tended to give themselves new ones in order to remain in tune with the latest trends in constitutional law. In Switzerland, new cantonal constitutions are drafted every four to ive years, relatively high speed given the traditional slowness of the law-making process in the country (it took more than forty years to

142

Multinational Federations

draft a new Federal Constitution). Therefore, the sub-national constitutional debate has been a signiicant element of political and legal discussions in the Swiss cantons for many years. Nevertheless, this topic remains largely unexplored from a scientiic point of view. The on-line library of the Institute for Federalism in Fribourg (Switzerland) contains more than 113,000 entries devoted to federalism, decentralisation, and the protection of minorities worldwide. But the researcher interested in “sub-national constitutions” will ind that the material is scarce.5 It seems that there is not a great deal of interest in this topic either in the scholarly community or among practitioners elsewhere. But the subject of sub-national constitutions has inally begun to focus specialists’ attention. As a matter of fact, the International Association of Constitutional Law (iacl) devoted a workshop to this topic at its 2007 Congress in Athens.6 Among the questions addressed were (1) how such constitutions differ from federal constitutions and each other, (2) how federal constitutions deine the space allocated for sub-national constitutions (constitutional competency) and methods of policing the boundaries of federal and sub-national power, and (3) whether and why component units have or have not utilised their constitutional competency. Other challenging topics include analysis, comparison, and the preliminary evaluation of methods of replacing, revising, or amending sub-national constitutions. In the rest of this chapter I will present the key concerns that have been discussed in the Swiss cantons and synthesize the major debates and discussions.7 What is clear from the beginning is that cantonal constitutions fully correspond to the deinition and the tasks generally attributed to constitutions usually understood in the larger sense.

Historical Review At a Glance In contrast to the nineteenth century, the twentieth century – at least up until the mid-1960s – has not been a very auspicious period for constitution drafting in Switzerland. Between 1830 and 1900, no less than seventyive constitutional works were drafted, but only four between 1900 and 1914 and then none between 1915 and 1964, except for a “refurbishment” of the constitution of Geneva in 1958, which retained its oficial date of 24 May 1847. During the last century, the irst cantons to undertake a constitutional revision were Nidwalden in 1965 and Obwalden in 1968. Everything changed in the 1970s, starting a period that witnessed a new wave of constitutional revisions that has now almost been completed. The creation of a new canton in 1977 (Jura) and therefore a new constitution is perhaps not irrelevant

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to this new trend (see below). Concerning the drafting work as such, the canton of Aargau has played a decisive role because in 1980 it was the irst “large” canton to achieve a total revision of its constitution. It has since been followed in the 1980s by ive cantons, and in the 1990s revisions have been achieved in four other cantons, and then another ten up to 2010. Except for the cantons of Nidwalden, and Obwalden, and Uri, whose constitutional revisions could be qualiied as formal amendments with some limited novelties, the other cantons have taken the opportunity to initiate a deep restructuring. No canton has contented itself with a constitution playing the role of a simple instrument dealing with the allocation of powers. Indeed, all the new constitutions have gone beyond “classical” organisational rules and dealt with citizens’ rights and duties, with the social character of the canton, or with the fact that each canton represents a state of law and therefore has democratic institutions.8 The French-speaking cantons seem to be more attached than the others to their old constitutions.9 1965: A Fresh Start, the New Constitution in Nidwalden The existence of a federation offers to the constituent member states an opportunity to play the role of laboratories for democracy. Not surprisingly, the irst canton to redraft its constitution was one of the smallest in Switzerland. In 1965, the canton of Nidwalden (a former so-called halfcanton, its counterpart being Obwalden) was the irst one after the Second World War to achieve a complete revision of its constitution. It was the work of a wise lawyer, Eduard Amstad.10 He was elected as the new minister of justice of the canton (Justizdirektor) and then acknowledged that the canton’s structures were really too old-fashioned and out-dated. For instance, the situation at the municipal level was too intricate, since there were several kinds of municipalities, the so-called political municipalities (politische Gemeinden), church municipalities (Kirchgemeinden), school municipalities (Schulgemeinden), and even social municipalities (Armgemeinden). Their boundaries overlapped so much that they made any practical overview almost impossible. He also found that the laws were almost entirely practiceoriented, lacking abstraction and – again – a sense of an overview. To him, it was not possible to change only the laws, because doing so would not bring to the canton the level of “legal spirituality” he considered necessary for its future. Consequently the minister of justice – inspired by a future-oriented vision of his task – was convinced of the need to change the constitution. In Switzerland, cantonal constitutions have to be approved by the Federal Assembly (see below). The example of Nidwalden inspired other cantons, since for the irst time after the troubled period of the Second World War the federal administration and deputies had to deal with a new cantonal constitution.11 Moreover, since in Switzerland cantonal structures are quite

144

Multinational Federations

similar (despite large differences in the details) the discerning observations made by the Justizdirektor could also have been made in other cantons. Because it seemed easier to change the constitution in a small canton than in a large one, the only one to follow Nidwalden directly in this way was neighbouring Obwalden. 1977: The New Constitution of Jura A few years later, discussion of the constitution of the new canton of Jura (the only new cantonal constitution written ab ovo in the history of modern Switzerland since 1848) continued to place constitutional reconstruction under the spotlight. At that time, everybody knew that the creation of a new canton would logically also mean the creation of a new constitution, contrary to what had happened in Obwalden and Nidwalden, which had both re-drafted their existing constitutions. Obviously, this new constitutional activity was widely considered as both important and exciting, and it inevitably attracted the attention of the legal and political establishment.12 It would take too long to describe the process that led to the new constitution of Jura, dated 20 March 1977, but it is clear that it played a major role in the unfolding constitutional pattern throughout the country, because this text had been drafted by its “founding fathers” as a very contemporary one in its wording and its structure (for example, in the irst Preamble, the Bill of Rights, the international references). There can be no doubt that the modernity of the text inspired many constitutionalists throughout the country, even if it took some time to witness the result, because as always in Switzerland things move quite slowly. Redrafting at the Federal Level The end of the 1970s was also marked by discussions concerning the redrafting of the Swiss Constitution. The same winds of modernity blew over the experts’ committee (1974–77) chaired by the federal councillor Kurt Furgler. But his draft, presented in 1977 and submitted to a long process of consultation during 1978–80, was considered “too modern” and “too dangerous for federalism,” because, among other considerations, it anticipated the abolition of the historical Article 3, according to which “cantons are sovereign as long as their sovereignty is not limited by the Federal Constitution” and because it spoke of the “Swiss State.” But even though this attempt failed (in fact, a new Federal Constitution was adopted only in 1999 and entered into force on 1 January 2000, and in the interests of political feasibility it was portrayed as “just” an update of the previous one), it nonetheless helped to put the constitutional process on the political agenda. Six cantons adopted new constitutions within the next decade. Kurt Furgler himself acknowledged the relations between the amendment

Swiss Cantons

145

processes at both levels: “The spirit of initiative of the cantons drives the revision process within the Confederation and creates the means which allow us to think seriously of its restructuring.”13

The Necessity of Redrafting Cantonal Constitutions Interestingly, the arguments put forward by the cantons for launching a complete revision of their constitutions, as well as the goals they want to reach, are quite similar. They can be summarized for our purposes as follows. The Necessity of Revision In their drafts, the cantonal founding fathers have put forward ive arguments. 1 The current constitutions are too old and therefore no longer adapted to contemporary realities. 2 Most cantonal constitutions have been made “heavy” by many partial revisions (constitutions in Switzerland are lexible and therefore often amended) and have in consequence lost much of their coherence, often becoming unreadable or incomprehensible to many citizens. It is necessary therefore to restructure the text from a didactic point of view. Moreover, old constitutions have no margins, no subtitles, and often no structure. 3 From a formal point of view, cantonal constitutions are incomplete. Some provisions have become obsolete or useless over time, while others contradict federal law and still others deal with topics that could be dealt with at a lower level. In other words, there is a widening gap between the living constitution and its wording. 4 The constitutions go back to a time (often to the nineteenth century) when they had one single goal, which was to organize the state along contemporary patterns. But since then many socio-political changes that should be taken into consideration in a modern constitution have occurred (for example, the rise of the welfare state and the social state for youth and elderly people, progress in health care and the costs linked to them, major developments in communications, the transition from an agricultural to an industrial and then to a service sector economy, and an acceleration in processes of globalization). 5 The most pressing problem identiied by leading politicians has been the fact that the old constitutions did not provide any solutions to many contemporary problems: data protection, European integration, cooperative federalism, the cantons’ participation in foreign affairs, equality between men and women, the protection of the environment, the role of the media, and public information.

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The Goals to Be Reached It is sometimes dificult to distinguish motives from goals, the latter being simply the resolution of the problems caused by the former. But once again, even when the presentation of the goals to be followed sometimes differs from one canton to another, they remain quite similar. What follows is a selection of those that have been quoted in order to illustrate the potential of a new constitution. Constitutional revisions are intended 1 To allow for a better deinition of the state’s goals and tasks. 2 Within this framework, to (re)organize the tasks and activities of the executive, the parliament, the administration, and the judiciary, as well as the relations and ties between these powers. 3 To deine more accurately current relations between the churches and the state, one of the most important cantonal powers. 4 To consider a detailed bill of rights, even if human rights are guaranteed by federal law. 5 To allow for a better provision of political rights, among other ways, through the creation of new and more modern forms of direct democracy (so important in Switzerland). 6 To redraft the structure of the canton, especially its division into districts (in the cantons where they exist), municipalities (communes), and, if necessary, regions. 7 To deine more precisely the allocation of tasks between the cantons and the municipalities, as well as inancial equalisation between them. 8 To reinstate the constitution as the cornerstone of the canton as a real state; new constitutions have to reassert the value of cantonal identity, especially in relation to centralizing trends. 9 To permit a better presentation of citizens’ rights and duties. 10 To awaken cantonal consciousness and the citizens’ public spiritedness by stimulating the interest of young citizens in politics. 11 To create some new institutions, for instance, the ofice of ombudsman or a council of magistrates, in order to reinforce the state’s neutrality. Further Relections The complete revision of a cantonal constitution is no longer one of the burning public issues that raise citizens’ passions, contrary to the “revolutionary” spirit of the nineteenth century. Nevertheless, it can still launch intense political and legal discussions among politicians, public authorities, and civil society; that is, it can mobilise debate at the level of the establishment. Undoubtedly, the most important reason for constitutional redrafting is an aggiornamento of human rights and political rights. This is quite paradoxical

Swiss Cantons

147

since human rights are primarily guaranteed by the federal constitution. Nonetheless, their incorporation in the constitution provides a useful opportunity for the population of the canton to become conscious of its rights (the didactic element). It is necessary to look more closely at the work done by other cantons; this comparative work has contributed to the fact that cantonal constitutions remain quite similar from a material point of view, even if, as table 5.1 shows, they remain formally quite different (for example, in the number of provisions, the length of the preamble, and the way of listing rights and tasks). A complete revision of the cantonal constitution goes far beyond a simple cosmetic process (for this reason some cantons have refused to embark on it or have delayed it), but at the same time a new constitution does not have to turn everything upside down. A balance has to be struck between innovation and tradition. Experimentation for its own sake must be avoided, and everything that has proved to be useful in the past must be preserved. For instance, the canton of St Gallen considered making two partial revisions in order to deal with some “sensitive” topics before launching a total revision. And the canton of Vaud anticipated a long transitory period in order to implement all “sensitive” topics in its new constitution (among other things, merging districts and municipalities). Since a new constitution represents a unique opportunity to strengthen the bonds between the population and its canton, several cantons have used the solution of electing a constituent assembly. Of the twenty cantons that have launched the revision process, eight have done so, thus allowing civil society to play a major role in drafting the constitution. In the fourteen other cantons, the constitution has been drafted either by a parliamentary committee or by one nominated by the executive, but to date no complete revision has been launched by a popular initiative.14 Some cantons have inserted the revision process into a special framework, for instance for the seven hundredth birthday of Switzerland in the case of Zurich or a political crisis in the case of Vaud. Others, to the contrary, have deemed it unnecessary to deal with all current topics in the constitution.

The Formal Legal Framework The Guarantee Process, or the Formal Limits Set to the Cantonal Constitution Since most cantonal constitutions are very old, it is necessary to draft new structures aimed at modernizing the state. But the room for the cantons to manoeuvre remains quite limited. It would not be possible for them to contemplate revolutionary changes, because in Switzerland cantonal constitutions need to be approved by the Federal Parliament, which is not always the case in other federations. In the United States, for instance, among the

1894

1898

1907

1965

1968

1977

1980

1984

1984

1986

VS

NW

OW

JU

AG

UR

BL

SO

1875

LU old

SZ

1872

AI

ZG

1847

142

155

125

132

138

122

107

109

106

84

96

48

182

Date of Number of Constitution Provisions

GE

Canton

Yes, 79

Yes, 74

Yes, 52

Yes, 74

Yes, 76

Yes, 36

Yes, 30

Yes, 5

No

No

No

No

No

Preamble Number of Words

Yes, Art. 92–128, 36 provisions

Yes, Art. 90–128, 38 provisions

Yes, Art. 31–61, 30 provisions

Yes, Art. 25–58, 33 provisions

Yes, Art. 17–54, 37 provisions

Yes, Art. 24–44, 20 provisions

Yes, Art. 14–33, 19 provisions

No

No

No

No

No

No

Didactic Enumeration of State’s tasks

Table 6.1 Recent Constitutions with Some Speciically “State” Elements.

No

No

No

No

No

No

Co-operationa

Art. 6–21; Art. 22, social goals

Art. 6–17; Art. 16–17, social rights

Art. 10–16

Art. 8, I, refers to Federal Constitution; Art. 10–24

Art. 6–16

Art. 2: Cantons; is a facilitator between cultural communities

Art. 3: National and international co-operation; special respect for canton BS

Art. 1, II: Confederation and cantons

Art. 4 and 5: Confederation, cantons

Art. 4: Cantons, neighbours, world, peoples interested in solidarity

Art. 13 refers to Federal Constitution; No Art. 10–14

Art. 1 II refers to Federal Constitution No

Several provisions

Several provisions

Several provisions

Art. 2, 4–10

Art. 2

Art. 2–11

Detailed Bill of Rights

1987

1988 1993

1995

1997

2000

2001

2002

2003

GL BE

AR

TI

NE

SG

SH

GR

107

123

126

107

95

118

146 135

100

Date of Number of Constitution Provisions

TG

Canton

Table 6.1 (Continued)

Yes, 70

Yes, 17

Yes, 63

Yes, 71

Yes, 80

Yes, 50

Yes, 21 Yes, 30

No

Preamble Number of Words

Yes, Art. 75–97, 22 provisions

Yes, Art. 79 – 95, 16 provisions

Yes, Art. 9–23, State goals; Art. 24–30, State tasks

Yes, but not detailed. Art. 5, 1 provision

No

Yes, Art. 27–49, 22 provisions

Yes, Art. 22–55, 33 provisions Yes, Art. 31–54, 23 provisions

Yes, Art. 62–84, 22 provisions

Didactic Enumeration of State’s tasks

Art. 7–24; Art. 8 refers to the Federal Constitution

Art. 10–21, Art. 22, social goals

Art. 2, 4, and 5 refer to the Federal Constitution

Art. 7–33; Art. 34–36, social goals and mandates

Art. 6–12; Art. 13 social rights; Art. 14, social goals

Art. 4–23; Art. 24, social rights; Art. 25, social goals

Art. 2–19 Art. 9–30; Art. 29, social rights, Art. 30, social goals

Art. 5–9

Detailed Bill of Rights

Art. 2: Confederation cantons, foreign neighborhood; facilitator between Swiss communities and regions. Art. 92: International co-operation

Art. 3: Confederation, cantons, foreign (ausland)

Art. 1, para. 3: Confederation, cantons, foreign (ausland); Art. 23: Foreign relations

Art. 5 lit. q: Just mention of intercantonal and international cooperation

Art. 47–50: Very wide and detailed national and international cooperation

Art. 1, para. 2: Confederation, cantons, foreign neighborhood

No Art. 2: Confederation, cantons. Is a facilitator between German and French-speaking cantons. Art. 54, I: European regions

Art. 1, para. 3: Cantons, foreign neighborhood

Co-operationa

2004

2005

2006

2007

2010

2011

FR

ZH

BS

LU

SZ popular vote in 2011

GE pilotstudy

208

92

88

149

145

153

180

No (not yet)

Yes, 26

Yes, 26

Yes, 23

Yes, 50

Yes, 57 Words (F)

Yes, 56

Yes, Art. 7 (1 provision with several goals)

Yes, Art. 1–9, 9 provisions

Art. 11–15, only allocation of tasks between Canton and Communes

Yes, Art. 15–38, 23 provisions

Yes, Art. 95–121, 26 provisions

One provision lists 8 tasks (Art. 3)

Yes, Art. 39–73, 34 provisions

Confederation, cantons, regional, national and international organizations; intercantonal and interregional co-operation

Art. 5: Very wide and detailed national and international cooperation

Art. 4 and 5: Very wide and detailed national and international co-operation

Art. 13–42, Human rights; Art. 43, Social goals

Art. 10 refers to Federal Constitution

Art. 102, para. 3: Compatibility of law with the neighbours; Art. 138– 142, Europe, world, promotion of human rights

Art. 9, para 1: Confederation, cantons, districts, municipalities and private entities

Art. 10, refers to Federal Constitution Art. 5: Confederation and cantons

One provision (Art. 11)

Art. 10 refers to Federal Constitution; Art. 4: Municipalities, cantons, Art. 9–18; Art. 19 Social rights Confederation, Foreign (Ausland)

Art. 9–32

Art. 9–38

Note: All cantonal provisions can easily be consulted through the new e-base of the Institute for Federalism: www.lexind.ch. a Excluded here are provisions dealing with the cooperative, intercantonal, or international tasks devoted to a speciic authority. Only provisions dealing with co-operation per se are considered.

2003

VD

Table 6.1 (Continued)

Swiss Cantons

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few limits explicitly imposed on the states by the US Constitution is that “No state shall enter into any Treaty, Alliance or Confederation; grant Letters of Marque and Reprisal; coin Money; emit bills of Credit.” According to Kincaid,15 these limits and prohibitions are intended only or mainly to protect the sovereignty or autonomy of the federal government, rather than to dictate forms or functions to the constituent units. Moreover, where the constituent political communities have such broad constitutional autonomy, there is usually no requirement to have a constitution approved or certiied by the national government. From that standpoint, Switzerland represents an exception because the new Federal Constitution of the Swiss Confederation contains a provision devoted precisely to this topic.16 Art. 51 Cantonal Constitutions 1 Every Canton shall adopt a democratic Constitution. The cantonal Constitution must be approved by the people, and must be subject to revision if a majority of the people so requires. 2 The cantonal Constitutions must be guaranteed by the Confederation. The Confederation shall grant this guarantee, if the Constitutions are not contrary to federal law.

This provision is the same as those of Articles 5 and 6, respectively, of the 1848 and 1874 Constitutions, and it contains three different elements: (1) the obligation (and not only the possibility) for each canton to adopt a “special rule” that fulils the role of a constitution and is not contrary to federal law; (2) the obligation for each canton to submit its constitution and every amendment to it to the legal control of the Confederation, in order to receive its guarantee; and (3) the obligation for the Confederation to guarantee the cantonal constitutions and their amendments as long as they conform with federal law and, once it has guaranteed them, to protect them. Article 51, paragraph 1, contains two rules that directly affect cantonal constitutions: the irst is the democratic principle (called the “republican principle” in the 1874 constitution) and the second is the requirement of a minimum of direct democracy (for the adoption and the modiication of the cantonal constitution). The Democratic (or “Republican”) Principle The democratic principle established by the Federal Constitution is not too constraining, because the text is so vague that it requires only the minimum criteria.17 It requires the canton to have a parliament capable of taking the most important decisions (concerning laws, inance, planning), and it

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must be elected according to all the classical rules of liberal democracy by a universal and secret ballot after an election campaign where the equality of the competitors and freedom of communication are guaranteed. The wording of Article 6 in the 1874 Constitution had stipulated that cantons had to guarantee the existence of political rights “according to republican forms – be they representative or democratic.” Since all cantons have been organized as liberal democracies for a long time and guarantee to their citizens a large range of political rights, Article 6 had therefore no practical importance as a fundamental law of political harmonization. The new wording of Article 51 is, then, much simpler and clearer.18 But because the text of the Federal Constitution does not prescribe anything more, the cantons could (if they wished) institute parliamentary regimes similar to those in many European countries; that is, the parliament could dominate the government. None of them has done so, however. It is the same with democracy. The democratic principle applies only to the cantonal constitution itself. For the rest, a representative system could be suficient, meaning that neither laws, nor inances, nor plans could be submitted to a popular referendum, and that none of these items could be the object of a popular initiative. Nevertheless, none of the cantons has reduced its democracy to this minimum. On the contrary, all of them have increased the instruments of direct democracy to the extent that they are more democratic than the Confederation itself. For instance, they all allow legislative initiatives, and some of them even allow an initiative aimed at the resignation of the cantonal government, while some have also instituted referendums against ordinances, and not only laws. Direct Democracy As already mentioned, the minimum of direct democracy imposed on the cantons concerns only the cantonal constitution itself, which is submitted to a compulsory referendum. This applies not only to a new constitution replacing an old one (which took place in almost all cantons recently) but also to any amendments to the current constitution, even the smallest ones, which are much more frequent because cantonal constitutions, like the federal one, are quite lexible and therefore subject to many amendments. In short, the compulsory referendum means that any change in the wording of the canton’s constitution is at any time fully legitimated by a popular approval. The Federal Constitution also requires the cantonal constitution to be amended according to an initiative process: that is, an amendment process has to be launched if a majority of the cantonal electorates ask for it. Practically, this provision is very dificult to implement because it would be impossible to obtain the approval of more than 50 percent of the cantonal

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citizens. But this dificulty has been overcome in practice because all cantons have adopted a process in which the number of signatures required to call for a constitutional initiative amounts to far less than half the population.19 Parliamentary Practice It is extremely rare for the guarantees of the cantonal constitutions to be ignored. It did happen once to one provision (and it was more a kind of political game than anything else), but never to a whole constitution. Parliamentary practice is extremely respectful of the cantons. A provision of a cantonal constitution is censured only if there is absolutely no possibility of interpreting it in accordance with federal law. If the Federal Assembly has severe doubts about a provision, it gives its guarantee with the reservation that this provision is to be understood in a speciic sense. This is also very rare. It has happened twice and concerned provisions dealing with nuclear energy in the constitutions of Basel-Landschaft in 1986 and Geneva in 1988. In these two cases, the Federal Assembly invoked only the power of the Confederation over nuclear energy (Article 24 of the former 1874 Constitution and Article 90 of the 1999 Constitution). The Process of Granting the Guarantee The Federal Constitution remains silent about the process of granting the guarantee itself. From a formal point of view, there is a short ordinance of the Federal Assembly concerning the guarantee of cantonal constitutions (Arrêté de l’Assemblée fédérale relatif à la garantie des constitutions cantonales), dated 16 August 1851 (RS 131.1), but it gives very little detailed information. Practice has therefore developed some key principles. The most important steps are the following. T h e O b l i g a t i o n t o A s k f o r t h e G u a r a n t e e . New cantonal constitutions or amendments have to be submitted as soon as possible to the Federal Council with a request for their approval. If the cantonal authority is late, the Federal Council will ask for it to proceed. Cantons have to send a suficient number of printed copies of the new provisions. The Federal Council will translate the German or French text into the other language, but the Arrêté does not speak of Italian. T h e M e s s a g e f r o m t h e F e d e r a l C o u n c i l . The Federal Council examines the constitutional rules submitted to it for their conformity with Article 51, and then writes a “Message” to the Federal Assembly, which receives messages twice a year, for the summer and the winter sessions.

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T h e D e c r e e f r o m t h e T w o C o u n c i l s . In Switzerland any decision of the Parliament has to be accepted with the same wording by both chambers. Both chambers have instituted a committee in charge of examining cantonal constitutions whose deliberations are based on the Federal Council’s message. The process for reconciling divergent opinions between both chambers is simpliied by the practice that if one chamber upholds its rejection, the guarantee is refused. The Federal Assembly decides whether the guarantee is granted or not, and its decision takes the form of a “simple ordinance” (Arrêté simple). Why such a simple form and not a law? It is a matter of standard usage and customary law. But it seems highly questionable to submit to a referendum a law deciding whether or not a cantonal constitution conforms to Article 51, since it means that there is no recourse against a negative decision of the Federal Assembly. Even if a canton considered that the guarantee had been refused for the wrong reasons, it could not complain to the Federal Court, because in such a case the Court would be considered a superior authority and no longer a parallel one. P u b l i c at i o n o f t h e O r d i n a n c e G r a n t i n g t h e G ua r a n t e e According to an old law,20 the Confederation has to publish “an oficial collection of cantonal constitutions and the ordinances granting their guarantee,” the constitutions being published in their original language. Currently, cantonal constitutions are published in the irst volume of the Systematic Collection of Federal Law, but ordinances of guarantee are no longer published. It is, however, possible to ind them in the Feuille fédérale.21

The Smoothness of the Guarantee Process Although the guarantee process might seem to be quite restrictive, the cantons enjoy considerable autonomy in the areas deined by their constitutions. Moreover, the process does not create too many problems. Each year there are many amendments to the cantonal constitutions,22 but very few cases have created serious legal troubles. Two examples may serve to illustrate this. The New Constitution of Jura, 1974 The case of Jura is undoubtedly the most famous one and the only one in recent times where the guarantee has been refused. The new constitution of the canton of Jura speciied in its last provision (Article 138) that “the Republic of Jura could welcome any part of the Jurassian territory concerned by the vote of 23 June 1974, provided that this part has regularly seceded according to pertinent federal and cantonal law.” Following the

Swiss Cantons

155

opinion of the Federal Council, the Federal Assembly had refused to grant its guarantee because it argued that this provision encouraged the three Southern districts to secede from the canton of Berr. It was therefore considered a violation of the guarantee of territory (Article 5 of the former 1874 Constitution) and the principle of federal faithfulness, according to which the Confederation and the cantons owe each other a duty of consideration and support. One should also have read this provision as a simple explanation that the new canton was ready to welcome other territories without intervening actively in order to “help” other parts to secede.23 On the other hand, it was also possible for the new canton to interpret this provision as mandatory. Nevertheless, according to the principle that the interpretation had to be made in conformity with federal law (“if there is only one case where the provision can be applied without any violation of federal law, then it has to receive the guaranty”), one should have considered that the new canton would continue to respect the principle of federal faithfulness, and therefore the guarantee should have been granted. But of course this happened in a very special political context, where political factors – and not only legal ones – also played a key role. The New Constitution of Basel-Landschaft, 1984 Article 115, paragraph 2, second sentence of the new constitution of BaselLandschaft, dated 4 November 1984, pledged that the canton would avoid any nuclear plant being built on its territory. As a irst step, the Council of States, which considered the building of nuclear plants to be a federal matter, refused the guarantee because of the violation of federal law about nuclear energy and of the principle of federal faithfulness. Then the National Council accepted the guarantee in March 1986 and the Council of States supported this approval in June. They admitted that in fact federal law concerning nuclear energy left a certain room for manoeuvre to the cantons, and therefore that the new cantonal constitution did not prevent a federal function from being implemented, simply because the building of nuclear plants was not in fact a federal function. Moreover, “pledging itself to avoid” any nuclear plant being built did not mean “preventing.” Therefore there was enough space for an interpretation in accordance with federal law.

T h e C u r r e n t S i t uat i o n Even though the process is restrictive, almost all cantons have decided to undertake constitutional change. Indeed, the process has accelerated in the early twenty-irst century so that most of them have already created new constitutions for themselves. As of 1 March 2011, twenty-one cantons out of a total of twenty-six had adopted new constitutions:

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Multinational Federations

Nidwalden Obwalden Jura Aargau Basel-Landschaft Uri Solothurn Thurgau Glarus Bern/Berne Appenzell Ausser-Rhoden Ticino Neuchâtel St Gallen Schaffhausen Vaud Graubünden Fribourg/Freiburg Zürich Basel-Stadt Luzern

NW OW JU AG BL UR SO TG GL BE AR TI NE SG SH VD GR FR ZH BS LU

10 October 1965 19 May 1968 20 March 1977 25 June 1980 17 May 1984 28 October 1984 8 June 1986 16 March 1987 1 May 1988 6 June 1993 30 April 1995 14 December 1997 24 September 2000 10 June 2001 17 June 2002 14 April 2003 18 May 2003 16 May 2004 27 February 2005 23 March 2005 30 January 2007

Among the ive cantons remaining, two – Schwyz (SZ) and Geneva (GE) – are endeavouring to redraft their constitutions, with a good chance of achieving this goal. On 25 September 2005, it was decided by popular vote of a twothirds majority to change the Schwyz Constitution.24 Previously, a parliamentary motion of 1 February 2001 had been adopted, aiming at a complete change of the constitution in order to adapt the old text to the new Federal Constitution and to the new cantonal law on municipalities and districts; to modernize the text; to correct and to erase old-fashioned, incomprehensible, superluous, or even illegal provisions; and to re-draft the Bill of Rights, the list of state’s tasks, and the relation between the three spheres.25 A constitutional committee was set up composed of twenty-seven members elected by the cantonal Parliament, ifteen MP s, and twelve members of civil society. On 20 June 2008, the committee published its constitutional draft, which was submitted for consideration by the citizens for a period lasting until 31 January 2009,26 allowing the committee to take into account the relections of the civil society on a second draft. After ive years of process, the new constitution was adopted by the parliament on 24 November 2010 and submitted to a popular vote on 15 May 2011. The Geneva Constitution of 24 May 1847 is the oldest in Switzerland.27 For a very long time, any idea of redrafting it has been put aside. In 2005, a committee called Une nouvelle constitution pour Genève [A New Constitution

Swiss Cantons

157

for Geneva] was formed, uniting people of all ages and tendencies with the unique aim of promoting the idea of a new constitution.28 The committee drafted a law deining all elements of the process leading to one, and the law was endorsed by popular vote on 24 February 2008. The revision process was launched, with the election of a Constituent Assembly on 19 October 2008. The assembly is to submit a new constitution to the voters within four years of its election; if the voters say no, it has one year to submit an alternative document, and if this one is also rejected, the process will be considered to have failed. A pilot study was been drafted on 13 January 2011, with 202 provisions (ifty pages). It was submitted for popular consideration from 5 February to 25 March 2011. A bus with MPs has driven through the canton to present the draft, and ive evening meetings were organized at which the population could express itself. This shows how intensive was the consultative process involved in drafting the new constitution. Finally, three cantons – Appenzell Inner-Rhoden (AI), Valais/Wallis (VS), and Zug (ZG) – have thus far postponed any comprehensive change, deciding to preserve their current constitutions. During the Landsgemeinde (the assembly of the canton’s citizens) of 27 April 2003, several amendments to the Appenzell Inner-Rhoden Constitution of 24 April 1873 were proposed,29 aiming at a formal (but not material) adaptation of its wording to the new circumstances. This took place after an earlier initiative seeking a complete redrafting of the constitution had been withdrawn on 19 January 2001.30 The canton of Valais/Wallis has undertaken several partial revisions of the constitution it adopted on 8 March 1907. The most recent one concerned human rights. Campaigns to promote a total revision, however, have failed: at least two parliamentary initiatives were presented at the cantonal Parliament, but they were never discussed or adopted.31 And a popular initiative aiming for a comprehensive constitutional reform failed to attract enough signatures, indicating only limited popular support. In Zug a parliamentary initiative from the Socialist Party dated 8 December 2007 asked the cantonal government whether it intended to give the canton a new constitution and – if not – to explain the reasons for its negative decision.32 On 11 March 2008, it rejected the idea of a new constitution or even any formal adaptation of its wording.33 Such a reform was considered too expensive and less important than other cantonal tasks.

A G l a n c e at t h e N e w C o n s t i t u t i o n s The Material Legal Framework States are usually born out of some kind of revolution, and the new institutions emerge from the chaos and are deined independently of the

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previous ones, which are most of the time put aside because of the desire to change radically what took place previously. This is not the case with the new cantonal constitutions, which remain closely integrated into the legal framework of the Federal Constitution: according to the principle of the supremacy of federal law (Article 49 CF) a canton should obviously not adopt regulations that violate federal law or endanger its implementation. Federalism imposes an allocation of powers between the two levels of government (Article 3, Federal Constitution). In recent years the matters for which the Confederation has responsibility have increased, so that the current allocation of powers and responsibilities could be roughly summarized as follows. Some ields belong to the exclusive power of the Confederation: customs, currency, postal matters, communications, and railroads and navigation. And some ields belong to the exclusive power of the cantons: police, social assistance, religion, compulsory schools, and health care.34 There are, moreover, some hybrid ields with concurrent powers, which can be also divided into two categories: ields in which the power to legislate belongs to the Confederation and the power to implement to the cantons (such as weights and measures, trafic, military organisation, work, social insurance, and civil and criminal law), and ields in which the power to legislate belongs both to the Confederation and to the cantons (taxes, road building, hunting, ishing, and vocational training). Cantons could have limited themselves in their constitutions to the ields in which they have exclusive powers, in particular to provisions devoted to the organisation of public authorities. They could also have included some provisions underlining the democratic bases of cantonal autonomy and a general provision claiming that the canton has competence in all matters that are not reserved for the Confederation. However, no canton did that, because they all intended to give to the fundamental law the greatest political and educational dimension. Therefore, instead of limiting themselves to a few simple provisions, cantonal constitutions are quite long, containing about 100–150 provisions, with an average of 120, and containing several elements that could be seen as typical of a “national” constitution. For example, the irst element is the preamble. In this element the canton of Jura, for instance, was the irst to include an international reference, invoking the 1950 European Declaration of Human Rights, but since Switzerland has ratiied this declaration, this preamble is quite obsolete. In Nidwalden and Obwalden, the irst new constitutions also contain the irst preambles. Ironically, they are identical and speak of the protection of rights and freedoms and of strengthening the welfare of the community. Since then, new topics have been included in preambles, in response to new socio-economic trends, such as the topic of God and the creation, solidarity, democracy, ecology, nature and future generations, and the protection of the weakest.

Swiss Cantons

159

The second element deals with co-operation. The canton of Jura has also been a pioneer in this ield. A provision of its constitution provided that the canton should improve co-operation with other cantons, the Confederation, and peoples seeking solidarity. When this provision was introduced, the foreign relations of the cantons were strictly regulated by Articles 9 and 10 of the former Federal Constitution and were supposed to be limited to contacts with lower authorities about local matters.35 Under the scrutiny of the Confederation, Jura was the irst canton to make new use of the cantonal powers in foreign affairs. Since then, new provisions in the 1999 Swiss Constitution have expanded cantonal authority in this ield. Consequently, many cantonal constitutions contain detailed provisions aimed at cooperation not only with the Confederation and other cantons but also with their neighbours, with foreign regions, with foreign states, and even with international organisations. Surprisingly, these provisions do not necessarily relect the territorial location of the canton. Geneva is a highly international canton, but its current constitution has no provisions on foreign affairs, though this situation should change drastically with the newly drafted constitution. Appenzell Ausser-Rhoden has a foreign-affairs provision in its constitution even though the canton has no international borders. Moreover, three cantons present themselves as “bridges” or “facilitators” between the cultural communities of the country. Central Swiss cantons have generally been quite resistant to any form of cross-border integration. The inal version of the constitution of Schwyz, for example, abandoned the mention of “trans-border co-operation” that was contained in the draft. The third element concerns human rights. Until 1999, the Federal Constitution did not contain a Bill of Rights. Basic rights were sometimes written into the constitution, but most of the time they were drawn up by the Federal Tribunal (Supreme Court). One of the goals of the 1999 Federal Constitution was to offer a bill of rights guaranteeing rights at the federal level, and these federal guarantees served as a basis for rights in the cantons, although cantons remained free to reinforce or strengthen some of these rights. For example, Bern recognized a right for citizens to be fully informed about the government’s operations. Therefore, even if they are redundant, most of the cantonal constitutions include a very detailed bill of rights. This might relect a desire to have cantonal constitutions play an educational role for citizens, even if few citizens read such a document. Yet, interestingly, the three most recent constitutions – those of Basel-Stadt, Luzern, and Schwyz – do not include a cantonal bill of rights but simply refer to the federal one. Yet the draft of the Geneva Constitution (because it is the seat of United Nations? or is it the “spirit of Geneva”?) contains an extremely long one. Social rights represent another interesting element. In this case, the problem is the same as for human rights. The legal effect of, for example, the right to housing or the right to work remains very limited. The prevalence

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of federal law means that these rights cannot be implemented without an amendment to the corresponding federal law. Nevertheless, they do serve to indicate to the legislature the route that it must follow. If they do not play a signiicant legal role, they are nonetheless politically important. Therefore, at least eight of the new cantonal constitutions speciically mention social rights or social goals. Another typical element of the new cantonal constitutions is a listing of the state’s tasks or responsibilities. Since, as mentioned, many responsibilities attributed to the cantons are already listed in the Federal Constitution, it is redundant to include them once again in the cantonal constitutions, especially if they do not go beyond federal expectations. But bis repetita non nocet (it does not hurt to repeat things), meaning as long as authorities and people can understand that some of these tasks have a limited scope. In fact, most cantonal constitutions contain a very detailed list of cantonal tasks, allowing them to specify the relations between the canton and its communes and the role of ecology, and these can serve as real political programs. Finally, the new cantonal constitutions are marked by an extension of direct democracy, even though in some instances they have adjusted the number of signatures that are required so that an initiative or a referendum will relect population increases. Thus, a municipal referendum, which can be initiated by a certain number of municipalities and not only by citizens, is found in the recent constitutions of Basel-Stadt, Graubünden, Luzern, and Geneva. But this movement may have peaked. In Schwyz, the inal version abandoned the municipal referendum, even though it widened the scope of the “normal” referendum by requiring a thousand instead of the two thousand signatures previously required. And Geneva, in its draft, tries to eliminate the compulsory referendum that is enshrined in the current constitution for certain matters concerning inances or housing.

Conclusion The fact that the constituent units can have their own constitutions represents an important element of “self-rule” in a federation. In Switzerland, the Federal Constitution actually expects that all twenty-six cantons will have their own constitutions, and despite the limited formal and material scope of what they have to enshrine in their fundamental law, the cantons take this matter very seriously. In the last two decades, they have actively addressed the huge task of redrafting almost all of their constitutions in order to remain closely linked to the socio-political, legal, and federal reality. This process has involved hundreds of experts, lawyers, politicians, practitioners, and representatives of civil society in the task of keeping these fundamental laws up to date and keeping connected to contemporary legal developments.

Swiss Cantons

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Historically, cantonal constitutions have always been in advance of the Federal Constitution. For instance, popular rights have often been developed at the cantonal level and then adopted later by the Confederation. This was also the case for a certain number of rights granted irst at the cantonal level and then recognized by the Federal Tribunal and, in the end, enshrined in the new 1999 Constitution, which is a modern legal tool. But this text does not deter cantonal founding fathers from using their imagination and expressing their daring in their constitutions. On 16 May 2004, when the Catholic canton of Fribourg adopted its new constitution, it was the irst in the world formally to recognize same-sex marriage!

Notes 1 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht (ZBl.), Schulthess, Band 1991 (1990): 17. 2 Participation: 32.93 percent; from 5 February to 20 March 2011, a pilot study was submitted to the public for consultation. 3 The answer could be very long! The basic answer in the text is drawn from the recent work of Andreas Auer, Giorgio Malinverni, and Michel Hottelier, Droit constitutionnel suisse, vol. 1, L’État, 2d ed. (Berne: Stampi 2006), 476–80. 4 John Kincaid, “Comparative Observations,” in John Kincaid and Alan Tarr, eds., Constitutional Origins, Structure, and Change in Federal Countries: A Global Dialogue on Federalism, vol. 1 (IACFS/McGill Queen’s University Press 2005), 409. 5 An exception is G. Alan Tarr, Robert F. Williams, and Josef Marko, eds., Federalism, Subnational Constitutions, and Minority Rights (Westport, CT: 2004). This book therefore bridges a considerable gap. 6 Workshop: Subnational Constitutions in Federal Constitutional States. Chairs: Professor Antonio Hernandez, University of Córdoba, Argentina, and Professor Robert Williams, Rutgers University, United States. 7 Since we have at our disposal at the Institute of Federalism the documentation related to all these constitutional changes since the new Constitution of Bern was established in 1993, it has been possible to design a complete picture of the developments in the last seventeen years. 8 Cf. Urs Bolz, “Neuere Totalrevisionen von Kantonsverfassungen: Eine Bestandesaufnahme der Revisionsverfahren,” Gesetzgebung heute 2 (1992): 56. 9 Geneva launched the process only in 2008, and Valais remains one of the few cantons reluctant to produce a new constitution. 10 Eduard Amstad, “Ist die Unterscheidung von Halb- und Ganzkantonen sowie die im übrigen gleiche Gewichtung der Kantone trotz ungleicher Grösse und Leistungsfähigkeit noch berechtigt?” in Föderalismushearings/Le fédéralisme réexaminé III (Zürich: Benziger 1973), 1112.

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11 The new Constitution was guaranteed by a Decree of the Federal Assembly dated 25 March 1966 (BBl. 1966 I 558). 12 See Christian Dominicé, The Secession of the Canton of Jura in Switzerland, in Marcelo G. Kohen, ed., Secession: International Law Perspectives (Cambridge: Cambridge University Press 2006) 453. Very detailed: Patrick Talbot, La République et Canton du Jura: Étude des institutions politiques et administratives du vingt-troisième canton de la Confédération suisse (Fribourg: piff 4 1991). 13 Kurt Furgler, Die Totalrevision der Bundesverfassung/La révision totale de la Constitution fédérale, Schriftenreihe des Stapferhauses aus der Lenzburg (Sauerländer: Aarau 1982), 45 (transl.). 14 http://unenouvelleconstitutionpourgeneve.ch/?2005/06/24/28–les-constituantesdans-le-mouvement-des-revisions-totales-des-constitutions-cantonales. 15 Kincaid, Comparative Observations, 437. 16 Switzerland’s New Federal Constitution, unoficial translation published by the Federal Chancellery. 17 Considering the silence of the Constitution, this “minimum” has been drawn by the unanimous doctrine. 18 For a very detailed presentation of these obligations, see Peter Saladin, “Commentary on Art. 6 a CF,” in Commentaire de la Constitution fédérale de la Confédération suisse (Bâle/ Zurich/Berne: Helbing&Lichtenhahn/Schulthess/Stämpli 1996). 19 From 0.1 percent in Appenzell Inner-Rhoden to 7 percent in Neuchâtel. 20 Arrêté fédéral touchant la publication des constitutions cantonales, of 25 July 1863, RS 131.2. The law was subsequently abrogated. 21 http://www.admin.ch/ch/f/ff/index.html. See also Ordonnance du 17 novembre 2004 sur les recueils du droit fédéral et la Feuille fédérale (Ordonnance sur les publications oficielles, OPubl), of 17 November 2004, RS 170.512.1. 22 According to the databank of the Institute of Federalism, in 2006 sixteen amendments to cantonal constitutions entered into force, as did ifteen in 2005. There were also many more drafts or initiatives. 23 According to Saladin (“Commentary,” no. 54) and to Augustin Macheret, who was responsible for the redaction of the Constitution of Jura (discussion with the author). 24 Kantonsratsbeschluss über die Einleitung der Totalrevision der Kantonsverfassung, 25 May 2005; Amtsblatt 2005, no. 22, S. 877. 25 Motion M 1/01. 26 http://www.verfassung-sz.ch. 27 It had even been adopted before the creation of “modern” Switzerland in 1848; it contains many “old-fashioned” provisions reminiscent of the liberal revolution of 1848. 28 This Committee has a website where all its activities are presented: http:// unenouvelleconstitutionpourgeneve.ch. 29 The constitution is so old that it is oficially dated “24. Wintermonat 1873” (24 month of the winter 1873), using a medieval term that no longer exists in the German language.

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30 Published in the Appenzeller Volksfreund of 10 February 2001. 31 Motion concernant une demande de révision totale de la Constitution cantonale (Initiative parlementaire transformée en motion par la commission de censure) (4.139) du 12.05.2000 Liste des motions développées en juin 2001, 32 ; en septembre 2001, 12 ; en avril 2003, 25) (The motion proposes that the work be given to a Constituent Assembly); Motion concernant la révision de la Constitution (4.250) (Liste des motions développées en session d’avril 2003, 32). 32 http://www.sp-zug.ch/Dokumente/Interpellation_20071208_totalrevisionverfassung_spescha.pdf. 33 Vorlage Nr. 1575.1–12473. It can be found on the Internet at www.zg.ch. 34 A new federal law concerning the allocation of tasks and inancial equalization (Réforme de la Péréquation inancière et de la répartition des Tâches entre la Confédération et les cantons, shortened to rpt in French, nfa in German) entered into force on 1 January 2008 with the purpose of bringing some clariication to this ield. 35 In fact, at the birth of modern Switzerland in 1848, the cantons signed a certain number of treaties with foreign governments (see Yves Lejeune, Recueil des accords internationaux conclus par les cantons suisses en vigueur au premier janvier 1980 (Berne: Lang 1982)), but this power tended to become obsolete because, among others reasons, the number of sovereign principalities around Switzerland decreased as a result of the German and Italian uniications. The cantons therefore signed agreements on a less formal basis.

7

The Constitutional and Institutional Autonomy of Communities and Regions in Federal Belgium P at ri ck P e eters Introduction 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 essentially devolutionary. In most federal states, previously independent or confederal entities transfer certain powers to a newly created central government (integrative federalism). In Belgium, on the other hand, the process of federalisation started at the central level, devolving powers to the communities and the regions (devolutionary federalism). The devolutionary nature of Belgian federalisation helps to explain several typical aspects of the relationship between the federal and the federated authorities: (1) the powers of the communities and the regions are (still) enumerated, while the centre holds residual powers; (2) the option exists in principle for exclusive powers of the federal government, the communities, and the regions; and (iii) there is no hierarchy between federal, community, and regional legislation. In federal states of the integrative variety, on the contrary, the member states in general have residual powers, while the federal government holds only enumerated powers (see, however, the Canadian case, in which the centre has residual powers). The technique

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of concurrent powers is also more dominant, together with the principle of federal supremacy. Under Belgian constitutional law as it currently stands, the communities and regions do not have constitutional autonomy. However, this has not been an obstacle to the asymmetrical development of community and regional institutions that take into account the political particularities of the communities and the regions. The absence of constitutional autonomy has also not prevented the three major communities and regions (i.e., the Flemish Community, the French Community, and the Walloon Region) from obtaining some, albeit limited, institutional autonomy or so-called constitutive autonomy and, therefore, the power to enact speciic rules with respect to the composition and functioning of their own institutions. There is a strong political will in Flanders to have the constitutional division of powers thoroughly reviewed during a new state reform. Pursuant to this reform, the federal government would have only enumerated powers, while residual powers would be shifted to the communities and/or the regions. The French-speaking political parties, however, strongly oppose such a Copernican revolution, fearing that it would endanger the continued existence of the Belgian state, as well as inancial and social solidarity between the communities and the regions.

Residual Powers as the Basis for Constitutional Autonomy of the Member S tat e s : S o m e C o m pa r at i v e E l e m e n t s In integrated federal states, constitutional autonomy is based on the residual powers of the member states. One example is the Tenth Amendment to the US Constitution: “The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.” The states already existed at the time the Constitution was drafted. The Founding Fathers’ main concern was to deine the scope of national powers and identify the individual rights that the Constitution protects from federal and state encroachment and interference: “The structure of state governments and their sphere of operations simply are not the subjects of the Constitution, except insofar as the Constitution shifts power from the states to the national government, or protects the rights of individuals from governmental violations. There is little reason to expect, therefore, that the Constitution should contain more than a scattering of afirmative guarantees of state sovereignty: the states are simply “there.”1 The US Constitution does presuppose, however, the existence of the states as entities independent of the national government. This is expressly clear in the Tenth Amendment, which puts the states on an equal footing with “the people” as holders of the powers that the US

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Constitution neither grants to the national government nor prohibits to the states. The state constitutions contrast with the federal constitution insofar as they mainly put limits on the powers of the state governments. G.A. Tarr and R.F. Williams refer to the Kansas Supreme Court’s decision in Schneider v. Kennedy (1978): “It is fundamental that our state constitution limits rather than confers powers. When the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby.”2 Another example is the Federal Republic of Germany. The constitutional autonomy of the Länder is based on the principle of federalism3 and on the residual powers of the Länder.4 Article 28(1) of the Federal Constitution expressly refers to the constitutional order of the Länder.5 Although all Länder have their own constitutions, they are not obliged to have one, since the constitutional order of the Länder mentioned in Article 28(1) Const. refers to material constitutional law rather than to a formal constitution.6 The same fundamental scheme is also present in the Swiss federation. The cantons hold residual powers, and the centre has only enumerated powers.7 The cantons are even characterized as sovereign entities, at least insofar as their sovereignty is not limited by the Federal Constitution.8 It is generally accepted, however, that the characterization of the cantons as sovereign is not very accurate. It is the federal government that is truly sovereign, since the cantons exercise their powers within the limits set by the Federal Constitution. The so-called Kompetenz-Kompetenz is situated at the level of the Federal Constitution.9 The characterization of the cantons as sovereign dates back to the 1848 Federal Constitution and merely acknowledges that the cantons pre-existed the federation and established the latter. Article 47 of the Federal Constitution refers therefore more appropriately to the “autonomie,” or “Eigenständigkeit” (autonomy) of the cantons. The constitutional autonomy of the cantons can be based on their (limited) statehood.10 Article 51 even imposes an express obligation for each canton to have a democratic constitution.11

The Belgian Communities and Regions, the A b s e n c e o f C o n s t i t u t i o n a l A u t o n o m y, a n d Asymmetrical Institutional Developments Individual member states typically predate the formation of the federal state.12 They are in this sense “original” entities and have as such constitutional powers as well. This constitutional autonomy need not be acknowledged in the federal constitution. Indeed, the federal constitution does not establish the states. Aside from deining the powers of the national government, it only imposes limits on the states’ powers. The residual powers

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remain with the states, and their constitutional autonomy is vested therein. The unity of the federal state is guaranteed by the supremacy of the federal constitution and federal legislation enacted in accordance with this constitution. On the other hand, the autonomy of the states is guaranteed by their participation in federal policy-making, including the exercise of the Kompetenz-Kompetenz, i.e., the power to determine and to amend the constitutional division of powers. This situation is totally different in devolved federal systems. The Belgian state is a typical example of such a system. In these countries, the member states do not predate the federal state and do not constitute “original” and “sovereign” states with their own constitutional order. The constitution of the centralised state is transformed into a federal constitution, which serves as a basis not only for the federal state but also for the communities and the regions. According to the same logic, the federal government has residual powers, while the communities and the regions have only enumerated powers. In this scenario, there is no need for an express rule of federal supremacy, since the supremacy of the federal constitution results from its place in the hierarchy of laws. In Belgium, the communities and the regions have only those powers that are expressly attributed to them by the Constitution itself or by (special-majority) legislation enacted in accordance with the Constitution. No section of the Constitution gives them the general power to regulate their own institutions. To the contrary, it is the Constitution itself that prescribes the establishment of community and regional parliaments and the principle of the direct election of their members every ive years, as well as the timing of these elections (Articles 116 and 117). The Constitution also regulates the immunity of members of the regional and community parliaments (Article 120) and prescribes the establishment of a government for each community and region (Article 121) through a parliamentary electoral process (Article 122). The immunity of members of the community and regional governments and their potential criminal liability are directly governed by the Constitution as well (Articles 124 and 125). Finally, the Constitution refers to the special or ordinary majority needed to determine the composition and functioning of the community and regional institutions (Articles 39, 115, and 123). Although the community and regional institutions (parliaments, governments, etc.) are established and regulated by the Constitution itself or by the federal legislature through a constitutional delegation of authority (often by a special majority), the (at times) fundamentally different ideologies of the country’s two largest communities (the Dutch- and French-speaking Communities) have been taken into account from the beginning. Article 137 of the Constitution creates the possibility to have the parliaments and governments of the Flemish and French Communities exercise

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the competencies of the Flemish Region and the Walloon Region, respectively. The Constitution left it to the federal legislature to determine the conditions for the exercise of these powers and the manner in which it should take place. According to a federal law passed by a special majority, the parliament and government of the Flemish Community exercise the competencies of the Flemish Region. The federal legislature did not establish the same “merger” with respect to the French Community and the Walloon Region. Initially, it was provided that the institutions of the French Community would be able to exercise the competencies of the Walloon Region insofar as this was approved by a two-thirds majority of the parliaments of the Walloon Region and the French Community. This never occurred, however, and this possibility was inally abolished by the 1993 reform. A merger of these institutions appeared impossible, since the Walloon Region covers two linguistic regions (French- and German-speaking) and Brussels’ francophone population enjoys sociological and political independence from the Walloon Region. In fact, since the 1993 state reform, the francophone institutions have moved in the opposite direction, i.e., transferring powers from the French Community to the Walloon Region (the “dismantling of the French Community,” see below). Although on the Flemish side there is, strictly speaking, only one parliament and one government, there has been no “merger” between the Flemish Community and the Flemish Region in the legal sense of the term. The Flemish Community and the Flemish Region remain separate legal entities. The Flemish Region has no institutions of its own; its powers are exercised by the institutions of the Flemish Community – the Flemish parliament and the Flemish government. In the same way, the Constitution offers the possibility for the Walloon Region to delegate some of its powers to the German-speaking Community (Article 139). Both parliaments, i.e., those of the German-speaking Community and the Walloon Region, can autonomously decide if the exercise of regional powers by the German-speaking Community should extend to all or part of the powers of the Walloon Region in the German linguistic region. They must pass identical laws indicating the powers that may be exercised by the institutions of the German-speaking Community. To date, this possibility has been used in a very limited manner in order to transfer powers for the protection of sites, monuments, and landscapes. Unlike the “merger” between the Flemish Region and the Flemish Community, this transfer of powers has not entailed any institutional changes as such. Its sole objective was to avoid interference by the Walloon regional authorities in the German-speaking Community’s exercise of its powers. According to Article 138 of the Constitution, all or part of the powers of the French Community may be exercised by the Walloon Region and by the French Community Commission of the Brussels-Capital Region. The latter is part of the complex institutional solution negotiated for Brussels. In order to protect the Flemish-speaking minority in Brussels, members of the Brussels

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regional parliament, in the same way as members of the two houses of the federal parliament, are divided into Dutch and French linguistic groups, known as the Dutch and French Community Commissions. The members of these two community commissions together make up the Joint Community Commission, which exercises legislative powers in Brussels in person-related community matters with respect to institutions that cannot be identiied as belonging to either the Flemish Community or the French Community, as well as directly with respect to persons. Powers can be transferred from the French Community to the Walloon Region and to the French Community Commission in Brussels only through identical decrees approved by a twothirds majority by the French Community parliament and by an absolute majority by the Walloon regional parliament and by the assembly of the French Community Commission in Brussels. These decrees must indicate the powers and inancial means to be transferred. In this way, a signiicant portion of the French Community’s powers has been transferred to the Walloon Region, on the one hand, and to the French Community Commission in Brussels, on the other hand.13 This possibility does not exist for either the Flemish Community or the German-speaking Community. This “dismantling” of the French Community is to a large extent based on inancial considerations. Although the communities in principle have taxation powers, the Flemish and French Communities cannot levy taxes, unlike the German-speaking Community, owing to the lack of a (constitutional) provision deining the territorial application of such taxes. This is – yet again – a consequence of the interaction of these two communities in the Brussels-Capital Region. This has not resulted in any problems on the Flemish side, owing to the “merger” of the Flemish Region and the Flemish Community, which makes it possible to use regional inancial resources for community matters. Since such a merger is lacking in the southern part of the country, however, the inancial woes of the French Community have at least been partially resolved through a transfer of powers to the Walloon Region and to the French Community Commission in Brussels. The partial dismantling of the French Community also relects the dominant regionalist tendency on the francophone side. The French-speaking Socialist party is a political force to be reckoned with in Wallonia. The dismantling of the French Community is one way of diminishing the political inluence of the more liberal (conservative) French-speaking population of the Brussels-Capital Region, which has little interest in the highly speciic, mostly economic, problems of the Walloon Region.

The Absence of Constitutional Autonomy for the Communities; “Constitutive Autonomy” for the Most Important Communities and Regions Although the communities and regions have only those powers that are expressly attributed to them by the Constitution itself or by (special majority)

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legislation and even though they do not have any general power to regulate their own institutions, the three major communities and regions, i.e., the Flemish Community (which also exercises Flemish regional powers), the French Community, and the Walloon Region, have enjoyed so-called constitutive autonomy since the 1993 constitutional reform. Pursuant to Articles 118(2) and 123(2) of the Constitution, the federal legislature (ruling by a special majority) shall indicate those matters relating to the election of the community and regional parliaments and to the composition and functioning of the community and regional parliaments and governments that shall be regulated by the communities and regions themselves. These “constitutive” powers refer to certain aspects of the electoral system, that is, to the division of the regional territory into electoral districts and the determination of electoral capitals, as well as the number of members of parliament and the maximum number of members of the government. The parliaments can also impose additional incompatibilities for their members and for members of government. The term “constitutive autonomy” also covers several aspects of the functioning of the community and regional parliaments and governments, such as the opening and closing of ordinary and extraordinary parliamentary sessions, the publication of the minutes of parliamentary meetings, the status of members of the government, delegations of authority to individual ministers, and so forth. The Constitution (and the special-majority legislation) determines matters pertaining not only to constitutive autonomy but also to how the communities and regions must exercise this autonomy. Powers relating to constitutive autonomy must be exercised through decrees passed by a two-thirds majority in the relevant parliament. This requirement is surprisingly less stringent than the traditional double two-thirds majority required to amend the federal Constitution. Constitutive autonomy in Belgium is rather limited compared to other federal states and certainly does not provide a suficient legal basis for the communities and regions to adopt their own constitutions. Neither the BrusselsCapital Region nor the German-speaking Community has the power to regulate matters relating to the election of its parliament and to the composition and functioning of its parliament and government. The 1993 Constituent Assembly did not discuss extensively why constitutive autonomy should not be afforded to the Brussels-Capital Region and the German-speaking Community. This could have been because of the status of Brussels as the country’s capital and the delicate institutional balance that has been achieved within the Brussels-Capital Region, although it may have been possible to grant constitutive autonomy in theory to the Brussels-Capital Region, leaving it to the Dutch- and French-speaking groups within the Brussels regional parliament to decide whether these powers should be exercised. On the other hand, there was no justiication for withholding constitutive autonomy from

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the German-speaking Community. The most recent declaration to amend the Constitution would render it possible to extend constitutive autonomy to the Brussels-Capital Region and the German-speaking Community.

T o wa r d s C o n s t i t u t i o n a l A u t o n o m y o f the Communities and the Regions? In the Belgian federal state, the communities and the regions do not have any constitutional autonomy. They are based on the federal Constitution, which either directly or through federal (special-majority) legislation establishes rules governing their election, composition, and functioning. This absence of constitutional autonomy has not prevented, however, the most important communities and regions, i.e., the Flemish Community (and Region), the French Community, and the Walloon Region, from exercising certain “constitutive” powers granted to them by special-majority legislation in 1993. The recent negotiations to form the federal government show that there is once again a strong political will, especially in Flanders, to extend the powers of the communities and the regions. Therefore, additional powers could, as in previous reforms, be devolved from the centre to the communities and the regions. It would also be possible, more fundamentally, to reverse the current trend and to transfer residual powers to the communities and/or the regions, leaving only expressly enumerated powers at the central level. In fact, such a scheme is already enshrined in the federal Constitution, albeit only in principle. According to Article 35 of the Constitution, the federal government has only enumerated powers, while the communities and regions are competent for all other matters in the way and under the conditions prescribed by special-majority legislation. Article 35 has yet to enter into force and can only do so once a list of federal powers is inserted in the Constitution. However, the recent declaration to amend the Constitution does not provide for such an amendment. In order to provide constitutional autonomy for the communities and the regions, the federal Constitution will need to “make room” for them. This means that all sections in the Constitution and in federal specialmajority legislation pertaining to the election, composition, and functioning of the community and regional institutions will need to be abolished. At the same time, Article 35 should be implemented, resulting in the transfer of residual powers to the communities and the regions. Finally, as in other (integrated) federal states, the federal Constitution should impose the supremacy of federal law in order to guarantee the unity of the state. Major problems will arise nevertheless in implementing Article 35. First, and for the irst time in Belgian history, politicians (all political parties in Belgium are regional, even at the federal level!) will have to agree on an

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exhaustive list of policy matters that they would like to remain at the federal level. This agreement promises to be extremely dificult, since these politicians are typically more accustomed to negotiating policy matters they would like to devolve to the communities and the regions. The implementation of Article 35 will also entail a decision about residual powers, i.e., whether they should be exercised by the communities or the regions or if a compromise solution is possible, according to the nature of the powers concerned. Finally, the transfer of residual powers will entail a fundamental review of the inancing of the communities and the regions. The current system of inancing was conceived taking into account only the enumerated powers of the communities and the regions. Article 35 is highly symbolic, since it is situated at a crossroads between those who defend the continuing existence of Belgium as a federal state and those who advocate a confederal model or even the dissolution of Belgium.

Notes 1 L. Tribe, American Constitutional Law, 2d ed. (Mineola, NY: The Foundation Press 1988): 379. 2 “United States Sub-national Constitutional Law,” in A. Alen, G.A. Tarr, and R.F. Williams, eds., Subnational Constitutional Law (Kluwer Law International 1999), 15. 3 Art. 20 of the German Constitution: “Die Bundesrepublik Deutschland ist ein demokratischer und socialer Bundesstaat.” (The Federal Republic of Germany is a democratic and social federal state.) 4 Art. 30 of the German Constitution:“Die Ausübung der staatlichen Befugnisse und die Erfüllung der staatlichen Aufgaben ist Sache der Länder, soweit dieses Grundgesetz keine andere Regelung trifft oder zuläβt.” (Except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the Länder.) 5 Art. 28 (1) GG: “Die verfassungsmäβige Ordnung in den Ländern muβ den Grundsätzen des republikanischen, demokratischen und sozialen Rechtstaates im Sinne dieses Grundgesetzes entsprechen”(The constitutional order in the Länder must conform to the principles of a republican, democratic, and social state governed by the rule of law, within the meaning of this Basic Law.) 6 H. Dreier, ed., Grundgesetz Kommentar (Tübingen: J.C.B. Mohr, 1998), Bd 2, Art. 20–82, 505. 7 Art. 3 of the Swiss (federal) Constitution: “Les cantons sont souverains en tant que leur souveraineté n’est pas limitée par la Constitution fédérale, et exercent tous les droits qui ne sont pas délégués à la Confédération” (The cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution. They shall exercise all rights that are not vested in the Confederation).

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8 See also, e.g., Article 1 of the Geneva Constitution: “La République de Genève forme un des cantons souverains de la Confédération Suisse” (The republic of Geneva is one of the sovereign cantons of the Swiss Confederation). And see Article 1 of the Wallis Constitution : “Le Valais est une république démocratique, souveraine dans les limites de la Constitution fédérale et incorporée comme Canton à la Confédération Suisse” (Wallis is a democratic republic, sovereign within the limits set by the Federal Constitution and incorporated as Canton of the Swiss Confederation). 9 U. Häfelin and W. Haller, Schweizerisches Bundesstaatsrecht; Die neue Bundesverfassung, 5 Aul. (Zürich: 2001), 270. 10 Arts. 3(52)(1) and (53)(1) of the federal Constitution. 11 “Chaque canton se dote d’une constitution démocratique”. (Each canton provides itself with a democratic constitution). 12 For more details concerning matters in this section, see P. Peeters, “Multinational Federations: Relections on the Belgian Federal State,” in M. Burgess and J. Pinder, eds., Multinational Federations (Routledge 2007), 31 ff. 13 See the decrees published in the Belgian State Gazette (Belgisch Staatsblad/Moniteur belge) on 10 September 1993. The transfer concerned powers relating to physical education, sports, tourism, social promotion, professional recycling, student transportation, and certain aspects of health policy and social aid.

8

Canada: Federal and Sub-national Constitutional Practices Ge ral d Bai er Introduction 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 state rather than at the substate level. Sub-units do not lack the ability or opportunity to deine and assert themselves constitutionally. Against the measure of other sub-national constitutional traditions, the Canadian provinces have multiple options for deining and expressing themselves constitutionally. But these opportunities have simply not been seized. Questions of identity and political culture are perennial agonies of the national constitutional conversation, but ind much less debate at the subunit level. This is of course something of a puzzle. How does a federation with a reasonably high level of government legitimacy, equally reasonable levels of public engagement, and provincial governments of remarkable strength and durability not have much of a history of enshrining or celebrating the character of its constitutional democracy at the subnational level? Part of the answer for the reticence of the provinces may be an overall constitutional conservatism in the country. Canada has blissfully spent most of its history with a grossly incomplete constitution and now works with one that is only just partly incomplete. Canadians somehow managed more than

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one hundred years as a federation without a codiied amending formula for the national constitution and even succeeded in amending that document. Perhaps more critical, much of the institutional power structure described by the entrenched constitution is essentially ictitious and has been since the document itself was written. There has been a latent acceptance of this status quo for much of Canada’s constitutional history, despite major pressures on the constitutional order that have come from regionalism and language. Many even point to Canada’s constitutional ambiguity as a virtue in holding the country together in spite of signiicant fault lines among its several parts.1 Constitutional stasis is regarded as a positive feature of the national character, a deferential attitude toward the distribution of power and authority that coincidentally also defers fundamental questions about the nature of the national community and how different attitudes and values can be reconciled in more formal institutional arrangements. Since actually institutionalizing those compromises might be impossible and the failure to do so could mean the failure of the country, ambiguity helps to maintain stability and provides a grey zone for compromises that keep the country together. As a result of this latent provincial constitutionalism, provincial political traditions and innovations have arguably had less of an opportunity to inform and shape the national constitutional culture. Provincial differences and issues have nearly monopolized national constitution making, but provincial ways of governing and structuring constitutional functions have had less obvious impact on the Canadian state. While provincial constitutions exist, they are hard to ind. A couple of important limitations notwithstanding, provinces have considerable scope to alter the machinery of government, including the opportunity to place limits on the generally expansive executive authority that is typical of the Westminster-style governments in place in all the Canadian provinces. In short, the provinces certainly have broad opportunities to assert their particular identities through constitutional rules and practices, but they simply do not. What makes this untaken road even more puzzling is that Canada’s provinces are regular purveyors of the notion that they are culturally and linguistically diverse and that provincial communities have differing ideas of the role of government and the nature of the welfare state that have to be acknowledged in the federal constitution. While this diversity inds expression in the differing policy approaches of provincial governments, it is not expressed in constitutional practice, or even, seemingly, in a pent-up desire for constitutional selfexpression, at the provincial level. Arrangements that can be called subnational constitutions do exist even if they do rest on “airy foundations.”2 I use the term “arrangements” because there is little that is singular about provincial constitutions in Canada. The scraps that make them up are found in multiple sources, including

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portions of the written state constitution, ordinary provincial legislation, and the unwritten constitutional conventions typical of Westminster style governing. In that regard, Canada’s provincial constitutions are more reminiscent of the unwritten constitutions of the British model than of the more formalized and democratic or popular American state constitutional tradition. Perhaps most importantly, the bulk of what makes up a provincial constitution is not entrenched and is thus harder to recognize as constitutional. Because of that failing, many might argue that there are no provincial constitutions at all. If the rules are not entrenched, they do very little to actually limit governments, and limiting government seems to be the whole point of constitutionalism. Courts may be less willing to apply the standards of one unentrenched law against another, and so the judicial review function is less likely to occur. Additionally, without this “higher law” status, provincial constitutions tend to have very little popular currency or recognition. Provincial constitutions are a vivid diagnostic of the Canadian constitutional condition. They embody the general failure to clarify sovereign authority, but they serve a constitutional purpose nonetheless. Important choices have been made either by commission or omission at the subnational level, and they are relected in imperfect constitutional instruments. But it would be inaccurate to say that provinces do not have constitutions. It is exactly the kind of constitutions the provinces have that makes them so revealing of the democratic disconnects that plague Canadian federalism. Those disconnects are not always all bad. Perhaps ironically, provincial constitutions are also demonstrative of the kinds of compromises and self-restraint that make the stability and relative peace of Canadian federalism possible.

T h e S tat u s a n d N at u r e o f P r ov i n c i a l Constitutions Federal Sources of Provincial Constitutions Elements of provincial constitutions exist in several places, the federal constitution irst among them. Canada’s core national constitutional documents are the Constitution Acts of 1867 (which founded the federation) and 1982 (which patriated the constitution to Canada by adopting a domestic amending formula and adding a bill of rights). Part V of the Constitution Act, 1867 speaks to the nature of Canada’s provincial constitutions. The federal constitution was obliged to recognize that the colonies that joined in Confederation had a nominal constitutional existence before the formation of the federation. Part V acquits that task. As in the rest of the constitution, the letter of the law does not tell the whole story of the system’s operation. Perhaps the most consequential provision in the act for the form of provincial constitutions and subsequently for provincial governing

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regimes is in the assignment of executive power. Somewhat like Article IV’s guarantee of a republican form of government to the American states, Canada’s federal constitution mandates a parliamentary form of government through the assignment of executive powers to a lieutenant-governor (LG) as representative of the Crown in each of the provinces. By convention of course, the LG exercises that power only on the basis of advice from an elected assembly, or more properly the majority of the elected assembly. This in effect means that executive power is held by the political party with the ability to command a majority or at the very least to maintain the conidence of the assembly should it not have a majority of the seats on its own. The composition of executive power in the provinces is perhaps the single most inluential determinant of how the province will be governed. Apart from the assignment of executive powers to the LG, the federal constitution makes few prohibitions on what form provincial constitutions might take. So while formally there is very little that the provinces are prohibited from altering, what they cannot change may have the biggest consequences for the real scope of ingenuity the provinces can show in constitutional design. The assignment of executive power and consequently an understanding that parliamentary government will hold seems to preclude many of the creative avenues that provincial constitutions might have taken, or potentially could take in the future. Perhaps the more important legacy of the 1867 Constitution Act’s deinition of provincial constitutions is the duplicitous spirit of a written constitution assigning power to an ofice that everyone knows will be ceremonial. David Smith describes this practice as “the elaborate charade” of Canadian constitutionalism. Executive power is held by the Crown, but with the associated understanding that the Queen’s representative will not actually wield any of that power.3 The acceptance of the charade of executive power is consequential for how provincial governing works, because it entails an accepted ambiguity about where governing power lies and how effectively it can be constrained or channelled by the constitution. Moreover, the continued role of the Crown as an organizing principle in provincial governing (bolstered by judicial interpretations that established the independence of the provincial Crown from the federal ofice) has resulted in strong executive-centred governing at the provincial level. For good and bad, provincial executives in Canada face few constraints when they have a legislative majority in their provincial assembly. Certainly there is little of a constitutional nature that limits their organization and operation and little that limits their discretion in the use of power. More speciically, the national constitution places limits on provincial constitutional autonomy through targeted federal guarantees to minorities in many of the provinces. For example section 133 of the Constitution Act, 1867 provides for the use of French or English in the debates of the

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national parliament but also in the parliament of the province of Quebec. The written federal constitution is also presumed to include the instruments that initiated new provinces into the federation. Like the American states, the majority of Canada’s provinces joined after the initial constitution was agreed to. Consequently, many provinces have unique relationships to the greater whole. The legal channel for the admission of provinces has been federal acts generically referred to as “terms of union” and understood effectively as amendments to the original Constitution Act of 1867. For example, Prince Edward Island entered the union through the Prince Edward Island Terms of Union, 1873, which speciied representation in the federal parliament for the province, the applicability of the Constitution Act to the form of the provincial government, and perhaps more mundanely, the provision by the federal government of “Eficient Steam Service for the conveyance of mails and passengers, to be established and maintained between the Island and the mainland of the Dominion, Winter and Summer.”4 The island province simply wanted a guarantee of subsidized transport with the rest of the federation to help integrate it into the national economy. The terms of union of other provinces dictate particular rights for minorities within the province that are, again, a constraint on provincial constitutional choices. The most prominent examples would be educational rights and language rights. So, for example, the Manitoba Act, 1870 which outlines in considerable detail the form of executive and legislative governance in the province including the form of the legislature and the initial size of the executive council (or cabinet) also precludes the province from making laws under its legislative authority for education that “prejudicially affect any right or privilege with respect to Denominational Schools.”5 Section 23 of the act allows French or English to be used in the debates of the provincial legislature. The most encompassing federal limit on provincial governing is the application of the Charter of Rights and Freedoms to provincial governments and legislation. The Charter was a part of the 1982 amendments that patriated Canada’s Constitution by inally resolving the question of how further amendments would proceed (thereby removing the Westminster Parliament’s approval as a necessary step in constitutional change). The Charter has some direct applicability to the provinces; sections 16 through 20 recognize the oficial bilingual character of the country as well as of the province of New Brunswick (which still stands alone in that distinction). The so-called “democratic rights” in sections 3–5 of the Charter set out the right to vote and the terms of legislatures, as well as the requirement that legislatures sit at least once a year. The rights in sections 3–5 apply to the federal parliament as well as to the provincial legislatures. The more global impact of the Charter is its general applicability through section 32(1)b to the legislatures and governments of the provinces. Early critics of the Charter

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pointed to this provision as evidence of an intent to homogenize policies across the provinces by subjecting them to a national set of rights standards rather than idiosyncratic provincial human rights codes.6 This contention is best evidenced by Supreme Court of Canada decisions declaring unconstitutional portions of Quebec’s generally restrictive language laws.7 As a inal federal source of provincial constitutionalism, it is worth noting the place of the judiciary at the provincial level. Canada has what may be described as an “unfederal” judicial system, or perhaps more accurately a hybrid system.8 While the judiciary is largely organized by province, structure, appointments, pay, and removal of superior court judges are managed by the federal government. The courthouses themselves are administered and paid for by the provinces. The provinces also have full control over the lowest courts in the province – they appoint and manage those courts exclusively, and the structure of those systems differs considerably from province to province. But much of the overall design of provincial court systems is mandated by the federal government, superior courts and courts of appeal have a similar structure (although different names from province to province), and all of their rulings can be appealed to the Supreme Court of Canada. Changes to these parts of the provincial institutional structure can be made at the initiative of the provincial government, but the provinces require the co-operation of the federal government to fully implement any changes to the number of judges at the superior court level. With the federal government as the sole appointer of the bulk of the judges in the country there is no variation in the methods of appointment from province to province, surely an area where more robust subnational constitutionalism has an impact in other federations, notably in the United States. Provincial Sources of Provincial Constitutions While the national constitution clearly creates some broad parameters limiting provincial constitutional and policy lexibility, appropriately it still leaves considerable room for the provinces to contemplate their own brands of constitutionalism. The Canadian provinces have been important sites of innovation and experimentation in public policies and public service delivery, but only a little of that energy has been targeted toward constitutional self-deinition. That is especially surprising in light of the fact that some of the more radical political traditions in Canadian history have asserted themselves primarily at the provincial level. Among those traditions were movements that explicitly identiied themselves with a populist or plebiscitary style of democracy and pledged themselves to the popular limitation of governments and legislatures.9 That such movements never translated their interests into enduring traditions of entrenched provincial constitutionalism can be blamed partly

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on federal government efforts to limit some of the policy creativity of the provinces. When these populist movements targeted banking and other entrenched (and inluential) interests, they were met with staunch resistance from the central government, including constitutional challenges to the provinces’ legislative jurisdiction. These battles probably distracted provincial governments from more fundamental constitutional reforms. For example, in the second decade of the twentieth century Manitoba (much like other prairie provinces of its time) passed initiative and referendum legislation to provide for more direct voter control over law-making. The legislation failed a constitutional challenge to the Judicial Committee of the Privy Council (jcpc) in London, then Canada’s highest court. The jcpc ruled that the legislation was invalid because no legislature could delegate the powers of the Crown, including inal authority over legislation, to the people through a mechanism of direct democracy. Consultative referendums or plebiscites could by inference be allowed, but true direct control of policy-making by the provincial electorate was ruled impermissible by the structure of the federal constitution.10 Likewise, Alberta had a strong tradition of plebiscitarian democracy during the period in which it was led by the Social Credit party. The policy goals of that party certainly provoked central government intervention. However, the populist style of the party did not translate into a heightened desire for provincial constitutionalism or entrenchment of more populist governing devices. The populist democratic rhetoric of the party was channelled instead into a generalized anti-central government feeling. The party itself made the most of the policy leverage of Westminster style governing. If there were constitutional consequences for populist governments at the provincial level in Western Canada, they took the form of pressure on the national constitution to become more decentralized. The strength of the anti-central government feeling in the West was only increased by the opposition of federal authorities to elements of Social Credit’s policy program on the grounds of constitutional jurisdiction. The federal government opposed Social Credit inancial and banking legislation and was supported in the claim of unconstitutionality by Canada’s higher courts.11 The lack of formalization or constitutionalization of the ambitious populist goals of Social Credit may have been the key to what C.B. Macpherson labelled the “failure of delegate democracy” in that province. While the party envisioned elaborate delegate control of members of the provincial legislature and Cabinet, the reality of administration in the province was that most public policy decisions were directed by a technocratic board of experts working under the authority of the premier.12 Essentially, this populist movement’s true decision-making structure looked a lot like what today would be described as an executive-dominated system with little regard for the constraints of the legislature.

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The Alberta example is instructive because the logic of Westminster governing seems so strong even in the face of a movement of the kind that has led to considerable sub-state constitutionalism in other jurisdictions. The sub-state constitutional goals of the Progressive movement in the comparable period in the United States often included institutional reform along parliamentary lines to make governments more eficient and reduce the checks and balances typical of a more separated system.13 Radical policy proposals are most easily implemented by governments unconstrained by multiple veto points. Since the Canadian provinces already had such a constitutional heritage, there was less need for them to seek institutional reforms to realize unconventional or new policy goals over the objection of old or entrenched interests, at least at the provincial level. As noted above, national political elites hostile to provincial aspirations were the ones more likely to be interested in limiting provincial authority, and hence “constitutional” efforts were usually focussed by both sides on the federal constitution, rather than provinces seeking an ideological legacy in provincial constitutional documents. While provincial governments have not enthusiastically taken the opportunity to entrench constitutional limits and designs, they have done much to shape the running of their provinces through less exalted measures and through continued simple neglect of formalization. Keeping constitutional rules informal serves the purposes of provincial governments, and particularly the political parties in power. Even so, the truth of an unwritten constitution is that it still has multiple written parts. So while the provinces have refrained from writing prototypical constitutions, they do have all the necessary constitutional content in place, just in forms of much more varying formality and speciicity. The structure of executive and legislative power not commanded by the federal constitution is accounted for in provincial statutes. Provinces tend to interpret the unwritten conventions of the responsible-government model fairly consistently, but in the statutes that specify greater detail about representation or cabinet governing there is room for more difference (or at least there has been historically). These statutes may fail a supericial constitutional test – they are easily amendable by a simple legislative majority- but their subject matter makes them effectively constitutional. The design of provincial electoral systems, the organization of executive governance and the protection of individual rights are all addressed in ordinary provincial statutes. While British Columbia is the only province to label some of this legislation its “Constitution Act,” all the provinces have laws that help to clarify constitutional roles in the province. Under titles such as the Legislative Assembly Act or the Executive Council Act, the basic structure and operation of provincial legislatures and cabinets are speciied. In many cases the legislation mimics the cognate provisions at the national level, which

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continues to vest executive power in the Crown, exercised on the advice (understood by convention as a command) of the political executive, which itself is drawn from the legislative assembly. For many observers this oldfashioned approach is disheartening, particularly when most of the legislation is much newer than the Constitution Act, 1867 (Newfoundland and Labrador became a province in 1949) or has frequently been amended in recent years. In other words, the grand charade of Crown-held executive power is alive and well, and the myth is continuously perpetuated. Without sounding too Marxist, it appears that myths generally continue when their doing so serves the interests of power. The nominal argument for not changing the relevant segments of the Constitution Act, 1867 is that there is not enough agreement on other constitutional matters such as the status of the province of Quebec or the design of central institutions such as the Senate to risk inquiring into more formal alteration of the system of parliamentary responsible government. The consequences of that inaction have been signiicant, particularly in recent years, when Canada’s national parliament has seen a series of minority governments and more than one perceived constitutional crisis.14 When parliamentary government operates on the basis of a number of unwritten rules, their interpretation often varies considerably among actors based on their own self-interest. Provincial constitutions conceivably would have less other constitutional baggage to deal with, or certainly a more homogeneous population to relect in their constitutional designs. But provinces have done little to codify the actual practice of parliamentary government even though they have a seemingly much clearer opportunity to do so. Routinely, the noble lies of executive power are replicated at the provincial level. For instance, no one would downplay the power of a provincial premier within the provincial constitutional framework. As the leader of the governing party, the premier essentially directs all legislating in the province not to mention being at the helm of the governing apparatus. The premium placed on intergovernmental co-ordination in Canadian federalism magniies the premier’s power by a considerable factor. Premiers serve as the main spokespersons and chief negotiators for their province in intergovernmental relations. The processes of executive federalism in Canada mean that a great deal of policy-making is decided by premiers, their cabinet members and functionaries, with little direct input from the legislature. Given the considerable impact that intergovernmental policy-making has on the form and delivery of essential services such as health care and education, that is a far from inconsequential responsibility.15 In short, premiers matter tremendously to an understanding of power in provincial governments, but provincial constitutions are nearly mute to their existence.

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The British Columbia Act, as an illustration, mentions the ofice only twice – once to recognize that the premier is part of the executive council that will be appointed by the Crown’s representative and once more to recognize the status of leaders of political parties other than those forming the government or the opposition. In other words, nothing in the constitution of the province speciies or even broadly outlines the enormous power wielded by this single individual. This state of affairs is the norm of Canadian parliamentary government, but the provinces seem to be in a much better position to be up front or more explicit about the nature of executive power or even to go so far as to put some constraints on it, but resolutely do not do so. When provincial legislation has been changed or updated, it has usually only reinforced the dominant trends of parliamentary government. More centralization generally equals more power for the political executive. Again to use a British Columbia example, the provincial constitution act in 1979 removed limits on the size of the executive council, until then limited to 23 members, thereby allowing the ruling party to have larger cabinets in a legislature that then was comprised of less than 70 seats (a majority of course being possible with a minimum of 36.) At writing, the provincial cabinet was 25 members strong, drawn from a 43 member caucus. Given the prevailing norm of cabinet solidarity in legislative voting, that represents a real boost to a leader hoping to maintain party discipline. Provincial electoral systems should also be regarded as a further element of provincial constitutions. While all Canadian provinces currently have the same single-member plurality system in place, there has been variation from this model in the past, including the use of multi-member constituencies. Presently, provinces differ substantially on some of the mechanics of their electoral system, particularly in the qualiications of voters and candidates, in spending rules for candidates and parties, and in the procedures for drawing the electoral boundaries that deine each constituency. Cumulatively these variables have some effect on the quality of democracy at the provincial level, with some provinces coming out looking better than others.16 Additionally, some provinces have opted for ixed election dates, (British Columbia actually uses the Constitution Act for this purpose) setting the date of the next election, assuming the maintenance of the legislature’s conidence. Fixed dates are not the norm in parliamentary responsible government, but by setting a date, the presumed advantage the government is believed to have in choosing the time to go to the polls is eliminated. More importantly perhaps, within the last decade, ive provinces have undertaken comprehensive reviews of their electoral system with recommended changes, and two (British Columbia and Ontario) went as far as to submit those proposed changes to popular votes. In both cases the

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recommendations for changing the system came from citizen-led assemblies, and in both provinces, those assemblies recommended a considerable departure from the present system in the form of modiied proportional representation systems. Both initiatives failed to get the necessary approvals from the electorate (twice in British Columbia!) and governments have essentially abandoned the project. At the very least, the reform exercises suggest that some displeasure exists with the majority parliamentary model that dominates present practice particularly strongly at the provincial level. The provinces have smaller legislatures and most have only two truly contending political parties. The irst-past-the-post electoral system routinely results in very large majorities for provincial governments. It is not uncommon for a provincial government to face an elected opposition of two to ive members in an assembly of ifty to a hundred legislators. There appears to be a general dislike among provincial publics of those extreme system results, but efforts at electoral change might be proxies for something more. Altering the electoral system would undoubtedly inluence the dynamic of executive-legislative relations, a project that the provinces have been much slower to consider. Indeed, public opinion polling done during the 2005 and 2009 British Columbia referendums suggest that voters liked the idea of greater proportionality between voting and results (an unlikely scenario in a irst-past-the-post system) and that a majority of voters favoured the idea of coalition rather than majority governments – a recipe sure to undermine the current executivelegislative relationship.17 Another hallmark of constitutions is the placement of limits on government through either the protection of human rights or minority rights or through other limits on future legislatures. The provinces, as a result of their assigned legislative jurisdiction over “property and civil rights,” were relatively early adopters of human rights codes or bills of rights. In many cases these are rather comprehensive, even more so than the nationally entrenched bill that most of them predate. The provincial bills protect against discrimination in the private sphere as well as place limits on provincial governments themselves. The provincial bills are not always enforceable through courts, but often through specialized human rights tribunals set up by the legislation. Tribunal rulings are ultimately appealable to courts, and the bills themselves have been made subject to the standards of the national Charter – though they may offer a higher standard or wider range of protections than the Canadian constitution.18 Quebec’s Charter of Human Rights and Freedoms is perhaps the prototypical example of this kind of provision. Sometimes described as quasiconstitutional, I would describe it as constitutional simply because while it is still replaceable by ordinary statute, it acts as a superstatute denying other legislation of the Quebec National Assembly the ability to contradict

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its provisions without that legislation expressly invoking the wish to operate “notwithstanding” the Charter. Along with the Charter of the French Language, which seeks to preserve the francophone character of the province in a number of public policy ields under provincial control, it may be the closest thing to an attempt by a Canadian province to actually try and distinguish itself in a constitutional manner by declaring adherence to certain principles or values (notably the Charter includes social and economic rights as well as the standard human rights found in many codes). The Quebec Charter itemizes a number of human rights, provides for a commission to promote those rights in the province (including the power to initiate litigation), and sets up a tribunal to adjudicate violations of the Charter. The Charter has igured prominently in recent struggles over the nature of the province’s public health care system and the limitations that system places on private clinics and hospitals.19 In short the Charter is operating very much like a constitutional limitation on the choices of private citizens and the legislature. Provincial governments have been more willing to place tentative limits on themselves in the inancial realm. Following some draconian iscal adjustments in the 1990s, several provinces passed so-called balanced budget legislation that restricts the legislature’s ability to inance public spending with debt. Six or more provinces have deicit inancing or spending control acts that theoretically restrict the options of future cabinets and the legislature in their iscal decisions.20 Occasionally these laws are enforceable against speciic ministers. They may seem restrictive in ways that other provincial constitutional experiments have not been, but their status as ordinary statutes does restrict some of their authority. The present poor economic situation has revealed some of the toothlessness of the limits. British Columbia, one of the eager adopters of such legislation, has been forced by the economic decline to resort to deicit inancing. In order to pass the budget enacting such a shift, the government had to irst introduce repealing legislation to its balanced budget act. In the end, the original restraint was not much of a limitation at all, though the government did have to go shame-faced to the legislature and amend its legislation.21 When the limit is not entrenched, the restriction on government behaviour is fairly meaningless, though the government did have to make the public admission that it would not be able to abide by its own restrictive legislation. The exercise suffers particularly by comparison. Californian law-makers would no doubt welcome the opportunity to remove restrictions on their inancial movements with such ease, but of course are constrained by the Proposition 13 rules limiting the growth of property taxes in the state. The “constitutional” character of the provisions is supericially alike, but entrenchment does make a considerable difference in the different contexts.

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Provincial Constitutions a n d S tat e C o n s t i t u t i o n a l i s m With the character of provincial constitutions now inventoried, what can we gather about their signiicance for Canadian federalism and constitutionalism more generally? Especially intriguing for this volume is the question of how subnational constitutions and constitutionalism affect the constitutional culture at the state level. Clear from the discussion above is that Canada’s provincial constitutions seem held back from a truer constitutional status by lacking the pedigree of entrenchment. Conventions and mere legislation are perhaps too lexible to merit the commitment of the constitutional label. The question remains as to what procedure would elevate a provincial commitment to such a constitutional status. The state level Constitution Act, 1982 tells us that a provincial legislature alone can alter a provincial constitution, so apart from the missing label of constitution, some of the pieces cited above are legitimately understood to be elements of a constitution. The fact that a subsequent legislative majority could override a constitutional commitment is troubling, but options exist to try and temper and give a more entrenched character to such provincial commitments. “Manner and form” restrictions, essentially requiring that any repeal of a statute meet a higher standard than a simple majority, could be used to insulate provincial constitutional provisions from the whims of the legislature. For good measure, a higher standard could be required for the initial alteration of the provincial constitution, setting a benchmark for entrenchment. Despite the long-understood technical limitation on decisions being made by referendum, governments could go further and still conduct consultative referendums that would have a considerable constraining character on subsequent legislatures.22 Certainly that has been the case with electoral reform initiatives that would have entrenched new systems that one would not expect to be repealed through simple statutes down the road. The provinces could legitimately be expected to resort to more consultative forums for constitutional change than simple legislative majorities or even supermajorities. The provinces have the most experience with direct democracy – the two most critical referendums in the country’s history occurred in Quebec, and other provinces have experimented with the form. National constitutional change, despite a lack of formal requirement will be subject to referendums for ratiication. Important changes to the way the provinces work will need such an approach as well. British Columbia has pledged a coming referendum on its provincial sales tax, further entrenching a commitment to direct democracy. Nevertheless, few provinces have even explored the idea of conducting any kind of comprehensive constitutional review or rethinking. The recent vogue for electoral reform also saw some provinces throw in sundry

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investigations of the state of parliamentary democracy within their provinces, but no serious movement for constitutional reform came out of those exercises.23 If anything, such investigations tended to water down the case for electoral reform by diverting attention to every corner of the parliamentary system. The appetite for constitutional self-examination at the provincial level has probably been weakened by unsuccessful constitutional change at the state level. Historically, provinces have directed their constitutional energy to the reform of national institutions, and provincial governments have been happy to direct public discontent to the national political system rather than concentrate too much on their own backyards. The question remains whether the achievement of relative permanence and entrenchment or the content of a governing system should be the central concern of those looking for provincial constitutions in Canada. So, perhaps the problem is a deinitional one. If we conlate the constitution solely with its written and entrenched elements (and there are lots of good reasons to do so), the search for provincial constitutions in Canada will be over quickly. Alone among Canadian provinces, British Columbia is the only one to have gone so far as to label any written document its constitution, and even so, that document lacks much of the clarity or resemblance to actual practice expected from such charters.24 If we look further aield (and there are lots of good reasons to do that too) constitutional structures are in place, and their lack of formalization gives us a curious story to unravel. The provinces are not without the trademarks of an unwritten constitutional tradition, and in these forms have what may be regarded as rather advanced constitutional development. What I propose is a caution to comparativists looking for written constitutions in Canada’s provinces. While the practice of written constitutionalism has important features that would be of tremendous beneit to the provinces, it may also have limitations that make its omission make sense. In short, Canada’s missing provincial constitutions may be cause for concern, but there may also be very good reasons for their absence. The inheritance of British constitutional and parliamentary traditions, modiied by the introduction of federalism in 1867 and the addition of a bill of rights in 1982, has left a mixed constitutional heritage for Canadians to accommodate themselves to. In some respects the constitution is formal and legalistic, clearly demarcating roles and ofices and the dispersal of sovereignty between levels of government and placing limits on government consistent with fundamental human rights. But in other important respects the Canadian constitution is a poor guide to the practice of government at the national level. Following British practice, much of the constitutional order depends on the modifying inluence of constitutional conventions. Moreover, there has yet to be a deinitive exercise of popular sovereignty to secure the legitimacy of the written constitution.25 The two most central

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elements of the present written constitution were still just ordinary statutes, albeit of the Westminster parliament. Canadians had opportunities to assert their constitutional sovereignty at the national level in a number of rounds of mega-constitutional reform through the 1980s and 1990s but never accomplished the goal and are only now recovering from the resulting constitutional fatigue. Today, Canadians are really still in a sort of constitutional cold war – with a number of unsettled issues still outstanding and no clear agenda or real incentive to move forward on the constitutional ile. Part of that constitutional paralysis may be put down to the diverse nature of Canada as a country and the challenge of answering dificult questions about sovereignty, provincial autonomy, and minority rights in such a heterogeneous community. This makes the general lack of entrenched and meaningful provincial constitutions perhaps even more puzzling. The more homogenous communities at the provincial level should be far more capable of asking and answering some of the fundamental questions that have stalled the process of national constitutional change and conciliation. In fact, their willingness to deine themselves differently in practice (if not on paper) is partly responsible for the stalemate that saw one province (Quebec) withhold its consent to Canada’s single largest constitutional amendment and further hampered two major attempts at national constitutional change in the late 1980s and early 1990s. Quebec in particular would seem to have abundant incentives to enshrine and celebrate an independent constitutional tradition, but that seemingly singular province is not much closer to such a demonstration than any of its other provincial counterparts. There have been a number of proposals to the province’s National Assembly to begin the process of considering and drafting a provincial constitution. It is dificult to decipher the real meaning of such proposals in the complicated matrix of sovereigntist politics in the province. When in government, the separatist Parti Quebecois (PQ) has been more interested in moving toward independence than in asserting that independence within the conines of the present federal system through a more robust provincial constitution. When in opposition, the PQ has put some pressure on the federalist Liberal party to engage in such exercises of constitutional self-deinition. Whether talk of a provincial constitution is just a tactic by separatists to highlight Quebec’s differences from Canada when support for separation is low or when they are out of government and unable to progress the separation agenda is unclear. Canada’s provinces have not been the experimental grounds where problems of parliamentary government are solved for replication at the national level. The provinces have been anything but enthusiastic embracers of the potential of entrenched subnational constitutionalism. Perhaps they don’t have to be. Much of what qualiies as constitutional is dealt with

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in a variety of forms at the provincial level. But the low level of constitutional consciousness at the provincial level remains a little troubling. Why consciousness is low remains unclear. There is a general tendency on the part of the provinces to look outward at the federation as a whole when considering constitutional questions. Without recognition and accommodation within the federation, few provinces seem determined to set out their uniqueness in constraints on government at the subnational level. This its a pattern at the national level where the toughest constitutional questions are always fudged a little to avoid asking questions that might have dificult answers. Canadian federalism is able to plug along in a cloud of ambiguity. One that ultimately is good for the long-term survival of the federation, but frustrating to those who like more deinitive expressions of constitutional self-knowledge. Because provinces have not embraced the subnational constitutional exercise enthusiastically, there are fewer examples of policy-making by constitution than in some other jurisdictions. Matters that get considered for entrenched status at the provincial level never seem unworthy of the constitutional label. That might be part of the problem. Entrenchment is seen as too permanent or too dificult to repeal. But part of the stability of Canada’s federal system comes from elites knowing when and when not to ask deinitive questions about the nature of Canadian democracy and community. Ideas and principles are contested within and between the Canadian provinces, but open conlict is often avoided, even at the expense of resolution.

Conclusion In Canada, constitutional issues are largely seen as a struggle between national and provincial power rather than an opportunity for those provincial communities to distinguish their democratic practice from one another in ways that might lead to more genuine diversity of practice. The nationalunity imperative that has obsessed Canadian governments for so long may have made provincial elites and even provincial communities hesitate to actually assert their differences formally. Some contend that the problem is not so much a fear of provincial self-expression but that the provinces are not the right unit of analysis. Nelson Wiseman, for example, suggests that Canada’s subcultures are probably best understood regionally rather than provincially. Canada, like most federations, is a country of regions, and provinces may be a poor it for the essence of those cultural differences. Hence communities do not necessarily look to the provinces as the outlet for their constitutional self-expression. With the exception of Quebec and Ontario most of the patterns of difference in the Canadian federation,

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Wiseman argues, are best mapped in clusters of provinces, or even parts within those provinces.26 The irony is that the natural differences that divide and even deine Canadians are so consequential that they cannot be risked being recognized in separate provincial constitutions. Some observers might look on this unwillingness to formally embrace diversity as either hypocritical or excessively cautious. Others might see the necessity of that caution and appreciate the “holding together” qualities of an unwillingness to overtly recognize the differences that deine Canadians. However, my reading is that provincial democracy and the quality of the Canadian constitutional experience is the poorer for this excess of caution. Unlike in other federations there will be national limits on what provincial constitutions can do – provincial constitutional orders are and will be patrolled by national standards and national institutions, namely the Charter of Rights and the Supreme Court respectively. Provinces are thereby already likely to be constrained from the worst excesses of subnational constitutionalism. I think we can say that provincial constitutions do exist in Canada, but because the provinces have not taken the further step of asserting the wish to make a constitution, provincial constitutions are necessarily imperfect. The more formal deinition of provincial communities is slowly under way in the provinces that have attempted electoral change and leads to some hope that constitutional issues will not be forever ignored. The fate of those attempts (all of which have thus far failed) suggests that the conservatism of subnational constitutional cultures is still very much a reality and that provincial constitutions are likely to remain imperfect for some time.

Notes 1 David Thomas, Whistling Past the Graveyard: Constitutional Abeyances, Quebec, and the Future of Canada (Don Mills: Oxford University Press 1997). 2 Nelson Wiseman, “Clarifying Provincial Constitutions,” National Journal of Constitutional Law 6 (1995). 3 David E. Smith, “Bagehot, the Crown and the Canadian Constitution,” Canadian Journal of Political Science 28 (1995): 620. 4 Prince Edward Island Terms of Union, 1873. The quoted provision was actually replaced by the Constitutional Amendment Proclamation, 1993, necessitated by the building of a ixed link between the island and the mainland, thus making a guarantee of steamship service a less pressing need. 5 Manitoba Act, 1870. 6 F.L. Morton, “The Effect of the Charter of Rights on Canadian Federalism” Publius: The Journal of Federalism 25(1995). 7 Ford v. Quebec (Attorney General, [1988] 2 S.C.R. 712).

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8 Peter H. Russell, “The Unrealized Beneits of Canada’s Unfederal Judicial System,” in Dimitry Anastakis and P.E. Bryden, eds., Framing Canadian Federalism (Toronto: University of Toronto Press 2009). 9 This was particularly true in the Western provinces in the early part of the twentieth century. See David Laycock, Populism and Democratic Thought in the Canadian Prairies, 1910–1945 (Toronto: University of Toronto Press 1990). 10 Re: Initiative and Referendum Act (1919), AC 944. 11 J.R. Mallory, Social Credit and the Federal Power in Canada (Toronto: University of Toronto Press 1954). 12 C.B. Macpherson, Democracy in Alberta: The Theory and Practice of a Quasi-Party System (Toronto: University of Toronto Press 1953), 194–5. 13 G. Alan Tarr, Understanding State Constitutions (Princeton: Princeton University Press 1988), 152–3. 14 Peter H. Russell and Lorne Sossin, eds., Parliamentary Democracy in Crisis (Toronto: University of Toronto Press 2009). 15 For an account of contemporary executive federalism in Canada see Herman Bakvis, Gerald Baier, and Douglas M. Brown, Contested Federalism: Certainty and Ambiguity in the Canadian Federation (Toronto: Oxford 2009). 16 Donald E. Blake, “Electoral Democracy in the Provinces and Territories,” in Christopher Dunn, ed., Provinces: Canadian Provincial Politics. 2d ed. (Peterborough: Broadview Press 2006). 17 R.K. Carty, Fred Cutler, and Patrick Fournier, “Who Killed bc-stv?” The Tyee, 8 July 2009. (http://thetyee.ca/Views/2009/07/08/WhoKilledSTV/). 18 Vriend v Alberta [1998] established that the Alberta Individual Rights Protection Act’s omission of sexual orientation from the grounds of protection could be rectiied by resort to the Charter of Rights. 19 Antonia Maioni and Christopher Manfredi, “The Last Line of Defence for Citizens: Litigating Private Health Insurance in Chaoulli v. Québec.” Osgoode Hall Law Journal 44 (2006). 20 Lisa C. Philipps, “The Rise of Balanced Budget Laws in Canada: Legislating Fiscal (Ir)Responsibility,” Osgoode Hall Law Journal 34 (1996). 21 Canadian Press, “B.C.’s Amended Balanced Budget Law to Allow 2 Years of Deicits,” 9 February 2009. http://www.cbc.ca/canada/british-columbia/story/ 2009/02/09/bc-legislature-budget-deicit-vote.html. 22 Australian states are instructive here. While some states simply require a legislative majority for constitutional alteration, others require multiple majorities or positive referendum results. 23 For example, the New Brunswick Commission on Legislative Democracy had the mandate not only to inquire into electoral reform but also to “make recommendations on strengthening and modernizing our … democratic institutions and practices.” 24 Campbell Sharman, “The Strange Case of a Provincial Constitution: The British Columbia Constitution Act,” Canadian Journal of Political Science 17 (1984).

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25 A point made with considerable clarity and evidence in Peter H. Russell, Constitutional Odyssey: Can the Canadians Become a Sovereign People? 3d ed. (Toronto: University of Toronto Press 2004). 26 Nelson Wiseman, In Search of Canadian Political Culture (Vancouver: ubc Press 2007), 116–17.

Pa rt T hr e e Constitutional Development in Territorially Decentralized States

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Quiet Devolution: Sub-state Autonomy and the Gradual Reconstitution of the United Kingdom S t e p he n Ti erney Introduction 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 change in the systems of government for “the Celtic fringe” has allowed these territories to occupy constitutional space and through this to inluence constitutionalism within the central organs of the state both in ways we might have expected but also in others that were very hard to imagine a decade ago. This chapter will explore these knock-on effects and consider the possible implications they hold for the future, given that we are still at a very early stage in the consolidation of the devolved settlements. The chapter seeks to set this story in historical perspective and, therefore, will have several points of focus. The irst will be to explore the development of territorial governance over the past one hundred years or more. In the second part it will be argued that the evolution of the United Kingdom as a “union state” and the gradual emergence of decentralised government in the century from the 1880s onwards is pivotal to understanding the asymmetrical model of devolution that emerged in the late 1990s and indeed the shape of the United Kingdom constitution today. Second, in the

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third part I will explore how change at the sub-state level in the 1990s itself emerged from an organic process that involved sub-state actors, a factor that heightened the democratic legitimacy of the process and hence helped cement the three settlements as seemingly ixed arrangements. This process also served to qualify assumptions that, to this point, the United Kingdom was a heavily centralized state; in fact the role of sub-state territories in helping to effect constitutional change is a well-established feature of United Kingdom constitutional history. In other words, the constitutional dynamics of the pre-devolution period also require to be explored not only from the perspective of centre-to-region inluence but also for the inluence that operated on the constitution from the bottom up as it were. Third, in the fourth part I will explore the impact of devolution on the constitution of the United Kingdom and speculate about the potential for further reverberations in due course. Since it will be argued that the United Kingdom now resembles a quasi-federal system, the United Kingdom as a case study causes us to re-visit traditional deinitions of federalism. More than this it also requires relection on what is meant by “constitutional change” within an “unwritten” constitutional system. Recent turns in constitutional scholarship have encouraged constitutionalists to look beyond the façade of narrow formalism in attempting to understand how constitutions change over time through the interaction among important constitutional actors – the several branches of government, existing sub-state governments, the people or “peoples” of the state, and the extra-state presence of the EU.3 In all of this the United Kingdom seems to be a dynamic laboratory to test the role played by sub-state territories in effecting constitutional change in an environment that is neither wholly unitary nor federal.

United Kingdom Devolution in Historical Perspective The starting point for any study of United Kingdom devolution should certainly not be 1998. Instead, the roots of territorially differentiated government go back to the end of the nineteenth century and are possibly to be found, if the story is to be told in full, in the way in which the United Kingdom was formed. This was itself a ground-up process and this foundational fact has remained an important component of the state’s constitutional culture, with constitutional space, albeit of an informal or even symbolic nature, being occupied by the union’s sub-state nations. Union The United Kingdom has an unwritten constitution, which leads some to ask whether it has a constitution at all. But of course constitutional lawyers

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have long been comfortable with the idea that the United Kingdom constitution, while not codiied, does it the classical deinition of a “set of fundamental principles according to which a State is constituted and governed.”4 And in fact, even the idea that it is unwritten or uncodiied is perhaps not as clear-cut as it may at irst seem. It is widely accepted that the principle of legal supremacy in the United Kingdom, since it is not embodied in a foundational document, is instead captured in the principle of parliamentary sovereignty. However, at least within the Scottish legal system, the Acts of Union of 1707 have from time to time been treated as a rival source of constitutional supremacy, an issue we will return to in a moment. First, it is helpful to recall that, in historical terms, the key characteristic of the United Kingdom constitution is perhaps not so much its unwritten status as its “union” persona. Although not federal, the United Kingdom was founded with some recognition of the national differences of which it was composed, and at least in the case of Scotland there was a constitutional commitment to continue to recognize these differences in the constitutional functioning of the state. The union nature of the state is seen in its name – the United Kingdom of Great Britain and Northern Ireland. England and Scotland were and remain distinctive national societies, while Northern Ireland comprises two distinctive national groups – British unionist and Irish nationalist. Furthermore, these came together, at least formally, in processes of legal union. England’s union with Wales was clearly the result of conquest, but even here this was given legal recognition by an act of the English parliament.5 Of greater constitutional signiicance, the modern British state was shaped by the later and more sophisticated legal unions between England and Scotland to form the United Kingdom in 1707,6 and that between the United Kingdom and Ireland in 1800, the legacy of which is Northern Ireland’s ongoing membership of the United Kingdom.7 Although these different unions brought with them distinctive points of constitutional distinction, the one with possibly the most enduring constitutional signiicance, and therefore the one I will focus on, is the AngloScottish union. The feature that is particularly signiicant here is the retention of an independent legal system within Scotland. This institutional setting has led to a particular understanding of the constitutional status of the union within the Scottish legal system. From time to time it has been suggested that the very authority of the United Kingdom Parliament derives from the Acts of Union of 1707.8 This argument is largely now of only historical interest, given that it is extremely unlikely that a Scottish court would seek to strike down an act of the United Kingdom Parliament by invoking these acts. However, the survival of this very possibility has left an important chink of light in the seemingly impenetrable wall of parliamentary sovereignty, and this may in time help provide the philosophical underpinnings for a newer tradition that is prepared to question Parliament’s

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absolute supremacy in light of more recent constitutional changes involving not only devolution but also membership in the EU and the Human Rights Act 1998, documents that may incrementally be forming part of a new proto-written constitution.9 In other words, the union origins of the United Kingdom have left a historical and constitutional legacy that may shape how the constitutional signiicance of the devolution settlements come in time to be perceived. This alludes to the space for future constitutional change referred to in the introductory chapter to this collection. The origins of the devolution settlements also ind some provenance in the gradual development of administrative devolution from the late nineteenth century onwards.10 Taking Scotland as our principal case study, although not enjoying legislative autonomy after 1707, other important public institutions did survive through the explicit protection accorded in the union legislation. This included the legal system based on the civilian tradition,11 but also the particular system of local government, which differed in important ways from that in England, thus enabling the distinctive micro-management of institutions such as schools in each country. In civic terms, Scotland retained a separate established church and its own ancient universities. The latter helped the Enlightenment to lourish in the eighteenth and nineteenth centuries. And from this civic and legal context towards the end of the nineteenth century we ind the establishment of the governmental apparatus that would in time lead to legislative devolution; the ofice of Secretary of State for Scotland was founded in 1885, which was followed by the creation of the Scottish Ofice in 1928.12 There are different views as to the signiicance of this development, but Paterson13 argues that Scotland through “administrative independence” enjoyed a level of autonomy in this period similar in many ways to that enjoyed by other small European nations, which, although technically independent, have had to negotiate the political reality of autonomy in relation to major neighbouring powers.14 What is not in doubt is that through the Scottish Ofice, although this department was clearly constrained by the need to comply with central United Kingdom government policy, some autonomy was available for distinctive spending priorities to be pursued. This not only allowed discrete civil and administrative patterns to continue to develop, it created a civil service infrastructure within the Scottish Ofice that was easily adapted to run the new devolved administration after 1998. It might be said that in the pre-1998 world the space for constitutional change was created through a culture of union through administrative autonomy that paved the way for the model of devolution that emerged in 1998. Similar developments occurred in Wales. After the completion of the Anglo-Welsh union in 1536 a distinctive Welsh identity survived in cultural terms, characterized most prominently by the continued lourishing of the Welsh language and by a rebirth of Welsh nationalism since the 1960s.15 It

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was not until recently, however, that Welsh distinctiveness was relected in administrative arrangements, but as with Scotland, an important step on the road to devolution was taken with the creation of the Welsh ofice and the post of secretary of state for Wales in 1964. This was again within the context of the central British government of which the secretary of state was a member and to which he remained answerable, but as with Scotland it paved the way in terms of institutional infrastructure for a fairly smooth transition to devolution in 1998. Although the relationship between Great Britain and Ireland was formalized in constitutional terms by the Act of Union 1800, a movement for home rule persisted from the establishment of a society of United Irishmen in 1791 that sought an independent Irish state. The movement for Home Rule continued throughout the nineteenth century and seemed to be reaching a successful conclusion until interrupted by the First World War. An armed insurrection in Dublin in 1916 proved to be a turning point in modern Irish history. With growing support for the nationalist movement Sinn Fein, this organization issued a unilateral Declaration of Independence in 1918 resulting in a war with the British that was not peacefully concluded until 1921. In 1920 in an effort to end the war, the Government of Ireland Act was passed. By this measure, Ireland was partitioned, with six counties of the province of Ulster to be administered separately from the rest of Ireland as part of a provisional arrangement.16 Northern Ireland, while remaining part of the United Kingdom, was governed separately through a system of devolution by the parliament at Stormont from 1920 until 1972. This Parliament administered powers for Northern Ireland similar to those administered by the Scotland Ofice for Scotland. But the Stormont parliament differed in having a legislative capacity that included a general power “to make laws for the peace, order and good government of Northern Ireland.”17 However, the minority nationalist Catholic population continued to suffer discrimination in many areas of life under the Stormont regime, which resulted in civil unrest from the late 1960s and subsequently in the armed irredentist campaign by the Provisional Irish Republican Army. This campaign led to the suspension of the Stormont parliament and the resumption of direct rule from London in 1972.18 Subsequent attempts to reintroduce devolution in the 1970s and to create models of British-Irish co-operation in the 1980s were generally unsuccessful, meeting with opposition from the nationalist and unionist populations respectively in an environment made worse by the proliferation of paramilitary violence. However, the Northern Ireland ofice retained a level of administrative discretion in many areas of life that make it comparable to the Scottish and Welsh cases. It was not until 1998 that an end to paramilitary violence by the main protagonists was secured and an innovative

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model of devolution embracing elements of British-Irish shared rule was introduced by way of the Belfast (“Good Friday”) Agreement of 1998 and the subsequent Northern Ireland Act 1998. But again, as with the other territories that were now set to be devolved, the administrative infrastructure in the form of an experienced territorial civil service was on hand in Northern Ireland to give effect to the new institutional arrangements. Therefore, we can see that 1998 for all three territories was clearly not year zero. The devolved arrangements that emerged, and the differences among them, have their roots in very different historical trajectories, all of which are the product of separate and often over-lapping relationships with the central state. In other words, it is in the history of the pre-devolution period, combining both different modes of union and subsequently different experiences of administrative devolution, that we ind the conditions that helped shape the deep asymmetry of the 1998 project. This fact relects a deeper point about constitutional change itself. The year 1998 may have marked the most dramatic instance of such change, but it is not the only process of change in the last one hundred years or so. Change did in fact take place before 1998, but it has to be traced not simply by a study of formal constitutional events but also as a series of often gradual and hard to detect plate changes beneath the surface of a seemingly stable and unchanging unitary constitution that in fact altered constitutional culture and the routine of day-to-day administration. These alterations were themselves propitious conditions for the large-scale change of 1998. This offers a broader lesson for the study of constitutionalism in general. No constitution, even a written one, can be studied simply by reference to formal legal texts or to case law interpreting these texts. Instead we must also be alive to lower-level constitutional activity and to the interface between informal and formal processes of change that can alter constitutional culture and attitudes in incremental, but ultimately fundamental, ways over time. In all three cases within the United Kingdom it is clear that a culture of autonomy was in place that might help explain the relative smoothness of the transition to devolution and the way in which devolution was to a large extent shaped at the sub-state level. The Organic Emergence of Devolution Perhaps the most signiicant cultural shift that has informed the emergence of United Kingdom devolution has been the rise in the developed world since the 1950s of sub-state nationalism affecting federal (Canada, Belgium) and non-federal (the United Kingdom and Spain) states, a process in which the United Kingdom has found itself in the vanguard.19 This provided the political impetus for bottom-up pressure to secure devolution in Scotland and Wales. The impact on Northern Ireland was clearly more

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troubled. But in all three cases this political nationalism was able to present constitutional aspirations that already had an institutional base, in the form of administrative devolution, upon which to draw. In other words, these sub-state territories, particularly Scotland and Northern Ireland, have shown from the 1990s onwards that they are prepared to occupy the constitutional ground that the constitutional culture of union and decentralization has opened for them. It also shows that actors in these territories have been able to inluence the range of discretion and the degree of constitutional space open to them and therefore that the dynamic of devolution has been in fact multi-directional and not simply a top-down process whereby limited powers have been ceded under the strong grip of central authority. One consequence of the emergence of sub-state nationalism, particularly as a political force since the 1970s, is that sub-state political actors, to an extent that varies from territory to territory, were inluential in shaping the model of devolution for the territory in question, models then endorsed by the sub-state peoples, each acting alone as self-standing demoi, in ratifying referendums in 1997 (Scotland and Wales) and 1998 (Northern Ireland). In Wales the inluence of a civil campaign for devolution, while certainly active, was generally weak, and this is relected in the top-down and relatively weak model of devolution eventually enacted in the Government of Wales Act 1998. But the story in Scotland was very different. This is in a sense a tale of two referendums – one held in 1979 and the other in 1997, which returned widely different results. In 1979, support for the creation of a Scottish Assembly was lukewarm, and ultimately the proposal failed.20 However, by 1997 there had been a stark change in prevailing political conditions. An extra-parliamentary campaign for constitutional change had emerged that involved a broad range of political and civic actors – many of them political opponents of the Conservative Government – that was initially embodied in the Campaign for a Scottish Assembly (csa) launched in 1985. This campaign resulted in a document, A Claim of Right for Scotland, issued in 1988 and declaring the inherent right of the Scots to self-government. This document aired the grievance that the “union state” pact stemming from 1707 had been undermined by subsequent United Kingdom constitutional practice.21 Furthermore, it asserted that “sovereignty” in Scotland rested with the Scottish people and that as such they had the right to initiate changes to Scotland’s constitutional position. The Claim of 1988 recommended that a cross-party Scottish Constitutional Convention (scc) be established that would have the task of drawing up a scheme for home rule, mobilize the people behind it, and “assert the right of the Scottish people to secure the implementation of that scheme.”22 This was inaugurated on 30 March 1989, and over the next seven years it embraced much of Scotland’s political elite, involving inter alia the Labour and Liberal Democratic parties, local authorities, churches, and the

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Scottish Trades Union Congress.23 Although not established by any oficial route, it was composed of ifty-nine of Scotland’s seventy-two Westminster MP s and all six of its members of the European Parliament. This resulted in a series of publications, the most important of which, Scotland’s Claim, Scotland’s Right,24 set out a detailed blueprint for devolution that proved to be very inluential, the eventual model of devolution enacted through the Scotland Act 1998 being remarkably similar to it. The momentum for devolution created by this extra-parliamentary campaign meant that the process by which legislation was passed after Labour came to power in the United Kingdom in 1997 was very speedy. The political climate in 1997–98 was highly conducive to devolution; a Labour administration elected with a large majority in 1997 was committed to devolution, and so, heavily inluenced by Scottish Labour MP s, the government drove the devolution settlement through the irst session of the new Parliament. The fact that the extra-parliamentary campaign had already developed a sophisticated model that could then be adapted by Parliament quite easily was of considerable assistance in streamlining the route to devolved government. The process was as follows: shortly after assuming ofice, and building upon Scotland’s Claim, Scotland’s Right, the government issued a White Paper, Scotland’s Parliament, which contained a fully worked-out model of devolution. This proposal was then put to a referendum in Scotland in November 199725 in which a large majority voted yes to the principal proposal.26 In this sense the background to the Scotland Act takes on, at least by one construction, a strongly organic and to some extent popular dimension: the former because the devolution model stemmed heavily from a pre-parliamentary political initiative within the Scottish body politic and the latter because of the strong popular endorsement of the devolution settlement in the referendum. Although some minor changes were made by Parliament to the devolution proposal after the referendum, the model inally enacted was in substantive terms the same as that voted for in the referendum. In Northern Ireland the process was also largely home-grown, and political elites showed a similar level of determination to ill the constitutional space that now became available. The impetus for the devolved settlement was not a plan formed at the centre of the United Kingdom state for the devolution of power from Westminster but rather an attempt to end the conlict between Irish republicans and the British state. Following a historic period of negotiations that took place between 1997 and 1998, in the end agreement was reached involving unionists and nationalists within Northern Ireland. The Belfast Agreement, commonly known as the Good Friday Agreement, signed on 10 April 1998, also involved the British and Irish governments. Although the background to the Belfast Agreement is very different from the background to devolution for Scotland and Wales,

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the referendum was again the device that was used to approve it. There were in fact two referendums to ratify the Belfast Agreement, one held in the Republic of Ireland and the other in Northern Ireland, both falling on 22 May 1998. Each resulted in an overwhelming endorsement of the agreement. Therefore, the Scottish and Northern Irish experiences highlight the extent to which constitutional change originated in and was shaped by territorial actors, while the use of referendums for all three settlements also highlights just how much the dynamics of change were shaped at the territorial level. The interplay of these processes also created a culture of ongoing change that was set to affect the United Kingdom’s broader constitutional structure.

Impact of Devolution on the United Kingdom Constitution Devolution settlements have affected the United Kingdom constitution. We will now address several of these, taking into account how the historical backdrop of the United Kingdom as a union state informs these ongoing developments. Parliamentary Sovereignty The most pressing question in any assessment of constitutional change in the United Kingdom is what impact, if any, these processes have had on the doctrine, or at least the practice, of parliamentary sovereignty. This doctrine is better described as the legislative supremacy of the Parliament of Great Britain, composed of Monarch, House of Commons, and House of Lords, each of which play an essential role in the law-making process. This doctrine of parliamentary supremacy, which was already emerging within English law at the end of the seventeenth century, thereafter crystallized within English constitutional thinking, receiving its most famous articulation in the work of the constitutional scholar Dicey, who wrote between 1885 and 1915. For Dicey the legislative supremacy of the Crown in Parliament was clearly unlimited. As such it was possessed of both a positive and a negative aspect: in a positive sense Parliament had the power to make or unmake any law for the United Kingdom, and in its negative manifestation no other body could make law for the United Kingdom. It is this doctrine that continues to dominate debate about the power of the United Kingdom Parliament to this day.27 The intention of Parliament in passing the legislation for devolution was that this doctrine would not be modiied. To take the Scotland Act as an example, by the doctrine of parliamentary supremacy this is simply an

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act of Parliament like any other and is, therefore, open to express or implied repeal by a later inconsistent act. The White Paper that preceded the Scotland Bill certainly took this view, stating plainly: “the U.K. Parliament is, and will remain sovereign in all matters,” and “Westminster will be choosing to exercise that sovereignty in devolving legislative responsibilities to a Scottish Parliament without in any way diminishing its own powers. The Government recognise that no U.K. Parliament can bind its successors.”28 However, we have also observed that despite the overwhelming weight given to Diceyan orthodoxy within English constitutional practice, there has persisted a discrete Scottish constitutional tradition, voiced by the Court of Session in MacCormick and by prominent political actors through the scc, that Westminster’s self-assumed supremacy is not untrammelled, at least in the context of the Acts of Union. A question that remains therefore is whether, as devolution settles down, it will provide the institutional infrastructure within which this Scottish tradition might be reinvented, and if so, whether the Scotland Act itself will be seen as a mechanism whereby Westminster’s absolute supremacy might be modiied. Already in English law some doubt has been cast on the traditional Diceyan doctrine, at least as far as implied repeal is concerned.29 In the English Court of Appeal, Lord Justice Laws took the view that there is a set of particularly important statutes, including the Scotland Act 1998, that he termed “constitutional statutes.” These, he suggested, cannot be repealed simply by a later, inconsistent act of the Westminster Parliament. Instead the amendment of these statutes would require the express intention of the United Kingdom Parliament. This does not mean that a challenge to Westminster’s express intention to amend or abolish the Scotland Act, even if such an act went expressly against the will of the Scottish Parliament, would be upheld by either Scottish or English courts. The impetus for the development of this doctrine has primarily been the United Kingdom’s relationship with the EU, but there is also a sense that devolution is also affecting the attitude of the courts to the constitution of the United Kingdom. This was more apparent in Jackson. In this case, which involved the ban on fox hunting in England, it seems that among certain House of Lords30 judges there was a sense that the traditional doctrine of parliamentary sovereignty may be weakening in the face of various challenges, including devolution to Scotland.31 In Jackson Lord Steyn commented: “We do not in the United Kingdom have an uncontrolled constitution … The settlement contained in the Scotland Act 1998 … points to a divided sovereignty … The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom.”32 Equally radically, Lord Hope, formerly Lord President of the Court of Session and now the more senior Scots judge on the Appellate Committee, argued: “Our constitution

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is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualiication whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualiied.”33 While it is important to note that these sentiments were expressed obiter dicta and were not expressly shared by a majority of judges in the case, they do represent signiicant cracks in what has traditionally been a monolithic acceptance by senior judges of Westminster’s untrammelled legislative power. It is also signiicant that Lord Steyn’s reference to divided sovereignty in respect of the Scotland Act came in a case that did not even involve devolution. It is also not inconceivable that in time the common law courts of England and Scotland may in the future declare the doctrine of parliamentary supremacy to be signiicantly modiied, and as such we may even see a divergence between Scots and English courts on this issue given that each have jurisdiction to consider devolution issues arising from the Scotland Act. As Lord Steyn also argued in the context of the English common law: the supremacy of Parliament … is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.34

It may also be that the courts are becoming aware in the context of the devolution settlement encapsulated in the Scotland Act, a settlement that most Scots consider should not be subjected to fundamental change or repeal without the consent of the Scottish Parliament or the Scottish people expressed in a referendum, that adherence by way of a narrow conception of legalism to an out-moded vision of an absolutely supreme Parliament in Westminster in the face of constitutionally unacceptable behaviour by that Parliament would be to cut the constitution off from the political legitimacy upon which it depends. As Lord Hope observed in Jackson: “Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law.”35 It is in this context that we must ask whether the devolution settlement, having transformed the Union in a way unprecedented since 1707, now offers the prospect of a revived Scottish constitutional tradition that might in time challenge the absolute nature of Westminster’s self-ascribed supremacy.

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Given dicta such as that of Laws LJ to the effect that the devolution statutes are “constitutional statutes” and the dicta in Jackson, it seems that we can see the Scotland Act, in practice if not yet by formal legality, as unrepealable unless the clear will of the Scottish people supported repeal. This is not the division of sovereignty of a federal system but it shows how devolution acts perhaps as something of a Trojan horse in weakening parliamentary sovereignty in other areas too. We see this doctrine undermined in terms of the United Kingdom’s membership of the EU.36 But we also see the potential for change appearing through the Human Rights Act.37 In other words, a series of constitutional cracks can come together to create a larger issure that undermines the traditional authority of Westminster. This has the potential to become the most stark example of how a devolved territory can use existing powers and the historical legacy of a distinct juridical identity to push for further constitutional space to an extent that the narrative of undivided sovereignty becomes less and less sustainable as an explanation for the nature of divided powers in such a heavily decentralized state.

A d H o c D e vo l u t i o n : C o n t i n u i n g I m p l i c at i o n s for the United Kingdom Constitution Devolution for the United Kingdom, effected as it was by one piece of legislation at a time, is a highly ad hoc and, one might say, messy affair. As such, the phrase coined by Ron Davies, secretary of state for Wales in 1998, that devolution is a process not an event has proven to be entirely accurate. The implications of the ad hoc nature of the development, with its deep asymmetry and lack of formalization in the structure of inter-governmental relations, are, irst, that the devolved territories continue to look for modiications to their devolved powers or their institutional relationship to the central state, and second, that the constitution of the state needs to adjust on an ongoing basis to the changes that have taken place. Given the high level of asymmetry that existed after 1998, it was only to be expected that Wales, with the weakest model of devolution, would in time look for new powers, in a process similar to that in Spain where the acquisition of powers by the autonomous communities became known as café para todos. Developments for Wales have in fact happened more quickly than might have been foreseen. Welsh dissatisfaction with its settlement grew quickly when viewed in contrast to the starkly more autonomous Scottish model. This has already resulted in change. A major review undertaken by the Richard Commission recommended structural changes to the model of devolution for Wales, including that the assembly should be reconstituted as a separate legislature and executive.38 Various modiications to the devolution model are being put in place through the Government of Wales Act 2006. This act effectively establishes a clear distinction between

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the National Assembly and the Welsh Assembly government, putting it on a standard Parliament-executive footing, whereby the government is drawn from the Parliament and in turn is accountable to it. Furthermore, under the act a provision is made for the National Assembly to have competence to make a new category of legislation to be called “Measures” and which is, in essence, primary legislation. This competence will relate only to areas of policy that have been devolved and will be granted on an issue-by-issue basis upon a request being made to United Kingdom government. With these developments, which include a gradual move for Wales towards powers similar to those of Scotland, there is perhaps a sense that the United Kingdom is moving ever more towards quasi-federalism. The two administrations in Scotland and Wales will now ind that problems they have with the centre in terms of lack of intergovernmental co-operation are increasingly shared concerns, which may lead to the strengthening of a common front for further consolidation of the “representation” side of devolution to align with the already strong “autonomy” side. Now that the Northern Ireland institutions have been restored with a new degree of stability, it seems that they too will soon look more closely to the role they have in executive decision making at the centre of the state. These developments may increase pressure for a more formalized intergovernmental structure; indeed, the incoming snp Executive in 2007 announced it wanted to formalize igr. A related development is the challenge of separatist nationalism, which is present in a strong way in Scotland and Northern Ireland. Taking the latter irst, the Northern Ireland Act 1998 anticipates the possible secession of the territory, and in many ways the continued division between two communities leaves this inal option as something of a zero sum game.39 In Scotland the dynamic is perhaps more complex in that, with the snp now forming the executive, devolution is more than ever seen as an ongoing process. On the one hand, the snp agenda is avowedly separatist, as evidenced by its plans for a referendum on independence in 2010,40 but there is a longer game at work also. In Scotland a number of parties and other lobbying interests besides the snp seek new powers, especially iscal powers.41 Were signiicant reforms to be undertaken this could well encourage demands for change in Wales and perhaps Northern Ireland, just as Basque iscal competence has long been a focus for Catalan nationalists seeking similar powers. For the separatist nationalists the agenda seems like a win-win. Either more powers will be achieved, which will serve to make the United Kingdom seem less and less relevant to Scotland, or, to use a Marxist analogy, the model of ever-escalating and hence unachievable demands will have a similarly deleterious effect. The rejection of demands by the centre will expose it as in fact inherently indisposed towards the realisation of nationalist aspirations within the host state structure, leaving independence as the only feasible alternative.

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Another issue involving the powers of the devolved territories is not so much constitutional as political or policy-based, but it can have constitutional implications. There are now examples of policy-making in a devolved territory driving the demand for change in other areas of the state: the bans on hunting mammals and smoking in public places in Scotland were soon followed by equivalent legislation for England. Although these are not constitutional issues, we see similar developments at this level. An institution created in Northern Ireland – the Northern Ireland Human Rights Commission – was an innovation that was not found in the hra for the United Kingdom as a whole. This began a debate leading to the establishment of a similar body for Scotland42 and a new Equality and Human Rights Commission established at United Kingdom level in 2007. The second major implication of ad hoc devolution is that the constitution of the state needs to adjust on an ongoing basis to accommodate the somewhat messy arrangements that do not it comfortably into the Westminster system. There are two areas where there are unsettling consequences of this uninished arrangement – one is inter-governmental relations and the other is inter-parliamentary relations. Taking Scotland as our case study, the devolution model is very lop-sided when compared to a federal system. Although containing a great deal of detail concerning the balance between devolved and reserved matters,43 the Scotland Act is much less vocal with regard to representation at the centre – what in federal systems is known as intra-state federalism. There are very few provisions touching on how inter-governmental and interparliamentary relations should be managed under devolved arrangements in terms of the creation, structure, and modus operandi of institutions to coordinate policy for the United Kingdom as a whole. A formal system of inter-governmentalism is widely seen as a crucial component of any credible decentralized model, not only to give subunits a protected level of involvement in central decision making but also to help avoid, or at least resolve, conlicts between different levels of government. It is in this sense that sub-state national societies actively seek certain modes of integration, in other words, formal pathways of representation at the centre with which they can meet with the dominant national society as partners in a joint multinational enterprise. But the model in place is very informal. An important body for relations between Scotland and London is the Joint Ministerial Committee (jmc), which establishes a format for co-operation between ministers in Whitehall and their counterparts in Edinburgh and the other devolved administrations.44 Generally it was intended to operate through meetings between oficials or in direct relationships between one London department and its devolved equivalent. It was intended to deal with reserved matters insofar as they might affect devolved territories and devolved matters where they

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affect the rest of the United Kingdom. Flowing from this arrangement are a series of Memoranda of Understanding, and Supplementary Agreements known as “concordats.”45 Since there is no legal requirement to conduct relations with the Scottish Executive in a particular way (or indeed at all), the United Kingdom government can set the terms for such discussions, can table the agenda it wants, and can offer greater or lower levels of co-operation to the devolved administration or individual departments within it based on political preference.46 In this way the devolved institutions can be induced into a position of political compliance in order to gain a role in these discussions. More importantly, just as there is no legal requirement to enter into negotiations, similarly there is no obligation on the United Kingdom government to reach agreement with the devolved institutions on any issue of policy, even where it affects the devolved territory. Inter-governmental co-operation can be, and often is, simply a process of passing on information concerning decisions already taken by the centre. Furthermore, such quasi-formal mechanisms as have been established through the jmc have not been utilized systematically: some departments at the United Kingdom level operate in a signiicantly more structured way with their Scottish counterparts than others.47 Another dificulty is that the culture of secrecy that continues to pervade British government, despite freedom of information legislation,48 has made the operation of intergovernmental relations very untransparent.49 Several factors have helped things run smoothly thus far. One is the fact that the Labour Party was in power in both London and Edinburgh (the latter in coalition with the Liberal Democrats) from 1999 until 2007, and since so much within the existing arrangements depends on political agreement, this was a felicitous coincidence. A second factor in the easy adaptation of administrative processes, and indeed in the lack of transparency that continues to attend them, is the continuation of a uniied British civil service from the pre-devolution system. A strong culture of integrated government survives among civil servants, who operate within one employment and promotion system; this is widely seen to be an integrationist factor of considerable practical importance in the operation of devolution.50 These centripetal tendencies are underpinned by the system of funding mentioned above. It was anticipated that territorial inancial arrangements would be a source of conlict in the United Kingdom, as they have been in other decentralized states. But central control over tax-raising has meant that this has not in fact become an issue, certainly not in terms of provoking competence disputes. Therefore, central iscal power complements control over inter-governmental relations and over the civil service to create a powerful system of carrots and sticks that encourages/requires gravitational compliance by the devolved administration in Scotland with central policy objectives.51

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It should also be noted that there are strong political as well as institutional pressures towards convergence. This is not simply because of the role of the Labour Party in both administrations until 2007. There are expectations among citizens and political elites alike that common standards, particularly in respect of public services, will be maintained across the United Kingdom.52 Also, there are areas where United Kingdom-wide policy communities are well-networked and look for uniformity, one example being in higher education. This is not uncommon in any decentralized state, plurinational or otherwise, and it speaks to the bonds that unite people. This again is an example of how not every integrationist activity is unpopular within sub-state national societies, given these strong pulls among the citizenry towards policy integration – based on partnership not assimilation – across a range of areas. What seems to be problematic, however, is the lack of formal mechanisms whereby the different nations of the United Kingdom can debate their different, or indeed shared, priorities in a systematic and transparent way. The excessively centralized, informal, and secretive devices currently available may well breed dissatisfaction with the process of these deliberations even when substantive agreement itself may be attainable. In terms of inter-parliamentary relations between the Scottish Parliament and Westminster there are two notable issues that highlight the potentially unsatisfactory nature of devolution in terms, respectively, of a coherent division of competences between legislatures and the protection of the prerogatives of a devolved legislature from central encroachment. The irst illustrates clearly the distinction between a system of legislative devolution and a federal model. The Scotland Act brought with it little change in Scottish representation at Westminster. Scotland, for historical and political reasons, had for most of the twentieth century enjoyed more seats in the House of Commons than a simple per capita distribution across the United Kingdom would have provided. The Scotland Act set out to correct this anomaly53 – the reasoning being that with increased autonomy there was no longer any justiication for such over-representation, and a reduction from seventy-two to ifty-nine MP s was effected in time for the 2005 General Election.54 Nonetheless, an argument persists that Scottish MP s exert too great an inluence within the House of Commons. The contention is that since certain matters that are devolved to the competence of the Scottish Parliament are dealt with for England, and in certain cases other parts of the United Kingdom, by Westminster, it is unfair that MP s who are returned to the House of Commons from Scotland can vote on matters that affect other parts of the United Kingdom but not Scotland.55 This has been called the “West Lothian”56 question, and it has become particularly controversial in situations where the United Kingdom government has relied on Scots MP s to pass legislation that does not affect Scotland but that would have failed

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without their support.57 This is in reality a fallout from the ad hoc nature of devolution, whereby Scotland achieved autonomy without any similar process for England. The consequence of this somewhat messy arrangement is that it damages the traditional territorial linkage within a parliamentary democracy between representatives and voters. Voters in England might justiiably feel aggrieved that their preferences are not being met. This situation does not promote a partnership integrationist strategy, since it also suggests to Scots that the United Kingdom Parliament is now increasingly an English Parliament and that their interests might be better served by gaining more powers for the Scottish Parliament. It also increases the likelihood that English voters, resentful of the way in which their priorities are subject to the voting patterns of Scottish MP s, will favour a reduced role for Scotland at Westminster.58 Another tension resulting from the West Lothian issue concerns the United Kingdom executive. It is also argued by some that just as it is unfair for MP s from Scotland to vote on English or Welsh matters, for the same reason it is inappropriate for ministers who represent constituencies in Scotland to serve in the United Kingdom government.59 According to this argument, ministers should not be formulating policy for England, and in some cases Wales, when they are not elected within these territories and when ministers from England and Wales are restricted as to the policies they can form for Scotland. Once again, however, this debate detracts from any partnership integration strategy. Suggestions that, for example, it might be inappropriate for Gordon Brown, who represents a Scottish seat, to succeed Tony Blair to the position of prime minister, heightens tensions and also exacerbates the risk that the United Kingdom executive will come to be seen in Scotland as the government of England. The West Lothian issue therefore highlights how Westminster continues to act with the air of a unitary parliament and is very different from those federal legislatures that are, in effect, negotiating for different territorial interests. There is also no sign of signiicant change in a plurinational direction. The general lack of territoriality is particularly apparent when we consider the House of Lords, which unlike the second chamber in a number of federal systems, is not constituted as a “chamber of the regions,” reviewing the work of the lower house from a territorial perspective. There is an ongoing process of reform of the second chamber, but so far this has not led to, nor are there any plans that it should lead to, the conversion of the House into a territorial chamber with equal representation or even weighted representation for the three devolved territories.60 Proposals for reform of the House of Lords have emphasized almost exclusively the “democracy” issue rather than the “territorial” issue. This is another area where devolution might produce the impetus for change as pressure grows for a

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forum in Westminster that is oriented to relect the territorial and indeed the union nature of the state. Another issue that, according to critics, hints at assimilationist integrationism has been central coordination of the legislation of Westminster and the Scottish Parliament. As was mentioned above, a convention has developed whereby the United Kingdom Parliament will not legislate on devolved matters without the consent of the Scottish Parliament. Therefore, the Scottish Parliament has instituted the practice of passing resolutions authorizing the Westminster Parliament to legislate on its behalf. These “Sewel resolutions,”61 or “legislative consent memorandums,” have been heavily used, largely to ensure United Kingdom–wide uniformity, to give legislative effect to EU law and other international obligations and, more controversially, to create time for the Scottish Parliament to do other things. Considerable disagreement remains as to whether this procedure is simply an eficient device in the management of inter-parliamentary relations or an instance of Westminster encroaching on the Scottish Parliament’s autonomy.62 Related knock-on effects have been proposals to create regional government for England. There has been no commitment to create an English Parliament analogous to devolved institutions elsewhere in the United Kingdom, but the Labour government did pursue a policy of regionalization in England. London has an elected mayor with “strategic” steering powers over a number of London-wide agencies and a role in mobilising other bodies, such as local authorities, behind regional strategies. There are no legislative powers. The mayor is held accountable by a directly elected assembly. Similar proposals, though without a directly elected executive leader, were proposed for the other English regions and decisively rejected (by 4:1) in the North East. The United Kingdom government has now dropped plans to introduce elected regional authorities outside London.

Concluding Remarks: The Referendum and the Process of Constitutional Change All these processes highlight how, within an unwritten constitutional structure like that of the United Kingdom, a major change such as devolution for three territories within the state has had signiicant knock-on effects on the doctrines and practice of the constitution in many areas not envisaged at the time. Sub-state units have used devolution to build on implicit constitutional space they already occupied. Furthermore, the heavily indigenous process of institutional design, particularly for Scotland and Northern Ireland, has led to radical models of devolution that now challenge traditional understandings even of the very sovereign power of the central Parliament. At the same time further changes low from these developments; further devolution for Wales is one step, but we might anticipate others.63 I will conclude

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by relecting on one change that devolution has brought that may have the most dramatic effect on the United Kingdom’s constitutional future – the use of referendums to effect constitutional change. The devolution settlements have brought into focus the issue of “constitutional amendment” in the United Kingdom. The main point it has illustrated is that the constitution is of course easily changed by mere act of Parliament, leading some to see parliamentary sovereignty as the only real constitutional rule within the United Kingdom polity. But in highlighting the ease with which it can be changed, devolution also brought with it a novel stage in the process: the referendum. It would be wrong to say that there is now a convention whereby referendums are needed to effect signiicant constitutional change, but it is the case that devolution has further consolidated the practice of using referendums for major constitutional issues. There are of course earlier examples of a referendum being used in the ratiication of constitutional change, namely the referendum on continued membership of the eec in 1975 and in the rejection of earlier attempts at devolution in 1979. But 1997 and 1998 resulted in three referendums on devolution (plus one on the creation of a mayor and an assembly for London), each of which was successful. It is arguable whether there is now a convention that the powers of these devolved territories cannot be substantially reduced without a referendum. For example, a referendum is widely anticipated in advance of substantial revision of the Welsh devolution settlement. More formal than a convention has been the interpolation of the referendum mechanism into the constitutional structure of Northern Ireland. This has a long and not always happy history with that of 1973 being a particularly unfortunate exercise. But what that did was to create the mentality that the constitutional status of Northern Ireland could not be changed in terms of the reuniication of Ireland without a “border poll.” This is provided for in section 1 of the Northern Ireland Act, coupled with a commitment by the United Kingdom Parliament to transfer sovereignty to the Irish Republic should a majority vote for it. Formal change still hangs on ordinary legislation, but it is ordinary legislation deriving political legitimacy from sub-state constituent power that introduces a new and potentially radical step into the United Kingdom’s constitutional amendment process.64 This use of referendums may have made a wider mark in terms of constitutional change within the United Kingdom. Certainly other changes have not been endorsed by a referendum, such as the Human Rights Act, nor is there talk of one for House of Lords reform. But in the area of EU integration things are less clear. There has been pressure from the opposition for a referendum in advance of ratiication of the draft Reform Treaty, which the government has resisted. Also the use of referendums on devolution has inluenced their use for proposed regional assemblies and has created

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a broader culture of popular participation in major areas of constitutional reform. This is a inal reminder that devolution and the sub-state constitutions it brings with it has had an irreversible impact on the substance of constitutional change at the centre, and most likely, the very process by which such change is likely to be effected.

Notes 1 Government of Wales Act 2006. 2 Stephen Haseler, Austin Mitchell, and Ian Taylor, Federal Britain in Federal Europe? Enlightening the Debate on Good Governance (London: Federal Trust 2001). See also John Kendle, Federal Britain: A History (London: Routledge 1997). 3 Bruce Ackerman, We the People: Transformations (Cambridge: Harvard University Press 1998). 4 Shorter Oxford English Dictionary (Oxford: Oxford University Press 1993). 5 27 Hen VIII, c. 26. This is traditionally titled in England, the Laws in Wales Act 1535 and in Wales, the Act of Union 1536. 6 Union with Scotland Act 1706, 6 Anne, c. 11; and the Union with England Act 1707, aps XI, 406, c. 7. 7 Union with Ireland Act 1800. 8 MacCormick v Lord Advocate 1953 Session Cases 396 at 411 and see Faculty of Advocates, Response to the Consultation Paper by the Secretary of State for Constitutional Affairs and Lord Chancellor: Constitutional Reform: A Supreme Court for the United Kingdom (November 2003). 9 The case of Jackson v Attorney General [2005] United Kingdom House of Lords 56 hints at the continuum from Acts of Union to more modern interrogations of the absolute nature of Parliament’s supremacy. See below. 10 Duncan Tanner, Chris Williams, W.P. Grifith, Andrew Edwards, eds., Debating Nationhood and Governance in Britain, 1885–1939 (Manchester: Manchester University Press 2006). 11 For example, the Scottish judge Lord Hope of Craighead has noted that the legal systems of England and Scotland are “as distinct from each other as if they were two foreign countries.” R v Manchester Stipendiary Magistrate, ex parte Granada Television Ltd [2000] 2 Weekly Law Reports 1, 5. 12 Rodney Brazier Ministers of the Crown (Oxford: Oxford University Press 1997), 9. 13 Lindsay Paterson, Autonomy of Modern Scotland (Edinburgh: Edinburgh University Press 1994). 14 This observation was also made by J.D.B. Mitchell, Constitutional Law, 2d ed. (Edinburgh: Greens 1968), 209. 15 In the latter part of the twentieth century the Welsh language won legislative protection: the Welsh Language Act 1967 and the Welsh Language Act 1993.

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16 Eventually an Anglo-Irish Treaty was concluded in 1922 whereby the Irish Free State was established in the South with the northern six counties becoming Northern Ireland and remaining part of the United Kingdom. The Free State declared itself a fully sovereign independent state by way of the Irish constitution of 1937 and became the Republic of Ireland in 1949. 17 Government of Ireland Act 1920, section 4(1). 18 Northern Ireland (Temporary Provisions) Act 1972. 19 Tom M. Devine, The Scottish Nation, 1700–2000 (New York: Viking 1999), 574– 617; Kenneth O. Morgan, Rebirth of a Nation: A History of Modern Wales (Oxford: Oxford University Press 1982). 20 Only 52 percent voted for devolution on a 64 percent turnout, but the Scotland Act 1978 required that at least 40 percent of the total electorate should vote in favour. 21 A Claim of Right for Scotland (1988), 19. Its title was of course intended to echo the radical spirit of the pre-Union Scottish Parliament’s revolutionary Claim of Right of 1689. 22 A Claim of Right for Scotland, ibid. 23 Jean McFadden, “The Scottish Constitutional Convention” Public Law (1995): 215. 24 Scottish Constitutional Convention (Edinburgh: 1995). 25 Referendums (Scotland and Wales) Act 1997. 26 On the irst question, “I agree that there should be a Scottish Parliament,” 74 percent voted yes; and on the second, “I agree that a Scottish Parliament should have tax-varying powers,” 63.5 percent voted yes. 27 Albert V. Dicey, An Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan 1924), 38. See also Blackstone: “what the parliament doth, no authority upon earth can undo.” William Blackstone, Commentaries on the Laws of England, Book 1, (1870 edition), 160. A judicial restatement of the doctrine can be found in Madzimabuto v Lardner-Burke [1969] 1 Appeal Cases 645 at 723A per Lord Reid, who conirmed that the Westminster Parliament may even, by way of legislation, do things that are “unconstitutional.” And see also British Railways Board v Pickin [1974] Appeal Cases 765 at 782, again per Lord Reid. 28 Scotland’s Parliament (Cm 3658, 1997), para. 4.2. 29 Thoburn v Sunderland City Council [2003] Queens Bench 151, para. 63. 30 The House of Lords Appellate Committee was replaced by the Supreme Court of the United Kingdom in 2009. Constitutional Reform Act 2005. 31 Jackson and others v. Attorney General [2005] United Kingdom House of Lords 56. 32 Jackson, para. 102 per Lord Steyn. 33 Jackson, para. 104. 34 Jackson, para. 102. 35 Jackson, para. 120 per Lord Hope. 36 R v Secretary of State for Transport, ex parte Factortame Ltd [1990] 2 Appeal Cases 85. 37 R v A [2001] 3 All England Reports 1.

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38 Report of the Independent Commission on the Assembly’s Powers and Electoral Arrangements (Richard Commission Report), published on 31 March 2004. Available at http://www.richardcommission.gov.uk/content/template.asp?ID=/ content/inalreport/index-e.asp. 39 Northern Ireland Act 1998, s.1 and schedule 1. 40 Plans that have been suspended until after the Scottish Parliament elections in May 2011. 41 As recommended by the Calman Commission report: “Serving Scotland Better: Scotland and the United Kingdom in the 21st Century: Final Report” (Commission on Scottish Devolution, June 2009) (http://www.constitutionalcommission.org/). 42 Scottish Commission for Human Rights Act 2006 (asp 16). 43 Scotland Act, section 30 and schedule 5. 44 The jmc was established under the Memorandum of Understanding, Cm 4806, July 2000. 45 Richard Rawlings, Concordats of the Constitution, Law Quarterly Review 116 (2000): 257. 46 Alan Trench, Central Government’s Responses to Devolution, Economic and Social Research Council Devolution Brieing No. 15, (London: Economic and Social Research Council 2005). 47 Charlie Jeffrey, Devolution: What Difference Has It Made? Interim Findings of the esrc Devolution and Constitutional Change Programme, (London: Economic and Social Research Council 2004). 48 Freedom of Information Act 2000, c.36; Freedom of Information (Scotland) Act 2002 asp 13. 49 Press releases that have been issued by the jmc have been criticized for their “immense blandness.” Robert Hazell et al., The Constitution: Consolidation and Cautious Advance, Parliamentary Affairs 56 (2003): 157, 160. See also House of Lords Select Committee on the Constitution, Second Report on Devolution: Inter-Institutional Relations in the United Kingdom (HL 28, 2002–3), which calls for the increased use of formal mechanisms in intergovernmental relations and for greater openness. 50 Jonathan Bradbury and Neil McGarvey, “Devolution: Problems, Politics and Prospects,” Parliamentary Affairs 56 (2003): 219, 221. 51 Trench, Central Government’s Responses to Devolution. 52 Michael Keating, Policy Making and Policy Divergence in Scotland after Devolution, Economic and Social Research Council Devolution Brieings, Brieing No. 21 (London: Economic and Social Research Council 2005). 53 Scotland Act, section 86. 54 Scottish Parliament (Constituencies) Act 2004, c. 13. 55 The same issue arose in Canada at the time of debates over asymmetrical reform for Quebec in the late 1980s and early 1990s. Reg Whitaker, The Dog That Never Barked: Who Killed Asymmetrical Federalism? in Kenneth McRoberts and Patrick Monahan, eds., The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto: Toronto University Press 1993), 107. 56 The anomaly was raised in the late 1970s by Tam Dalyell, mp for West Lothian.

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57 Examples include the Health and Social Care (Community Health and Standards) Act 2003 c.43, and the Hunting Act 2004, c. 37. 58 Evidence of this can be found in a poll reported in the Sunday Telegraph, 26 November 2006. 59 Simon Jenkins, “There Is an Easy Answer to the West Lothian Question,’ The Guardian, 17 January 2007. 60 House of Lords Act 1999, c. 34. 61 Named after Lord Sewel, who, speaking for the Government, suggested this process in parliamentary debate on the Scotland Bill. Hansard, H.L. Vol. 592, col. 791 (21 July, 1998). 62 The secessionist Scottish National Party has criticized the use of Sewel motions, arguing that the Scottish Parliament should in all cases pass legislation for Scotland. Scottish Parliament Oficial Report, vol. 1, no. 11, cc. 694–5, Angus Mackay, MSP See also, Barry Winetrobe, “Counter-Devolution? The Sewel Convention on Devolved Legislation at Westminster,” Scottish Law and Practice Quarterly 6 (2001): 286 63 See for example the Government White Paper that anticipates a raft of further constitutional reforms: The Governance of Britain: Constitutional Renewal, Cm 7342 (London, The Stationery Ofice 2007). http://www.justice.gov.uk/publications/ governance-britain-consultation-analysis.htm. The Calman Report cited above is another that may be implemented in whole or in part by the current UK government. 64 A second UK-wide referendum (the irst was on membership of the EC in 1975) will be held in May 2011 on the subject of electoral reform: Parliamentary Voting System and Constituencies Bill 2010–11.

10

Spain’s Constitution and Statutes of Autonomy: Explaining the Evolution of Political Decentralization C a rl e s Vi ver 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 speciied in more detail, and adapted during the past three decades, both from the “top down” (i.e., by the central government and central institutions1 and at the impetus of Spanish-wide parties – more precisely, of these parties’ central organs or authorities) and also from the “bottom up” (usually by nationalist parties and the territorial branches of the Spanish-wide parties). These changes have been brought about by various processes, including not only through reforms of the autonomous communities’ constitutions (the so-called statutes of autonomy) and other legal reforms, but also through precedents created by the repeated exercise of political power, even when those actions have not been translated into formal legal rules. This chapter focuses on bottom-up “structural” changes introduced in the Spanish constitutional rules regulating the organization of territorial power, and particularly but not exclusively on those changes derived from the statutes of autonomy. This choice of focus is based on the potentially crucial role that statutes of autonomy will have in the reform of Spain’s Constitution, a role that, from a comparative perspective, contrasts remarkably with that held by state constitutions in federal systems. In this sense and in sharp contrast with the other chapters of this book, this chapter does not focus on bottom-up changes instigated in the “material” content of the

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Spanish Constitution, nor on policies of the central government linked to the development of new rights. This is because these sorts of changes have not been of great importance in Spain, given (until recently) both the absence of bills of rights in the statutes of autonomy of the autonomous communities and the autonomous communities’ limited capacity to establish truly autonomous public policies. It is true that autonomous-community policies have on occasion provoked changes in central-government policies. For example, autonomous-community legislation took the lead in regulating same-sex unions, and only thereafter did the Spanish Parliament introduce similar regulations. And with regard to the “right to receive appropriate treatment of pain and complete palliative attention and undergo the process of death with dignity,” the autonomous communities also led the way. Yet these autonomous-community initiatives were legislative, not included in the statutes of autonomy, and therefore they fall outside the focus of this chapter. It may be that things will change in the future, since the new statutes of autonomy have incorporated bills of rights and have tended to strengthen the political capacity of the autonomous communities, but at this point it is too early to tell. The irst section of this chapter describes the dificulties experienced in attempting to reform the Spanish Constitution in order to adapt the system of territorial organization to developments during the last thirty years. The second section analyses reforms in the statutes of autonomy, especially those initiated in 2003. The third section considers alternative processes for changing the system of political decentralization from the bottom up. Finally, the fourth section addresses the relationship between these bottomup changes and federal asymmetry.

The Difficulties in Reforming the Spanish Constitution One striking feature of Spanish constitutionalism, while not exclusive to Spain, is the failure to reform the Constitution, even though both the characteristics of the constitutional text and changes in political and social circumstances over the last thirty years have made such reform highly advisable. This failure has been pointed out repeatedly, both by experts in legal and political matters and by many observers from across the political spectrum.2 There are at least three aspects of the Constitution’s treatment of the territorial power structure that Spanish experts have identiied as requiring reform or, at the very least, an in-depth reappraisal of their appropriateness. First among these is the Senate, which has proven unworkable as a vehicle for representing the autonomous communities and allowing them to participate in the central government’s decision-making processes. Second is the lack of any constitutional reference to Spain’s incorporation in the

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European Union, beyond the generic and insuficient procedural measures contained in Article 93 of the Constitution.3 And third is the failure to complete the constitutionalization of the system of political decentralization, that is, to incorporate into the Spanish Constitution provisions pertaining to the territorial power structure. Whereas in other federal systems such provisions normally appear in the federal constitution, in Spain they are relegated above all to the statutes of autonomy and to legislation. The issue of constitutional reform was put on the central government’s agenda for the irst time in 2004. The then newly elected government of the Spanish Socialist Worker’s Party (Partido Socialista Obrero Español, or psoe) proposed the reform of four very speciic aspects of the Spanish Constitution: the Senate, the incorporation of the name of the autonomous communities (thereby enshrining their existence in the constitution), the inclusion of a speciic reference to the European Union, and the equality of the sexes in the succession to the throne. The main opposition party, the conservative Popular Party (Partido Popular, or PP) had as of 2010 refused to participate in the process of reform, despite having indicated its “theoretical” agreement with some aspects of the proposed reforms. Since the collaboration of the PP is required for the parliamentary majorities that are necessary to carry out the reform of the Spanish Constitution, it has thus been blocked before being formally proposed. Several factors prevent constitutional reform. One is the dificulty of complying with the procedural requirements that the Constitution establishes for reform. But even though they are complex and make reform dificult, a comparison with the requirements for amendment in other constitutions suggests that they do not impose unusually high barriers.4 A more deep-rooted reason is related to Spanish political culture. Historically, the Spanish people have overvalued the stability of constitutions, stability being wrongly understood as the untouchability of the constitutional text. In fact, in Spain there is no tradition of modifying constitutions. Thus, over the course of the nineteenth and twentieth centuries, constitutions that were not reformed were simply no longer applied, and then inally after some years, new ones were drawn up. The dificulty that parliamentary political forces have had in reaching the required minimum arithmetical consensus to carry out constitutional reform also forms a part of constitutional tradition and more recent political experience. Historically Spain’s Constitutions have, with rare exceptions, been party rather than consensus constitutions. The 1978 Constitution was one of those exceptions, and present-day political forces do not want to run the risk of initiating reform unless there is a clear possibility of achieving a consensus similar to that of 1978. And this is where other, more contextual, though clearly crucial, elements help to explain the lack of reform in the present day. The radicalizing of the positions of the PP since 2004 has made

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it dificult, if not impossible, for even the slightest minimum consensus essential for agreeing on this type of reform to emerge5. In addition, the autonomous community-based parties (such as the nationalist parties) and the territorial branches of the Spanish-wide parties (such as the Catalan Socialist Party, or psc) have no desire to promote or support a process of reform in which the central organizations of the main Spanish-wide parties would be in charge and which would probably not be any more favourable to the interests of the other parties than the pact that gave rise to the 1978 Constitution. Although other causes may also have impeded constitutional reform, for present purposes it is enough to note the absence of formal reform, while emphasizing that the failure to reform the Spanish Constitution has not precluded changes in the organization of territorial power but has simply meant that these changes have been produced by alternative means, which have therefore taken on a special signiicance. These alternative means have not necessarily had greater practical signiicance in Spain than elsewhere. Indeed, it is possible that even if the Spanish Constitution were reformed on a regular basis, these other means would also play an important role in adapting the system, as in fact occurs in other countries. Nevertheless, most often adaptations of the system require formal reform of the constitution. Thus, although some de facto changes have taken place, the failure of formal constitutional reform has prevented necessary alterations in the system.6 What is clear is that when constitutional reform is not produced through formal channels, other ways of adapting the constitutional system, such as legislative and de facto approaches, gain prominence by the simple fact that they are the only ones available. They are also strengthened by another characteristic of the Spanish Constitution, namely, its vagueness, or low normative density, in terms of regulations concerning the territorial power structure. In concluding this introduction and in counterpoint to what has just been said, one should note that in reaction to the ongoing process of reform of the statutes of autonomy that began in 2003, the PP has begun to reconsider its opposition to the reform of the Spanish Constitution. During the campaign for the 2008 General Elections, it proposed to strengthen the position of the central government and institutions in relation to the autonomous communities through reforms aimed at specifying the scope of central powers, limiting the situations in which the central government could delegate powers to the autonomous communities and increasing the majorities needed in the Spanish Parliament to pass the reforms of the autonomous communities. These proposals have been sympathetically received by many in the psoe and by a number of political and legal specialists and academics. Such constitutional changes would have an initially rationalizing aim and justiication, namely, the rebuilding of unity following the

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reform of the statutes of autonomy, and yet they would also serve to recentralize and close the system.

T h e S tat u t e s o f A u to n o m y a n d T h e i r R e f o r m as a Privileged Procedure for Specifying and Adapting the Constitutional System of Territorial Power Distribution In Spain, as in all federal or politically decentralized countries, the provisions of the Spanish Constitution regulating the territorial power structure have required a further infra-constitutional speciication of the various possibilities that the constitutional texts leave open and further changes to these speciications in order to adapt them to constantly evolving social, political, and economic circumstances. This has been done both “top down” and “bottom up” using both de facto and legislative processes. The most distinctive aspect of the Spanish system derives from the importance acquired by the statutes of autonomy, irst in completing the content of the constitutional text and concretizing general aspects of the Spanish Constitution related to the territorial power structure, and then in adapting them. It was these statutes of autonomy, at the end of the 1970s and the beginning of the 1980s, that gave form to the system of political decentralization that was referred to only as a possibility by the Spanish Constitution. Likewise, it is these statutes of autonomy that at the end of the 1990s and into the twenty-irst century have adapted fundamental aspects of the system to new circumstances. Their leading role derives in the irst place from the aforementioned “deconstitutionalizing” of the territorial system, as well as from the open texture of the rules set out in the Spanish Constitution and the leading role that the Constitution gives to the statutes of autonomy in terms of consolidating and adapting the Spanish system of political decentralization. In reality, the Spanish Constitution does not identify how many autonomous communities there are or specify their powers or fully specify the powers of the central government and institutions or determine the system of public inance. In fact, under the 1978 Constitution the system of political decentralization as a form of territorial power organization might not have become a practical reality if those authorized to initiate the process of converting themselves into autonomous communities had not availed themselves of this opportunity.7 The task of giving speciicity to these provisions was passed on to the statutes of autonomy of each autonomous community, to be drawn up once the Spanish Constitution had been approved. By failing to specify key aspects of the territorial power structure and deferring their speciication to the statutes of autonomy (with the ever-open possibility of reform through this avenue), the Constitution in essence ensured

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the special constitutional position and unique legal nature of these statutes, encouraged bottom-up reforms, and ceded to the autonomous communities a leading role in the development of the Spanish Constitution. Spanish academics8, as well as the case law of the Constitutional Court,9 tend to consider this prominence to be a result of the so-called dispositive principle, which is one of the fundamental principles of the Spanish political system and which, according to its detractors, leaves the decentralized territorial system or structure permanently open and at the “disposal” of the autonomous communities. Some prominent authors afirm, with scarcely veiled irony, that this principle constitutes the great contribution of Spanish constitutionalism to contemporary constitutional law.10 Today a wide spectrum of political, media, and academic commentators in Spain demand the suppression of this principle. Although the premises of this diagnosis – namely, those that attribute very special prominence to the statutes – are perfectly true, two important qualiications should be noted: irst of all, these premises must be nuanced; and second, the conclusion one can drawn from them – that the system is at the “disposal” of the autonomous communities – is rather problematic.11 Although Spain’s constitutional arrangements share characteristics that give the autonomous communities and the reform of their statutes of autonomy a special prominence in terms of changes to the territorial power structure, careful analysis is needed to precisely determine their actual effects. In particular, one must consider (1) what constitutional functions and matters of speciication and reform are reserved to the statutes of autonomy, (2) which legal responsibilities fall to the autonomous communities and which to central institutions in terms of these reforms, and (3) what role in practice has been played by central institutions and the autonomous communities – and their corresponding political forces – in drafting the initial statutes of autonomy and in the two reform processes, at the beginning of the 1990s and currently.

S p e c i f i c at i o n , R e f o r m , a n d A da p tat i o n F u n c t i o n s A t t r i bu t e d to t h e S tat u t e s of Autonomy In the founding phase of the Spanish decentralization process, the approval of each statute involved extraordinarily important structural decisions that affected not only the internal organization of the respective autonomous communities but also the structure of the whole political system. The decisions included the creation of the different autonomous communities (which was not done in the Spanish Constitution) and the adoption of the system of political decentralization in the whole country (which was introduced only as a possibility in the Constitution). One option available

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under the Spanish Constitution was to constitute autonomous communities in only part of Spain. However, in 1981, as a consequence of an agreement12 signed between the two major Spanish-wide parties, the Union of Democratic Centre (Unión de Centro Democrático, ucd), then in ofice, and the psoe, it was decided to extend the system of political decentralization to the whole country. Of even greater practical importance was the decision, through the approval of their respective statutes of autonomy, to fragment the system of political decentralization by creating no less than seventeen autonomous communities. Some of these communities had very small territories and populations,13 and, what is even more relevant, most did not have any tradition of self-government, nor had they expressed a desire to establish their own institutions of self-rule. This initial lack of interest in self-rule has changed over time, and the existence of seventeen autonomous communities is today an irreversible reality. In contrast with what typically has occurred in the constituent units of other federal polities, the statutes of autonomy determined the powers that were allocated to the respective autonomous communities, and thereby, given the interconnections between the competences of the autonomous communities and central institutions, delimited the scope of the central government’s powers. As a matter of law, Article 149.1 of the Spanish Constitution establishes the powers to be exercised by the central government, and as a consequence, the statutes of autonomy cannot distribute or reserve those powers for their respective autonomous communities. However, in the case of powers not on the list of central powers, the autonomous communities can, if they so wish, reserve them, but if they fail to do so, the residual clause functions in favour of the central government. In evaluating the real potential of the statutes in dividing powers between the central government and the autonomous communities, it should be stressed that the statutes of autonomy are not limited to assuming powers in areas not reserved by the central government. Rather, the statutes, in specifying the matters and functions that they ascribe to the respective autonomous communities, very often individualize and specify material areas – sub-matters – that could also in principle be included in the more generic matters that Article 149.1 reserves for central institutions. This is in fact inevitable, since in reality powers form a continuum, so that they can be distinguished only by means of the conventional and formalized rules of law. Some examples may clarify this point. The statutes grant the autonomous communities exclusive powers in matters of protected nature reserves and, in doing so, they treat those reserves as distinct from environmental policy. This is important because the power to enact framework legislation dealing with the environment was granted by the Constitution to the central government. In similar fashion, the statutes gave to the autonomous communities exclusive responsibility for consumer defence, which might have

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been considered included within policy areas such as health or education, for which the Spanish Constitution gives exclusive or shared powers to central institutions. It is true that the Constitutional Court has always insisted that the statutes of autonomy have to be interpreted based on the Spanish Constitution, and not vice versa. This could hardly have been otherwise. Yet in practice the Spanish Constitution and the statutes have been interpreted jointly and systematically in search of an interpretation that would not leave the statutes empty of content. This question has re-emerged, with even greater emphasis, in the wave of reforms to the statutes initiated in 2003, because in many cases the aim of these reforms has been precisely that of giving the autonomous communities powers over sub-matters that central institutions have until now considered as among the matters reserved by Article 149.1 for central institutions. In 2007, the Court issued a ruling that accepted such a possibility. Authors agreeing with it argued that the powers the Spanish Constitution reserves for central institutions have a clear and incontrovertible content, a core that cannot be modiied. However, they also reasoned that together with this core there is a contingent content that the Spanish legislator has developed through laws as a legitimate speciication of the Spanish Constitution. Nevertheless, it has also been argued, the speciication of the contingent content by means of Spanish legislation is not the only possible one constitutionally: a reform of the statutes of autonomy may also modify this contingent content set by just Spanish (in the sense of federal) laws. The Spanish Constitution states powers but does not deine them or specify their scope, and for this reason the statutes of autonomy, in stipulating the content of the autonomous communities’ powers, can indirectly specify the scope of the central institutions’ powers.14 In the 2007 ruling the Constitutional Court fully endorsed this understanding. This highlights the marked capacity that the statutes of autonomy have for coniguring the territorial organization of federal power within the Spanish system.15 In fact, together with the aspects involving structure and powers just referred to, the statutes of autonomy regulate other questions that also directly affect the organization of central institutions, and therefore their reform has a direct impact on the Spanish Constitution. These include, for instance, certain “mandates” contained in the statutes addressed to the central government and parliament that condition the make-up of central organs and institutions. The statutes envisage participation by the autonomous communities in the appointment – by means of the Senate – of judges to the Constitutional Court and in the appointment of some of the members of the judiciary’s governing body (which in Spain is unitary in character and answerable only to the central government and institutions). The statutes also envisage participation in the appointment of members of central bodies dealing with economic matters – such as the Spanish

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Central Bank (Banco de España) and the Central Competition (Anti-Trust) Authority (Tribunal de Defensa de la Competencia). Finally, insofar as it is not expressly prohibited by the Constitution, the statutes address fundamental aspects of the participation of the autonomous communities in central bodies and in Spain’s decision-making processes with regard to the European Union.16

T h e S tat u t e s o f A u to n o m y a s R e g u l at i o n s Agreed On between the Central Government and Central Institutions and the Autonomous Communities Despite the important constitutional functions of the statutes of autonomy, neither the autonomous communities nor the autonomous-communitybased political parties (both the parties that are not Spanish-wide and territorial branches of state-wide parties) hold the original constituent power, the power to approve and reform their own constitutions unilaterally. The statutes of autonomy may have consequences for Spain as a whole that state constitutions in other federations do not, yet as a highly relevant counterpoint, the statutes of autonomy are rules that have to be negotiated with central institutions, which at the end of the day have to approve them, both initially and when they are up for reform. The autonomous communities have a considerable capacity for promoting the reforms and a signiicant negotiating role throughout the process of reform, and in certain cases their citizens participate in the inal approval of the reforms by way of a referendum. Yet the reforms require the consent of the Spanish Parliament, which has to approve them as its own laws.17 It is important to note that the statutes do not require highly qualiied majorities for approval by the Spanish Parliament, just an overall majority. Thus, and given the fact that the two main state-wide parties tend to win around 90 percent of the seats in the Spanish Parliament, a statute can easily be passed with the votes of the representatives of only one of the two Spanish-wide parties, with the remaining necessary votes coming from minor parties. In contrast, the reform of the Spanish Constitution requires highly qualiied majorities and in practice, given the composition of the Spanish Parliament, an agreement between the two Spanish-wide parties. However, the procedures for drafting and approval of the statutes of autonomy are regulations agreed on between the central government and the particular autonomous community. From a legal viewpoint, they are at the same time Spanish regulations (acts of the Spanish Parliament) and the autonomous community’s regulations. Certainly, the practical importance of this capacity to make proposals cannot be minimized, since it allows the autonomous communities to initiate

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the process of establishing and reforming their statutes at the moment they consider most appropriate, and if the proposal for reform that they put forward has strong political and popular support, in practice they can exert an important inluence on the central institutions’ inal decision. Indeed, these institutions can block the process if they disagree with the proposed reform, completely or partially, although this may come at a high political price. This may explain why, in the recent round of reforms initiated in 2003, the Spanish central government has attempted to present the debate on the reform proposals in the Spanish Parliament not as a political debate but rather as a legal and constitutional debate. The central government has not defended its position on the basis of political arguments – for instance, arguments concerning the interests of Spain as a whole against those of the autonomous communities or a refusal to accept a certain degree of asymmetry. Instead it has preferred to argue whether the proposals were constitutional or not. This strategy has greatly distorted the debate over the reforms. From this legal-constitutional perspective, the Spanish central government has refused to deal with the Basque Country’s reform proposal (the so-called Ibarretxe Plan) and has introduced a large number of amendments to the reform proposal for Catalonia. However, since the autonomous communities have the power only to propose statutes and their reform, it is misleading to refer to the “dispositive principle” in describing the extent to which the Spanish territorial model leaves to the autonomous communities the capacity to shape constitutional arrangements. The autonomous communities in actuality do not stipulate or decide anything, they merely propose. To be accurate, the expression “dispositive principle” should be replaced by “propositional principle.” Those who currently are proposing reforming the Spanish Constitution in order to remove the dispositive principle are not strictly speaking trying to prevent the design of the territorial power structure from being at the free disposal of the autonomous communities (something that is forbidden by Spanish ordinance). Rather, their aim is to ensure that the autonomous communities are unable to provoke the tensions with central institutions that can undoubtedly be produced when they ask them to debate a reform proposal that may affect the whole country (even if only every thirty years, as in the case of Catalonia or the Basque Country). Nor can one exclude the possibility that they wish to prevent frictions between the central and the autonomous community’s branches of the Spanish-wide parties, or to put it more clearly, to prevent the autonomous communities’ branches from acquiring an excessive prominence within the political parties’ central apparatus.18 In assessing the consequences of the hypothetical suppression of the autonomous communities’ power to reform statutes of autonomy, and more generally, their capacity to institute bottom-up reform, one must also note

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that in Spain reform of the statutes of autonomy provides the only way that the autonomous communities are able to participate, even indirectly, in the reform of the Spanish Constitution. This is another way in which the Spanish system differs from those in most other federal states, where the member states have important prerogatives when it comes to federal constitutional reform. In Spain, the 1978 Constitution does not envisage any mechanism for the participation of the autonomous communities – beyond that of the power to present the Spanish Parliament with a proposal for reform of the Constitution. Among other reasons, this is because when the Constitution was drafted, it was not known what autonomous communities there would be, or even whether there would be any at all. The power to propose the reform of the statutes of autonomy, with possible indirect repercussions on the Spanish Constitution, can thus be considered “compensation” for the lack of signiicant participation of the autonomous communities in the reform of the Constitution, or, to put it in a better way, it can be considered a way of guaranteeing a totally reasonable participation in the reform of the system of political decentralization.

The Real Influence of the Autonomous Communities and of the Central Government a n d P a r l i a m e n t i n R e f o r m i n g S tat u t e s of Autonomy As a matter of fact, not all efforts to enact and reform the statutes of autonomy have originated with the autonomous communities, the autonomous-community-based political parties, or the territorial branches of the Spanish-wide parties. Often the impetus has come from the top down, from central institutions themselves. In the founding stage, at the end of the 1970s and the beginning of the 1980s, the impetus from the bottom up to enact statutes of autonomy was clearly seen in those regions that had a greater desire for self-government and that had been demanding political autonomy throughout the Franco regime. This was the case in Catalonia, the Basque Country, and to a lesser extent Galicia. There was also a notable impetus from the bottom up in Andalusia, in which, against the opinion of the party in power in the central government (the ucd), the psoe of Andalusia expressed a desire to move toward self-government and become an autonomous community by the fast-track method used for Catalonia, the Basque Country, and Galicia.19 In contrast, in the remaining regions the impetus for and the guidance for enacting their respective statutes and becoming, thus, autonomous communities came from the Spanish-wide parties. Actually, that was all promoted and developed by means of the 1981 Agreement signed between the ucd, the party then ruling in the central government, and the psoe, the main

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opposition party, soon after the attempted coup d’état in February of that same year. As a result, thirteen new autonomous communities were created following the slow track set by the Spanish Constitution. As for the reforms of the statutes, one can distinguish two distinct models: top-down and bottom-up. Following the top-down model, by means of the 1992 Agreement, the party in ofice in the central government(the psoe) and the opposition (the PP), set in motion a generalized process intended to reform the statutes of the slow-track autonomous communities. These reforms certainly responded to the previous demands of these autonomous communities to acquire and hold powers similar to those held by the fast-track autonomous communities. However, the way in which the whole process was conducted by the psoe and the PP reduced the reform of the statutes of autonomy to an act of simple ratiication. In effect, the central government accepted the autonomous communities’ demands, but instead of directly reforming the statutes of autonomy one by one on the basis of an agreement, the central institutions relied on a provision in the Spanish Constitution that allowed them to delegate speciic powers to the autonomous communities. The central institutions delegated the same competencies uniformly for all slow-track autonomous communities, so that the reform of the statutes of autonomy proceeded by means of a single article that declared the content of the Spanish law of transfers to be incorporated into each of the statutes of autonomy.20 This process, controlled from the top down, failed to arouse any signiicant political debate. Only a few scholars warned that the legislators, both the autonomous-community parliaments and the Spanish one, had used the law improperly and had perverted the Spanish transfer laws regarding the powers and the process of reforming the statutes of autonomy.21 Following the bottom-up model, in contrast, the reform processes begun in 2003 and still under way as of 201122 generally give a leading role to the autonomous communities and to the autonomous-community-based parties and the branches of the Spanish-wide parties. This helps to explain the intensity of the debate that has arisen with regard to the reforms and the fact that proposals for suppressing the “dispositive principle” have multiplied. In Catalonia, which along with the Basque Country pioneered the reform process during this second phase, the impetus arose from the Catalan Parliament with the support of all the parties, including the Catalan Socialists’ Party (psc), which in fact played a crucial role in the reform, even though it is afiliated with the psoe. Only the PP remained uninvolved. Of particular interest is the role played by the autonomous-community branches of the PP in promoting the reform process in two autonomous communities in which they govern, despite the lack of support and the negative position of the PP central apparatus. Eventually, the latter had to accede to pressures exerted from the autonomous-community “barons,” who

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did not want to miss the chance of improving the self-government of the respective autonomous communities or, above all, to risk falling behind the other autonomous communities. Paradoxically, this participation by the PP regional branches did not stop the party from bringing Catalonia’s Statute of Autonomy to the Constitutional Court, even though some of the statutes the PP had spurred and supported are almost exact copies of the Catalan Statute. Although the reform put forward by these autonomous communities is less ambitious than, for instance, the Catalan one in terms of form, in practice it may well have the same results. The situation is also very revealing in Andalusia, where the then prime minister of the autonomous community, Manuel Chaves, was at the same time chairman of the psoe. Despite the reluctance of important sectors of the party, Chaves decided to head the reform of the Andalusian Statute of Autonomy, and the leader of the Andalusian Popular Party felt obliged to support the reform to avoid giving his electors the impression of being opposed to improving the autonomous community’s self-government. Although the PP did not support the statute in the Andalusian Parliament, eventually it did so in the Spanish Parliament. The position of these autonomous-community “barons” changed and inluenced the inal position of the autonomous-community branches of these two parties in Andalusia, leading the psoe and the PP to support subsequent reforms of their respective statutes of autonomy. The current reform process has highlighted the importance of autonomous-community leaders belonging to Spanish-wide parties, and while it has energized those who wish to remove the “dispositive principle,” it has also underlined the fact that the autonomous communities will need to be taken into account in any reform of the territorial power structure.

Other Bottom-up Processes of Change in the Structure of Territorial Power The system of political decentralization that the 1978 Constitution made possible has been in force for thirty years, and over this time the system has evolved and changed not only as a result of modiications to the statutes of autonomy but also owing to other mechanisms. The constitutional imprecision of many aspects of this system and in particular the open texture of various constitutional provisions afforded considerable discretion for specifying and adapting the law, and these opportunities were exploited, especially by the Spanish Parliament and the central government and administration in general. Thus, for example, the Spanish Parliament has had great leeway in specifying the material and functional scope of its powers. The elaboration of the central governmental powers in framework legislation affecting a wide range of ields illustrates this.

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The Spanish Constitution authorizes the central government and institutions to set “the bases” (framework legislation) for various matters, while leaving to the autonomous communities, if their particular statute of autonomy so indicates, the power to develop legislation by means of laws and regulations and to exercise executive authority over these matters. However, the Spanish Constitution does not deine the scope of the bases. They may be simple principles or minimum standards, they may not be immediately applicable but rather require speciication by the autonomous communities’ legislatures, and they may need to be formed into a law. Or just the opposite may be the case: they may be speciic and detailed regulations that are immediately applicable and can be established in simple regulations or even with acts of implementation. The Spanish legislature has opted for a broad deinition of the bases, and this decision has profoundly affected the distribution of power between the central government and institutions and the autonomous communities. It has rightly been said that a change in the conception of the bases would radically change the way power is exercised in Spain. It is hardly surprising, therefore, that this was one of the questions debated during the current reform of the statutes. The result, however, has merely involved a small step towards delimiting the bases (establishing a principle, while allowing exceptions). Thus central institutions continue to play the leading role in detailing the system and in its subsequent adaptation. They also play a leading role through their spending power and through their power to establish the basic conditions for guaranteeing the equality of Spaniards in the exercise of constitutional rights (Article 149.1.1, Spanish Constitution). The autonomous communities have also taken advantage of the opening up of the system to promote certain changes. One example involves the powers concerning foreign affairs. Despite a broad initial interpretation by central institutions of powers in “international relations,” which seemed to preclude the autonomous communities carrying out activities outside Spanish territory in relation to their own competencies, those communities have begun de facto to carry out this type of foreign action, for instance, by opening up representation ofices in Brussels for the European Union. The issue has come before the Constitutional Court on numerous occasions, and the Court has gradually changed its doctrine, from initial rulings in which it denied the possibility of any kind of foreign action by the autonomous communities, up to the beginning of the 1990s when it accepted that relations with the European Union were not international relations, and more recently when it accepted action by the autonomous communities beyond the borders of Spain if they do not implicate the treaty-making power, create public obligations for Spain, or interfere with the international policy of the state. The recently approved statutes of autonomy explicitly recognize this power.

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Although the Constitutional Court has played an important role in detailing and adapting the Spanish territorial structure, it has not had the degree of inluence often attributed to it. Certainly the open texture or indeterminate nature of the provisions in the Spanish Constitution dealing with these matters and, more particularly, the different visions of political autonomy found in Spain as a whole and in some autonomous communities – especially in Catalonia and in the Basque Country – has provoked considerable conlict over powers. As a consequence, Spain’s Constitutional Court has been called on to settle conlicts between central institutions and the autonomous communities on a number of occasions without precedent in comparative law. This means that, in effect, the Court has intervened in most of the major decisions specifying and adapting constitutional provisions. Nonetheless, the content of its rulings makes it clear that its role in coniguring the current system of political decentralization has been a relatively minor one, because the Court has acted essentially as a “negative legislator”: that is, it has limited itself to conirming that the decisions adopted by the central and autonomous-community authorities and submitted to it for consideration could be included within the broad margins of the constitutional provisions, and to striking down only those that did not fall within these limits. Except for quite exceptional cases, the Court has not determined “the only” solution that is constitutionally possible, but rather, when it has recognized that a federal or state decision is constitutional, it has cautioned that there might be others that are also constitutionally acceptable.23

Bottom-up Reforms and Asymmetry The process of reform and adaptation from the bottom up from each of the autonomous communities would seem to favour, at least in theory, an asymmetric arrangement of the territorial power structure, in which each autonomous community could have different organizational arrangements and exercise different powers. Analyzing to what extent this occurs in Spain helps illuminate the strengths and limitations of the reforms and adaptations produced from the bottom up. In the Spanish case, the possibility of asymmetry between autonomous communities is clearly present in the Spanish Constitution, which in its second article distinguishes between “nationalities and regions,” envisages diverse procedures for achieving self-government, and does not impose the same organizational model or the same level of powers on all the autonomous communities. However, neither does it exclude the possibility that a levelling out in terms of institutions and powers might develop. For this reason, the issue of symmetry has been and continues to be highly controversial. Some political forces, especially in Catalonia and the Basque Country, have insisted that certain autonomous communities, which have always defended

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the national character of their political communities and have always shown a strong desire for self-government, should be treated differently from the rest of the autonomous communities. This different treatment ought to manifest itself in a recognition of the national character of the political community in which they reside, a broader granting of powers, and distinctive inancial arrangements. In addition, these autonomous communities should be able to maintain bilateral relations with the central government and central institutions. In contrast, other political forces have championed a symmetrical treatment of all autonomous communities, with the only exceptions being tied to so-called “differential factors” that occur only in some autonomous communities and whose treatment has consequently no option but to be unequal. Examples would include the particular civil law or languages other than Spanish that exist only in Catalonia, the Valencian Community, the Balearic Islands, Galicia, and the Basque Country. However, in practice, after thirty years of political decentralization, it can be said that asymmetry in Spain has been reduced to a single relevant question: the inancing systems of the Basque Country and Navarre. The systems in these communities operate on a formula that differs radically from those in the ifteen other autonomous communities and is far more beneicial for these two communities. That is, they collect all the taxes and pay a quota to the central government in compensation for the competencies that it exercises in their territories or that it exercises outside their territories but that are still “common” tasks, such as diplomacy. In the remaining matters, symmetry is, from a legal viewpoint, almost complete, except for the “differential factors” referred to above. In fact, the recent reforms of the statutes of autonomy involved a further step toward equalizing the status of all the autonomous communities from the point of view of both institutions and powers or competencies. The few differences that remain among these statutes of autonomy will, in all probability, continue to be reduced in practice by a process of evening out the interpretation and application of the constitutional texts, of which there is already a long tradition in Spain. The Spanish legislature, in order to make its task easier and avoid the need to act in a differentiated way and in different substantive areas because of the different powers that the autonomous communities might have in theory, acts in a uniform way. As a result, the autonomous communities that theoretically have fewer powers according to the Constitution are in practice given more room for manoeuvre, whereas in the autonomous communities that ought in theory to have more powers, the central institutions’ powers are extended – especially in the case of basic or horizontal competencies – in a way that limits the theoretically greater scope of the competencies of these autonomous communities. This homogenizing approach on the part of the Spanish legislature has almost without exception been endorsed by the Constitutional Court, which in some rulings has

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even removed “implicit” powers from the central institutions and the autonomous communities, in order to ensure this levelling-out or symmetrical effect. In short, the asymmetry that bottom-up procedures seem to promote has in practice largely been neutralized through the three phases of the processes of elaboration and implementation of these reforms. In its initial phase, the power to propose reforms does rest with the autonomous communities. Nevertheless, the existence of the two major Spanish-wide parties with strong inluence in most of the autonomous communities means that the content of proposals is often determined by negotiations between those parties, so that the reform proposals vary little from one autonomous community to another. In its second phase, that of the enactment of the reform proposals, the power rests with the Spanish Parliament, and there is no doubt that the central government and institutions work to ensure that Spanish-wide interests prevail and to determine what degree of asymmetry the system can tolerate. Thus the “dispositive principle” and the capacity of the autonomous communities to initiate reforms do not necessarily lead to asymmetry. Finally, in its third phase, that of interpreting and implementing the reform, both the Spanish legislature and the Constitutional Court in their interpretation and application of the statutes of autonomy can bring about a levelling out; or in other words, in this inal phase the potential of the bottom-up reforms can be seen to be reduced in practice.

Notes 1 I use the terms “central government and institutions” and “central institutions” to refer to what in a formal federal system would be equivalent to “federal government and institutions.” Similarly, “Spanish law,” “Spanish legislator,” and “Spanish Parliament” will be used as equivalents of “federal law,” “federal legislator,” and “federal parliament.” 2 Among many other sources, see Francesco Rubio and José Álvarez, Informe del consejo de Estado sobre la reforma constitucional: Texto del informe y debates académicos (Madrid: Consejo de Estado-Centro de Estudios Políticos y Constitucionales 2006); and Enrique Pérez-Pedrero, La fallida reforma de la Constitución Española durante la legislatura (2004–2008) (Madrid: Thomson-Civitas 2008). The latter volume contains a comprehensive bibliography on the subject. 3 The word “Europe” does not appear in the 1978 Spanish Constitution, and Article 93 is limited to envisaging that “by means of an act of parliament, the signing of agreements by which an international organization or institution may be granted the exercising of powers deriving from the Constitution may be authorised.” 4 As is well-known, the Spanish Constitution envisages two different mechanisms for reforming the Constitution (Articles 166 to 169 of the Constitution): that which

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affects the most relevant questions requires the favourable vote of two-thirds of the two Houses of Spain’s Parliament, approval by referendum, and then the favourable vote of two-thirds of the new Houses elected after the referendum. The reform of the less relevant parts requires the approval of three-ifths of the two Houses and is submitted to a referendum only if ten percent of the members of either of the two Houses so request. Enric Fossas, “Balanç de la política autonòmica del Partit Popular,” in L’Espanya d’Aznar, edited by Joaquim Colomines, (Barcelona: Proa-literaria 2004). These thirty years have seen some developments of the Constitution that might be considered as veritable constitutional mutations, such as the abolition of compulsory military service in relation to Article 30 of the Constitution or sending troops abroad without the authorisation of Parliament in relation to Article 63.3. According to the Constitution, these subjects were the adjoining provinces that had common historical, cultural, and economic characteristics; the island territories; the provinces individually considered as having an historical regional entity (Art. 143.1), and the territories that had historically held a plebiscite for a statute of autonomy (Catalonia, the Basque Country, Galicia, and Navarre) (a temporary regulation according to the Constitution). Santiago MunÕz, “Prolegómenos del desmoronamiento del Estado-Nación, uniformista y centralizado,” in El Estado-Nación en dos encrucijadas históricas, edited by J.M. de Bernardo Ares and Santiago MunÕz. (Madrid: Iustel 2008), 249. The most important ruling in this ield is the stc 247/2007 of December 12. See, for example, Francisco Rubio, “Nacionalidades, Regiones, y Comunidades,” in Las reformas necesarias: Cielo de conferencias 2004–2005 (Madrid: Unión Editorial 2005). Enric Fossas, El principio dispositivo en el estado autonòmico (Madrid: IVAP-Marcial Pons). The agreement is known as “Acuerdos Autonómicos de 1981.” Of the seventeen autonomous communities, three have less than one million inhabitants, and seven less than one million, three hundred thousand inhabitants. Regarding this question, see Carles Viver, “En defensa de los Estatutos de Autonomía como normas jurídicas delimitadoras de competencias,” in Geraldo Ruiz-Rico, ed., La Reforma de los Estatutos de Autonomía: Actas del IV Congreso Nacional de la Asociación de Constitucionalistas de España (Valencia: Tirant lo Blanch 2006). Nonetheless, in June 2010, some months after this chapter was written, the Constitutional Court in its ruling on Catalonia’s Statute of Autonomy, modiied its own reasoning and decision on the matter. Spain’s Constitutional Court judgment on Catalonia’s Statute of Autonomy (Judgment 31/2010, June 2010) has limited such a possibility. In principle, these “mandates” could be incorporated into the statutes of autonomy, because, as we will see, these regulations are also Spanish laws. They are mandates that can be described as “weak,” since the statutes of autonomy must limit themselves to envisaging the participation of the autonomous communities within central institutions

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and within the Spanish-wide decision-making processes, yet they have to leave it to central institutions, in weighing important general interests, to specify by their laws the way in which participation is to take place. The Spanish ordinance envisages various procedures for the drafting, approval, and reform of the statutes of autonomy. They all involve the joint participation of the autonomous communities and the central institutions, although the two do not have equal prominence in all the cases. Carles Viver, “Por Favor, no disparen contra el pianista: Mito y realidad del (mal llamado) principio dispositivo,” Revista Española de Derecho Constitucional, no. 83 (2008): 339–58. This fact, in addition to contributing to the disappearance of this party (the ucd), was signiicant in the long run for the inal organization of territorial power, making it clear that the autonomy of all the autonomous communities would be essentially equal – in nature and in the level of self-government. In short, Spanish territorial organization would be essentially symmetrical. For details about the agreement and the process of reform in the 1990s, see Adolfo Hernádez and M.A. González, “Los Acuerdos Autonómicos de 28 de febrero de 1992: Negociación, contenido y desarrollo,” in Documentación Administrativa, no. 232–3 (1992–93): 135–84. See Manuel Medina, “La ampliación competencial de 1992: La inversión del proceso. La Ley Orgànica de transferencia como antesala de la reforma estatutaria,” Revista Española de Derecho Constitucional, no. 78 (2006): 77–103. Eight statutes of autonomy have already been reformed: that of the Valencian Community, Catalonia, the Balearic Islands, Aragon, Andalusia, and Castilla-Léon, Navarre, and Extremadura. See Carles Viver, “Tribunal Constitucional y Estado de las Autonomías,” in Homenaje a la Constitución: Lecciones Magistrales en el Parlamento de Andalucía (Sevilla: Centro de Publicaciones no Oiciales del Parlamento de Andalucía 2004).

11

Italy: A Federal Country without Federalism? F r a nce s co Palermo Introduction 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 in settling “federal” disputes. Moreover, both federal institutional structures and federal political culture are developed far more in some areas of the country than in others, so that Italy appears to be a sophisticated federal system when one looks at some regions and a sturdily centralized one when one looks at others. This chapter irst depicts the historical and constitutional developments that led to such a paradoxical situation. It then moves to the current institutional framework, to its most recent developments, and to the reasons for its problematic implementation. In doing so, it focuses on a few examples that are particularly revealing of the state of the art, such as the inancial arrangements between the national government and the regions, the (related) attempt of several municipalities to join the special regions, and some signiicant regional legislation that was recently passed (but struck down) in order to promote distinctive regional identities and by this means to make the case for more favourable treatment for regions with these distinctive identities. While comprehensive constitutional reform is not likely,

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some adjustments are to be expected in the near future. Regarding the next steps, it will be argued that in the current state of political lux, the response to federal problems and the only real inputs conducive to a more stable, long-lasting federal setting can be expected – once more – from constitutional adjudication rather than from amendments to the Constitution.

The Italian Constitution and the Invention o f t h e A s y m m e t r i c R e g i o n a l S tat e : “ O r d i n a ry ” and “Special” Regions Over the last decade, Italy has gradually but deeply transformed its regional system in order to meet the declared political objective of “federalizing” the country. Numerous delays in the implementation of the reform process have led to the rather paradoxical picture of a federal constitutional framework surrounding a still mostly centralist political culture. Moreover, the rich regions in the North are asking for more autonomy – which, however, in the opinion of most politicians would simply amount to a decreased contribution to inancial equalization – while the poorer regions of the South are worried about disadvantages resulting from further differentiation, which would inevitably widen the gap in economic and living conditions. The Long and Twisting Road of Regionalism in Italy Since the achievement of national unity, completed in the 1860s, the Italian state has been modelled on the French blueprint of a centralized and bureaucratic administration. It was only with the republican Constitution of 1948 that an innovative, but at the same time feeble, experiment with regionalization was made. From the very beginning, Italian regionalism was characterized by its asymmetrical design, both as a matter of constitutional law and in terms of the effective use of powers transferred to the regions. At irst only ive “special” or “autonomous” regions were established, all situated in the periphery: three with homogeneous minority groups in the Alpine arch in the North (the Aosta Valley, Trentino-South Tyrol, and FriuliVenezia Giulia) and to the south the two islands of Sicily and Sardinia.1 Each of them is guaranteed by a “special autonomy statute,” a regional constitution that is however adopted by the national Parliament with a constitutional law. This means that the special regions do not enjoy full constitutional autonomy, but at the same time their “autonomy statutes” beneit from a special entrenchment that makes it extremely dificult to amend them. As an innovative experiment, the regionalization of the whole country, a “third way” between a federal and a unitary system, was aimed at avoiding too strong an asymmetry between the special regions and the rest of the territory. Although laid down in the Constitution of 1948, regionalization, however,

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was fully developed only in the 1970s, when the “ordinary” regions were established and legislative powers eventually devolved to them. Since then, a permanent increase in the regional powers gradually narrowed the gap between “ordinary” and “special” regions. But the path has been anything but straightforward and coherent, since it has been inluenced by shifting political priorities and very much determined by constitutional adjudication. The key role of constitutional adjudication largely depends on the absence of constitutionally guaranteed institutional representation of regional interests at the central level. In fact, sub-national interests can be guaranteed mostly in two ways: either by constitutional restrictions on the powers of the national government or by effective regional participation in national decision making. Both instruments were used with extreme caution by the constitution makers in 1948, since regionalism was started as an experiment and the national government wanted to retain control over this process. Against this background, the role of the Senate as a chamber for representation of regional interests was undermined by a constitution designed to vest the central government with the inal say on autonomy issues. For this reason, constitutional litigation was the only instrument regions could use to strengthen their powers. Progress could often be achieved only through conlict by challenging national legislation in the Constitutional Court.2 These conlicts and a jurisdiction underlining the necessity of cooperation and consultation led to the gradual emancipation of the regional level and to a system characterized as “cooperative regionalism”: the powers of the national and the regional level are intertwined and require cooperation and joint action to be effectively implemented.3 A series of important reforms of public administration and of the system of local self-government were adopted between the late 1980s and the late 1990s, thus encouraging the more active regions to really start developing their potential for self-government. Relecting the socio-economic cleavage between the North and the South, the political demand for more self-government became an absolute priority for the rich and industrialized Northern regions and at the same time also for the government in Rome. Initially, the devolution of powers was primarily seen as a means of reducing the national expenditure, but owing to pressures by a “federalist,” and on occasions a “secessionist,” political party, the Northern League, the issue of “federal reform” could no longer be left to experts only but had to be dealt with politically and in more comprehensive and symbolic terms, thus requiring a constitutional reform.

Recent Constitutional Reforms In 1999 and 2001, two constitutional amendments were approved considerably increasing the powers and the political proile of the ordinary

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regions. The irst reform introduced the direct election of the regional president in order to enhance political stability in the ordinary regions. It also strengthened their constitutional autonomy, since basic regional laws were now adopted by the ordinary regions themselves in a special procedure that resembled that for amending the national Constitution (double approval, qualiied majority, and possible referendum).4 The reform of 2001 completely reshaped the constitutional provisions concerning the relations between the national government and the regions, often according to previous jurisprudence of the Constitutional Court. Although the autonomous regions were not directly affected by the reform, because of their “special” constitutional status, a preferential clause guaranteed them all beneits, i.e., “more favorable” features compared to their current powers and status.5 The reform afirms the equality of all component units of the “republic” (the central state, the regions, provinces, and municipalities).6 Sounding unfamiliar for a federal system, the reform relects the concept of functional spheres rather than hierarchical levels of government. The “twotrack asymmetry” – ordinary and autonomous regions – is conirmed, but individual ordinary regions may ask to have additional powers transferred to them by national legislation in areas such as culture, local security, and the environment (article 116.3).7 Most importantly, the reform drastically changes the distribution of legislative and administrative powers between Rome and the regions: the Constitution (article 117) now lists all legislative powers of the national government, as well as the ields of concurrent legislation (i.e., those in which regions can legislate only within the framework of general guidelines determined by a national law). In contrast to the previous situation, the residual powers lie with the regions, according to classic federal schemes. Administrative powers are no longer connected with legislative ones but distributed in a lexible manner according to the criteria of “subsidiarity, differentiation and proportionality” (article 118). The new provision on iscal federalism grants partial inancial autonomy to sub-national entities (article 119), and all regions have to establish a consultative body for the representation of local authorities within their territory (article 123). The elimination of preventive control over regional legislation (before the reform, all regional laws had to be approved by the government in Rome before entering into force) conirms the equal rank of regional and national legislation.

T h e I m p l e m e n tat i o n o f R e f o r m Almost ten years after its adoption, the reform is far from being fully completed. Although some amendments took immediate effect, in particular

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the new distribution of legislative powers, the new lists of these legislative powers quickly revealed themselves as defective. They contained gaps that led to conlicts over the distribution of powers, and overlaps between the powers granted to the various spheres of government likewise precipitated conlicts. As a result, the Constitutional Court had to face the fundamental task of re-deining the competencies.8 This often led to the justiication of an expanding role for the national government: by (too) often emphasising that “cross-cutting” issues – such as the “determination of the basic level of beneits relating to civil and societal entitlements to be guaranteed throughout the national territory” (article 117, 2).9 – require a predominant role for the national government as the guardian of national interests, the Court on several occasions supported a rather centralistic interpretation of the new distribution of competences.10 A second group of reform provisions required further legislation on details, for example, the new inancial relations between the layers of government, but the center-right coalition government under Mr Berlusconi elected immediately after the reform entered into force (2001) did not show any interest in completing the constitutional framework inherited from its predecessor. Thus, not until 2003 and 2005 were bylaws inally adopted on the implementation of some amended provisions of the Constitution.11 However, the issue of inancial relations remained unresolved until (at least) 2009, as will be discussed below. This delay caused additional confusion and gave rise to more controversy and litigation. In addition, the then government (including the Northern League, which sought to gain more radical results) presented its own, more far-reaching constitutional “counter-reform.” This reform proposal concerning ifty-three articles of the Constitution was inally adopted by the center-right coalition’s majority in Parliament on November 2005. However, it was prevented from entering into force by a popular vote (61 percent against) in a referendum held in June 2006, just after Mr Berlusconi’s party lost the general elections. His successor, Mr Prodi, started to complete the implementation of the reform of 2001 but was forced to resign after less than two years in power. Finally, another government under Mr Berlusconi was elected in April 2008, with a strong majority in parliament and crucial support from the Northern League, which immediately pushed for what was labelled “iscal federalism” and in technical terms was nothing less than the implementation of article 119 of the Constitution. However, even the regions themselves have not made the best use of the new opportunities provided by the constitutional reform in 2001: in particular the process of passing new autonomy statutes has been very slow,12 and the new clause in article 116.3 allowing for more differentiation among the ordinary regions has been disregarded.13

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Post-2006 Developments: The Unchanged Constitution and the Balancing Role of the Constitutional Court Italy’s federalizing process is currently facing new challenges. On the political agenda the pressure from the main political parties for further reforms is quite intense, particularly regarding the inancial arrangements among the layers of government. However, it seems likely that as many reforms as possible will be carried out by means of ordinary legislation, in an attempt to avoid harsh confrontation (and referenda) on constitutional reforms, which will be viewed with scepticism by the voters.14 At the same time, however, the most pressing legal issues are still linked to the curtailment of the implementation of the reform of 2001, which gives broad discretion to the Constitutional Court in determining the precise meaning of an incomplete reform. Three paradigmatic examples illustrate the confusing trend of what seems to be a transitional moment for inter-governmental relations in Italy’s lawed federal system: the inancial relations between the national government and the regions, the efforts of several municipalities belonging to ordinary regions to join the special ones, and the struggle for regional identity. Financial Arrangements The allocation of inancial resources to each level of government is critical for the very existence of a federal state.15 The Italian system is still based on a rather centralized arrangement for the collection and the distribution of revenues. In a nutshell, most of the taxes are collected by the national government and distributed to the regions (and municipalities) according to criteria laid down in national legislation. This has a twofold effect: on the one hand, except for a few unimportant levies, the regions (and the local authorities) cannot establish their own taxes; on the other hand, they have very little inluence in determining the criteria for the distribution of inancial resources, since they are not formally represented in the decision making at the national level (although consultation with them is mandatory). In 2001 the constitutional reform radically changed the previous system by granting to the sub-national layers of government inancial autonomy with respect to revenue and expenditures.16 Article 119 now provides that regions and municipalities (as well as other local governments such as the provinces) set and levy taxes and collect revenues of their own, while the national government can allocate additional resources and provides for an equalization fund for the territories having lower per capita taxable capacity. The reform of article 119 in 2001 established typically federal arrangements, but it was not implemented for a long time: no by-law was adopted to put its principles into practice, which adversely affected the whole federalizing process.17

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Against this background, a irst serious attempt to implement the constitutional framework on inancial relations was made by the administration of Prime Minister Prodi in 2007. A draft law was presented for the implementation of article 119 of the Constitution, generally following a cautious line by stressing inter-territorial solidarity and focusing on equalization more than on the taxation powers of the regions. However, because of the early elections, the draft was never adopted by Parliament. In May 2009, the government led by Prime Minister Berlusconi eventually adopted the implementation law for article 119 (law no. 42/2009). The law provides for a gradual establishment of the new system of economic intergovernmental relations. This is supposed to provide all regions with transfers and equalization payments for so-called “essential services” (heath care, welfare, education); they would be granted irrespective of the inancial performance of each region. As for other areas, including their own administration costs, regions will have to either increase their own taxes or be equalized based on benchmarks determined at national level. This means, in other words, that non-eficient regions will receive much less funding from Rome. All the details, however, will have to be speciied in a series of bylaws to be adopted by the national government.18 On the one hand, the very vagueness of the law actually allows for divergent interpretations by both the potential losers (the Southern regions) and the potential winners (the more eficient Northern regions),19 which is why it was politically possible to adopt it. On the other hand, the law makes a de facto transfer of the power to decide on fundamental issues to the national executive. This approach is neither very “federal,” nor particularly inclusive, since it excludes both the regions and the national Parliament from the decision on how the regions should in practice be inanced. Not least, it provides for a gradual (and slow) implementation, which means that the new system will not be fully in place before 2016. Finally, the degree to which the new system will affect the special regions is not entirely speciied. The draft law states only that in principle the special regions shall participate in the overall equalization system (as opposed to the previous situation), but the amount and the rules of such participation are far from being clariied.20 The speciic provisions will be negotiated bilaterally between the national government and each individual special region.21 In any event, the inancial relationship between the center, the regions, and the local governments is likely to be the key issue for years to come. No further substantial reform has a real chance of being adopted before some clarity is achieved concerning the economic aspects of inter-governmental relations. Moreover, it is beyond doubt that the current situation has to be tackled with extreme urgency, particularly for two reasons. On the one hand, there are tremendous disparities in the inancial treatment of the various regions.22 On the other hand, the current system is economically

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dysfunctional: only seven regions (one-third of the total) spend less money than they produce, while all the others (making up 53 percent of the national population) spend more – in several cases a lot more – than the revenue they generate.23 During the transitional phase, the national budget law of 2010 has dramatically curtailed transfers to ordinary regions. So far, “iscal federalism” has thus paradoxically meant not more, but less funding for all regions. “Escape from Ordinary Regions”: Frustrated Attempts to Enjoy Special Autonomy The inancial disparities between regions and the more favourable economic treatment of the special regions are the main reasons for the second phenomenon that illustrates the current state of lux in the Italian federalization process. In inancial matters, each special region has a different agreement with the State, which is mostly regulated in its autonomy statute. In general, all inancial arrangements are very generous with the special regions compared to the other regions.24 Overall, the special regions receive more money than they produce in iscal revenue, like the poorer territories in the South. But some of the special regions, notably those in the North, are not poor at all and indeed are richer than the average, not least owing to their proitable inancial arrangements. This creates some jealousy, particularly in the ordinary regions neighbouring the rich special regions in the North. They ind the high costs for the special regions unjustiied and exert political pressure to reduce their inancial beneits. Because of the inancial attractiveness of the special regions, over the last few years several municipalities belonging to the ordinary regions and bordering on the special regions have sought to become attached to them.25 The complex procedure for shifting regional borders is laid out in article 132.2 of the Constitution. It requires that the municipality concerned approves its separation from one region and its incorporation into another by popular referendum, which must be approved by a qualiied majority of the resident population. Should the referendum be approved, the change must also receive approval through a law enacted by the national parliament. The parliaments of both affected regions must be consulted before passage of the law, but they do not have any formal veto right.26 Even though referenda have been held successfully in several municipalities, no change of border has taken place so far, and it is very unlikely that it will ever occur. Not only is the new legislation on “iscal federalism” aimed at blocking the “migration” of municipalities towards the special regions, but for political reasons the national Parliament has refused thus far to adopt the required legislation. By so doing, it has disregarded the will of the municipalities concerned, proving more sensitive to the principled

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objections raised by several regions, including the special ones that did not want to open the Pandora’s box of territorial changes.27 When the well-known and very rich ski resort of Cortina d’Ampezzo overwhelmingly voted to leave Veneto and to be attached to South Tyrol,28 the issue gained national political relevance. Both the national government and the regions, although perhaps for different reasons, tried to stop the procedures. In 2007 the administration led by Mr Prodi had already initiated the process of amending the Constitution in order to make the procedure for changing regional borders much more dificult, but the early elections blocked the draft. Some special regions, including the autonomous province of Trento, devolved a considerable amount of money to their inter-regional borders by extending services to several of their neighbouring communes. More recently, the referenda have stopped, both because the concerned municipalities have learned from various precedents that a change is very unlikely and because the law implementing “iscal federalism” has provided additional funds for the municipalities bordering the special regions. On the one hand, this phenomenon shows that there is considerable frustration within the current Italian regional system concerning both the inancial arrangements and the lack of a consistent view on their overall purposes. On the other hand, and even more importantly, the (unsuccessful) “migration of communes” proves that Italian regionalism still lacks a “soul,” a clear and uncontested legitimacy. Advocates and opponents of the shift of regional borders refer to the “inancial privileges” of the special regions but also to the historical, geographic, and even ethnic grounds underpinned by the requests. Some put the inancial rules in question; others overemphasize cultural differences, and all this speaks of the overall uncertainty about what a compound system is and should be about.29 It is not by chance, then, that special regions have recently tried to highlight their cultural and political differences from the rest of the country, sometimes in a clearly artiicial manner. Such differences are often used to justify their special treatment, particularly from the inancial point of view. The (Re-)invention of Regional Identity: Recent Legislation and the Case Law of the Constitutional Court The extent to which special regions are pursuing a campaign to support their cultural differences varies considerably from case to case. Overall, it can be said that the stronger and less contested such differences are, the less they need to be manifested in legislation. In particular, while the special status of the two small alpine areas inhabited by homogeneous national-minority groups (South Tyrol and the Aosta Valley) is not openly put in question, others face outright attacks on their alleged “privileges,” and their reaction shows once more that an uncontested approach to territorial

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differentiation in the country is missing. The cases of Friuli-Venezia Giulia and Sardinia demonstrate this. Friuli-Venezia Giulia is located in the northeastern part of Italy, bordering Austria and Slovenia. It was the last special region to be established, since this was possible only in 1963 after international administration over the territory of Trieste came to an end and the inal issue of borders with what was then Yugoslavia was resolved. The region is composed of two very different parts, so-called Venezia-Giulia, the area around Trieste and Gorizia where a signiicant Slovene minority is settled, and the much bigger Friuli, where a Romanic language is spoken. Over the last decade, not only have the rights of the Slovene minority been considerably enhanced,30 but also the Friulians (about two million people) have been recognized as a linguistic minority.31 With a view to enhancing the cultural diversity of the region, the regional Parliament passed its new autonomy statute in 2005,32 as the irst – and so far the only – special region voting for a new statute as required by the constitutional reform of 2001. It must be recalled that following the constitutional reform in 2001 the autonomy statutes of the ordinary regions are adopted by the regional parliaments by a qualiied majority and immediately enter into force if the national government does not challenge them before the Constitutional Court (article 123 Constitution), while the procedure for adopting the autonomy statutes of the special regions has not changed: they must still be approved irst by the regional parliament, and then they need to be passed by the national Parliament as national constitutional laws (article 116 of the Constitution). The procedure to amend or replace the autonomy statute of a special region is thus indeed more complex, but at the same time it represents an additional guarantee against unilateral changes by either the national Parliament or the region itself. Autonomy statutes of the special regions are therefore negotiated between the concerned region and the central power, and bilateralism is the underlying principle of the relations between the national government and the special regions. The autonomy statute approved by the regional Parliament of FriuliVenezia Giulia overemphasized the ethno-cultural pluralism of the region and its difference from the rest of the country. The text proclaimed the region to be a quadri-lingual territory, with Italian, Slovenian, Friulian, and German as oficial languages,33 and emphasized extensively the historic linguistic minorities of the region, including by supporting bilateral relations with the “kin-states” of the involved groups. Moreover, the autonomy statute provided that the region would negotiate its inancial relations with the national government bilaterally. For these reasons, the national Parliament refused to inally adopt the text voted by the regional assembly. In the end, this process upset both the region, which was refused the text it proposed,

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and the national government, which read into several provisions of the basic law an attempt to undermine the unity of the country. An even more glaring example of this same trend was recently provided by another special region. Sardinia is a large island with about two million inhabitants, traditionally isolated from the mainland because of geographic distance. Because of this remoteness and the cultural diversity it produced over the centuries, the island was given the status of a special region after World War II. In 2006 the regional Parliament initiated the procedure for the adoption of a new autonomy statute. It did so, however, in a quite unconventional way: as in Friuli-Venezia Giulia, it was decided to set up a special commission in charge of producing a draft text, but the name that was given to the commission was deliberately provocative: “commission for drafting the new statute on autonomy and sovereignty of the Sardinian people.” 34 The name suggested, on the one hand, the existence of a Sardinian people different from the Italian people, something that would not be at all surprising or revolutionary, even though some precedents were not encouraging in this regard.35 On the other hand, it indicated that the Sardinian people had the right to self-determination: by using the term “sovereignty,” the regional law insinuated that Sardinians wanted to exercise their selfdetermination internally and thus enjoy (special) autonomy within the Italian state. In other words, autonomy was not intended to be derived from the Constitution but from a free determination of the sovereign Sardinian people, who could also decide differently if they so wished. The terminology used clearly aimed at provoking a debate. As expected, the national government immediately challenged the Sardinian law, and the Constitutional Court indeed found it in breach of the Constitution.36 While the outcome was largely expected, the arguments used by the Court are particularly rudimentary from a federalist point of view. The Court offers its formalistic deinition of the qualitative difference between a federal and a regional system, pointing out that in the latter, sub-national entities are autonomous and not sovereign. Even the most signiicant degree of decentralization does not alter the unity and indivisibility of sovereignty, which cannot but be vested in the national level and in its unitary people.37 As has been noted, the Court clearly used this opportunity as an occasion to stop the increasing spill-over of (more or less genuine) ethno-cultural differences being brought into the political battle for more favourable treatment.38 In practical terms, however, the use of such a symbolic formula was as far as the process of statute-giving went. The debate remained at the level of symbols, but no relevant proposal was made concerning the contents of the new autonomy statute. This shows that the political process deals with symbolic and abstract issues but is rarely interested in (and capable of managing) the more practical issues of federal governance.

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Outsourcing Federalism in a Political Vacuum: Concluding Remarks Over the long and far-from-concluded Italian federalizing process, only one feature has never changed: all the most complex and controversial issues have eventually culminated in decisions by the Constitutional Court, and everything indicates that this will continue in the future. This statement proves to be even truer following signiicant constitutional or legislative reforms. It is worth noting that in the aftermath of the constitutional reform of 2001, the number of cases brought to the Constitutional Court regarding inter-governmental litigation increased ten times.39 It was in fact for the Court to determine (and largely to rewrite) the division of legislative and administrative powers laid down by the reform.40 Only after some years, when the case law had eventually established the interpretive principles, did the litigation signiicantly decrease.41 When the new legislation on the implementation of the inancial relations is fully enacted, a new wave of conlicts is likely to take place.42 This leads to the irst concluding remark of this chapter: constitutional adjudication has shaped the contours of Italian regionalism much more than constitutional amendments have. This might sound surprising, but it guarantees that the federalizing process is guided by the rule of law even when political priorities change rapidly and are sometimes unpredictable. At the same time, the essentially judicial nature of Italian federalism-in-themaking represents an incentive for some political forces to instrumentalize federalism and to propose (and sometimes introduce) irresponsible and inconsistent legislation, knowing that the Court will “ix” it and can even be blamed for that. As a matter of fact, this attitude is spreading, and the overall quality of the legislation on intergovernmental relations is decreasing. Not least, judicial control over the federalization of the country, while it guarantees a balanced and reasonable approach, is nevertheless often in conlict with the political will expressed by democratically elected representatives. Second, the technical rather than the political character of Italian federalism-in-the-making is one of the most serious shortcomings of the process. If looked at from the perspective of the formal provisions, of the case law of the Court, and of the practice of some regions, Italy could easily be deined as a federal country, still quite centralized in some aspects (particularly regarding the representation of the regions in national decision making and the administration of justice) but also very decentralized in others (including in several ields of competence,43 treaty-making capacity, control over legislation, etc.). What is missing, though, is the political culture of federalism, both at the national and at the sub-national level. The examples mentioned above signal that there is no shared view about the meaning and the goals of a federal system.44

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Furthermore, the political climate surrounding federalism is very volatile. While most parties are nominally “federalist” and some (such as the Northern League) declare federalism to be their very raison d’être, at the same time the people are increasingly skeptical about the capacity of a federal structure to better address their concerns. Apart from some virtuous administrations, most regions have demonstrated little institutional and political capacity: they are perceived as expensive and ineficient, even if not corrupted, institutions.45 At present, the regions control (and spend) 43 percent of the overall resources,46 and they are responsible, inter alia, for the entire health care system,47 which has produced debts so far of fortyive billion Euros that need to be covered by the national budget.48 This leads to the paradox of, simultaneously, an increasing demand for federalism (especially in the North) and rising criticism of federal solutions to the country’s problems (particularly in the South). The overall outcome is a mounting cleavage in the country and in its political culture. At this point, further far-reaching constitutional reforms seem unlikely. The next steps in Italy’s federalizing process will be the implementation of the constitutional provisions on inancial relations and maybe some minor shifts in competences. Also, a few regions – including all special ones – still need to adopt their new autonomy statutes. The constitutional framework allows for federal governance: it is now up to the political process to eventually take federalism seriously. The necessary precondition for a satisfying implementation of the quite developed institutional setting, however, is a clear vision of what this federal transformation is all for and how balances will be readjusted. The political class, both at the central and at the regional level, seems to lack such a clear view, and there is no indication that federalism will ripen in the political culture soon. As long as this is the case, Italy will remain a federal country without federalism.

Notes 1 Their distinct treatment was mainly a reaction to complex problems of regional diversity: international obligations imposed by the 1946 Peace Treaty and fears regarding the secession of these peripheral areas. For more on this see Francesco Palermo, “South Tyrol’s Special Status within the Italian Constitution,” in Jens Woelk, Francesco Palermo, and Joseph Marko, eds., Tolerance through Law: Self Governance and Group Rights in South Tyrol (Leiden and Boston: Nijhoff 2008), 33–49. 2 Roberto Bin “Veri e falsi problemi del federalismo in Italia,” in Luigi Mariucci et al., eds., Il federalismo preso sul serio (Bologna: Il Mulino 1996), 61–78. 3 Jens Woelk, Konliktregelung und Kooperation im italienischen und deutschen Verfassungsrecht (Baden Baden: Nomos 1999).

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4 See Article 138 Const. for the amendment procedure for the national Constitution and Article 123 Const. for the amendments to the regional autonomy statutes. 5 In practice, though, to determine what “more favourable” means is hardly an easy task. For example, does stronger autonomy for the municipal government, as provided for by the 2001 reform, represent a more or a less “favourable” provision for the regions? 6 Article 114 Const., as amended in 2001, reads: “The Republic is composed of the Municipalities, the Provinces, the Metropolitan Cities, the regions and the State.” See comments by Franco Pizzetti, “Le nuove esigenze di ‘governance’ in un sistema policentrico ‘esploso,’” Le Regioni 6 (2001): 1153–96. 7 Francesco Palermo, “Il regionalismo differenziato,” in Tania Groppi and Marco Olivetti, eds., La Repubblica delle autonomie: Regioni ed enti locali nel nuovo titolo V (Torino: Giappichelli 2003), 55–62. 8 For an overview of the controversial issues and of the doctrine of the Constitutional Court dealing with the division of powers between the national government and the regions see Roberto Bin, “I criteri di individuazione delle materie,” Le Regioni 5 (2006): 889–902. See also Valerio Onida, “Il giudice costituzionale e i conlitti tra legislatori centrali e locali,” Le Regioni 1 (2007): 11–26; and Tania Groppi, “Il Titolo V cinque anni dopo, ovvero la Costituzione di carta,” Le Regioni 3–4 (2007): 421–32. 9 English text from the oficial translation provided by the Italian Parliament: http://english.camera.it/. 10 The Court did so in particular in judgments 303/2003 and 14/2004. On these judgments see the special issue of the journal Le Regioni 4–5 (2005): 771–896, papers by Valerio Onida, Adele Anzon Demmig, Raffaele Bifulco, Roberto Bin, Paolo Caretti, Antonio D’Atena, Giandomenico Falcon, Stelio Mangiameli, Emanuele Rossi, Antonio Ruggeri, Ilenia Ruggiu, Rosanna Tosi, and Luciano Vandelli. 11 Law no. 131/2003 and law no. 11/2005. See Paolo Cavaleri and Elisabetta Lamarque, eds., L’attuazione del nuovo titolo V, parte seconda, della Costituzione: Commento alla legge “La Loggia” (Torino: Giappichelli 2004). 12 Some important regions still have to adopt their autonomy statutes. Notably, this is the case for all ive special regions (on Friuli-Venezia Giulia and Sardinia, see below) and for the big and rich Northern Region of Veneto. The biggest region in the country (Lombardy) adopted its new autonomy statute only in May 2008. It is worth noting that of the thirteen autonomy statues approved, six have been challenged by the national government before the Constitutional Court. In most of the cases, the autonomy statutes had to be revised after the ruling of the Court. Figures updated to September 2010. For further information see http://www. astrid-online.it/i-nuovi-st/Statuti-ap/index.htm. 13 So far, four ordinary regions have initiated procedures according to article 116.3 Const., but none of them has been completed. Politically, it is unlikely that this will ever happen.

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14 Given the lesson learned from the constitutional referendum of 2006, a constitutional reform introducing a fully ledged federal system is likely to be rejected by the voters, mainly on two grounds. On the one hand, many citizens do not consider this a priority. On the other, particularly in the South of the country, any federalization is seen as a threat for the poor regions of the South and as a lack of solidarity on the side of the rich North. 15 See inter alia Ronald Watts, Comparing Federal Systems, 2d ed. (Montreal and Kingston: McGill-Queen’s University Press 1999), 43–55. 16 Pietro Giarda, “Le regole del federalismo iscale nell’articolo 119: Un economista di fronte alla nuova Costituzione,” Le Regioni 6 (2001) 1425–84. 17 For a detailled analysis, see the special issue of the journal Le istituzioni del federalismo, no. 4 (2006): 669–774 (“L’autonomia inanziaria e tributaria delle regioni”). 18 So far (as of September 2010) four such bylaws have been adopted, in areas such as the transfer of public goods from the national government to the regions and the determination of standard costs for health care services. The bylaws are adopted after deliberations of a technical committee composed of representatives of both the national government and the regions. 19 For a short comment on the law in English, see Tommaso Edoardo Frosini, “Introduction to Italian Fiscal Federalism,” in federalismi.it, no. 19 (2009), available at http://www.federalismi.it. 20 This may also be linked to the fact that most of the inancial “privileges” of the special regions are entrenched in constitutional provisions, which cannot be overruled by an ordinary parliamentary bill. The issue is more complicated than this, however, since the law in question implements a constitutional provision, and therefore the relationship between various sources of law is not entirely clear. 21 As of September 2010, only South Tyrol and Trentino had successfully completed negotiations with the national government. The bilateral agreement concluded in November 2009 (which led to the amendment of the autonomy statute) provides that the two autonomous provinces take up new responsibilities in several areas (including universities and postal services) without receiving additional funds from Rome and that the national government retains some minor revenues that had so far been transferred to the sub-national entities. Overall, the budget of the two autonomous provinces concerned has been curtailed by some 10 percent (including the additional costs for the new competences), but the inancial transfers from Rome are secure and constitutionally entrenched. Therefore, they cannot be further reduced unilaterally. 22 In per capita inancial transfers from the State, for instance, the Aosta Valley receives thirteen times more than Lombardy. 23 On average, every citizen of Lombardy pays taxes of 13,700 euros per year, while the expenses for services for the territory of that region are 8,850 euros per citizen. Conversely, Calabria receives per capita 2,750 euros a year more than it generates. Moreover, all special regions spend more than they produce (particularly, Sicily,

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Sardinia, and the Aosta Valley). Further details are in the special issue “Federalismo iscale” of Il Sole 24 ore, 4 August 2008. More details are in Enrico Buglione, “Aspetti inanziari della specialità delle Regioni a statuto differenziato,” in Antonio Ferrara and Giulio Maria Salerno, eds., Le nuove specialità nella riforma dell’ordinamento regionale (Milano: Giuffré 2003), 205–42. A few dozen municipalities have initiated the procedure, particularly Veneto asking to join Trentino-South Tyrol (inter alia Lamon, Asiago, Cortina d’Ampezzo, Enego, Conca, Lusiana, Gallo, Rotzo, Foza, Roana) and Friuli-Venezia-Giulia (Cinto Caomaggiore, Pramaggiore, Gruaro, Teglio Veneto), and Piemont asking to join the Aosta Valley (including Noasca, Valprato, Ronco, and Ribordone). See Matteo Barbero, “Come (non) si resolve la questione delle ‘secessioni’ dei comuni di conine (e dei privilegi delle autonomie speciali),” in federalismi.it, no. 9 (2008) (available at www.federalismi.it). For the theoretical framework, see Maurizio Pedrazza Gorlero, Le variazioni territoriali delle regioni (Padova: Cedam), vol. 1 (1979) and 2 (1991). The autonomous Region Aosta Valley challenged the constitutionality of the procedure, which provides that regional parliaments are merely consulted but do not have a formal veto right on the change of regional borders. The Region contested the idea that the territory of the special regions should be constitutionally entrenched. The Court maintained, however, that the current text of the Constitution is clear in determining the requirements for changing regional borders and rejected the claim (judgment no. 66/2007). For more on this see Maurizio Malo, “Forma e sostanza in tema di variazioni territoriali regionali (a margine della pronuncia 66/2007 della Corte Costituzionale),” Le Regioni 3 (2007): 641–50. The arguments used in this particular case drew on the common history under the Habsburg Empire and the ethno-cultural differences from the rest of the region of Veneto. This added political fuel to the already contentious debate on the so-called inancial privileges of the special regions. Nevertheless, the referendum was approved by the overwhelming majority of the population concerned (over 90 percent voted in favour). The lack of a clear vision of a vertical division of powers and functions and the resulting dissatisfaction of citizens with the current system is demonstrated by a further paradox regarding the role of the provinces. The provinces are institutions of local government, with elected councils and presidents, performing administrative functions in a limited number of areas, such as inter-communal infrastructure, waste management, and school boards. Particularly after the constitutional reform of 2001, their role has become increasingly irrelevant, while the costs of running them, especially the salaries of the political personnel and the administrative staff, have continuously increased. Scholars and citizens advocated the abolition of the provinces as a means to save money and to rationalize the division of functions between the regions and the municipalities. However, not only was the political elite

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unable to agree on their abolition in the constitutional reform of 2001, but after that the number of provinces increased dramatically, from 95 to 110 in only a few years. This is generally perceived as a mere multiplication of political posts, which is regarded with scepticism by the citizenry. Law no. 38/2001. Law no. 482/1999. Text in http://www.consiglio.regione.fvg.it/DocOnLine/News/allegati/A354.pdf. The draft basic law was prepared by a special “Convention” (set up by regional law no. 12/2004), which included several representatives of civil society. As mentioned, Slovene is spoken by roughly sixty-ive thousand people, German (or better, an ancient German dialect) is spoken by a few hundred in only ive small municipalities, and Friulian (which is now recognized as a language but used to be considered a dialect) could be considered the language of the whole population of Friuli (almost two million people), although only some of them know and use it. Regional law no. 7/2006. One thinks in particular of the controversial decision of the French Constitutional Council on the use of the term “Corsican people.” In 2002, the Council struck down the proposed autonomy statute for Corsica (decision no. 2001–454 DC) because it mentioned the existence of a “Corsican people,” even though this characteristic was deined as “an integral part of the French people”. Also the Italian Constitutional Court made clear in 2000 (case no. 496/2000) that there is no such thing as a “regional people,” since under the Constitution the “people” denotes a unitary concept and only the Italian people as such are vested with sovereignty. Decision no. 365/2007. For extensive comments on the judgment see Sergio Bartole, “La Corte costituzionale chiude al ‘federalismo,’” in Giurisprudenza costituzionale 6 (2007): 4039–44; Paolo Caretti, “La ‘sovranità’ regionale come illusorio succedaneo di una ‘specialità’ perduta: In margine alla sentenza della Corte costituzionale n. 265/2007,” in Le Regioni 1 (2008): 219–26; Adele Anzon Demmig, “Sovranità, processi federalistici, autonomia regionale: In margine alla sentenza n. 365 del 2007 della Corte costituzionale,” in Giurisprudenza costituzionale 6 (2007): 4999–5016; Alessandro Mangia, “Il federalismo della ‘descrizione’ e il federalismo della ‘prescrizione,’” in Giurisprudenza costituzionale 6 (2007): 4045–51; Paolo Passaglia, “La Corte, la sovranità e le insidie del nominalismo,” in Giurisprudenza costituzionale 6 (2007): 4052–61. See, particularly, part 6 of the decision. Beniamino Caravita, “Il tabù della sovranità e gli «istituti tipici di ordinamenti statuali di tipo federale in radice incompatibili con il grado di autonomia regionale attualmente assicurato nel nostro ordinamento costituzionale,” in federalismi. it, no. 22 (2007) (www.federalismi.it); and Omar Chessa, “La resurrezione della sovranità statale nella sentenza n. 365 del 2007,” in Le Regioni 1 (2008): 227–41. While in 1998 litigation between the national government and the regions made up only 2.76 percent of the Court’s workload, by 2006 it had become 29.16 percent.

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For more on the phenomenon see Massimo Marcelli and Valeria Giammusso, eds., Tra Stato e Regioni: Guida all’orientamento. Sintesi di 350 pronunce della Corte Costituzionale (2002–2005), Senato della Repubblica, Quaderni di Documentazione, no. 41 (Roma 2005); Istituto di Studi sui Sistemi Regionali, Federali e sulle Autonomie “Massimo Severo Giannini” (iss irfa), ed., Osservatorio sulle Regioni (Rome 2006) (http://www. issirfa.cnrit/46,46.html); and Paolo Caretti, La Giurisprudenza costituzionale in materia di rapporti tra Stato e Regioni, in Camera dei Deputati, Osservatorio sulla Legislazione, Rapporto 2004–2005 sullo stato della legislazione (Rome 2005) (www.camera.it/iles/ servizi_cittadini/Rapporto_2004_5_Parte_III.pdf). Antonio Ruggeri, “Giudizi sulle leggi in via principale e giurisprudenza costituzionale a seguito della riforma del Titolo V (“modello” ed esperienza a confronto),” in Le istituzioni del federalismo 4 (2006): 775–824. In 2007 inter-governmental litigation diminished by 53 percent compared to 2006, and since then it has stabilized overall. All data can be found on the webpage of the Constitutional Court: http://www.cortecostituzionale.it/informazione/statistiche.asp. Giandomenico Falcon, “Che cosa attendersi, e che cosa non attendersi, dal federalismo iscale,” Le Regioni 4–5 (2008): 765–70. The long list of competences is contained in article 117 of the Constitution. This provision enumerates the issues to be reserved to the exclusive competence of the national level and those that are subject to shared competence. Among the latter, for instance, “national production, transmission and distribution of energy” is mentioned, an area that in federal countries is usually retained by the central power, since it clearly affects key national interests. However, the Constitutional Court did go so far as to afirm that the list of competences laid down in article 117 of the Constitution is merely “indicative” and can be overruled if some criteria are respected (judgment no. 303/2003). See Francesco Merloni, “Il paradosso italiano: ‘federalismo’ ostentato e centralismo rafforzato,” Le Regioni (2005): 469–74. See Dario Alberto Caprio, “La crisi del regionalismo italiano,” MondOperaio 2008, also available at www.forumcostituzionale.it/site (papers). uil, Studio sui bilanci di previsione delle regioni 2007, available at http://www.uil.it/ regioni-sint-loystampa.pdf. For more on this see Renato Balduzzi, “Cinque anni di legislazione sanitaria decentrata: Varietà e coesione di un sistema nazional-regionale,” Le Regioni 5 (2005): 717–42. See Court of Auditors, “Report on Financial Management of Ordinary regions in 2005 and 2006,” in www.corteconti.it; and Caprio, “La crisi del regionalismo italiano.” Several studies of the health care system show that per capita expenses in the South are twice as much as they are in the North, while the quality of the service is much lower. See the report published by the Catholic University of Rome, available at www.rm.unicatt.it and the Health Report by the ngo Cittadinanza Attiva (www.cittadinanzattiva.it).

Pa rt Fo u r Supranational Constitutionalism and Constitutional Futures in Europe

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Member State Constitutions in the European Union A nne l i Albi Introduction 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 iasco of the ratiication 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 and a goal to be attained. Indeed it has many faces: political idea, strategy, inluence, process and goal.”2 A recent comprehensive study by Robert Schuetze assessing the European Union’s constitutional framework in the light of the American tradition of federalism suggests that the European Union can be deined as a federation of states, as it stands on the “middle ground” between international and national law.3 On the other hand, a comparison between the EU and Switzerland has led Clive Church and Paolo Dardanelli to suggest that the EU resembles more closely a Swiss confederal model dating back to the nineteenth century than a contemporary federal model, albeit with increasing pressures for centralization.4 Some have characterised the EU as a new form of federalism, such as “integrative federalism,”5 or a “supranational federation.”6 Others have offered new labels such as a “European Commonwealth.”7 In reality, the EU is perhaps still best characterized as a “supranational organization sui generis”: this expression has proved relatively uncontroversial in respect of national constitutional sensitivities, as well as capable of encompassing new developments in the integration process.

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It is well established that membership in the European Union involves the unprecedented transfer of sovereign powers on the part of the Member States, which goes well beyond the co-operation traditionally associated with international organizations. It is evocative that the European Court of Justice established already in 1986 that the treaties form a “Constitutional Charter,”8 a view that has been widely endorsed in scholarly writings, especially if one takes into account the successive deepening of integration by the treaties of Maastricht, Amsterdam, Nice, and Lisbon. The constitutional elements include the fact that the treaties determine the EU’s governing institutions, their powers and the corresponding system of checks and balances, and their relations with each other and with the Member States, as well as establishing the EU’s decision-making procedures that involve a directly elected parliament. Additionally, important constitutional principles have been developed by the European Court of Justice (ecj), such as the supremacy and direct effect of EU law and the protection of fundamental rights. The creation of the Monetary Union and the Schengen borderless area, as well as the introduction of the concept of EU citizenship, has been regarded as signiicant from the point of view of the sovereignty of the member states. Overall, legal scholars and especially scholars who study federalism have noted that in some respects the EU may well have seen more centralizing tendencies than many federal states, where federalism indicates greater autonomy for the constituent units. This naturally prompts the question how national constitutions of the EU Member States have been adjusted in relation to the transfer of powers. Indeed, national constitutions have traditionally been regarded as the foundational and supreme instruments governing the distribution and exercise of powers in sovereign nation-states. This chapter provides an outline of the state of play on the landscape of EU-related constitutional amendments in the various Member States. One issue that has emerged from the literature is that approximately half the Member States’ constitutions are rather poorly adjusted for EU membership, especially in terms of relecting the extent of powers exercised at the supranational level. This chapter explores why this has come to be the case and considers some broader reasons why it might be important for constitutions to be brought up to date with regard to the ramiications of EU membership. It will also consider areas where national constitutions have served as a catalyst for change at the EU level. Generally, citizens of federal polities focus their attention on the federal (national) constitution and are unaware of the constitutional arrangements of the constituent polities, because sub-national constitutions are not immediately visible to them. This chapter shows that in the EU context, the opposite could be said to hold true, in that national constitutions of the Member States remain the primary and focal point of reference for citizens, with little understanding of, and support for, the European constitution as

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it exists in an unwritten form or the written European Constitution that failed at the referendums.

O v e r v i e w o f t h e S t a t e o f P l ay i n t h e EU: A m e n d m e n t s i n N at i o n a l C o n s t i t u t i o n s The amendment of national constitutions in view of membership in the EU has been explored in detail by a number of authors, offering thorough accounts of the historical background, the content of the amendments, and comparative classiications.9 This chapter will conine its scope to providing a summary of the state of play that has emerged on the national constitutional landscape. In the process of entry into the EU, it is incumbent on the accession countries to align their legislation to the requirements of the wide-ranging body of the acquis communautaire, under a careful scrutiny by the European Commission. There is, however, one important legal instrument that appears to be virtually exempt from the harmonization requirement: the national constitution. As a fundamental expression of state sovereignty, constitutions establish the foundational rules on the distribution of powers and decision making within a state, and states thus hold the prerogative of determining whether and to what extent participation in the EU receives a mention in the national constitution. The latest EU enlargements, however, offered some evidence of nascent inroads by the EU into national autonomy in determining the content of the constitutions, for example by virtue of the European Commission’s requests to amend constitutional provisions concerning the judiciary in Slovakia, Romania, and Bulgaria. However, the core constitutional provisions on the organization of powers and on their transfer to the EU remain irmly within the jurisdiction of the Member States. In the absence of uniied EU requirements, national constitutions represent an area of law that, intriguingly, appears to be rather modestly adjusted for EU membership. Among the constitutions of the ifteen “old” Member States,10 four offer no mention of the EU – the constitutions of the Netherlands, Luxembourg, Denmark, and Spain. Indeed, Monica Claes has noted that were an alien to land in these countries and read their constitutions, he might well miss their membership of the EU altogether.11 Three other constitutions – those of Finland, Belgium, and, since 2001, Italy – accommodate the transfer of powers under a broader clause on international organizations but make explicit references to the EU in relation to a limited number of speciic issues. A key weakness in the constitutions that deal with the EU primarily through a blanc renvoi is that they seem to be “putting the national Constitutions on hold as a general rule.”12 The third group consists of those constitutions that contain explicit provisions on the delegation or transfer of powers to the European Union: the constitutions

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of France, Germany, Portugal, Ireland, Austria, Sweden, and, after a 2001 reform, Greece. For instance, Article 88(1) of the French Constitution provides that “[t]he Republic shall participate in the European Communities and in the European Union constituted by States that have freely chosen … to exercise some of their powers in common.” Article 23(1) of the German Constitution provides for participation in the EU to “realize a uniied Europe,” and allows the country to “delegate sovereign powers” for this purpose. Besides the transfer clauses, most constitutions in this group contain further provisions dealing with speciic aspects of EU membership, such as the participation of national parliaments in the EU decision-making process;13 the right of EU citizens to vote and stand in local elections14 and in some cases to take part in the elections of the European Parliament;15 and participation in the Monetary Union.16 Overall, considerable diversity exists within the constitutional landscape of the “old” Member States, with no standard model being available for accession countries.17 However, for reasons that will be considered in the fourth chapter of this paper, the constitutional solutions of the third group were widely recommended as a model to follow for the accession countries. In the new Member States, the irst round of EU amendments was predominantly introduced in 2001–3, with the exception of Poland, which joined on the basis of the new Constitution adopted in 1997, and Cyprus, where no amendment was deemed necessary prior to accession. As for the countries of Central and Eastern Europe (cee) the historical background of the adoption of the constitutional amendments, along with the legal and political context, has been provided by the author elsewhere.18 The story of amendments contained a considerable element of drama. Solemn, heartfelt declarations on sovereignty and national identity in the constitutional texts, and the political rhetoric of the early 1990s quickly gave way to a transfer of state powers to what eurosceptics often likened to a European superstate. Any public perception of loss of sovereignty was warded off by a careful approach to the wording of the constitutional amendments and to the staging of referendums; constitutional arguments regarding the necessary content and procedure of amendment typically paled in signiicance in the face of (geo-)political imperatives. Overall, the amendments that were adopted in cee prior to EU accession broadly remained minimal.19 The amendments were predominantly addressed to international organizations in general rather than speciically to the European Union. Further, in a number of countries direct conlicts with EU law were left unresolved within the constitutions despite the advice of legal experts. In some countries (mainly the Baltic states) the amendments were enacted in a way that bypassed the rigid constitutional amendment procedures that had included the requirement to hold a referendum for amendments affecting sovereignty and independence.

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In the subsequent years, however, the balance sheet saw a considerable change, with a number of further amendments having been adopted in the more relaxed political climate that followed the successful holding of the accession referendums. For example, in Lithuania the Constitutional Act on Membership in the European Union was adopted in July 2004 and came into force on 13 August 2004, three months after accession. Additionally, Article 125(2) of the Lithuanian Constitution was amended in April 2006 to ensure conformity with the requirements of the Monetary Union. In Latvia, the constitutional amendment process was resumed in September 2004, removing conlicts from Article 101 (voting rights of EU citizens in local elections) and Article 98 (extradition of citizens); the amendments entered into effect on 21 October 2004. In Poland, Article 55 of the Constitution was amended on 8 September 2006, in order make permissible the extradition of Polish citizens in the wake of the Polish Constitutional Tribunal’s declaration on the unconstitutionality of a national law that implemented the European Arrest Warrant Framework Decision. Similarly, in 2006 a Supreme Court decision on the same matter prompted an amendment in Cyprus, where the Constitution had not been amended before accession. In addition to these post-accession amendments, the above-mentioned trend of minimalism has been reversed by the notably far-reaching EUamendments adopted by Romania and Bulgaria, which joined in 2007. While at the pre-accession stage, the model of extensive amendment had hardly resonated with the constitutional drafters of the accession countries, a rather different picture has emerged in result of the additional post-accession amendments and the entry of Romania and Bulgaria. Indeed, in constitutional terms many new Member States would now appear better prepared for EU membership than several older Member States. It may additionally be worthy of note that some countries are mooting further amendments or even the adoption of a new constitution. For example, Estonia has seen a lingering debate on the need to draft a new constitution that would have a distinct EU chapter, following the constitutional uncertainties that resulted from the adoption of a free-standing Constitutional Act on the EU that had been adopted as a political expediency to make EU accession possible. Besides an assessment of the Member States, it ought to be noted that EU law has been adopted by a considerably wider range of countries beyond the European Union. The bulk of the EU single-market legislation and beyond is applicable and binding in the eea countries of Norway, Iceland, and Lichtenstein, with Switzerland being bound by virtue of bilateral agreements with the EU. Croatia, Macedonia, and Turkey are adopting EU legislation by virtue of their status as candidate countries, and the various Western Balkan countries are in the process of harmonizing their legislation with EU law under the Stabilisation and Association Agreements.20 While these groups of countries have either obtained membership or have at least vague

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membership prospects, a more intriguing case is the extension of the EU acquis communautaire to the European Neighbourhood Policy (enp) countries, which enjoy no membership agenda in the foreseeable future. The European Neighbourhood Policy,21 created in 2004, bears considerable conceptual and technical similarities to the EU’s enlargement policy, drawing heavily on the methodologies developed within the framework of the EU pre-accession strategy.22 This phenomenon of exporting EU rules to nonmember countries has come to be characterized as the EU’s “external governance.”23 Yet at the same time, these countries typically have no special provisions that would legitimate the adoption of EU law in their countries. By way of a tentative classiication in terms of the extent to which constitutions relect EU membership, the various member and non-member states could be divided as follows. A broader range of amendments have been put in place in Germany, France, Portugal, Austria, Ireland, Slovakia, Hungary, Bulgaria, Romania, Latvia (after October 2004), and Lithuania (after August 2004). Limited amendments have been introduced in Finland, Greece, Malta, Cyprus (after November 2006), Estonia, Poland, Belgium, Sweden, and Italy. The Czech Republic and Slovenia could also be placed in this category because their provisions use the wording “international organization,” rather than treating the EU as a special organization. Virtually no EU provisions exist in the national constitutions of the Netherlands, Luxembourg, Spain, and Denmark. This observation also concerns the eea countries, candidate countries, and the European Neighbourhood Policy countries, which to a different degree are operating under the requirements of EU law.

Reasons behind the Variable Standards of Constitutional Revision The general picture emerging from the preceding section is that a considerable proportion of the constitutions of the Member States would appear to be ill-equipped in addressing the ramiications of EU membership. As Monica Claes has noted, “the way in which European integration is dealt with in the constitutional texts is often disappointing, often inconsistent, at times downright clumsy … and in many cases underdeveloped.”24 She notes that In most Member States there does not seem to be a consistent policy of cleaning up the Constitution and adapting it to a changing environment. Many Constitutions contain provisions which must to say the least be read in perspective, others are simply no longer in conformity with the changed realities of membership … [M]ost Member States approach the problem on an ad hoc basis, adapting the Constitution from time to time, but not consistently and in a rather disorganised manner.25

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These observations prompt an inquiry into the reasons that may have shaped the current situation. Four factors appear to have played a role to this end. The irst concerns various country-speciic factors that have shaped the EU-related constitutional framework in a number of cases. For example, with regard to the Benelux countries, it has been commented that the constitutional provisions on international organizations were adopted during the 1950s to the 1970s with a view to EU membership, and amendment has not been on the agenda because these countries have traditionally been European-integration friendly, with no constitutional conlicts having emerged. This has also largely been the case with Italy, whose integration provision was introduced with a view to joining the United Nations, having later also been applied in respect of EU membership. Italy had, in fact, embarked in the second half of the nineties on a major constitutional revision, which would also have introduced EU provisions, but the whole plan collapsed in 1998 for political reasons.26 Eventually, a provision on regions in the context of EU law was adopted in 2001. Luxembourg’s clause on “temporary” transfer of sovereignty (article 49bis) has been explained by the small size of the population, and the resulting paucity of legal discussion. In Spain, the Constitution has seen virtually no amendment for thirty years, since its adoption, since considerable value has been placed on the stability of the Constitution and, additionally, political forces have failed to reach a consensus.27 Second, there appears to be an interesting correlation in that most constitutions that lack a speciic provision on the transfer of powers to the EU are subject to more dificult amendment procedures. Such procedures may involve the dissolution of parliament, approval by two consecutive parliaments, or a referendum. The parliament has to be dissolved in Belgium, in Luxembourg, and, when amending the fundamental provisions, in Spain, where additionally a referendum is required. The approval of two parliament memberships is required in Greece (note the relatively late introduction of EU amendments in 2001), the Netherlands, and Finland. In Finland, urgent amendments may additionally be adopted by a 5/6 majority of the parliament membership. In Denmark, a referendum or a 5/6 majority of parliament membership is required for amendments. Another amendment-related factor plays a role in Finland and the Netherlands, where treaties that conlict with the Constitution may be approved by parliament by a special majority. Amongst the new Member States, a referendum is required for sovereignty-related amendments in Estonia, Latvia, and Lithuania and for all amendments in Romania, and the possibility of holding a referendum is envisaged in Poland and Slovenia. The procedural dificulties are compounded by the fact that issues surrounding delegation of sovereignty invariably tend to fuel the outcries of eurosceptics, which makes the more politically attuned parliament members

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and legal experts seek solutions that would be less prone to generate public controversy. As Monica Claes has noted, even where the need for amendments is acknowledged, the complexity and the length of the procedure often leads to postponement of the actual amendment until a later, more convenient time, for instance, after a general election or in order to proit from experiences gained.28 The above trends seem to be broadly in line with a theory proposed by Donald Lutz, whose studies have demonstrated that the degree of rigidity of a constitution affects the amendment rate.29 Eivind Smith has pointed out that it is typical in the case of those constitutions that are very hard to amend (e.g., the constitutions of the United States and Denmark) to engage in “a creative interpretation.”30 The third reason for the at times poor record of amendment of national constitutions with regard to EU matters may lie in a deliberate quest to leave the issues related to delegation of sovereignty untouched. Amendment proposals have often met the objection of “don’t ix it if it ain’t broken”; that is, on the whole the existing provisions on international organizations have not obstructed EU integration, and thus no immediate need has arisen for meddling with the constitutional texts. Andras Sajo has noted that some countries may have used the strategy of what Stephen Holmes called the gag rules; that is, they may have made a strategic decision to remain silent on a particular issue, for the reason that it was still unclear how the European system was going to develop.31 Overall one might perhaps draw parallels here with Steven Krasner’s characterization of sovereignty as “organised hypocrisy”:32 constitutions could perhaps be regarded as a form of “organised hypocrisy” given the increasingly reduced relevance of the provisions on the national exercise of powers in relation to the realities of Europeanization and the globalization of governance. Constitutions are typically amended, though, where a domestic change in the distribution of powers occurs. The “hypocrisy” element thus concerns only the external dimension of governance. The fourth reason may lie in the fact that constitutional lawyers, who often work in a domestic framework of reference, simply fail to understand the constitutional signiicance of the EU. Andras Jakab, in an article evocatively entitled “Neutralizing the Sovereignty Question,” has noted that “dominant views in the member states’ constitutional doctrines ignore the actual challenge of the European Union to national sovereignty and by some kind of self-deception believe that (almost) nothing has changed.”33 The ratiication of the European Constitutional Treaty, which was subsequently replaced by the less ambitious Lisbon Treaty, offered a striking case in point in terms of demonstrating the reluctance to amend national constitutions. Of the twenty-ive Member States at the time, France was the only country to amend its Constitution in view of the ratiication of the treaty. It did so as a result of the Conseil Constitutionnel’s decision in which

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certain further encroachments were identiied on the “essential conditions of the exercise of national sovereignty.”34 Whilst the issue of amendment was considered in some other countries, the relevant institutions (e.g., the Constitutional Court in Spain, the expert committee in Estonia, and the Parliamentary Committee in Finland) found no need for any textual amendment. However, in Finland a special procedure of “exceptive amendment” was deployed, which enables parliamentary ratiication of the treaties that conlict with the Constitution. In only one of the Member States can the amendment be seen as disappointing, since it is hardly conducive to the evolution of a true multi-level or intertwined constitutionalism or a “European constitutional order,”35 where national constitutions would constitute equal and credible building blocks alongside the EU treaties. Whilst the shortcomings in the adaptation of the constitutions are a matter of national discretion and will trigger no sanctions on the part of the EU, the EU amendments may well have important ramiications for the Member States’ internal legal systems, as well as for the broader constitutional and judicial debates in Europe. One concern that has come to be highlighted by scholars is the issue of the devaluation of constitutions: are constitutions still taken seriously, or have they perhaps in part been reduced to paper tigers? Bruno De Witte coined the expression “European deicit” in the national constitutions, pointing to the fact that constitutions might gradually be becoming somewhat obsolete with regard to the realities in the exercise of powers.36 In a similar vein, Andras Sajo has noted that “too many gag rules will lessen the constitution’s functionality and undermine its social relevance.”37 In Denmark, where the Constitution still contains no explicit mention of the EU and the courts rarely exercise constitutional review, Hjalte Rasmussen has noted a trend towards “waning constitutionalism” and “constitutional amorphousness.”38 With regard to such constitutions, Monica Claes has rightly noted that “the least that can be said is that these States may not be taking their own Constitution seriously, and that they … [may] not do justice to the functions of a constitutional document … To omit the EU and the State’s participation in it from the national Constitution can even be considered a devaluation of the national Constitution, and expression of carelessness as regards the supposed most fundamental norm of the polity.”39 In terms of the scope of constitutional amendments, it ought to be borne in mind that constitutions in general have been classiied into two main types – “historic” and “revolutionary” (Leonard Besselink).40 The former, which include, for example, the British and Dutch Constitutions, have developed incrementally over a long period, being non-formalistic and at least as much political in nature as legal. By contrast, the latter group of constitutions, which include, for instance, those of Germany, Italy, France, and Ireland, tend to have originated in a political or social cataclysm, which forms the “moving myth” that inspires the Constitution. These constitutions

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constitute the political reality and tend to have a distinctly legal character, being enforced by constitutional courts.41 The constitutions of Central and Eastern Europe belong in the second group: as a reaction to the Communist period marked by nihilism concerning constitutional rules, they have a distinctly legal character and are relatively lengthy and detailed, and their observance is rigorously policed by powerful constitutional courts, with a high ratio of annulment of legislative acts.42 Updating the constitutions with EU amendments is therefore likely to assume greater importance in the case of those countries whose constitutions are revolutionary in nature, if the constitutional culture is to be preserved. Another consideration in support of amending constitutions is that an inadequate constitutional framework may place an excessive burden on constitutional courts in adjudicating conlicts between national law and EU law. Such a framework may shift the courts’ framework of reference from the legal and constitutional requirements to considerations of political and European/international expediency. Courts, and in particular constitutional courts, may ind themselves in a vexed situation, having to ind pragmatic solutions in ensuring the constitutionality of the legislation without jeopardizing the supremacy of EU law. The discourse on the reception of the supremacy of EU law in national law has predominantly focused on “judicial dialogues”43 and “co-operative constitutionalism,”44 where the national courts and the ecj have engaged in a structured conversation and cooperation in resolving issues pertaining to the relationship between EU law and national legal orders.45 Where the supremacy of EU law has been jeopardized or questioned in any way, the relevant courts have invariably been labelled as unfriendly or uncooperative. However, I have shown elsewhere that in a number of cases the constitutional courts have in fact been pragmatic and gone to great lengths to avoid clashes with EU law in their quest to ind practical, EU-friendly solutions despite conlicts with the texts of the national constitutions that had not been adequately amended beforehand.46

S o v e r e i g n t y a n d EU M e m b e r s h i p : Limits Set to the Transfer of Powers as Set by Constitutional Courts The cornerstone of national constitutions is the idea that sovereignty is vested in the people. Accordingly, national constitutions establish the pouvoir constituant’s agreement on how sovereign powers are distributed and exercised in the state. Sovereignty comprises two facets. The irst is internal sovereignty, connoting the supreme decision-making power in the state. The second is external sovereignty, which refers to the autonomy of action in the international arena. In both internal and external sovereignty,

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the national constitutions embody the idea that no supreme power can be imposed outside the constitutionally established mechanisms. As noted previously, constitutions have been amended to allow delegation or transfer of powers to the European Union speciically or to international organizations in general. Notwithstanding the differences in the means of authorization, all constitutions share the basic idea that the Member States continue to hold the ultimate authority, and only the exercise of delimited sovereign powers can be transferred.47 Several national constitutional courts have reasserted this view and deined the criteria to delineate the permissible extent of any such delegation. In particular, the creation of the European Union and the deepening of integration by the Maastricht Treaty sparked an intensive debate on the extent of powers that a Member State may delegate without incurring the loss of its sovereignty. This question was referred to the highest courts in Germany, Denmark, and France. For instance, in the German Maastricht case, the plaintiff argued that the entry into force of the Maastricht Treaty threatened the “existence of the Federal Republic of Germany as an independent sovereign State, something which under Article 79(3) of the Constitution … cannot be subject to constitutional amendment.”48 The German and Danish highest courts established a number of criteria to assess the level of integration permissible so that sovereignty would not be lost.49 The Maastricht decision of the German Constitutional Court has come to be central to the EU’s constitutional discourse, although some points were also repeated in the Maastricht decision of the Danish Supreme Court. Both courts established that through constitutional procedures these countries have accepted to delegate some competences in order to exercise them in common with the other Member States. Such delegation has to remain strictly within the limits set by the Accession Treaty. In assessing the Maastricht Treaty, both Courts found that the Treaty did exceed these limits nor involved a critical degree of delegation of competences. In the German Maastricht decision, seven broader factors or criteria were established in reaching the conclusion that sovereignty is preserved in the context of EU membership. The irst and the main consideration for the German Constitutional Court was that the Member States remain the “Masters of the Treaties.” They maintain this position because each new delegation of competences is subject to their unanimous approval, combined with ratiication under the national constitutional procedures. The second main criterion for preserving sovereignty was that the so-called Kompetenz-Kompetenz remains with the Member States: the EU possesses no power over jurisdictional conlicts. The Member States have transferred only limited individual powers, which have been speciied in a suficiently clear and foreseeable manner. Third, the

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Constitutional Court pointed out that the Union’s competences are mainly conined to the economic ield, whereas fundamental spheres of state sovereignty, such as defence, foreign policy, and internal affairs, fall under inter-governmental co-operation, requiring the unanimous consent of all Member States. Fourth, the Court found that the Maastricht Treaty did not exceed the extent to which new powers and functions of a state can be delegated, in that substantial powers still remained with national institutions, thereby upholding the state’s sovereignty. Fifth, the Court noted that democratic legitimacy predominantly derives from the national level. It stems from the national authorisation to delegate new powers and from the accountability of governments vis-à-vis national parliaments for their decisionmaking activity in the Council. The European Parliament’s complementary role and the absence of a European people as such further exempliies the non-state character of the Union according to the German Constitutional Court. Sixth, reference was made to the fact that the EU (at the time) had no legal personality and that the Member States can withdraw from the Union. Last but not least, the Court maintained that ultimate supremacy lies with the national constitutions. In combination with the concept of sovereignty, the Constitutional Court therefore ultimately remains responsible for controlling whether EU institutions act within the limits of the powers conferred upon them by the Member States under the treaties. A set of criteria to delineate the transfer of sovereignty has also been set by the French Constitutional Council, albeit in a different context. Owing to the system of preliminary rather than posterior constitutional review of treaties enshrined in the French Constitution, the Constitutional Council has assessed the need for constitutional amendment rather than issuing warnings about the limits of permissible integration. This was also the case with the ratiication of the Maastricht Treaty, where the French Constitutional Council maintained its earlier reasoning that changes to the European treaties may be acceptable provided that they do not undermine “the essential conditions for the exercise of national sovereignty.”50 These “essential conditions” are the state’s institutional structure, the independence of the nation, territorial integrity, and the fundamental rights and liberties of nationals.51 The Constitutional Council found that these conditions had indeed been affected by the provisions of the Maastricht Treaty concerning the Monetary Union, the common visa policy, and the voting rights of EU citizens in local elections. Therefore, the French Constitution was supplemented by a new title on the EU, which included the abovementioned “European integration clause” (Article 88(1)) as well as explicit provisions concerning the issues noted (Article 88(2) and (3)). A similar method was also applied prior to the ratiication of the Amsterdam Treaty, leading to what has since been portrayed as a “gradual evaporation” of national sovereignty.52

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N at i o n a l C o n s t i t u t i o n s a n d t h e I d e a of a European Constitution The limits to integration came to be tested once again in the process of ratiication of the Treaty Establishing a Constitution for Europe, which was subsequently replaced by the less ambitious Lisbon Treaty. The Lisbon Treaty, which came into effect in December 2009, in essence introduced changes to the pre-existing treaties, the Treaty on the European Union (teu) and the (re-named) Treaty on the Functioning of the European Union (the tfeu, formerly the EC Treaty). One of the central elements in the German Constitutional Court’s abovediscussed Maastricht decision had been the idea that the EU is not a state, because of the absence of a constitutional document in the EU, with the EU treaties being by nature international treaties and the Member States retaining the status of the “Masters of the Treaties.” This idea naturally prompted questions about the adoption of a document that was entitled the Treaty Establishing a Constitution for Europe: in the discourse on whether the EU still remains a confederation of states or whether it might be heading towards a federal future, the absence of a fully ledged constitution has been regarded as a key argument against the latter scenario. Traditionally, constitutions have been regarded as the founding and supreme instruments governing the exercise of powers in sovereign nation-states, and there has been a deeply entrenched understanding within the national constitutional doctrine that the notion of a constitution is inherently bound to a state. The process of ratiication of the European Constitutional Treaty offered an interesting case study of how national constitutional law and doctrine accommodated the potential co-existence of two documents bearing the name constitution. In the aftermath of the Maastricht decision, an important line of literature emerged that could be labelled as a post-national or “post-etatist”53 approach to constitutionalism. It contested the premise that constitutions are inherently linked to states, arguing that they may exist in non-state contexts, particularly in the EU as a new type of transnational polity.54 Indeed, examples such as the ilo Constitution of 1919 and constitutions of golf clubs have often been used to illustrate the existence of constitutions in non-state contexts. In addition, various theories have gained ground that attempt to conceptualize the co-existence of constitutions at multiple levels, such as “multi-level constitutionalism” (Ingolf Pernice)55 and “constitutional pluralism” (Neil Walker).56 Jacques Ziller has offered the concept of “intertwined constitutionalism,”57 which has the distinct advantage of avoiding any hierarchical connotations. The language of constitutionalization has also increasingly been deployed in public international law, in parallel to the trend of public decision making increasingly shifting away

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from the nation-state towards international actors of a regional and functional nature.58 Indeed, the 1950 European Convention of Human Rights (echr) has been characterized by the European Court of Human Rights as a “constitutional document of the European public order” for the protection of human rights, because it amounts to more than a treaty between sovereign states.59 In the framework of a collaborative project,60 I sought to assess whether the ratiication process of the European Constitutional Treaty triggered a revision of the traditional thinking in the national constitutional doctrine, in line with recent European theories such as post-national, multi-level, or intertwined constitutionalism. Whilst these theories are mainly represented by what could broadly be classiied as “EU-lawyers,” the question for the project was to explore to what extent such theories have made inroads in the national constitutional thinking. To this end, the contributors were asked to consider the debates and oficial documents of the political institutions that were involved in the ratiication process in the Member States, as well as constitutional court decisions and scholarly discourse at the national level. The study showed that despite the original denomination of the document as a “constitution,” the various national institutions that were involved in the ratiication process approached the Treaty Establishing a Constitution for Europe as yet another international treaty. This view was taken, for instance, by the French and the Spanish Constitutional Courts in their decisions on the Constitutional Treaty, as well as by the Finnish Parliament’s Constitutional Law Committee, Belgium’s Council of State, and Estonia’s Working Group of legal experts. The main arguments in classifying the Treaty Establishing a Constitution for Europe as a treaty rather than as a constitution were encapsulated in the decision of the French Conseil Constitutionnel. It stated that the Treaty Establishing a Constitution for Europe was an international treaty because it did not change the nature of the Union or the character of the treaty as an international treaty. This was because of the treaty’s provisions on entry into force and amendment, the reference in (the then) Article I-5 to the respect for national identities inherent in the Member States’ political and constitutional structures, the system of attributed competences, and the fact that the French Constitution would have remained at the top of the French internal legal order.61 This approach also appeared to prevail elsewhere. Indeed in the Czech Republic the very idea of introducing a course entitled European Constitutional Law in the leading law faculty of the country was met with considerable resistance.62 Overall, the above appears to illustrate that the traditional approach that links constitutions to states continues to be deeply rooted at the national level: the EU’s proposed constitutional treaty was viewed as an international treaty, since the EU’s nature would not have been changed in a “fundamental

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way”: i.e., the EU would not have been transformed into a state. In other words, a document that falls short of transforming an entity into a state cannot amount to a “constitution.” Whilst an increasing number of commentators have, since the Maastricht decision, lamented the application of the nineteenth-century constitutional concepts to the globalizing and interdependent world of the twenty-irst century, application of such concepts appears to persist in the national constitutional doctrines. However, a nascent change can be discerned: several contributors to the project themselves noted that thinking along the lines of multi-level constitutionalism is making inroads amongst some scholarly circles at national level. In relation to the last observation, it is interesting to note a fundamental change in the approach to the concept of sovereignty displayed by the Czech Constitutional Court in its 2008 judgment on the constitutionality of the Lisbon Treaty.63 The Czech Constitutional Court extensively explored the process of globalization and the relevant literature. It concluded that “in a modern, democratic, law-based state, state sovereignty is not an aim in and of itself, in isolation, but is a means to fulilling the above-mentioned fundamental values, on which the construction of a constitutional, law-based state stands.”64 To this end, the Czech Court explored a wealth of literature on globalization and stated the following: “International co-operation and coordination of national policies has become an essential requirement for managing the globalization of the world. For the irst time in history, national security, which was always the core of statehood, can be effectively ensured only by sovereign states acting in concert, unifying resources, technologies, communication and information lows, power, and authority.”65 It noted “a spontaneous, undirected process of increasing intensive integration of the world’s countries in a single economic system. This process, with contributions from the key communication technologies of the mass media, internet, and television, subsequently inluences relationships outside and inside individual states in the areas of politics, culture, social psychology and others, including the area of law.”66 Based on the above, the Czech Court reached a conclusion that may well signal a profound change in the national constitutional doctrine towards the concept of sovereignty: the Court found that the Member States’ sovereignty is ultimately strengthened vis-à-vis the external geopolitical and economic factors and newly emerging superpowers.67

T h e R o l e o f N at i o n a l C o n s t i t u t i o n s i n S h a p i n g C o n s t i t u t i o n a l i s m a t t h e EU L e v e l One of the themes that underpins the volume at hand is the general potential that sub-level constitutions may hold for bringing about a change at the federal/state level. Indeed, in the EU context national constitutions have

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in several crucial ways played a role in driving constitutional reforms at the EU level. Three developments will be briely explored here: protection of fundamental rights, clariication of competences, and the role played by the national constitutional ratiication procedures. It is well known that the European Court of Justice developed the concept of protection of fundamental rights primarily as a response to national challenges to supremacy, in particular the German Constitutional Court’s Solange I decision.68 However, concerns continued to be voiced about the level of protection, with individual rights rarely being given priority over the common market interests.69 In 1992, Coppel and O’Neill argued in a well-known article that the ecj’s high rhetoric about human rights protection has merely been instrumental in the Court’s expansion of the scope and impact of European law, with fundamental rights not being taken seriously by the Court.70 Such concerns resurfaced in the course of the Banana saga, where German courts voiced their open distrust with regard to the EU institutions and the protection of fundamental rights offered by the ecj to individuals.71 The ecj’s decision in the Banana case72 was widely considered to prove the deiciency of the review by the Court of Justice, falling short of the level of protection mandated by the echr and the constitutions of the Member States in being too lenient with regard to EU legal measures.73 Besides the priority being granted to the common market interests, the divergence in human rights protection at the national and the EU level involves a number of additional facets,74 some of which were more recently also pointed out by seven judges of the European Court of Human Rights in their concurring opinions in the Bosphorus case.75 For example, before the EU Charter of Fundamental Rights came into effect in 2009, the fundamental rights involved had not been directly protected as such but only indirectly as unwritten general principles. Whilst rights can be deined in precise terms and may be restricted only under speciied circumstances, principles are relatively vague and uncertain in scope and must inherently suffer exceptions.76 A further weakness is that overall, few human rights cases reach the ecj in the irst place; the reasons include the potential discouragement of the litigants by the lack of sympathy displayed by the ecj towards arguments based on fundamental rights and the infamously narrow standing rules for individual complaints pre-Lisbon.77 The creation of the Charter of Fundamental Rights in 1999 was regarded as a direct response by the EU to the concerns voiced with regard to human rights protection in the EU. Recent concerns of national constitutional courts about the protection of fundamental rights by the EU institutions and the European Court of Justice in relation to EU measures regarding blanket electronic surveillance, secret legislation, European Arrest Warrant, and property rights may well show the continued importance of national constitutions in mandating a rethinking of the fundamental rights protection in the EU system.78

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The second key area where national constitutions have served as a catalyst for change is the clariication of the competences of the European Union. The underlying principle on the division of competences between the European Union and the Member States is that of “attributed powers,” under which the EU is to act within the limits of the powers conferred upon it by the treaties. However, in reality the Member States have witnessed a process of “creeping competence,” whereby EU institutions have interpreted their powers in an expansive way, which has subsequently been approved in the case law of the European Court of Justice. In the 1990s the constitutional courts of the Member States, especially that of Germany in the above-discussed Maastricht decision, expressed their concerns about a hidden expansion of EU competences. Indeed the German Constitutional Court warned that it will exercise the right to review whether EU measures might be ultra vires and underlined the fact that the delegation of competences remains the preserve of the Member States. The concerns expressed at the national constitutional level with regard to the division of competences have led to several tangible results. The Maastricht Treaty introduced the principle of subsidiarity, which permits EU institutions to act in areas of concurrent competences only if and insofar as the objectives of the proposed action cannot be suficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Union. Additionally, while previously virtually no judicial limits had been placed by the ecj on the EU competence, in 1996 the Court of Justice found that the then Article 308 of the EC Treaty was insuficient as a legal base for the EU’s accession to the European Convention on Human Rights.79 Furthermore, in 1998 for the irst time an important EU measure was annulled on the grounds of a lack of competence in Germany v Council,80 where the Tobacco Advertising Directive was annulled owing to a lack of a legal base for the EU institutions to harmonize in the ield of public health. The quest to better delineate the competences also became one of the central factors behind the EU’s constitutional reform. For the irst time, the Lisbon Treaty created a clear catalogue of competences for the EU, introducing a list of competences that are exclusive, shared, and complementary (Articles 2–6 of the Treaty on the Functioning of the European Union). Additionally, the reforms include a so-called yellow card mechanism, whereby the European Commission is required to reconsider its legislative proposal should one-third of the national parliaments consider that the proposal in question does not comply with the principle of subsidiarity. The third main way in which national constitutions have played a role at the EU level lies in the impact that the national constitutional procedures may have on the ratiication of EU Treaties. The analyses of the causes of ratiication failures in various referendums have often focused on popular opinion and individual potentially misguided reforms in the treaties. However, an

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understanding of the national ratiication and referendum procedures remains of crucial importance for the adoption of any new EU treaty in the future. Before the entry into force of the Lisbon Treaty, Article 48 teu required that each and every Member State has to ratify treaty amendments under “the national constitutional procedures.” This procedure was also applied to the ratiication of the EU’s Constitutional Treaty and subsequently the Lisbon Treaty, which rendered the ratiication process a considerable challenge in comparison with previous ratiications, given the EU’s enlargement from ifteen to twenty-seven Member States. The deliberations in the Convention on the Future of Europe saw calls to facilitate the treaty amendment procedure. While the Lisbon Treaty did indeed introduce possibilities for a simpliied amendment procedure for certain limited areas, this reform remains controversial given that the unanimity requirement, coupled with ratiication under the national constitutional procedures, lies at the core of the concept of the Member States being the “Masters of the Treaties” and thus of the preservation of their sovereignty. Overall, the way in which national constitutions have affected the European Union’s constitutional system and served as a catalyst for change is an area where little research exists, and thus systematic scholarly inquiry would be welcome. To this end, the results of an ongoing study, The European and National Constitutional Law Project, which seeks to study the migration of constitutional principles from the national to European level, may be of considerable interest to readers in the future.81

Notes 1 Michael Burgess, Federalism and European Union: The Building of Europe, 1950–2000 (London and New York: Routledge 2000), 23ff. 2 Ibid., 28. 3 Robert Schuetze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford: Oxford University Press 2009). 4 Clive Church and Paolo Dardanelli, “The Dynamics of Confederalism and Federalism: Comparing Switzerland and the EU,” Regional and Federal Studies 15 (2005): 177–8. 5 Koen Lenaerts, “Federalism: Essential Concepts in Evolution: The Case of the European Union,” Fordham International Law Journal 21 (1998): 746ff. 6 Armin Von Bogdany, “The European Union as a Supranational Federation: A Conceptual Attempt in the Light of the Amsterdam Treaty,” Columbia Journal of European Law 6 (2000): 27ff. 7 Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press 1999); R. Bellamy and D. Castiglione, “Building the Union,” Law and Philosophy 16 (1997): 421ff.

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8 Case 294/83, Les Verts v European Parliament [1986] E.C.R. 1339, para. 23. 9 See, e.g., Monica Claes, “Constitutionalizing Europe at Its Source: The ‘European Clauses’ in the National Constitutions, Evolution and Typology,” Yearbook of European Law 24 (2005): 81–125; Bruno De Witte, “Constitutional Aspects of European Union Membership in the Original Six Member States: Model Solutions for the Applicant Countries?” in Alfred Kellermann, Jaap De Zwaan, and Jeno Czuczai, eds., EU Enlargement: The Constitutional Impact at EU and National Level (The Hague: Asser Press 2001), 73; Anneli Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (Cambridge: Cambridge University Press 2005). 10 For a comparative overview, see Claes, “Constitutionalizing Europe at its Source,” 81–125. For accounts on individual countries, see contributions published in Kellermann et al., EU Enlargement. 11 Claes, “Constitutionalizing Europe at its Source,” 107. 12 Ibid., 123. 13 Constitutions have been amended in this respect in Germany, Finland, Portugal, Austria, Sweden, France, Belgium, and Greece. 14 Germany, France, Portugal, Austria, Spain, and Belgium. 15 Portugal and Austria. 16 France, Germany, Portugal, and Greece. 17 For details, see, e.g., Claes, “Constitutionalizing Europe at its Source,” 81ff., and Albi, EU Enlargement and the Constitutions of Central and Eastern Europe, chap. 2. 18 For details, see ibid., chap. 5. 19 See ibid. 20 For an in-depth analysis of the Western Balkan countries, see Steven Blockmans, Tough Love: The European Union’s Relations with the Western Balkans (The Hague: Asser Press 2007). 21 Commission of the European Communities, Communication on Wider Europe – Neighbourhood: A New Framework for Relations with Our Eastern and Southern Neighbours, com (2003), 104 inal, 11 March 2003. 22 Marise Cremona and Christophe Hillion, “L’Union fait la force? Potential and Limitations of the European Neighbourhood Policy as an Integrated EU Foreign and Security Policy,” eui Working Papers in Law, No. 2006/39, 8–18. 23 See Sandra Lavenex, “EU External Governance in ‘Wider Europe,’” Journal of European Public Policy 11 (2004): 682. 24 Claes, “Constitutionalizing Europe at its Source,” 124. 25 Ibid., 123. 26 See De Witte, “Constitutional Aspects of European Union Membership,” 73–4. 27 As noted by Carlos Viver at the workshop that forms the basis of this volume. 28 Claes, “Constitutionalizing Europe at Its Source,” 123. 29 Donald Lutz, “Towards a Theory of Constitutional Amendment,” American Political Science Review 88 (1994): 355–70. 30 Eivind Smith, “The Constitution between Politics and Law,” in Smith, ed., The Constitution as an Instrument of Change (Stockholm: sns Förlag 2003), 34.

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31 Andras Sajo, “Accession’s Impact on Constitutionalism in the New Member States,” in George Bermann and Katharina Pistor, eds., Law and Governance in an Enlarged European Union (Oxford: Hart 2004), 427. 32 Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press 1999). 33 Andras Jakab, “Neutralizing the Sovereignty Question: Compromise Strategies in Constitutional Argumentation before European Integration and Since,” European Constitutional Law Review 2 (2006): 390. 34 See for details Jacques Ziller’s chapter on France in Anneli Albi and Jacques Ziller, eds., The European Constitution and National Constitutions: Ratiication and Beyond (The Hague: Kluwer 2006). 35 This expression is borrowed from Jürgen Schwarze “Introduction,” in Jürgen Schwarze, ed., The Birth of a European Constitutional Order: The Interaction of National and European Constitutional Law (Baden-Baden: Nomos 2000): 14. 36 De Witte, “Constitutional Aspects of European Union Membership,” 73. 37 Sajo, “Accession’s Impact on Constitutionalism in the New Member States,” 427. 38 Hjalte Rasmussen, “Denmark’s Waning Constitutionalism and Article 20 of the Constitution on Transfer of Sovereignty,” in Albi and Ziller, The European Constitution and National Constitutions, 149–56. 39 Claes, “Constitutionalizing Europe at its Source,” 124. 40 See Leonard Besselink, “The Dutch Constitution, the European Constitution and the Referendum in the Netherlands,” in Albi and Ziller, The European Constitution and National Constitutions, 113ff. 41 Ibid. 42 This observation has been developed in more detail in Albi, EU Enlargement and the Constitutions of Central and Eastern Europe, 22ff. See also Eivind Smith, “The Constitution as an Instrument of Change: Introduction,” in Smith, The Constitution as an Instrument of Change, 15ff. 43 See Alex Stone Sweet, “Constitutional Dialogues in the European Community,” in Anne-Marie Slaughter, Alex Sweet Stone, and Joseph Weiler, eds., The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in Its Social Context (Oxford: Hart Publishing 1998), 325–6. 44 See Andras Sajó, “Learning Co-operative Constitutionalism the Hard Way: The Hungarian Constitutional Court Shying Away from EU Supremacy,” Zeitschrift für Staats- und Europawissenschaften (2004): 351. 45 For a more detailed account, see Monica Claes, The National Courts’ Mandate in the European Constitution (Oxford: Hart Publishing 2006). 46 Anneli Albi, “Supremacy of EC Law in the New Member States: Bringing Parliaments into the Equation of ‘Co-operative Constitutionalism,’” European Constitutional Law Review 3 (2007): 25. 47 See in more detail De Witte, “Constitutional Aspects of European Union Membership,” 78.

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48 Brunner, BVerfGE 89, 155; [1994] 1 cmlr, 57, at 75. 49 Germany: Brunner, BVerfGE 89, 155; [1994] 1 cmlr, 57, at 75; Denmark: Carlsen v. Rasmussen, Judgment of 06.04.1998 [1999] C.M.L.R., 855–62 50 Decision no. 92–308 DC, 09.04.1992, www.conseil-constitutionnel.fr/decision/ 1992/92308dc.htm. 51 These criteria are, according to Jacques, contained in the Conseil Constitutionnel Décision of 22.05.1985. see Jean-Paul Jacques, “Commentaire de la décision du Conseil constitutionnel n 92–308 DC du 9 avril 1992: Traité sur l’Union européenne 1992,” (1992) 28 Revue Trimestrielle de Droit Européen, 256. 52 Bertrand Mathieu, “Droit constitutionnel français et construction européenne,” in Kostas Mavrias and Didier Maus, eds., Défense nationale – intégration européenne: Les réponses constitutionnelles (Sakkoulas 2002), 54. 53 The latter term has been used by Miriam Aziz, “Sovereignty Lost, Sovereignty Regained? Some Relections on the Bundesverfassungsgericht’s Bananas Judgment,” Columbia Journal of European Law 9 (2002): 116ff. 54 For example, see Jo Shaw, “Postnational Constitutionalism in the European Union,” Journal of European Public Policy 6 (1999): 579; the articles in Joseph Weiler and Marlene Wind, eds., European Constitutionalism beyond the State (Cambridge: Cambridge University Press 2003); Paul Craig, “Constitutions, Constitutionalism, and the European Union,” European Law Journal 7 (2001): 137; Udo Di Fabio, “European Charter: Towards a Constitution for the Union,” Columbia Journal of European Law 7 (2001): 164; Rainer Arnold, “Peut-on déinir le phénomène d’européanisation des droits constitutionnels nationaux?” in Jacques Ziller, ed., L’européanisation des droits constitutionnels à la lumière de la Constitution pour l’Europe (Paris: L’Harmattan 2003), 85; Michiel Brand, “Afirming and Reining European Constitutionalism: Towards the Establishment of the First Constitution for the European Union,” European University Institute, Law Department, Working Paper No. 2004/02, Florence, 17, available at www.iue.it/PUB/law04–2.pdf. 55 Ingolf Pernice, “Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited,” Common Market Law Review, 36 (1999): 703, 707. For relections on this concept, see Joachim Nergelius, Pasquale Policastro, and Kenji Urata, eds., Challenges of Multi-level Constitutionalism (Kraków: Polpress.PL Publisher 2004). 56 Neil Walker, “The Idea of Constitutional Pluralism,” Modern Law Review 65 (2002): 317–59. 57 See J. Ziller, “Conclusions,” in Albi and Ziller, The European Constitution and National Constitutions. 58 See, e.g., Erika De Wet, “The International Constitutional Order,” International and Comparative Law Quarterly 55 (2006): 51–76; Christian Walter, “Constitutionalising (Inter)national Governance: Possibilities for and Limits to the Development of an International Constitutional Law,” German Yearbook of International Law 44 (2001): 192, 170.

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59 See Cases Loizidou v. Turkey, Preliminary Objections, 23 March 1995, 1995 echr, Ser. A., No. 310, para. 75, and Bosphorus v. Ireland, 45036/98 [2005] echr 440, 30 June 2005. 60 The results of the project have been published in Albi and Ziller, The European Constitution and National Constitutions. 61 Decision No. 2004–505 DC of 19 November 2004, available on the website of the Conseil at . 62 See the chapter by Zdenek Kühn on the Czech Republic and Slovakia in Albi and Ziller, The European Constitution and National Constitutions. 63 Pl.US. 19/08, English translation available at the Court’s website, http://www. usoud.cz/. 64 Ibid, para. 209. 65 Ibid, para. 101. 66 Ibid, para. 101. 67 Ibid, para. 102. 68 Decision of 29 May 1974, BVerfGE 37, 271. For a detailed account of the fundamental rights cases of the Member States’ constitutional courts, see Monica Claes, The National Courts’ Mandate in the European Constitution (Oxford: Hart Publishing 2006). 69 For discussion of relevant literature, see Sionaidh Douglas-Scott, Constitutional Law of the European Union (Pearson Education 2002), 460–1 and 454–8. 70 Jason Coppel and Aidan O’Neill, “The European Court of Justice: Taking Rights Seriously?” Common Market Law Review 29 (1992): 670ff. and 692. 71 See for example Ulrich Everling, “Will Europe Slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts,” Common Market Law Review 33 (1996): 401. 72 Case C-280/93 Germany v Council [1994] ecr I-4973. 73 Bruno De Witte, “The Past and Future Role of the European Court of Justice in the Protection of Human Rights,” in Philip Alston, ed., The European Union and Human Rights (Oxford: Oxford University Press 1999), 878–9. 74 See Leonard Besselink, “Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union,” Common Market Law Review 35 (1998): 634ff., and De Witte, “The Past and Future Role,” 879. 75 Joint Concurring Opinion of Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki, and Concurring Opinion of Judge Ress, Bosphorus v. Ireland, 45036/98 [2005] echr 440. 76 Besselink, “Entrapped by the Maximum Standard,” 634ff.; Tuomas Ojanen, “The Impact of EU Membership on Finnish Constitutional Law,” European Public Law 10 (2004): 543–4. 77 De Witte, “The Past and Future Role,” 882–3. 78 Anneli Albi, “From the Banana Saga to a Sugar Saga and Beyond: Could the PostCommunist Constitutional Courts Teach the EU a Lesson in the Rule of Law?”

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The European Constitution and National Constitutions. Common Market Law Review 47 (2010): 791–829. 79 Opinion 2/94 on Accession by the Community to the echr [1996] ecr 1–1759. 80 Case C-376/98 Tobacco Advertising [2000] ecr I-8419. 81 The project is conducted by Professor Monica Claes at the University of Maastricht in the Netherlands. See http://www.maastrichtuniversity.nl/web/Faculties/ FL/Theme/Departments/InternationalAndEuropeanLaw/Projects/Eunacon/ AboutEunacon.htm.

13

Sub-national Units, Member States, and the European Union Or ne l l a P orchi a Introduction 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, conirming 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 domestic state structures goes hand in hand with the process of deepening European integration, although this does not mean that there is a direct causal link between the two processes. Indeed, the establishment of regional self-government has been primarily induced by domestic factors. The situation, however, is different with regard to the new Member States, such as Poland, where the establishment of the subnational entities voivodships was explicitly driven by the objective of meeting the requirements of EU cohesion policy. Nevertheless, boosted by the completion of the internal market, EU Member States (such as Austria, Belgium, and Germany) have been subjected to strong pressure towards the adaptation of domestic institutions and intergovernmental relationships in response to the impact of European integration. A number of authors2 distinguish three periods of regional activism: the 1980s, the 1990s, and the early years of the new millennium. The irst two periods of integration saw more widespread optimism that the European integration process would be more accessible to non-central government actors. The lobbying effort produced a concrete outcome in the Treaty of

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Maastricht (teu), which came into force in 1993, with the establishment of the Committee of the Regions (CoR). In the current period, however, even regions with legislative powers (so-called RegLegs) lack optimism in their desire to become part of a formal structure as an EU-wide “third level,”3 and so they place an emphasis on Member State channels and on the mechanisms of internal coordination. In brief, “Europeanization” could be identiied as an interactive two-way process between the domestic and the EU levels, involving both top-down and bottom-up pressures. On the one hand, it covers the EU impact on the institutions, policies, and political processes of the Member States (“top-down Europeanization”), while on the other hand, it includes the “uploading” of national and sub-national policy preferences and interests to the European level (“bottom-up Europeanization”). This chapter, which refers speciically to the Italian experience, addresses three important issues that are closely related: (1) the scope of the constitutional space available to the sub-national units in relation to the European integration process (formal-level constitutional change), (2) the extent to which the regions have occupied the constitutional space (changes in practice), and on a different but related note (3) the effects of the initiatives of sub-national units on changes to Member States or to the EU. With this in mind, the chapter begins with a brief description of some basic European principles concerning the relationship between national and European systems. It continues to outline the top-down and the bottom-up pressures of Europeanization. These two dimensions could be linked, and they are better understood from a comprehensive and complementary perspective. To put it briely, in order to properly understand the role of the sub-national entities vis-à-vis the Member State and the EU, this chapter will underline the signiicance of the network dimension, based on a cooperative approach, which will prove more useful than a purely hierarchical perspective. The chapter will close with a series of conclusions.

Framework: Some Basic European Principles The EU is “blind” to the internal territorial arrangements chosen by the Member States.4 It does not propose a model.5 Instead the States maintain the prerogative of choosing a model for territorial organization: federation, a unitary model, or some form of decentralization. The principle of “European blindness” to the internal territorial and constitutional choices of its Member States is expressed by Article 4, paragraph 2, teu. According to this provision, “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions.” This principle should not be interpreted so broadly that it prevents the Union from

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achieving the objectives stated in the Treaty and carrying out the policies adopted pursuant to it, nor so narrowly that basic domestic ideas are ignored. Notwithstanding this, the EU has taken certain steps towards decentralization as a guarantee of respect for the democratic clause (especially for the new Member States) or as the best administrative way to achieve European goals. The “regional blindness” is also expressed by the principle of unity. Since the 1990s, the European Court of Justice has ruled that “Member State, for the purposes of the institutional provisions, refers only to government authorities of the Member States of the European Communities and cannot include the governments of regions or autonomous communities, irrespective of the powers they may have.”6 In other words, it is the Member State that is responsible vis-à-vis the Commission for due performance of its obligations and, consequently, subject to possible legal action pursuant to Article 258 of the Treaty on the Functioning of European Union (tfeu).7 The State cannot allege that provisions, practices, or circumstances existing within its internal legal system justify a failure to comply with obligations and time limits laid down by European Union law. Article 4, teu, as amended by the Lisbon Treaty of 2007, explicitly combines the principle of autonomy, or “European blindness regarding the national constitutional choices,” with another basic principle: the principle of co-operation.8 This principle is double-tracked. It is able to affect the relationship between the EU and the Member States (and vice-versa), and from a horizontal perspective it may also have an effect upon relationships among Member States. Indeed, Article 4, paragraph 2, states that “[p]ursuant to the principle of sincere co-operation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which low from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.” In other terms, this new provision points out the bi-univocal dimension of the principle, which implies that the EU is obliged to cooperate with the Member States.9

Top-down Pressures (Descending Phase) In general terms, the EU does not liaise with the regions. This is left to the Member State. Nevertheless, the treaties (teu and tfeu) take the regional dimension into consideration in several articles.10 Moreover, as we will see, the EU deals with sub-national actors in many instances (such as regional policy). Above all, it is in the Commission’s interest to enter into a dialogue

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with the regions as part of the overall framework of multi-level governance.11 However, when the European Union gets in touch with the sub-national entities, the relationship can be better understood from a network perspective, as distinct from a hierarchical and formal dimension. As we will observe later, in accordance with this complementary approach, the subnational units appear as administrative (European) authorities, regardless of their constitutional space in the national system.12 Another important point related to the top-down perspective concerns the allocation of competences. On the one hand, many competences recently attributed to the regions concern issues previously transferred to and already regulated by the EU. On the other hand, the EU has assumed various competences in ields that were constitutionally assigned to the legislative and administrative powers of regions. Since the completion of the internal market program and the adoption of the teu during the early 1990s, most of the law-making powers of the legislative regions in ields like agriculture, isheries, transport, culture, education and training, employment and social affairs, environmental policy, public health, research and technology, local government, security matters, or even taxation have been affected by the widening scope of the European regulatory activities. In other words, European legislation is regularly cross-cutting the allocation of competences in Member States. This represents a threat to constitutional prerogatives and especially to those of the regions with legislative power (RegLegs: Austria, Belgium, Germany, Italy, Spain, and the United Kingdom). As a consequence, the Member States with legislative regions have had to face the challenges of Europeanization: they have had to adapt the domestic balance of power to the impact of European political integration. However, many doubts remain about the allocation of competences to regions and to the central powers, especially in some ields driven by European law,13 such as State aid or the environment.14 In this regard, it is crucial to establish mechanisms that serve to enforce the boundaries of sub-national constitutional space. Generally speaking, national systems, such as that in Italy, rely on their courts. Indeed, the Italian Constitutional Court enforces the limits when sub-national units attempt to “over-utilize” or expand their sub-constitutional space or, on the contrary, when the central government intends to reduce this space. However, the Constitutional Court has acknowledged that the European integration process may have a signiicant impact on the allocation of internal competences. Indeed the region may have to transfer competences to the State in some cases if this is necessary in order to ensure compliance with EU law.15 The increasing number of cases appearing before the Constitutional Court highlights the complexity of the issue. The competences question is also relevant to the so-called descending phase: in the ields of their legislative competence many regions have the power and the duty to implement EU law. Considering the Italian

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experience, the regions have improved the system for the implementation of EU law, which can be carried out at two different levels: the legislative and the administrative. In other words, regional responsibility in EU matters could affect both legislation and the administration.16 Several regional statutes have introduced new instruments designed to ensure the regular implementation of EU directives. For example, Piemonte, Lazio, Friuli Venezia Giulia, and Emilia Romagna annually enact what we could call a Regional Community Act to implement the European directives concerning their legislative areas of competence. Other mechanisms have been adopted by the regions in order to simplify the implementation also by means of administrative regulations. Closely linked to the issue of implementation is the question of responsibility at the EU level. Regional participation is subject to the principle of the unity of the State (i.e., the regions cannot derogate from the guidelines on European policy laid down by the State), which entails the principle of the State’s exclusive responsibility at EU level, as mentioned above. This principle makes it necessary to identify mechanisms and procedures to ensure that local entities respect European Union law. Primarily, the Italian Constitution provides the so-called power of “substitution” in favour of the State. The State has the power to execute by substitution, in lieu of the regions, when regional authorities fail to implement European obligations. This power represents the main tool for the government to remedy the systematic violations of European Union Law committed by the regions. The main problem here is to assess whether Italian law achieves the right balance between the conlicting interests of the government (not to violate European Union law) and those of the regions (not to see their functions and competences taken away owing to substitutive power). It is important to underline that State regulation yields when the regions implement European law adequately. Recently, in 2005, all the different instruments designed to reduce the risk of responsibility due to regional infringements, were organized into a single piece of legislation (Law Num. 11/2005).17 Among those instruments, urgent measures or fast-track procedures can be adopted by the State in order to avoid the late implementation of EU law. Such measures are deemed necessary to meet the obligations contained in either judicial decisions or legislative acts that must be complied with earlier than the expected date of entry into force of the National Community Act. Furthermore, implementation may be carried out through both administrative and regulatory measures, provided that the subject matter does not need to be regulated by legislative acts according to the Italian Constitution. The law adopted in 2005 also gives the government the option to adopt precautionary measures, including urgent ones, when necessary to implement normative acts and judgments by the European Court of Justice. The provision refers to

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cases where obligations to respect European acts may concern legislative or administrative competences of the regions. In this context, the use of fast-track decrees has to be evaluated in the light of the distribution of competences between the State and the regions, according to Title V of the Constitution, as amended in 2001. With regard to this issue, the Order of the President of the Court of Justice, 19 December 2006, is worth mentioning:18 following the Commission’s request, the president ordered Italy to suspend the application of Liguria Region Law Num. 36/2006, since it was thought to conlict with directive 79/409/cee on the issue of wild-bird conservation. On this occasion, the Italian government executed the order through a fast-track instrument that suspended the application of this regional law. This suspension can give rise to an issue that must be carefully assessed in the light of European principles and, in particular, in the light of the supremacy of European Union law. This point serves to illustrate the problems posed by Law Num. 11/2005. They speciically concern the ways in which the State carries out its substitutive power towards the regions, as well as the relationship between national and regional laws – and even the overall relationship between the national and European Union systems. Another important instrument provided by Italian law concerns the reimbursement of inancial damages caused by regional violation. The Community Act, 2007, amending the previous regulation laid down in the Budget Act for 2007, sets out a “compensation mechanism” (diritto di rivalsa) through which the government may recover from the regions and local administrative entities the amounts paid to comply with pecuniary sanctions imposed by the European Court of Justice (ecj) according to Article 258 tfeu. This provision is particularly signiicant if we bear in mind the Commission’s intention to prosecute the States’ failure to observe ecj rulings with more severity and speed.19 The methods and maximum amounts that the State may claim from the regions in these situations are deined by an agreement between the State and the regions that endorses the cooperative federalism principle introduced with the 2001 reform of Title V of Part II of the Constitution. At least in principle, it seeks to overcome the tendency to draw a clear separation between State and regional competences and favours institutions and mechanisms that promote co-operation between the State and regional entities when resolving issues of common interest. The new Italian legislation requires the intervention of the president of the Italian Council of Ministers if the agreement is not reached. However, this could induce the State to follow obstructionist conduct by voluntarily preventing the attainment of the agreement and unilaterally determining its content.20 It remains therefore to assess if, in practice, the procedure described above will be applied respecting the principles that inspired the 2001 constitutional reform and, especially, if the interests of the regions

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will be protected by being suitably involved in the process of adopting the relevant agreements. At the moment it is impossible to answer this question, since it hasn’t been applied so far. Moreover, there are no rules for the reverse situation, allowing the intervention of the regions, as in other national systems (such as Austria). Even though the reform process in Italy continues – if not yet fully applied – it would appear at irst sight that in spite of the increase of constitutional space granted to the sub-national units, in practice many tools tend to enhance the power of the central authorities. In short, in ields driven by EU law, regional autonomy appears to be undermined in favour of the central government.

Bottom-up Pressures (Ascending Phase) With regard to the bottom-up perspective, we should irst of all observe that regions, and especially those with legislative powers (RegLeg), reacted to Europeanization by demanding measures concerning participation in the national and supranational decision–making process concerning European affairs. There is of course no uniformity in the level and eficiency of the changes both between and within Member States. The success of regional demands to adapt the vertical power balance in order to compensate for the impact of European political integration depends on the constitutional circumstances at the sub-national level: the stronger the constitutional status of regional autonomy, the stronger the pressure to guarantee regions an active role in EU policy-making. In addition, several non-constitutional factors may further increase the pressure for adaptation: these include entrepreneurship,21 legitimacy and social capital (in terms of irmly established civil societies),22 and the composition of political party majorities at the central and regional levels of government. Moreover, it can be said that the EU integration process itself has increased pressure on some regions to develop coherent strategies to promote regional development. This has sometimes led to the enhancement of the region’s political identity in order to ensure strong political support for the regional administrations responsible for these tasks (as is the case in Scotland). Consequently, participation mechanisms of access to EU policy-making have been laid down at different levels (European and national). At the EU level, regional activism produced its irst result in 1991, when the teu created the Committee of the Regions (CoR).23 Its role is advisory. The CoR includes representatives of both regional (legislative and non-legislative) and local bodies, but it seems to have been marginalized, largely as a result of its extremely modest powers and its mixed membership. Only recently, the Reform Treaty increased the CoR’s role, giving it the right to act before the ecj in order to protect its “prerogative” if the principle of subsidiarity has been infringed in any of the ields on which it has to be consulted.

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Consequently, the CoR may offer better prospects for the legislative regions if it develops regular scrutiny concerning subsidiarity. Because of the ex post right of appeal to the European Court on subsidiarity, the Commission should have an interest in hearing CoR concerns at an early stage precisely to avoid the possibility of action later. However, in order to undertake these new responsibilities the CoR would have to rethink its principal role, putting the focus on monitoring subsidiarity.24 It is now evident that legislative regions in particular, frustrated by the limited ability of the CoR to meet their demands, are searching for other channels outside the formal parameters envisaged by the treaty to determine themselves. Indeed, the regions tend to participate directly in the consultative procedures launched by the European institutions,25 even though these forms are in fact part of an intra-state channel. For example, they lobby from their own ofices in Brussels26 or they pursue horizontal cooperation, most conspicuously in the RegLeg Group. The regional ofices in Brussels are mainly concerned with supplying information for application in intergovernmental relations with the central State.27 The regions may also cooperate in a horizontal way in the creation of common ofices or transnational networks.28 With regard to Italy, for instance, the Central regions (Abruzzo, Lazio, Marche, Toscana, and Umbria) established joint representation in Brussels in 2001, sharing premises, costs, and information. In addition, the three provinces of Tirol, Sudtirol/Alto Adige, and Trentino have a common liaison ofice, which has gained visibility for its lobbying activities. However, the Italian regions do not have a common liaison department in Brussels similar to that of other Member States. Moreover, there is no identiiable contact person for the regions who may be engaged by the representatives of the central government, nor is there a central collecting point that ilters and processes relevant information from Brussels according to the needs of all regional governments. As a consequence, regional participation through these forms remains rather sporadic. Furthermore, some regions may participate more directly in the decisionmaking power. Indeed, regional representatives have access to national permanent representations in Brussels and can participate in the delegation to the EU Council (the United Kingdom, Spain, Germany, and recently Italy, according to the agreement of 16 March 2006). Nevertheless, regional representatives have in practice participated only sporadically in the working group and at the EU Council. However, even for those regions that have gained access through the State, their participation is of dubious effectiveness: “the central state representatives are always present and exercise extensive constraints on the freedom of action” of regional representatives.29 Consequently, regional inluence appears more successful in the phase of internal preparation than

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within the EU institutions.30 In practice, the European integration process itself brings about the need for intra-state mechanisms of intergovernmental coordination that permit both the central government and the regions to share responsibility as EU policy shapers and takers according to the domestic distribution of powers.31 Indeed, important changes have been undertaken in the Member States in relation to those areas that fall within the ambit of European integration, but the level of these changes varies widely both from State to State and within each State. Most EU Member States have established speciic systems to ensure consensus building between the central government and the regions and promote-co-operation between national and local administrations and joint decision making. As for the sources of law, these legal systems can be regulated in several ways: they can be overseen by the national constitution (e.g., Germany, Austria), established by ordinary laws (e.g., Spain, Italy), or subject to a peculiar tool, such as in the United Kingdom with the Concordat on International Relations (an agreement between the United Kingdom government and devolved administrations). As for the institutions, the main bodies where consensus between the regions and the national government is sought and may be reached are either the second chambers of the national parliaments (e.g., the Austrian and the German Bundesrat) or speciic conferences (e.g., the Italian State–Regions Conference). If we focus for a moment on the Italian case, current circumstances seem especially interesting, with potential solutions being drawn from other EU Member States. Indeed, it would seem that the reform process is continuing apace. In a certain sense, the Italian experience relects initiatives taken by sub-national units beyond their borders; for this reason the reform can be seen as an effect of a kind of “horizontal federalism.”32 An important mechanism adopted by the Law of 2005 is the ciace (Comitato interministeriale per gli affari comunitari europei), an interministerial Committee for EU Affairs. The ciace is linked to the presidency of the Italian Council of Ministers. It can be seen as a sort of “cabinet of European affairs.” The aim is to facilitate an in-depth analysis of issues related to Italy’s participation in the EU. Furthermore, regions, autonomous provinces, and local entities can take part in ciace activities when they have an interest in the body’s agenda. The ciace began work in March 2006. The principal topics on its agenda at the moment are the following: monitoring the Lisbon Strategy, transport (maritime transport), sustainable development, and better regulation and research. Although this certainly represents an interesting new development, it is still early to evaluate the results of its activities. Finally, an important role is allocated to the Conference System in Italy. The State-Regions Conference is a cooperative body established to discuss matters of regional interest. The Conference System allows regional participation in the decision-making process and in the implementation of EU

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legislation through non-binding opinions. Only recently Law No. 11/2005 institutionalized the community meeting (sessione comunitaria), which can also be “called” on request of the regions and the autonomous provinces. In other terms, it may be argued that the Italian political system tends to adopt the consultation-negotiation model for resolving competency issues between the national government and the regions. In the light of these developments, the tendency towards a higher degree of formalization is clearly evident. Despite the existence of these different channels of participation established within the framework of the Member State, the involvement of the Italian regions in EU affairs remains rather sporadic. The reform is generating fragmentation: considerable deiciencies remain in central-regional government coordination. Generally speaking, the bottom-up process seems to be more formal than effective in practice, and the channels that have been established so far do not appear to undermine the capacity of central state institutions to maintain a monopoly of competence over European integration policy.

T h e I n vo lv e m e n t o f N at i o n a l a n d R e g i o n a l P a r l i a m e n t s i n EU P o l i c y - m a k i n g In general terms, EU policies have tended to strengthen the executive visà-vis the parliament. Moreover, owing to the technical nature of EU directives, parliaments have seen their competences restricted by European legislation. In other words, political integration has tended to strengthen the central governments in federal and devolved Member States by disempowering legislative regions in their role as “policy shapers” within the EU system. Indeed, regional parliaments have often been excluded from formulating a regional position in important negotiations (e.g., the reform of the Common Agricultural Policy, or cap). For this reason, they have asked for more participation in policy-making concerning European affairs, in reaction to the abuse of power by the European legislator. Recently, the Lisbon Treaty has emphasized national parliaments (Protocol on the Role of National Parliaments) and improved the application of the principle of subsidiarity (Protocol on the Application of the Principle of Subsidiarity), establishing an “early warning system.” The early warning system in the Lisbon Treaty empowers national parliaments to take action against EU infringements of the subsidiarity principle. In theory, this mechanism might serve in two ways to open up the decision-making process to the regional parliaments as well. Indeed, the second chambers of some national parliaments are chambers of the constituent State regions (e.g., Austria and Germany), and the early warning system applies to both the irst and the second chamber. Moreover, national parliaments may also decide to include regional assemblies in the early warning process,

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according to Article 6, paragraph 2, of the Protocol on the Application of the Principle of Subsidiarity and Proportionality. In other words, most of the RegLeg regions will have access to the early warning system in one way or another. Some Member States have put the Subsidiarity Protocol into practice, granting not only the State but also regional parliaments the right to protest against European policy initiatives (e.g., Belgium, Germany, and Austria). The Commission also encouraged the Member States to adopt this mechanism, even before the entry into force of the Lisbon Treaty.33 The Conference of Community and European Affairs Committees of the Parliament of the European Union34 (cosac) has decided to conduct at least two “subsidiarity and proportionality checks” per year. However, there are many criticisms of the early warning system. It is generally held that it will not be able to improve regional participation in EU policy-making because of the complexity of the procedure, even though some important political effects can be foreseen. Moreover, if we also consider the right given to the CoR to act before the European Court of justice in case of violation of the principle of subsidiarity, it can be argued that ex post judicial control remains more important than ex ante political control by the parliaments. Furthermore, other mechanisms that can ensure regional participation in EU policy-making are worth discussing in more detail. In the Italian system, the irst mechanism concerns the enhancement of the low of information between the executive and the legislative power. Indeed, the Italian law adopted in 2005 aims to strengthen information lows between the government and Parliament, and it also provides for an annual report. Moreover, the State-Region Conference may express opinions (although they are not binding), such as opinions and observations formulated by Parliament.35 Recently, Italy has also adopted the mechanism of “reservation.” The government, on request of Parliament and/or of the regions, could formulate a reservation within the EU Council of Ministers. However, the interinstitutional agreement necessary to implement the rule in favour of the regions has not yet been reached. In short, it is dificult to achieve regional participation, and we do not yet have suficient information to evaluate the impact of European integration on the regional assemblies, since the national reform process continues unabated.

The Network Dimension The network dimension is based on a cooperative approach, regardless of formal and hierarchical relations. This complementary perspective is useful in enabling us more fully to understand the relationship between the subnational units and the EU in speciic situations, transcending the distinction between top-down and bottom-up perspectives and between Member

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States. On the one hand, the European Union addresses the sub-national units directly while on the other hand, the regions seem to be able to cooperate with the European Union36 in order to develop transborder or interregional37 relationships.38 The ield of structural funds offers a good example of practice stretching beyond the State. A particularly telling example is the New Cohesion Policy, which consists of the strategic choice linking its objectives to the Lisbon and Goteborg Strategies. Starting from EU regulations (or their proposals), a lengthy decisionmaking process involves the national administration, regions, and local authorities in jointly drafting the National Strategic Framework (qsn). Tripartite contracts also offer a model of interregional co-operation,39 and they concern cross-cutting areas, such as the environment, research, and transportation.40 The irst tripartite contract was signed on 15 October 2004 by the European Commission, Italy, and the region of Lombardy. However, as we know in these situations, the State retains the responsibility in relation to the European Union for the execution of European obligations, as a consequence of the principle of autonomy mentioned above.41 Another example of co-operation is the European Grouping of Territorial Co-operation. This new European legal instrument enables regional and local authorities from different member States to set up co-operation groups with legal personality. Member States should already have enacted these provisions by 1 August 2007, in compliance with regulation 1082/2006, but in many Member States they have not yet been adopted. In all these instances the EU has referred directly to the sub-national units in relation to European policies. Indeed, the territorial dimension represents a viable organizational model for reaching European goals. In all the cases mentioned above the sub-national units may be considered as an administrative European authority irrespective of their internal constitutional space.42 The image of the “double hat” is a useful representation the situation: the sub-national units are asked to perform different roles according to the system considered (national or European).43 The sub-national units, although established at the national level,44 may have a position allotted to them by European Union law, even if only in a functional sense. For this reason it can be said that the notion of “region” is itself mutable:45 it varies according to the space taken into consideration (the European or the national).46 This duality is conirmed by case law concerning the locus standi of sub-national units before the Community judges. The ecj, moving from European blindness to internal territorial choices, did not recognize that the region can act as a privileged subject (such as the State) according to the terms of Article 263, paragraph 2, tfeu.47 However, the General Court proceeded to consider the sub-national unit as a moral person of public law.48 As such, the region has standing to challenge the legality of an act only if it is of direct and individual concern to it: the region can act before

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the General Court, for example in matters of state aid, but it does not have locus standi in other matters (such as structural funds).

Conclusion European integration has in one way or another provoked (directly or indirectly) constitutional changes in its Member States in favour of the subnational units. These changes vary signiicantly between and within the Member States. Their level and eficiency depend mainly on the constitutional position of the sub-national units, which includes not only constitutional status but also extra-constitutional factors. In general, the status of the regions in the EU essentially depends on channels of intergovernmental coordination established within the State. Indeed, sub-national units have succeeded in claiming a role in European affairs only through the States. In various ways sub-national units have gained some form of access to EU decision making within their respective Member States. The mechanisms consist of functional rules and institutions of interest reconciliation and conlict resolution that maintain the Member States’ ability to speak and negotiate with one voice in Brussels. Moreover, the formalization of the changes does not automatically mean more eficiency. A high degree of formalization does not guarantee the smooth operation of domestic coordination mechanisms in EU matters. Pragmatic solutions based on a climate of mutual trust and informal patterns of close working relations between central and regional governments, as in Austria and the United Kingdom, allow for much more lexibility when looking for common ground in European affairs. Nevertheless, other experiences of central-regional distrust should warn against an over-reliance on informal practices. In the case of Italian reform, which has been analyzed in more detail in this chapter, the following points can be highlighted. In a certain way, some changes recently implemented seem to be drawn from previous EU experiences and may be deined as a kind of “horizontal effect” of sub-national initiatives beyond the subnational units’ own borders.49 However, there are many more steps to be taken before we can call this a complete reform. From a substantive point of view, the principle of fair co-operation (in both vertical and horizontal directions) inspires the relationship between national and regional levels. Indeed, top-down and bottom-up perspectives are both characterized by a co-operation system. The consultation-negotiation model, especially through the Conference System, appears to be increasingly formalized. In fact, it seems to be more formal than effective. Looking in more detail at the top-down pressures, we have seen that there is a great degree of confusion with regard to the allocation of competences. This is generating a number of cases before the Italian Constitutional Court in order to deine the boundaries of sub-national constitutional space.

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Moreover, in spite of the changes, many tools, such as the State’s substitution power when regional authorities fail to implement European obligations, empower the central government, and as a consequence regional autonomy appears to be reduced in EU affairs. Thus, in ields driven by EU law the legal-litigation model prevails, even though the cooperative model is being increasingly adopted. With regard to bottom-up pressures, the Italian regions have secured a role in the decision-making process alongside the central government. The Italian legislation seems to adopt the consultation model to a greater degree, establishing speciic mechanisms of intergovernmental coordination. Nevertheless, the participation of the Italian regions in EU decision making must be described as at best sporadic. The involvement of regional parliaments as well is far from being effective. As already illustrated, even the early warning system provided in the Lisbon Treaty is far from resolving the question, as proved by the debate that is already taking place within some Member States. In brief, the Italian regions have not succeeded in breaching central-state monopoly control over European decision-making; that is, they do not seem to have occupied the constitutional space available to them. Finally, in order to complete the description of the framework with regard to some speciic situations, this chapter has referred to a network dimension. This complementary and comprehensive perspective, based on a cooperative approach, seems to be the best way to capture the relationship between the EU, the Member States, and the regions, passing beyond a formal dimension and a strict distinction between the top-down and the bottom-up pressures. Among other examples, as we have already seen in the ield of the structural funds, the regions seem to be able to connect with the European Commission, acting as an administrative European authority for community goals, irrespective of their constitutional space within the Member States.

Notes 1 See Francesco Palermo, this volume, chap. 11. 2 Charlie Jeffery, “Sub-national Mobilization and European Integration” Journal of Common Market Studies 38 (2000). 3 Liesbet Hooghe, Cohesion Policy and European Integration (Oxford: Clarendon Press 1996). 4 See Stephen Weatherill, “The Challenge of the Regional Dimension in the European Union,” in Stephen Weatherhill and Ulf Bernitz, eds., The Role of Regions and Sub-nationals Actors in Europe (Oxford: Hart 2005). 5 Sergio Bartole, “Europa e Regioni,” in Roberto Scarciglia, ed., Unione europea e autonomie regionali Prospettive per una Costituzione europea, Atti del Convegno di Trieste del 18–19 ottobre 2002 (Torino: Giappichelli 2003), 3–9.

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6 Case C-95/97, Région Wallon v. Commission (1997), ECR I-1787. 7 Cases C-227, 228, 229 and 230/85, Commission v. Belgium (1988), ECR 1; Case C-33/90, Commission v. Italy (1991), ECR I-5987; Case C-211/91, Commission v. Belgium (1992), ECR I -6757; Case C-388/01, Commission v. Italy (2003), ECR , I-721, recently, case C-573/08, Commission v. Italy. 8 See an analysis of the principle in Ornella Porchia, Principi dell’ordinamento europeo: La cooperazione pluridirezionale (Bologna: Zanichelli 2008). 9 See Case C-2/88, Zwartveld (1990), ECR I-3365; Case T-16/90, Panagiotopoulou (1990), ECR , II-89; case C-94/00, Roquette Frères (2002), ECR I-9011. 10 The irst rules directed towards the regions can be found in Article 107 (3) tfeu (former Article 87 EC) in the ield of state aid law. Then the treaty included regional policy (Articles 174–8 tfeu, formerly 158–62 EC). With the adoption of the European Union Treaty, Article 203 EC (now Article 16 paragraph 2 teu) has been modiied in order to permit the participation of the regional representative in the EU Council. Moreover, Article 305 tfeu (former Article 263 EC) refers to the Committee of the Regions. Finally and above all, according to the new Article 3, paragraph 3 teu, the European Union “shall promote economic, social and territorial cohesion, and solidarity among Member States.” 11 Commission Communication, “Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties,” com (2002), 704; Commission Communication, “Dialogue with Associations of Regional and Local Authorities on the Formulation of European Union Policy,” com(2003) 811 inal. 12 I do not intend to refer to the debate about so-called multi-level governance (e.g., Gary Marks, Liesbet Hooghe, and Kermit Blank, “European Integration and the State,” eui Working Papers rsc 95/6). I use the expression “network perspective” only with regard to some speciic situations that cannot be explained in a formal way on the basis of traditional principles and that go beyond a strict distinction between top-down and bottom-up perspectives. 13 See the judgments of the Italian Constitutional Court, n. 126/96 and, after the reform of Title V of the Constitution, n. 526/2002. 14 See Italian Constitutional Court, n. 536/2002. The competence in the ield of the environment is very problematic, which justiies the large number of cases before the Constitutional Court and the European Court of Justice. 15 See Hans Smit and Peter Herzog, The Law of the European Community: A Commentary on the EEC Treaty (Article 6 EU ) (New York: Matthew Bender 1976). 16 See Annual Report 2007, from the Government to Parliament. 17 Law n. 11 of 4 February 2005, enacting the “general provisions governing Italy’s participation in the European Union’s legislative process and procedures for complying with Community obligations.” Its reform is now in progress. 18 Case C-503/06 R, Commission v. Italy (2007), ecr I-1; recently, case C-573/08 R, Commissione c. Italia. 19 Commission Communication, “Application of Article 228 of the EC Treaty,” sec (2005)1658, recently amended by sec (2010) 923/3.

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20 Action for constitutional legitimacy, 6 March 2007, No. 13 of the Autonomous Province of Trento, G.U. series Corte Cost. No. 13, 28 March 2007. 21 Jeffery, “Sub-national Mobilization,” 14. According to Jeffery, three points seem especially important: “(a) internal administrative adaptation to (the) environment; (b) leadership; and (c) strategies of coalition-building which lend support to sna European policy interests.” 22 Jeffery, “Sub-national Mobilization,” 17. According to the author “the question is one of the extent to which the territorial space which sna s formally represent also constitutes a civil society.” 23 Jeffery, “Regions and the European Union,” 36; Nergelius, The Committee of the Regions Today, 119. 24 Jeffery, “Regions and the European Union,” 44. 25 Andy Smith, “L’échelon infrarégional: Lieu privilégié des fonds structurels?” in Patrick Le Galés and Christian Lequesne, eds., Les paradoxes des régions en Europe (Paris: La Découverte 1997), 57–63; Alessandro Alieri, “I rapporti con le istituzioni dell’Unione europea,” in Alessandro Alieri, ed., La politica estera delle Regioni (Bologna: Il Mulino 2004), 115–16. 26 See for example, Giovanni Luchena, “Gli ufici regionali di collegamento con l’Unione europea nella tutela degli ‘interessi territoriali,’” in Michele Buquicchio, ed., Studi sui rapporti internazionali e comunitari delle Regioni (Bari: Cacucci 2004), 222; Vittorino Rodaro, “La sussidiarietà applicata: regioni, stati, Unione europea. Le attività degli ufici regionali di collegamento a Bruxelles,” in Anna Camper and Peter Buβjäger, eds., La Sussidiarietà Applicata: Regioni, Stati, Unione europea (Wien: Braumüller 2006), 208–12. 27 Jeffery, above, note 2, 5. 28 Weatherill, “The Challenge of the Regional Dimension,” 19. 29 Jeffery, above, note 2, 5. 30 Michael Morass, “Austria: The case of Federal Newcomer in European Union Politics,” in Charlie Jeffery, ed., The Regional Dimension of the European Union (London: Taylor & Francis 1997), 76. 31 Jeffery, above, note 3, 9. According to Jeffrey, the strong subnational authorities claimed “to ‘domesticize’ European policy-making by establishing the principle ‘in foro interno, in foro externo.’” 32 See the introduction to this volume by Michael D. Burgess and G. Alan Tarr. 33 Commission Communication, “A Citizens’ Agenda: Delivering result for Europe,” com (2006) 211. See also com (2008) 586 inal, Report from the Commission on Subsidiarity and Proportionality (15th report on Better Lawmaking, 2007), and recently com (2010) 291 inal. In 2006, the CoR created a network to monitor subsidiarity, a tool for exchanging information between European territorial (sub-state level) actors on policy documents and proposals of the European Commission (see http://subsidiarity.cor.europa.eu/NEWS/tabid/647/Default.aspx) 34 European Parliament, Conference of Community and European Affairs Committees of Parliaments of the European Union (cosac), Contribution adopted by the XXXVII cosac, Berlin, 13–15 May 2007, OJ C 206, 5 September 2007.

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35 See Annual Report 2006: during 2006 the Parliament examined at least ive proposals of various acts and made some observations about them. 36 The notion of “partnership” is one of the fundamental principles underlying the programming and implementation of the Structural Funds. See Council Reg. 1083/2006, laying down general provisions on the European Regional Development Fund, the European Social Fund, and the Cohesion Fund and repealing Regulation (EC) 1260/1999 (2006) oj l 210/25. See Article 11 about partnership: “1. The objectives of the Funds shall be pursued in the framework of close co-operation, (hereinafter referred to as partnership), between the Commission and each Member State. Each Member State shall organise, where appropriate and in accordance with current national rules and practices, a partnership with authorities and bodies such as: (a) the competent regional, local, urban and other public authorities; (b) the economic and social partners; (c) any other appropriate body representing civil society, environmental partners, non-governmental organisations, and bodies responsible for promoting equality between men and women. Each Member State shall designate the most representative partners at the national, regional and local level and in the economic, social, environmental or other spheres (hereinafter referred to as partners), in accordance with national rules and practices, taking account of the need to promote equality between men and women and sustainable development through the integration of environmental protection and improvement requirements. 2. The partnership shall be conducted in full compliance with the respective institutional, legal and inancial powers of each partner category as deined in paragraph 1. The partnership shall cover the preparation, implementation, monitoring and evaluation of operational programmes. Member States shall involve, where appropriate, each of the relevant partners, and particularly the regions, in the different stages of programming within the time limit set for each stage.” 37 See, for example, Commission Communication, “Guidelines for a Community Initiative Concerning trans-European Co-operation Intended to Encourage Harmonious and Balanced Development of the European Territory – interreg III,” oj C 226, 10 September 2004. See Renate Kicker, Joseph Marko, and Michael Steiner, eds., Changing Borders: Legal and Economic Aspects of European Enlargement (Frankfurt am Main: Peter Lang Publishing 1998), 257. 38 European Parliament and Council Reg. 1082/2006 on a European Grouping of Territorial Co-operation (egtc), (2006) OJ L 210/19. 39 See Commission, “European Governance: A White Paper,” com (2001)428 inal. Later, Commission Communication, “A Framework for Target-Based Tripartite Contracts and Agreements between the Community, the States and Regional and Local Authorities,” com(2002)709 inal. 40 According to the Communication “Flexibility is inherent in the very principles of economic and social cohesion, the aim of which is to reduce disparities in the levels of development of the different regions and the backwardness of the regions.”

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41 The allocation of competences in favour of sub-national units can never justify the infringement. See Cases C-227, 228, 229 and 230/85, above, note 8; J Case C-33/90, Commission v Italy (1991), ecr I-05987; Case C-211/91, Commission v Belgium, Case, (1992), ecr I-06757. The exclusivity of the State’s responsibility can be considered as a limitation of the principle of autonomy: Nicolas Levrat, “L’émergence des collectivités territoriales comme acteurs de plein droit dans le système institutionnel communautaire”; Paul Magnette and Eric Remacle, eds., Le nouveau modèle européen, vol. 1, Institutions et Gouvernance (Bruxelles: Editions de l’Université de Bruxelles 2000), 155. 42 See Jean-Bernard Auby, “Décentralisation et pluralisme juridique,” Mélanges Paul Amselek (Bruxelles: Bruylant 2005), 45. 43 On the notion of “region” see Pablo Pèrez Tremps and Lorenza Violini, “La Costituzione europea e l’organizzazione territoriale degli Stati membri,” Rivista italiana di diritto pubblico comparato (2004): 1445; F. Saint-Oven Mercaiai, “Sur la notion juridique de région,” Revue de Droit Public et de la Science Politique en France et à l’étranger (1987): 1313. 44 See Jean-Berrnard Auby, “L’Europe et la decentralisation,” Revue française de la décentralisation 1 (1995): 16. 45 See Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-417/04 P, Regione Siciliana v Commission (2006), ecr I-3881, point 43. The Advocate General highlights the point that “the Court has followed a variable geometry approach … which changes according to the ield under consideration and exhibits the pragmatism employed to secure the effectiveness of Community law, in order thus to satisfy the desire for integration … inherent in the Treaty.” 46 Concerning the lexibility of instruments, see Jo Shaw, “Relating Constitutionalism and Flexibility in the European Union,” in Grainne De Búrca and Joanne Scott, eds., Constitutional Change in the EU from Uniformity to Flexibility? (Oxford: Hart Publishing 2001), 337. 47 Case C-95/97, Région wallonne v Commission (1997), ecr I-1787, point 6, and Case C-180/97, Regione Toscana v Commission (1997), ecr I-05245, point 5.2. See Ornella Porchia, “Le regioni dinanzi al giudice comunitario: La scelta del legislatore italiano,” in Guiseppe Cataldi and Anna Papa, eds., Formazione del diritto comunitario e internazionale e sua applicazione interna: Ruolo delle Regioni e dello Stato nelle esperienze italiana e spagnola, Atti del convegno, 23 aprile 2004, (Napoli: Editoriale Scientiica 2005), 106. 48 In support of the region, in the ield of state aid, see Case T-288/97, Regione autonoma Friuli Venezia Giulia v Commission (1999), ecr II-01871. See Ornella Porchia, “Le Regioni italiane davanti al Tribunale di primo grado: Il riconoscimento della legittimazione attiva in materia di aiuti pubblici,” Diritto pubblico comparato europeo (1999): 1674. Against the region, in the ield of structural funds, see causa C-15/06P, Sicilia v. Commissione (2007), ecr I-2591. 49 See Burgess and Tarr, this volume, chap. 1.

Contributors

a n n e l i a l b i is a senior lecturer at the Law School of the University of Kent. She is the author of EU Enlargement and the Constitutions of Central and Eastern Europe (2005) and co-editor of The European Constitution and National Constitutions: Ratiication and Beyond (2006). g e r a l d b a i e r is assistant professor of political science at the University of British Columbia.  He is the author of  Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada (2006) and (with Herman Bakvis and Douglas M. Brown) Contested Federalism: Certainty and Ambiguity in the Canadian Federation (2009). Professor Baier is presently at work on a book-length study of the Supreme Court of Canada. m i c h a e l b u r g e s s is director of the Centre for Federal Studies and professor of political science at the University of Kent in England. He is the author or editor of several volumes dealing with federalism, including State Territoriality and European Integration (2006), Comparative Federalism: Theory and Practice (2006), Federalism and European Union: The Building of Europe, 1950–2000 (2000), and Comparative Federalism and Federation: Competing Traditions and Future Directions (1993), and Federal Democracies (2010). His current research is on a new conceptualization of the federal spirit that can be utilized to explain the emergence of new federal models since the end of the Cold War.  p e t e r b u β j ä g e r is director of the Institute of Federalism in Innsbruck and lecturer at the Institute for Public Law at the University of Innsbruck. He is also director of the State Parliament of Vorarlberg/Austria and a member of the Constitutional Court of the Principality of Liechtenstein. He is the author of various books on federalism and constitutional studies, including Homogenität und Differenz (2006), Jenseits des Politischen (2002), and Der Unbegriff des Politischen (1999).

300

Contributors

j o h n j . d i n a n is associate professor of political science at Wake Forest University. He is the author of The American State Constitutional Tradition (2006), The Virginia State Constitution: A Reference Guide (2005), and Keeping the People’s Liberties: Legislators, Citizens, and Judges as Guardians of Rights (1998). a r t h u r b . g u n l i c k s is professor of political science, emeritus, at the University of Richmond. He is the author of The Länder and German Federalism (2003) and Local Government in the German Federal System (1986). He is a contributing editor for Local Government Reform and Reorganization (1981), Campaign and Party Finance in North America and Western Europe (1993), German Public Policy and Federalism (2003), and for a special issue of Publius: The Journal of Federalism (1989) on German federalism. He is also the author of numerous journal articles and book chapters concerning German federalism and local governments. f r a n c e s c o p a l e r m o is associate professor of comparative constitutional law at the University of Verona School of Law and director of the Institute for Studies on Federalism and Regionalism at the European Academy in Bolzano/Bozen. His research and publications focus primarily on comparative federalism, minority rights, and EU law. p a t r i c k p e e t e r s is professor of comparative federalism at the University of Leuven (Belgium). He is also a partner with the Nauta Dutilh Law Firm, where he is head of the Belgian administrative and environmental law practice. Professor Peeters is the author of numerous publications on constitutional law, comparative federalism, and Belgian state reform. o r n e l l a p o r c h i a is full professor of European Union Law at the University of Turin.  She is the author of Principi dell’ordinamento europeo: La cooperazione pluridirezionale (2008) and Il procedimento di controllo degli aiuti pubblici alle imprese tra ordinamento comunitario e ordinamento Interno (2001). Her major research interests include the relationship between internal and European orders and federalism in Europe, areas in which she has published extensively. nicolas schmitt is a French-speaking senior fellow researcher at the Institute of Federalism (University of Fribourg, Switzerland).   His most recent publications include La iscalité environnementale en Suisse (2010), Fédéralisme et modiications territoriales en Suisse: Ouvrir la boîte de Pandore (2010), The Swiss Paradox: Monolingual Higher Education in a Multicultural Environment (2011), and Principles and Criteria of the Jurisprudence of the Swiss Federal Tribunal concerning Linguistic Questions (2011). His major research

Contributors

301

interests include the speciicities of Swiss federalism (the municipal system, languages, multiculturalism, political parties, relations with European Union), as well as comparative federalism, areas in which he has published number of contributions. g. alan tarr is director of the Center for State Constitutional Studies and distinguished professor of political science at Rutgers UniversityCamden. He is the author of Judicial Process and Judicial Policymaking (2010) and Understanding State Constitutions (1998), the coauthor of State Supreme Courts in State and Nation (1988), and the editor or coeditor of Constitutional Origins, Structure, and Change in Federal Countries (2005), Federalism, Subnational Constitutions, and Minority Rights (2004), and Federalism and Rights (1996). stephen tierney is professor of constitutional theory at the University of Edinburgh. He is author of Constitutional Law and National Pluralism (2004) and editor of Public Law and Politics: The Scope and Limits of Constitutionalism (with Christodoulidis) (2008), Multiculturalism and the Canadian Constitution (2007); Accommodating Cultural Diversity: Contemporary Issues in Theory and Practice (2007), Towards an International Legal Community? The Sovereignty of States and the Sovereignty of International Law (with Warbrick) (2006), and Accommodating National Identity: New Approaches in International and Domestic Law (2000). carles viver is professor of constitutional law at the University of Barcelona and director of the Institut d’Estudis Autonomics of the Generalitat of Catalunya. He formerly served as vice president of the Constitutional Court of Spain and is currently Justice of the Constitutional Court of Andorra. jens woelk is associate professor in Comparative Constitutional Law at the Law Faculty of the University of Trento (Italy) and senior research advisor at the European Academy of Bolzano/Bozen (Institute for Studies on Federalism and Regionalism). His research focus is on federalism, regionalism, minority-group issues and constitutional transformation in SouthEastern Europe.

Index

Aargau, 143 abortion ruling, 1973, 51 Accession Treaty, 267 Acts of Union of 1707, 197 ad hoc devolution, 206–12 administration of federal laws, 66–8 African Americans, voting rights, 50 age limits on voting, 50–1 aggregative federal systems, 11–12 aid for the needy, 54 Aktuelle Stunde (topical hour), 97 Alabama, 45, 46 Alberta, populist movements, 180–1 Albi, Anneli, 30–1 Amstad, Eduard, 143 Amsterdam Treaty, 258, 268 Andalusia, 228, 230 anti-government attitudes, 101, 180 Aosta Valley, 238, 245, 252n Appenzell Ausser-Rhoden, 159 Appenzell Inner-Rhoden, 157 April Package of 2006, 125, 137n, 138n Argentina, 13, 14, 16 asymmetry between Entities, 112–13 federal systems, 5–6, 12–13 regionalism, Italy, 238 territorial power structure, Spain, 232–4

audit ofices, 97–9 Australia Commonwealth Constitution, 8 sovereignty, constitutional, 141 sub-national constitutions, 4 supervision of sub-national constitutions by federal systems, 9 Austria, 21–3 administrative eficiency, 14 Aktuelle Stunde (“topical hour”), 97 anti-federal attitudes, 101 audit ofices, federal and Land, 97–9 Austrian Convention, 101–3 Basic Law of 1867, 94 Burgenland, 88; direct democracy, 96; elections, 100; investigations, requirements for, 99; state goals, 93 Burgstaller, Gabriele, 103 bzö, 103 Carinthia, 88, 103; elections, 100; investigations, requirements for, 99; state goals, 93–4 Christian-Social-Party, 88 citizen petitions, 91 competence clause (Kompetenztatbestand), 98 competencies, division of, 88, 101–4 Constitution, Federal (BundesVerfassungsgesetz, or B - VG ): Article

304

Index

2 (federal state comprised of nine autonomous member states), 88; Article 10 (federal powers), 90; Article 10, paragraph 1, point 1 (competence of federal constitution), 95; Articles 10-15 (separation of legislative and executive powers between federation and members), 89; Article 15, paragraph 1 (competencies not explicitly transferred to federation), 90; Article 23 (European Union matters within competence of Länder), 93; Article 44, paragraph 3 (revision of constitution, requirement of approval by popular referendum), 89; Article 95 (election principles), 92–3; Article 96 (status of deputies), 92; Article 98 (legislative procedure in Länder), 92; Article 99 (fundamental rights), 95; Article 99 (relationship between federal and Länder constitutional law), 90–1; Article 101 (Land government elections and composition), 92; Article 117 (regulations for the capital, Vienna), 92; Article 118, paragraphs 2 (deinition of local self-government) and 3 (local selfgovernment, guaranteed matters), 92; Article 119a, paragraph 2 (inancial management of municipalities), 98; Article 140, paragraphs 1 and 3 (judicial review of Land legislation before Constitutional Court), 93; Article 148a (ofice of Federal ombudsman), 100; principles, basic, 91–92; reference to European Union, 260; regulation of sub-national governments, 92; structural principles, 88–9 Constitutional Court, 10, 89–91, 93, 96, 100

constitutional space, 90, 95, 103 cooperation agreement, political parties, 102 direct democracy, 91, 92, 93, 95–7, 99 distribution of powers between federation and Länder, 89–91 education, 103 environmental protection, 94 European Convention on Human Rights, 94 European Union, 262, 280, 283, 289, 290, 292; membership, 101–2, 104n “executive federalism,” 103 experimentation, constitutional, 103 experts, politicians and scholars, reform proposals by, 102–3 Faymann, Werner, 103 federal system: Federal Council, 89, 103; powers of, 88; reform of, 101–4 Fiedler, Franz, 103 inances: government relationships, 102; management, auditing of, 97–9 Freedom Party, 100, 103 fundamental rights, 94–5, 102 grand coalition, 102 Greens Party, 100, 103 Gusenbauer, Alfred, 102 homogeneity: clause, 9, 10, 14; of constitutions, 90–1 horizontal federalism, 103 human rights, 93–4 individual rights, 95 intergovernmental cooperation, 287 investigations by audit ofices, requirements for, 99 Kohl, Andreas, 103 Kontrollamt ofice, 97–9 Kostelka, Peter, 103 Länder (member-states), 88; audit ofices (Landesrechnungshöfe), 97–9;

Index autonomy, constitutional, 89–92; constitutions, structure and content, 92–3; distribution of powers between federation and Länder, 89–91; elections, 92–3; executive body, composition of, 100–1; majoritarian governments, 100–1; parliaments, 92–3, 96–7; political role of, 89; proportional representation, 100–1; public consultation, 96; referendum, 96; reforms of Länder constitutions, 90; “relative constitutional autonomy,” 91; social principles in state constitutions, 93–4; state goals, 93–4 Landeshauptleute (governors of the Länder), 89 legal positivism, 89, 94 Lienbacher, Georg, 103 Lower Austria, 88; direct democracy, 96; elections, 100; investigations, requirements for, 99; state goals, 93 municipalities, inancial management of, 98 National Council, 89, 92, 102 Öhlinger, Theo, 103 ombudsman (Volksanwalt), 100 opposition parties, 103 ÖVP, 103 People’s Party, 100, 102 Political Agreement on the Reorganization of the Federation, 101 popular initiative, 96, 99 reforms, constitutional, federal, 101–4 Salzburg, 88, 90, 103; constitution, Article 10, paragraph 3 (right to property), 95; direct democracy, 96; elections, majority voting system, 100–1: investigations, requirements for, 99; investigative committees, 97; state goals, 93–4

305 Sausgruber, Herbert, 103 separation of legislative and executive powers, 89 Social Democratic Party, 88, 100, 102–3 social justice, 93–5 SPÖ, 103 SPÖ/ÖVP grand coalition, 101 Structural Reform of Competencies of 1989 to 1994, 101–2 Structural Reform of the Federation, 101 Styria, 88, 90; direct democracy, 96; elections, 100; investigations, requirements for, 99 sub-national constitutions, 4 Tyrol, 88, 90; constitution. Articles 11, paragraph 2 (right to property), and Article 14 (obligation to provide assistance in emergencies), 95; direct democracy, 96; elections, majority voting system, 100–1; investigations, requirements for, 99; investigative committees, 97; ombudsman ofice, 100; state goals, 93–4; Upper Austria, 88, 90, 93–4; direct democracy, 96; elections, 100; Law on the Land Audit Ofice, 99 veto-referendum, 96 Vienna, 88, 92, 93, 97–9; elections, majority voting system, 100–1 Vorarlberg, 10, 88, 90, 91, 99, 103; constitution, Article 11, paragraph 2 (right to property), 95; constitution, Article 12 (obligation to provide assistance in emergencies), 95; constitution, Article 33, paragraph 6 (citizen petitions), 91; direct democracy, 96; elections, majority voting system, 100–1; ombudsman ofice, 100; state goals, 93–4 voting age, 103

306

Index

autonomy Austria, Länder (member-states), 89–92 autonomy statutes, 5 Belgium, 25, 165, 166–71 Bosnia-Herzegovina, 115, 126 constituent units within federal systems, 7–8 Germany, Länder (states), 76–8 Italy, 238, 246 Spain, 218–30 United Kingdom, 195 avoidance, diffusion of innovations, 20 Baden-Württemberg, 76, 79–80 Baier, Gerald, 25–6, 174–92 balanced budgets, 77 Balearic Islands, 233 Balkans, Western, Stabilisation and Association Agreements, 261 Baltic States, constitutions, reference to European Union, 260 Banana case, 272 banks and corporations, political privileges of, 53–4 Basel-Landschaft, 153 constitution, Article 115, paragraph 2 (avoidance of nuclear plants), 155 Basel-Stadt, 140, 159, 160 Basque Country, 227–9, 232–3, 235n Bavaria, 79–80 Belgium, 23–5, 164–73 Brussels-Captial Region: constitutive autonomy, lack of, 170–1; Flemishspeaking minority, 168–9 communities and regions, constitutional autonomy, lack of, 165, 166–9, 171–2 Constitution: Article 1 (federal state composed of communities and regions), 164; Article 35

(enumerated powers of federal government), 171–2; Article 39 (majority needed for community and regional institutions), 167; Article 115 (majority needed for community and regional institutions), 167; Article 116 (election of community and regional parliaments), 167; Article 117 (election of community and regional parliaments), 167; Article 120 (immunity of members of regional and community parliaments), 167; Article 121 (establishment of government for communities and regions), 167; Article 122 (parliamentary electoral process), 167; Article 123 (majority needed for community and regional institutions), 167; Article 124 (immunity of members of regional and community governments), 167; Article 125 (immunity of members of regional and community governments), 167; Article 137 (parliamentary exercise of competences), 167–8; Article 138 (French Community powers), 168; Article 118 (2) (election of community and regional parliaments), 170; Article 123 (2) (election of community and regional parliaments), 170; reference to European Union, 259; Title I (“Federal Belgium, Its Composition and Territory”), 164 constitutional autonomy, 165, 171 “constitutive autonomy,” communities and regions, 169–71 Council of State, 270 devolutionary federalism, 164, 167 distribution of power in government, 164

Index Dutch Community Commission, 169 Dutch-speaking Community, 167 enumerated powers, communities and regions, 164, 167 European Union, 262, 263, 280, 283, 290 exclusive powers, federal government, 164 federal special-majority legislation, 171–2 federal system, 3–4 Flemish Community: competences of Flemish Region, 167–8; constitutional autonomy, lack of, 165, 171 French Community: competencies of Walloon Region, 167–8; constitutional autonomy, lack of, 165, 171; “dismantling” of, inancial aspects, 169; transfer of powers, 169 French Community Commission, 169 German-speaking Community: constitutive autonomy, lack of, 170–1; Walloon Region, 168–9 integrative federalism, 164 Joint Community Commission, 169 Kompetenz-Kompetenz, 166–7 legislation, hierarchy, lack of, 164 multi-ethnic population, 13 parliaments, communities and regions, 170 residual powers: federal government, 167; member states, 165–6; transfer to communities and regions, 171–2 sub-state nationalism, 200 transformation from unitary to federal state, 164 Walloon Region, constitutional autonomy, lack of, 165, 171 Benelux countries, 263 Berlin, Germany, 74–5, 78 Berlusconi, Silvio, 241, 243

307

Bern, 159 Besselink, Leonard, 265 bills of rights, 51–2, 184 Bismarck Reich, 62–3, 64 Blaine, James, 51 Blair, Tony, 211 blockade politics, 73–4 “Bonn Powers” of High Representative, 119, 124 Bosnia-Herzegovina, 23–4, 109–39 April Package of 2006, 125, 137n, 138n asymmetry between Entities, 112–13 autonomy of “constituent peoples,” 115 “Bonn Powers” of High Representative, 119, 124 Bosniaks, 109, 111, 112, 120–2, 126, 128 Bosnian War, 109 Brcko-District, 112 Central and Eastern Europe, 109–10 citizen involvement in Constitution of the State, 111 Commission for Real Property Claims of Displaced Persons and Refugees (CRPC), 118 Common Institutions, 113 “consociationalism,” 114 “constituent peoples,” 129; equality, 120–2; parity and equal participation on State level, 114–16 representation in both Entities, 122–4 Constitution: article I.7 (citizenships of the State and Entities), 113; article II.1 (European Convention of Human Rights and Fundamental Freedoms as highest source of law), 123; article II.2 (refugees, right of return), 118; article II.5 (refugees, rights of property), 118; article III

308

Index

(powers of the State), 121; article III.1 (powers of the State), 112–13; article III.4 (coordination of the Entities), 114; article III.5 (transfer of powers from Entity to State), 114; article III.3.a (powers of the Entities), 113; article III.3.b (supremacy clause), 113; article IV.3d (absolute veto), 115; article IV.3f (vital interest, determination by Constitutional Court), 116; article V.2 (tripartite presidency), 113; article V.4 (Council of Ministers), 113; article V.2c (Presidency, unanimous decisions), 116; article VI.3 (Constitutional Court rule on disputes between State and Entities), 114; article VI.1a (Constitutional Court, inclusion of international judges), 122; article XII.2 (Entity Constitutions, obligation to follow State Constitution), 114 constitutional change: external forces, inluence on, 109–10; working group, 125 Constitutional Court, 116, 118; composition of, 122; “constituent peoples” case, 120–2 Copenhagen criteria, 124, 133n Council of Ministers, 123, 124 Croatia, FBH, foreign relations with, 112 Croats, 109, 111, 112, 120–2, 126, 128 Dayton Peace Agreement (Accord) (DPA), 110–12, 115, 116; civilian implementation, 119; Constitutional Court judgments on, 120–2; constitutional reform, 125–6 decision-making process, role of Entities in, 113–14

defense, 124 democratization, 109–10 discrimination, 115, 117, 120–2 distribution of powers, State and Entities, 112–14 Electoral Commission, 118 “Entities,” Republic Srpska (Serb Republic, RS) and Federation of Bosnia and Herzegovina (FBH): blockage of change, 129; constitutional amendments imposed by High Representative, 122–4; discriminatory provisions in constitutions, 120–2; establishment of, 110; federal system, role in, 111–14; institutional structures, 112–14 “ethnic cleansing,” 109, 136n ethnic divisions, 116–17, 126 “ethnic federalism,” 109, 114 ethnic groups, 109, 127–9 “ethnic homelands,” 114, 129 “ethnic sovereignty,” 116 European Commission for Democracy of Law (“Venice Commission”), 137n European Convention for the Protection of Human Rights and Fundamental Freedoms, 118, 123 European Court of Human Rights, 115, 123–4; international judges, ´ nomination of, 122; Sejdic-Finci case (discrimination against “Others”), 128 European Stability Initiative, 138n European Union, accession, 109, 124–7 federal system, structure of, 111–14 Federation of Bosnia and Herzegovina (FBH): administrative system, crisis in, 128; Constitution, 120; federal structure, 112 “forced-together federalism,” 114

Index foreign affairs, 112 “fourth constituent” element (International Community), 124 General Framework Agreement for Peace, Annex 7 (article II.1, minority-returns), 121 High Judicial and Prosecutorial Council, 124 High Representative, 119, 120, 125–7 constitutional amendments imposed by, 122–4; resignation of, 128 House of Peoples, 113, 114–16 House of Representatives, 114–16 human rights, 118–19, 121 Human Rights Chamber, 118 institutional system: complexity of, 117; reforms, proposed, 125 Inter-Entity Boundary Line (IEBL), 111 International Community: accountability of, 124; inancial transfers from Entities, guarantee of, 113; state-building, role in, 109–11, 117–19 International Court of Justice (ICJ), Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 131n, 138n International Criminal Tribunal for Yugoslavia, 118 International Peace Treaty, Constitution of the State (annex 4 of the DPA), 111 International Police Task Force, 118 ´ Alija, 111, 120 Izetbegovic, judiciary, reform of, 124 Kosovo, 138n Lajcak, Miroslav, 128 languages, 131n, 135n legislative competences, 121 “local ownership” of reform process, 124–5

309 ´ Slobodan, 111 Miloševic, minority groups, 115, 120–2, 123–4 “minority returns” of displaced refugees, 117 “multiethnic society,” 130n multinational state, 123, 130n Muslims, 109 nationalist political parties, 119 NATO military intervention, 109–10; Stabilisation Force (SFOR), 117–18 Ofice of the High Representative (OHR), 119; extension of mandate, 127 Parliamentary Assembly of the State, 114–16 peace agreement, 110–11 Peace Implementation Council (PIC), 119, 124, 126–7 police powers, 126 power sharing, 114–16 Presidency, 114–16 Prud Process (constitutional amendment creating a fourth territorial unit), 128 reform, constitutional, 124–7 refugees and displaced persons, rights of, 117–18, 121–2 Republic Srpska (Serb Republic, RS): autonomy of, 126; Constitution, 120; political centralization, 112 Serbia (RS), foreign relations with, 112 Serbs, 109, 111, 120–2, 126, 128 Stabilisation and Association Agreement with European Union, 124, 126–7, 130n State Court, 124 state-building process, 109–10, 129 transition to free-market system, 109–10 Treaty on European Union (TEU): Article 6(1) (principles for

310

Index

membership), 137n; Article 49 (conditions for membership), 137n Tudjman, F., 111 UN Covenant against racial discrimination, article 5 (right of equal access to governmental posts), 121 United Nations Covenant against racial discrimination, article 5 (right of equal access to governmental posts), 121 Venice Commission, 125 veto mechanisms, 115–16 vital interests, 115–16, 123 war, 109–11, 118 Washington Agreement of March 1994, 111 bottom-up pattern of inluence, 4, 5, 27, 31 European Union, 281, 286–9, 293 Germany, 69–70, 74 Spain, 218–19, 222–3, 227–34 United Kingdom, 200–3 Brandeis, Louis, 18–19 Brazil, 16 Constitution, 9 constitutional space, 14 sovereignty, constitutional, 141 territory, governing of large, 13 Bremen, 78, 79 Brennan, William, 52 British Columbia Constitution Act, 181, 183 deicit spending legislation, 185 referendum, 2005 and 2009, 184 referendum, sales tax, 186 Brown, Gordon, 211 Brussels-Captial Region constitutive autonomy, lack of, 170–1 Flemish-speaking minority, 168–9 regional ofices in, 287 Brwcko-District, 112 budgets, 62

Bulgaria, 262 Constitution, amendment, 261 judiciary, 259 Bundesrat (chamber of state governments) (Germany), 77 legislative process, 66–75 reduction of veto powers, 62 Bundestag (parliament) (Germany), 68–70, 77 Burgenland, 88 direct democracy, 96 elections, 100 investigations, requirements for, 99 state goals, 93 Burger, Warren, 51 Burger Court (United States), 51–2 Burgess, Michael, 257 Burgstaller, Gabriele, 103 Bußjäger, Peter, 22–3 BZÖ, 103 Calabria, 251n California Constitution, amendments to, 55 Constitution of 1879, 54 Convention of 1878-79, 56 Supreme Court, 52–3 Canada, 23, 25–6, 174–92 admission of provinces, 178 Alberta, populist movements, 180–1 ambiguity, constitutional, 175, 189 antigovernment feeling, 180 bills of rights, 184 British Columbia: Constitution Act, 5, 181, 183; deicit spending legislation, 185; referendum, 2005 and 2009, 184; referendum, sales tax, 186 Canada Act (1867), 25 Charter of Rights and Freedoms: federal limits on provincial governments, 178; Section 5 (provincial legislatures, frequency of meetings),

Index 5; Section 33 (notwithstanding clause), 7–8; Section 32(1)b (legislatures and governments of provinces), 178–9; Sections 3-5 (right to vote and terms of legislatures), 178; Sections 16-20 (bilingual character of country and New Brunswick), 178 conservativism of subnational constitutional cultures, 174, 190 constitutions: British constitutional and parliamentary traditions, 187–8; Constitution Act of 1867, 176–8, 182; Constitution Act of 1867; Part V (provincial constitutions), 176; Constitution Act of 1867, section 133 (provincial constitutions), 5; Constitution Act of 1867; section 133 (use of French or English in parliament), 177–8; Constitution Act of 1982, 176–7, 186; constitutional crisis, 182; federal and provincial, 4–5 Crown, political power of the, 177, 180, 182, 183 direct democracy, 180, 186 diversity, 175, 187–8, 189–90 educational rights, 178 electoral reform, 186–7 executive power: lieutenant-governor as representative of the Crown, 177; provinces, 182–3 history, constitutional, 174–5 human rights, 184 Judicial Committee of the Privy Council (JCPC), 180 judicial system, federal and provincial control, 179 language rights, 178 Liberal party (federalist), 188 Manitoba: initiative and referendum legislation, 180; Manitoba Act, 1870, Section 23 (use of

311 French or English in legislature), 178 minority rights, 178, 184 national-unity imperative, 189 New Brunswick Commission on Legislative Democracy, 191n Newfoundland and Labrador, 182 Ontario, 183–4, 189 parliamentary government, 177; executive power in, 182–3; majority model, 184 Parti Quebecois (PQ) (separatist), 188 policy goals, unconventional, 181 populist movements, 179–80 Prince Edward Island Terms of Union, 1873, 178 provinces: electoral systems, 183–4; inancial management, 185; provincial premiers, power of, 182–3; provincial statutes, structure of executive and legislative power, 181 provincial constitutions: deined, 187; entrenchment, lack of, 176, 186, 188; existence of, 175; federal sources of, 176–9; federalism, signiicance for, 186–9; low level of consciousness of, reasons for, 188–90; provincial sources of, 179–85 public policies, innovation in, 179 Quebec, 13, 26, 189; Charter of Human Rights and Freedoms, 26, 184–5; Charter of the French Language, 185; language laws, 179; parliament, languages used in, 178; proposals for provincial constitution, 188; Quebec National Assembly, 184 regions, 189 Senate, design of, 182 Social Credit party, 180

312

Index

sovereignty, constitutional, 141 stability and peace, 176, 189 status of, 182 sub-state nationalism, 200 Supreme Court, decision on Quebec language laws, 179 unwritten constitutions, 176, 181 Westminster-style governments in provinces, 180–1; executive authority, 175 CAP (Common Agricultural Policy), 289 capital punishment, 51–3 Carinthia, 88, 103 elections, 100 investigations, requirements for, 99 state goals, 93–4 Castle Coalition, 55 Catalonia, Spain, 227–30, 232–3, 235n Catalan nationalists, Basque iscal competence, 207 Catalan Socialist Party (PSC), 220–1, 229 CDU (Christian Democratic Union), 61 Central and Eastern Europe, 109–10 constitutions, reference to European Union, 260 Central Competition (Anti-Trust) Authority (Tribunal de Defensa de la Competencia), 226 central government institutional representation of regional interests, lack of, 239 proposals to reform powers of, 221 centralization, 195–6 Charter of Fundamental Rights, 272 Charter of Rights and Freedoms (Canada) federal limits on provincial governments, 178 sections 3-5 (right to vote and terms of legislatures), 178

sections 16-20 (bilingual character of country and New Brunswick), 178 sections 32(1)b (legislatures and governments of provinces), 178–9 Chaves, Manuel, 230 China, 5, 9 Christian Democratic Union (CDU), 61 Christian Social Union (CSU), 61, 69 Christian-Social-Party, 88 Church, Clive, 257 citizen petitions, 91 citizens’ rights, 143 civil liberties, 47, 52 civil service, 209 Claes, Monica, 259, 262, 264, 265 coalition agreements by political parties, 61–2, 73 Colantuono, Michael, 56 collective bargaining, 54 Colorado, 50, 58 Constitution, 49, 54 Taxpayer Bill of Rights Amendment (TABOR), 55 Commission for Real Property Claims of Displaced Persons and Refugees (CRPC), 118 Committee of the Regions (CoR), European Union, 281, 286–7, 290 Common Agricultural Policy (CAP), 289 common market interests, 272 competences Austria, 93, 95, 98 Basque iscal competence, 207 Bosnia-Herzegovina, 121 European Union, 267–8, 273, 283–4 exclusive or concurrent, 10 Germany, 62, 70–3, 79–80 Italy, 285 Competencia, Tribunal de Defensa de la, 226 competencies, division of, 88, 101–4 competitive federalism, 22, 79–80

Index concurrent powers, 10, 14, 158 legislative, 64–5, 70–2 Conference of Community and European Affairs Committees of the Parliament of the European Union (COSAC), 290 Connerly, Ward, 55 consensus central government and regions in EU Member States, 287 dificulty in reaching, 220–1 consent legislation (Zustimmungsgesetzgebung), 62, 73–4 Conservative Ascendance era, 53–5 consociationalism, 114 consolidation of Länder, 79 constituent assembly, 147, 157 “constituent peoples” (BosniaHerzegovina), 129 equality, 120–2 parity and equal participation on State level, 114–16 representation in both Entities, 122–4 “constitutive autonomy,” 25, 169–71 Convention on the Future of Europe, 274 cooperation agreement, political parties, 102 cooperative federalism, 14, 64 cooperative regionalism, 239 coordination of legislation, Westminster and Scottish Parliament, 212 Copenhagen criteria, 124 Coppel, Jason, 272 CoR (Committee of the Regions), European Union, 281, 286–7, 290 Corsica, 253n Cortina d’Ampezzo, 245 COSAC (Conference of Community and European Affairs Committees of the Parliament of the European Union), 290

313

Council of Ministers, 123, 124 criminal defendants, rights of, 51–3, 57 Croatia, 112, 261 Croats, 109, 111–12, 120–2, 126, 128 Crown, political power of, 177, 180, 182, 183 CRPC (Commission for Real Property Claims of Displaced Persons and Refugees), 118 CSU (Christian Social Union), 61, 69 cultural artifacts, 71, 72 cultural differences, 12–13, 245–7 Cyprus, 260–2 Czech Republic, 262, 270–1 Dardanelli, Paolo, 257 Davies, Ron, 206 Dayton Peace Agreement (Accord) (DPA), 110–12, 115, 116 civilian implementation, 119 Constitutional Court judgments on, 120–2 constitutional reform, 125–6 De Witte, Bruno, 265 death penalty, 51–3 debt, public, 76–8, 80–1, 82 decentralization, 57, 220, 223–4, 282 defense, 124 deicit spending, 76–8, 81 Delaware, 46 democratic principle, 151–2 democratization, 109–10 Denmark, 262, 263, 265 Constitution, amendment process, 264 constitution, reference to European Union, 259 Danish Supreme Court, 267 descending phase (European Union law), 283–4 devolutionary federal systems, 11–12, 24–7, 164, 167, 195–6 Dicey, Albert V., 203–5

314

Index

die Linken (Left party), 61 Dieterich, Peter, 81 Dinan, John J., 15, 21 direct democracy, 17 Austria, 91, 92, 93, 95–7, 99 Canada, 180, 186 Switzerland, 146, 151–3, 160 directive 79/409/CEE (wild-bird conservation), 285 discrimination, 117, 120–2 disenfranchised groups, 50 “dispositive principle,” 223, 227, 229–30 distribution of power Austria, 89–91 Belgium, 164 Bosnia-Herzegovina, 112–14 Germany, 71 Italy, 240 Spain, 231 Switzerland, 158 diversity, 23–6, 58, 175, 187–90 dual federalism, 21–2, 63–4, 66, 68, 70–5 Dutch Community Commission (Belgium), 169 Dutch-speaking Community (Belgium), 167 early warning system, 289–90, 293 ECHR (European Convention on Human Rights), 94, 270, 272–3 ECJ. See European Court of Justice economic intergovernmental relations, 242–4 education, 69, 72, 73, 75, 103 educational rights, 178 EEA countries, 261, 262 Elazar, Daniel, 4, 17 elections, federal, 61 Electoral Commission, 118 electoral reform, 186–7

England parliament, 211 regional government, 212 English Court of Appeal, 204 ENP (European Neighbourhood Policy), 262 enumerated powers, communities and regions, 164, 167 environmental protection, 94, 224 equal access to governmental posts, right of (United Nations Covenant against racial discrimination, article 5), 121 Equality and Human Rights Commission, 208 equivalent living conditions, 65, 71 Erk, Jan, 104 essential legislation, 65, 71 Estonia, 262, 263 Constitutional Act on the EU, 261 expert committee, 265 Working Group, 270 Ethiopia, language, oficial, 17 Oromo Liberation Front, 12 ethnic cleansing, 109, 136n ethnic divisions, 126 negative impact on integration, 116–17 ethnic federalism, 109, 114 ethnic groups, 109, 127–9 ethnic homelands, 114, 129 ethnic sovereignty, 116 EU. See European Union European Arrest Warrant Framework Decision, 261, 272 European Commission, 259, 273 European Commission for Democracy of Law (Venice Commission), 125, 137n European Convention for the Protection of Human Rights and Fundamental Freedoms, 118, 123

Index European Convention on Human Rights (ECHR), 94, 270, 272–3 European Court of Human Rights, 115, 123–4, 270 Bosphorus case, 272 international judges, nomination of, 122 ´ Sejdic-Finci case (discrimination against “Others”), 128 European Court of Justice (ECJ), 258, 266, 272–3, 284–7, 290–1 Germany v Council (annulment of Tobacco Advertising Directive), 273 principle of unity, ruling on, 282 European Declaration of Human Rights, 158 European Grouping of Territorial Cooperation, 291 European Neighbourhood Policy (ENP), 262 European Parliament, 268 European Stability Initiative, 138n European Union (EU), 30–2 accession, 109, 124–7 Accession Treaty, 267 Amsterdam Treaty, 258, 268 Banana case, 272 bottom-up pattern of inluence, 281, 286–9, 293 Brussels, regional ofices in, 287 Charter of Fundamental Rights, 272 Committee of the Regions (CoR), 5, 281, 286–7, 290 Common Agricultural Policy (CAP), 289 common market interests, 272 competences, 273; allocation of, 283–4; delegation of, 267–8 Conference of Community and European Affairs Committees of the Parliament of the European Union (COSAC), 290

315 consensus building between central government and regions, 287 “Constitutional Charter,” 258 constitutional courts, adjudication of conlicts between national law and EU law, 266 “constitutional pluralism,” 269 constitutions of Member States: amendment procedures, 263–4; amendments to, 259–62; EU membership, problems in addressing, 262–6; “historic,” 265; lawyers, constitutional, 264; “revolutionary,” 265; transfer of powers, 258 Convention on the Future of Europe, 274 “co-operative constitutionalism,” 266 Council of Ministers, 287, 290 decentralization, 282 descending phase, 283–4 devaluation of constitutions, 265 directive 79/409/CEE (wild-bird conservation), 285 early warning system, 289–90, 293 European and National Constitutional Law Project, 274 European Arrest Warrant Framework Decision, 261, 272 European Commission, 259, 273 European Constitution, ratiication, 257 European Constitutional Treaty, 264, 269–71; Article 308, 273 European Convention of Human Rights (ECHR), 270, 272–3 European Court of Human Rights, 270; Bosphorus case, 272 European Court of Justice (ECJ), 258, 266, 272–3, 284–7, 290–1; principle of unity, ruling on, 282 European Grouping of Territorial Co-operation, 291

316

Index

European Neighbourhood Policy (ENP), 262 European Parliament, 268 “Europeanization,” 281, 283, 286 “external governance,” 262 federalism, 257 fundamental rights, protection of, 272 General Court, 291–2 globalization, 271 Goteborg Strategy, 291 Hallstein, Walter, 257 horizontal cooperation, 287, 292 “horizontal federalism,” 288 human rights, 272 “integrative federalism,” 257 intergovernmental coordination within States, 292 international treaties, 270–1 “intertwined constitutionalism,” 269 “judicial dialogues,” 266 Kompetenz-Kompetenz, 267 law: competences, allocation of, impact on, 283–4; Law Num. 11/2005 (regional infringements), 284–5, 289; supremacy of, 266; violations of, 284 Lisbon Treaty, 258, 264, 269, 271, 282, 289, 291, 293; competences for the EU, 273–4; Protocol on the Application of the Principle of Subsidiarity, 289; Protocol on the Role of National Parliaments, 289 “Masters of the Treaties,” 267–9, 274 Member States, national constitutions, 30–2 membership, 198, 258 Monetary Union, 258, 268 “multi-level constitutionalism,” 269 multi-level governance, 283 National Community Act, 284 national constitutional doctrine, 270–1

National Strategic Framework, 291 network dimension, 281, 283, 290–2 “Neutralizing the Sovereignty Question” (Jakab), 264 New Cohesion Policy, 291 Nice Treaty, 258 parliaments, involvement in policymaking, 289–90 Protocol on the Application of the Principle of Subsidiarity and Proportionality, 290 ratiication of treaties, 273–4 Reform Treaty, 213, 286 regions: constitutional space, European integration process, 281; decision-making process, role in, 293; legislative powers (RegLegs), 281, 283, 286–7; participation in policy-making (European and national), 286–9, 290; self-government, 280 Schengen borderless area, 258 sovereignty of Member States, 260; delegation of, 264; transfer of powers, 258, 266–8 Spinelli, Altiero, 257 structure of, 24 sub-national units: constitutional space, 283; relationship to, 5, 290–2 “supranational federation,” 257 “supranational organization sui generis,” 257 territorial organization of Member States, “blindness” to, 281–2 territorial reform, 280 top-down pattern of inluence, 281, 282–6 Treaty Establishing a Constitution for Europe, 269–71 Treaty of Maastricht (TEU), 258, 267–8, 280–1; Article 4 (principle of co-operation), 282; Article 4,

Index paragraph 2 (respect for internal structures of Member States), 281 Treaty on the European Union (TEU), 269; Article 48 (ratiication of treaties), 274 Treaty on the Functioning of the European Union (TFEU), 269; Article 258 (obligation to EU law), 282, 285; Article 263, paragraph 2 (regions acting as privileged subjects), 291; Articles 2-6 (competences for the EU), 273 tripartite contracts, 291 Europeanization, 31, 281, 283, 286 exclusive powers, 10, 14, 158, 224–5 federal government, 164 legislative, 64–5, 70–2 executive federalism, 22, 103 executive power, 177, 182–3 experts, politicians and scholars, reform proposals by, 102–3 external governance, 262 fast-track autonomous communities, Spain, 228–9 Faymann, Werner, 103 FBH. See Federation of Bosnia and Herzegovina FDP (Free Democratic Party), 61 federal faithfulness, principle of, 155 Federal Republic of Austria. See Austria Federal Republic of Germany. See Germany federal system of government, 234n competences, exclusive or concurrent, 10 criticism of, 57 powers of, 88 reform of, 101–4 special-majority legislation, 171–2 state constitutions, effect on, 55–8 structure of, 111–14 supreme courts, 10–11

317

Federal Tribunal (Switzerland), 159, 161 federalism, 251n, 257 deinitions of, 196 institutional dimension, 237 political climate, 249 political dimension, 237 reform of, 61–87 Federation of Bosnia and Herzegovina (FBH) administrative system, crisis in, 128 Constitution, 120 federal structure, 112 Feeley, Malcolm, 57–8 Feuille fédérale, 154 Fiedler, Franz, 103 inances arrangements between national government and regions, 237, 241–4 Basque Country and Navarre, 233 equalization between rich and poor regions, 238 iscal federalism, 241, 244–5 government relationships, 102 management, auditing of, 97–9 reform of systems, 74–81 territories, 209 Finland, 262, 263 constitution, reference to European Union, 259 Parliamentary Committee, 265, 270 Flemish Community, constitutional autonomy, lack of, 165, 171 Flemish Community (Belgium), competences of Flemish Region, 167–8 Florida, 46 “forced-together federalism,” 114 foreign affairs, 112, 231 fourth constituent element (International Community), 124 fox hunting in England, ban on (Jackson), 204–6

318

Index

framework legislation, 64, 70, 72, 224, 230–1 France, 262, 265 Conseil Constitutionnel, 264–5, 270 Constitution: Article 88 (European integration clause), 268; Article 88(1) (participation in European Union), 260 constitution, reference to European Union, 260 Constitutional Council, 268 Free Democratic Party (FDP), 61 free speech, 51 Freedom Party, 100, 103 French Community (Belgium) competencies of Walloon Region, 167–8 constitutional autonomy, lack of, 165, 171 dismantling of, inancial aspects, 169 French Community Commission, 169 transfer of powers, 169 Fribourg, 140 Friuli-Venezia Giulia, 238, 246–7, 250n fundamental rights, 94–5, 102, 272 Furgler, Kurt, 144–5 Galicia, 228, 233, 235n Gardner, James, 14 General Court, 291–2 General Framework Agreement for Peace, Annex 7 (article II.1, minorityreturns), 121 Geneva, 140, 153, 156–7, 159, 160, 161n constitution of 1958, 142 foreign relations, 159 Georgia Constitution, 51 Constitution of 1777, 48 German-speaking Community (Belgium)

constitutive autonomy, lack of, 170–1 Walloon Region, 168–9 Germany administration of federal laws, 66–8 Baden-Württemberg, 76, 79–80 Basic Law (Grundgesetz), 63; Article 21 (regulation of political parties and inance), 65; Article 30 (state powers and implementation), 64, 66; Article 70, paragraph 1 (rights of Länder to pass legislation), 64, 73; Article 70, paragraph 2 (exclusive and concurrent legislative powers), 64; Article 70 (legislative powers of Länder), 66; Article 71 (exclusive legislative powers), 70; Article 72 (concurrent legislative powers), 65, 70–1; Article 73 (exclusive legislative powers of federation), 64–5; Article 73 (federal exclusive legislative powers), 71–2; Article 74 (concurrent legislative powers), 65, 71–2; Article 75 (framework legislative powers), 64–6, 70, 72, 75; Article 83 (Länder implementation of federal legislation), 66; Article 84, paragraph 1 (Länder administration of federal legislation and establishment of agencies), 74; article 84, paragraph 2 (majority approval requirements), 74; Article 84 (Länder administration of federal legislation), 67; Article 90 (Land administration of federal highways), 67; Article 109, paragraph 1 (inancial autonomy of federation and Länder), 76; Article 109, paragraph 2 (balanced budget requirements), 76–7; Article 109, paragraph 3 (balanced budgets without borrowing), 77; Article 109, paragraph 4 (federal limits

Index on budget autonomy of Länder), 77; Article 109, paragraph 5 (deicit limits and sanctions), 77; Article 109 (inancial relationship of federation and Länder), 76–8; Article 109 (limits on deicit and debt), 81; Article 115 (borrowing and deicit spending), 76–8, 81; Article 91a (joint planning in construction of university buildings), 67, 74–6; Article 104a (federation inancing of programs administered by Länder), 67, 75–6; Article 109a (creation of Stability Council for budget emergencies), 76–7; Article 91b (joint planning in education), 67–8, 74–5; Article 104b, 75; Article 104b (federation inancing of programs administered by Länder), 78; Article 143d (timing of inance reforms), 76–8; Section VII, 64; Section VIII, 66 Bavaria, 79–80 Berlin, 74–5, 78 Bismarck Reich, 62–3, 64 blockade politics, 73–4 bottom-up reform, 69–70, 74 Bremen, 78, 79 budgets, 62, 77 Bundesrat (chamber of state governments), 77; legislative process, 66– 75; reduction of veto powers, 62 Bundestag (parliament), 68–70, 77 Christian Democratic Union (CDU), 61 Christian Social Union (CSU), 61, 69 coalition agreements by political parties, 61–2, 73 competitive federalism, 79–80 concurrent legislative powers, 64–5, 70–2 consent legislation (Zustimmungsgesetzgebung), 62, 73–4

319 consolidation of Länder, 79 constitution, 63; Article 23(1) (participation in European Union), 260; Article 28(1) (constitutional order of Länder), 166; Article 79(3) (sovereignty), 268. See also Basic Law (Grundgesetz), above, under this heading Constitutional Court: Maastricht decision, 267–9, 273; Solange I decision, 272 cooperative federalism, 64 cultural artifacts, 71, 72 debt, public, 76–8, 80–1 deicit spending, 76–8, 81 division of legislative powers, 71 dual federalism, 63–4, 66, 68, 70–5 education, 69, 72, 73, 75 elections, federal, 61 equivalent living conditions, 65, 71 “essential legislation,” 65, 71 European Union, 265, 280, 283, 289, 290; Growth and Stability Pact, 75–7, 81; laws affecting federal and Land levels, 64 exclusive legislative powers, 64–5, 70–2 federal assembly (Bundestag), 61 Federal Constitutional Court, 67, 71, 72 federal government: division of legislative powers, 70–3; legislative authority, 64–6 Federalism Commission, 61–2, 69–70, 74, 81 Federalism Commission II, 76 Federalism Reform I, 62, 70–5; controversy over, 78–80 Federalism Reform II, 62, 75–8; criticism of, 80–1 Finance Reform of 1969, 64, 67, 68 inance system, reform of, 74–81 framework legislative powers, 64, 70, 72

320

Index

Free Democratic Party (FDP), 61 German Confederation, 62 Grand Coalition, 61, 70, 74, 82 Green party, 61 history, 62–3, 79–80 Hitler, Adolph, 63 Holy Roman Empire, 62 homogeneity clause, 9 integrated federalism, 25 intergovernmental cooperation, 287 Junior Professor Decision, 72 Länder (states): administration of federal laws, 66–8; budgetary autonomy, 76–8; constitutional space, 68, 70–1; constitutions, 63; deviation (abweichen) from federal regulations, 74; executives, 68; funds, distribution to poorer states, 78–9; legislative powers, 64–6, 70–3; parliaments, 68; rights of, 62 Left party (die Linken), 61 legal issues, 71 legislative competences, federal and state (Land), 62, 70–3, 79–80 legislative powers, division of, 64–6, 70–3 Münterfering, Franz, 69 North German Federation, 62, 64 nuclear energy, 71 Oettinger, Günther, 76 opposition in government, 68–9 Politikverlechtung (political/policy interconnection and coordination), 64, 67, 68, 70 “precedence” legislation, 65 public employees, 72, 73 reference to European Union, 260, 262 reform of federal system, proposals, 69–70 Saarland, 78, 79

salaries and beneits of public employees, 72 Saxony-Anhalt, 78 Schleswig-Holstein, 78; constitution, 63 Social Democratic Party (SPD), 61, 69, 76 Solidarity Pact II, 74, 78, 80 sovereignty, constitutional, 141 Stability Council, 77, 81 state governments. See Bundesrat, above, under this heading Stoiber, Edmund, 69–70, 82 Struck, Peter, 76 Student Fees Decision, 72 supervision of sub-national constitutions by federal systems, 9 taxes, 68, 76 Third Reich, 63 top-down reform, 69–70 uniform living conditions, 65 weapons, control over, 71 Weimar Republic, 63 globalization, 271 Goteborg Strategy, 291 governing institutions, design of, 48–9 government units, equality of, 240 governmental posts, right of equal access to (United Nations Covenant against racial discrimination, article 5), 121 grand coalition, 102 Grand Coalition (Germany), 61, 70, 74, 82 Graubünden, 140, 160 Great Britain, 199 Greece, 260, 262, 263 Green Party (Austria), 100, 103 Green Party (Germany), 61 groups, achievement of political goals by, 44, 48, 55–8 Growth and Stability Pact, 75–7, 81 Gunlicks, Arthur B., 16, 21–2 Gusenbauer, Alfred, 102

Index Hall, Kermit, 56 Hallstein, Walter, 257 High Judicial and Prosecutorial Council, 124 High Representative, 119, 120, 125–7 constitutional amendments imposed by, 122–4 resignation of, 128 history Canada, 174–5 Germany, 62–3, 79–80 Italy, 237–9 Switzerland, 142–3 United Kingdom, 195–200 Hitler, Adolph, 63 Holms, Stephen, 264 Holy Roman Empire, 62 homogeneity clause, 9 Hong Kong, 5 Hope, Lord, 204–5 horizontal cooperation, 287, 292 horizontal federalism, 4, 103, 288 House of Commons, 210 House of Lords, 211, 213 House of Peoples, 113, 114–16 House of Representatives, 114–16 human rights, 93–4, 118–19, 121, 146–7, 158, 184, 272 Human Rights Act, 1998 (United Kingdom), 198, 206, 213 Human Rights Chamber, 118 Hungary, 262 hunting in England, ban on (Jackson), 204–6 Hurst, Willard, 19 Ibarretxe Plan (Basque Country), 227 Iceland, EU law, 261 ICJ (International Court of Justice), Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 131n, 138n Idaho, 50

321

IEBL (Inter-Entity Boundary Line), 111 India federal system, 3 Kashmir, 5 multi-ethnic populations, 13 individual rights Austria, 95 extension of, 51–3 protection for, 44 initiative process, 152–3, 160 integrated federalism, 25 integrative federalism, 164, 257 Inter-Entity Boundary Line (IEBL), 111 intergovernmental relationships, 207– 10, 292 International Community accountability of, 124 inancial transfers from Entities, guarantee of, 113 state-building, role in, 109–11, 117–19 International Court of Justice (ICJ), Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 131n, 138n International Criminal Tribunal for Yugoslavia, 118 International Peace Treaty, Constitution of the State (annex 4 of the DPA), 111 International Police Task Force, 118 international treaties, 270–1 inter-parliamentary relations, 208, 210–12 investigations by audit ofices, requirements for, 99 Iowa, Supreme Court, 52 Ireland, 262, 265 Act of Union, 1800, 199 constitution, reference to European Union, 260 Government of Ireland Act, 1920, 199

322

Index

Sinn Fein, 199 union with, 1800, 197 United Irishmen society, 199 war with, 199 Italy, 26, 237–54 Abruzzo, 287 Aosta Valley, 238, 245, 252n asymmetrical regionalism, 238 autonomy statutes, 238, 246 Berlusconi, Silvio, 241, 243 Budget Act for 2007, 285 Calabria, 251n central government, institutional representation of regional interests, lack of, 239 Community Act, 2007, 285 compensation mechanism, 285 Constitution: article 114 (composition of the Republic), 250n; article 116 (autonomy statutes of special regions), 246; article 116.3 (ordinary and autonomous regions), 240–1; article 117 (legislative powers of national government), 240, 254n; article 117. 2 (civil and societal entitlements), 241; article 118 (administrative powers, distribution of), 240; article 119 (inancial autonomy of sub-national entities), 240–3; article 123 (amendments to autonomy statutes of ordinary regions), 250n; article 123 (autonomy statutes of ordinary regions), 246; article 123 (representation of local authorities), 240; article 132.2 (shifting regional borders), 244; article 138 (amendment procedure, national Constitution), 250n; Constitution of 1948, 238 constitutional adjudication, 238–9, 248 Constitutional Court, 29–30, 242; competencies, re-deining of,

241; decisions on constitutional reform, 248; federal disputes, settling of, 237, 239; Sardinian law, rejection of, 247 constitutional litigation, 239 constitutional reforms: 2001, 248; implementation of, 240–1; “ordinary” regions, 239–40 “cooperative regionalism,” 239 Corsica, 253n Cortina d’Ampezzo, 245 Council of Ministers, 285 cultural differences, 245–7, 246–7 economic intergovernmental relations, 242–4 Emilia Romagna, 284 European Union, 262, 263, 265, 280, 281, 283–6, 292 federalism, 251n: institutional dimension, 237; political climate, 249; political dimension, 237 inances: arrangements between national government and regions, 237, 241–4; equalization between rich and poor regions, 238; “iscal federalism,” 241, 244–5 French Constitutional Council, 253n Friuli-Venezia Giulia, 238, 246–7, 250n, 284 government units, equality of, 240 history, 237–9 institutional structures, federal, 237 intergovernmental cooperation, 288 Italian Constitutional Court, 283, 292 Italian State-Regions Conference, 288–90, 292 languages, linguistic minorities, 246 Law of 2005, CIACE (Comitato interministeriale per gli affari comunitari europei), 288 Lazio, 284, 287 legal/litigation model for dispute resolution, 11

Index Liguria Region Law Num. 36/2006, 285 Lombardy, 250n, 251n Marche, 287 municipalities, attempts to join special regions, 237, 242, 244–5 North, regions of, 238–9, 243, 249 Northern League, 239, 241 “ordinary” regions, 239–40 Parliament, 244 Peace Treaty, 1946, 249n Piemonte, 284 political culture, federal, 237, 248 Prodi, Romano, 241, 243, 245 provinces, role of, 252n quasi-federal system, 28–30 reference to European Union, 259 referendum, 244 reform of 2001, 242 regions, 29; “ordinary” regions, 239–40; regional borders, shifting, 244–5; Regional Community Act, 284; regional identities, 237, 242, 245–7; regionalism, 237, 248; relations with national government, 240; self-government, 239 Sardinia, 238, 246–7, 250n, 252n Senate, representation of regional interests, 239 Sicily, 238, 251n Slovene minority group, 246 South, regions of, 238–9, 243, 249 South Tyrol, 5, 245, 251n sovereignty, debates over, 247 “special” or “autonomous” regions, 238–9, 243 inancial arrangements of, 244–5 sub-national constitutions, 5 sub-national units, inancial autonomy, 242 substitution, power of, 284–5 Sudtirol/Alto Adige, 287

323 supervision of sub-national constitutions by federal systems, 9 taxes, 242 Tirol, 287 Title V (distribution of competences), 285 Toscana, 287 Trentino, 251n, 287 Trentino-South Tyrol, 238 Trento, 245 Trieste, 246 Umbria, 287 Veneto, 245, 250n, 252n Venezia-Giulia, 246 Izetbegovíc, Alija, 111, 120

Jackson (ban on fox hunting in England), 204–6 Jacksonian Era, 53–4 Jakab, Andras, 264 Jefferson, Thomas, 45–6, 55 JMC (Joint Ministerial Committee), Scotland and London, 208–9 Joint Community Commission (Belgium), 169 Joint Ministerial Committee (JMC), Scotland and London, 208–9 judges, appointment of, 225 judicial system dialogues, 266 federal and provincial control, 179 Judicial Committee of the Privy Council (JCPC), 180 reform of, 124 Junior Professor Decision, 72 Jura constitution, 144; Article 138 (welcoming seceded territory), 154–5; preamble, 158 creation of, 142–3 foreign affairs, 159 guarantee, refusal of, 154–5

324

Index

Kelsen, Hans, 88 Kentucky, Constitution, 51 Kincaid, John, 151 Kohl, Andreas, 103 Koja, Friedrich, 94 Kompetenz-Kompetenz, 166–7, 267 Kontrollamt ofice, 97–9 Kosovo, 138n Kostelka, Peter, 103 Krasner, Steven, 264 labor unions, 54 Labour Party, 201–2, 209–10 Lajcak, Miroslav, 128 languages Bosnia-Herzegovina, 131n linguistic minorities, 246 multilingual federations, 23–6 oficial use, 135n rights, 178 Latvia, 261–3 Constitution: Article 98 (extradition of citizens), 261; Article 101 (voting rights), 261 Laws, Lord Justice, 204, 206 Left party (die Linken), 61 legal issues, 71 legal positivism, 89, 94 legislation concurrent, 65 hierarchy, lack of, 164 legislative competences, 121 legislative competences (Germany), 62, 70–3, 79–80 legislative powers, division of, 64–6, 70–3 precedence, 65 reform, use in, 221 Lehmbruch, Gerhard, 64, 69, 79–80 Liberal Democrats, 209 Liberal Party (Canada), 188 Lichtenstein, EU law, 261 Lienbacher, Georg, 103

limits on governmental power, 54–5 Linken (Left party), 61 Lisbon Treaty, 258, 264, 269, 271, 282, 289, 291, 293 competences for the EU, 273–4 Protocol on the Application of the Principle of Subsidiarity, 289 Protocol on the Role of National Parliaments, 289 Lithuania, 262, 263 Constitution, Article 125(2) (conformity with Monetary Union), 261 Constitutional Act on Membership in the European Union, 261 local ownership of reform process, 124–5 Lombardy, 250n, 251n London, mayor, 212 Louisiana, 46 Lower Austria, 88 direct democracy, 96 elections, 100 investigations, requirements for, 99 state goals, 93 Lutz, Donald, 264 Luxembourg, 262, 263 constitution, reference to European Union, 259 Luzern, 140, 159, 160 Maastricht decision, Germany, 267–9, 273 Maastricht Treaty. See Treaty of Maastricht (TEU) Macau, 5 MacCormick (supremacy of Westminster Parliament), 204 Macedonia, EU law, 261 Macpherson, C.B., 180 Madison, James, 45 Maine, 50 Malaysia, multi-ethnic population, 13 Malta, 262

Index Manitoba initiative and referendum legislation, 180 Manitoba Act, 1870, Section 23 (use of French or English in legislature), 178 Maryland, Constitution of 1776, 48 Massachusetts, 46, 50 Constitution of 1780, 48 Supreme Court, 52–3 Masters of the Treaties, 267–9, 274 membership, 101–2, 104n, 258 Memoranda of Understanding and Supplementary Agreements (concordats) (United Kingdom), 209 Merkel, Angela, 61 Mexico Constitution, 9 native peoples, rights of, 17 political parties, 17 sovereignty, constitutional, 141 ´ S., 111 Miloševic, minority groups, 12–13, 17, 120–2, 123–4 discrimination against, 115 minority returns of displaced refugees, 117 rights of, 178, 184 Slovene, 246 minority-returns, General Framework Agreement for Peace, Annex 7, 121 Mississippi, Constitution of 1832, 49 Monetary Union, 258, 268 multi-ethnic populations, 13, 17, 130n multi-level governance, 283 multilingual federations, 23–6 multinational states, 23–6, 123, 130n municipalities inancial management of, 98 municipal referendum, 160 special regions, attempts to join, 237, 242, 244–5 structuring of, 143

325

Münterfering, Franz, 69 Muslims, 109 National Community Act, 284 National Council, 89, 92, 102 National Strategic Framework, 291 nationalism national identity, 13 national-unity imperative, 189 political communities, characteristics of, 232–3 political parties, nationalist, 119 sub-state, 200–3 NATO military intervention, 109–10 Stabilisation Force (SFOR), 117–18 Navarre, 233, 235n Netherlands, 262, 263 constitution, reference to European Union, 259 network dimension, 283, 290–2 cooperative approach, 281 Neutralizing the Sovereignty Question (Jakab), 264 New Brunswick Commission on Legislative Democracy, 191n New Cohesion Policy, 291 New Deal Era, 53–4, 64 New Hampshire, 45, 50 New Jersey, Supreme Court, 52 new judicial federalism, 52 New State Ice Co. v. Liebmann, 18 New York, 50, 54, 56–7 Newfoundland and Labrador, 182 Nice Treaty, 258 Nidwalden, 142–4, 158 Nigeria, 16 federal system, 3, 4 multi-ethnic population, 13 North German Federation, 62, 64 Northern Ireland autonomy, 195 Belfast Agreement, 1998 (Good Friday Agreement), 200, 202–3

326

Index

British unionists, 197 conlict between Irish republicans and British state, 202–3 devolution, bottom-up pressure for, 200–3 home rule movement, 199 Irish nationalists, 197 Northern Ireland Act, 1998, 200, 207, 213 Northern Ireland Human Rights Commission, 208 parliament at Stormont, 199 Provisional Irish Republican Army, 199 referendum for devolution, 202–3, 213 separatist nationalism, 207 Northern Italy, regions of, 238–9, 243, 249 Northern League, 239, 241 Norway, EU law, 261 nuclear energy, 71, 153, 155 Obwalden, constitution, 142–4, 158 Oettinger, Günther, 76 Ofice of the High Representative (OHR), 119; extension of mandate, 127 Ohio, Constitution, 49 Öhlinger, Theo, 103 OHR. See Ofice of the High Representative Oklahoma, Constitution, 49 ombudsman, 100 O’Neill, Aidan, 272 Ontario, 183–4, 189 opposition in government, 68–9 opposition parties, 103 ordinary regions (Italy), 239–40 Oregon, 46, 56 ÖVP, 103 Palermo, Francesco, 28–30 Parliamentary Assembly of the State, 114–16

parliaments, 177 communities and regions, 170 decision-making process, 154 European Union policy-making, involvement in, 289–90 executive power in, 182–3 Italy, 244 majority model, 184 sovereignty: devolution settlements, effects on, 203–6; doctrine of, 204–5; principle of legal supremacy, 197; repeal of acts, 203–6; United Kingdom, 213 Spanish Parliament, 230 reforms, approval of, 226–8 Parti Quebecois (PQ) (Canada), 188 Partido Popular, 220, 221, 229–30 Partido Socialista Obrero Español, 220–1, 224, 228–30 Paterson, Lindsay, 198 Peace Implementation Council (PIC), 119, 124, 126–7 Peeters, Patrick, 24–5, 164–73 Pennsylvania, Constitution of 1776, 48 People’s Party, 100, 102 Pernice, Ingolf, 269 Petritsch, Wolfgang, 135n PIC (Peace Implementation Council), 119, 124, 126–7 Poland, 260, 262, 263, 280 Constitution, Article 55 (extradition of citizens), 261 police powers, 126 policy Canada, innovation in, 179, 181 parliaments, involvement in European Union policy-making, 289–90 regions, participation in policymaking (European and national), 286–9 United Kingdom, devolved territories, inluence on, 208

Index United States, reforms, 53–5 Political Agreement on the Reorganization of the Federation, 101 political culture, 220, 237, 248 political factors, inluence on subnational constitutions, 15–18 political parties, 220–1 autonomous community branches of, 228–30 distribution of, 17–18 See also individual political parties by name political rights, 146–7 Politikverlechtung (political/policy interconnection and coordination) (Germany), 64, 67, 68, 70 popular initiative, 49, 58, 96, 99. See also direct democracy Popular Party (Partido Popular, or PP), 220, 221, 229–30 Populist Era, 53–4 populist movements, 179–80 Porchia, Ornella, 30–2, 280–97 Portugal, 262 Constitution, reference to European Union, 260 power sharing, 114–16. See also distribution of power PP (Partido Popular), 220, 221, 229–30 precedence legislation, 65 Presidency, 114–16 Prince Edward Island Terms of Union, 1873, 178 Prodi, Romano, 241, 243, 245 Progressive Era, 53–4 prohibition of intoxicating liquor, 47 Protocol on the Application of the Principle of Subsidiarity and Proportionality, 290 provinces, role of, 252n PSOE (Partido Socialista Obrero Español), 220–1, 224, 228–30 public employees, 72–3

327

public policy. See policy Putin, Vladimir, 6, 11 quasi-federal systems, 13, 26 Italy, 28–30 United Kingdom, 196, 207 Quebec Charter of Human Rights and Freedoms, 184–5 Charter of the French Language, 185 cultural differences, 189 language laws, 179 National Assembly, 34n, 184 parliament, languages used in, 178 proposals for provincial constitution, 188 Quint, Peter, 19 railroads, regulation of, 54 Rasmussen, Hjalte, 265 ratiication of European Union treaties, 273–4 Reagan, Ronald, 55 referendum, 49, 58 constitutional change, 213–14 devolution, 201–3 municipal, 160 shifting regional borders, 244 Reform Treaty, 286 reforms, experimental, 4 refugees and displaced persons, rights of, 118, 121–2 regions constitutional space, European integration process, 281 cultural differences, 189 decision-making process, role in, 293 with legislative powers (RegLegs), 281, 283, 286–7 national government, relations with, 240 participation in policy-making (European and national), 286–9, 290

328

Index

regional borders, shifting, 244–5 regional identities, 237, 242, 245–7 regionalism, 237, 248 self-government, 280 RegLegs (regions with legislative powers), 281, 283, 286–7 Reineck, Karl-Michael, 72 religion, 51 Republic Srpska (Serb Republic, RS) autonomy of, 126 Constitution, 120 political centralization, 112 residual powers federal government, 167 member states, 165–6 transfer to communities and regions, 171–2 Richard Commission, 206 Romania, 262, 263 Constitution, amendment, 261 judiciary, 259 Roosevelt, Franklin, 54 Rubin, Edward, 57–8 Russian Federation, 16 Constitution, 10–11 Constitutional Court, 10–11 Federation Constitution, complexity of, 6 Justice Ministry, 10–11 sovereignty within federations, 141 supervision of sub-national constitutions by federal systems, 9 Saarland, 78, 79 Sajo, Andras, 264, 265 Salzburg, 88, 90, 103 constitution, Article 10, paragraph 3 (right to property), 95 direct democracy, 96 elections, majority voting system, 100–1 investigations, requirements for, 99 investigative committees, 97 state goals, 93–4

same-sex marriage, 20, 52–3, 57, 161, 219 Sardinia, 238, 246–7, 250n, 252n Sausgruber, Herbert, 103 Saxony-Anhalt, 78 Scharpf, Fritz, 64 Schengen borderless area, 258 Schleswig-Holstein, 78 constitution, 63 Schmitt, Nicolas, 24 Schoeplin, George, 127 Schuetze, Robert, 257 Schwyz, 140, 156, 159, 160 Scotland, 286 autonomy, 195 Campaign for a Scottish Assembly (CSA), 201 civic and legal autonomy, nineteenth century, 198 A Claim of Right for Scotland, 1988, 201 devolution, bottom-up pressure for, 200–3 House of Commons, inluence in (“West Lothian” question), 210–11 legal system, independent, 197–8 legislative consent memorandums or “Sewel” resolutions, 212 referendum for devolution, 201–2 Scotland Act 1998, 202, 208, 210 Scottish Constitutional Convention (SCC), 201–2, 204 Scottish Executive, 209 Scottish National Party (SNP), 207, 217n Scottish Ofice, 1928, 198 Scottish Parliament, 204–5, 210 Secretary of State for Scotland, 1885, 198 separatist nationalism, 207 union with England, 1707, 197 Westminster, representation at, 210; “West Lothian” question, 210–11 Scotland’s Claim, Scotland’s Right, 202

Index self-government, regional, 239 self-rule, 4, 12–13, 160 Senate Canada, design of, 182 Italy, representation of regional interests, 239 Serb Republic. See Republic Srpska Serbs, 109, 111, 120–2, 126, 128 Sicily, 238, 251n Slovakia, 259, 262 Slovenia, 246, 262, 263 slow-track autonomous communities, Spain, 229 Smith, David, 177 Smith, Eivind, 264 Social Credit Party, 180 Social Democratic Party (SPD), 61, 69, 76, 88, 100, 102–3 social justice, 93–5 Socialist Worker’s Party (Partido Socialista Obrero Español, or PSOE), 220–1, 224, 228–30 Solidarity Pact II (Germany), 74, 78, 80 South Africa African National Congress, 18 constitution, 3 Constitutional Court, 10, 141 constitutional space, 7 devolutionary federal systems, 12 federation, recent origin of, 16 Kwazulu-Natal, 10 multi-ethnic populations, 13 sovereignty, constitutional, 141 Western Cape Province, 10, 18, 141 South Dakota, Constitution, 49 South Tyrol, 245, 251n Southern Italy, regions of, 238–9, 243, 249 sovereignty debates over, 247 European Union Member States, 260; delegation of, 264; transfer of powers, 258, 266–8 within federation, 141

329

Spain, 26, 218–36 1981 Agreement, 228–9 1992 Agreement, 229 Andalusia, 228, 230 asymmetry of territorial power structure, 232–4 autonomous communities, 5, 27–8; acquisition of powers, 206; constitution, proposal to include names in, 220; creation of, 223–4, 228–9; dividing of powers between autonomous communities and central government, 224–6; statutes of autonomy, 218–30 Balearic Islands, 233 Basque Country, 228–9, 232–3, 235n bottom-up pattern of inluence, 218–19, 222–3, 227–8, 228–34 Catalan Socialist Party (PSC), 220–1, 229 Catalonia, 227–30, 228, 229, 232–3, 235n Central Bank (Banco de España), 225–6 Central Competition (Anti-Trust) Authority (Tribunal de Defensa de la Competencia), 226 central government: proposals to reform powers of, 221; statutes of autonomy, effects on, 225–6 Chaves, Manuel, 230 conlict over powers, 232 consensus, dificulty in reaching, 220–1 Constitution: Article 30 (abolition of compulsory military service), 235n; Article 63.3 (sending troops abroad), 235n; Article 93 (international organizations), 234n; Article 143.1 (regional entities), 235n; Article 149.1 (powers of central government), 224–5; Article 149.1.1 (constitutional

330

Index

rights), 231; Articles 166-9 (mechanisms for Constitutional reform), 234n; reference to European Union, 219–20, 259; reform of constitution, failure of, 219–22; reform of constitution, majority votes required for, 226; reform of constitution, obstacles to, 221–2; territorial power structure, 218, 220, 222 Constitutional Court, 223, 225, 230, 233–4, 265, 270; Catalonia’s Statute of Autonomy, 230, 235n; role in decentralization, 232 consultation/negotiation model for dispute resolution, 11 decentralization, 220, 223–4 “dispositive principle,” 223, 227, 229–30 distribution of power between central government and autonomous communities, 231 environment, legislation on, 224 European Union, 231, 262, 263, 283 exclusive powers, 224–5 fast-track autonomous communities, 228–9 federal government, 234n inancial systems, Basque Country and Navarre, 233 foreign affairs, 231 framework legislation, 224, 230–1 Galicia, 228, 233, 235n Ibarretxe Plan, 227 intergovernmental cooperation, 288 judges, appointment of, 225 legislative approaches to reform, 221 legislature, Spanish, 233–4 multi-ethnic population, 13 national characteristics of political communities, 232–3 Navarre, 233, 235n Parliament, 28, 226–8, 230

political culture, 220 political parties, 220–1, 228–30 Popular Party (Partido Popular, or PP), 220, 221, 229–30 same-sex marriage, 219 Senate, representation of autonomous communities, 219–20 slow-track autonomous communities, 229 Socialist Worker’s Party (Partido Socialista Obrero Español, or PSOE), 220–1, 224, 228–30 sub-state nationalism, 200 succession to the throne, 220 supervision of sub-national constitutions by federal systems, 9 top-down pattern of inluence, 218, 222, 228–9 Union of Democratic Centre (Unión de Centro Democrático, UCD), 224, 228, 236n Valencian Community, 233 SPD (Social Democratic Party), 61, 69, 76, 88, 100, 102–3 special or autonomous regions, Italy, 238–9, 243–5 Spinelli, Altiero, 257 SPÖ, 103 SPÖ/ÖVP grand coalition, 101 St Gallen, 147 Stabilisation and Association Agreement with European Union, 124, 126–7, 130n stability and peace (Canada), 176, 189 Stability Council (Germany), 77, 81 state-building process, 23–4, 109–10, 129 statutes of autonomy. See autonomy Steyn, Lord, 204–5 Stoiber, Edmund, 69–70, 82 Struck, Peter, 76 Student Fees Decision, 72

Index Styria, 88, 90 direct democracy, 96 elections, 100 investigations, requirements for, 99 sub-national units constitutional change, effect on, 196 inancial autonomy, 242 relationship to European Union, 290–2 Sudan, constitutional space, 7 suffrage, 44, 49–51, 57–8 supra-national entities, 5, 257 supremacy clause, 10 Bosnia-Herzegovina, 113 European Union (EU), 266 Switzerland, 158 United Kingdom, 197, 204 United States of America, 47 Supreme Court (Canada), decision on Quebec language laws, 179 Supreme Court (United States), 43, 47, 51–3 Sweden, 260, 262 Swiss federation. See Switzerland Switzerland, 16, 23, 140–63 Aargau, 143 Amstad, Eduard, 143 Appenzell Ausser-Rhoden, 159 Appenzell Inner-Rhoden, 157 Basel-Landschaft, 153; constitution, Article 115, paragraph 2 (avoidance of nuclear plants), 155 Basel-Stadt, 140, 159, 160 Bern, 159 Cantons: distribution of powers, 158; foreign relations, 159; parliaments, 151–2; sovereignty of, 166 citizens’ rights, 143 compared to the EU, 257 concurrent powers, 158 Confederation, distribution of powers, 158 constituent assembly, 147, 157 constitutional competency, 147

331 constitutional space, 7 constitutions, cantonal; age of, 145; amendments, number of, 145; approval by Federal Assembly, 143; compulsory referendum, 152–3; contemporary problems, need to address, 145; co-operation, 159; guarantees of, 153–5; human rights, 159; incompleteness, 145; limits on changes, 147; list of, 156; preamble, topics included, 158 preservation of current constitutions, 157; provisions of, 158–60; publication of (Systematic Collection of Federal Law), 154; revision of, 145–6; social and political aspects, 145; social rights, 159–60; “state” elements, 148–50; state tasks, 160 constitutions deined, 140–1 constitutions, federal: Federal Constitution, Article 6 (obligation for cantonal constitutions), 141; Federal Constitution of 1848, Article 5 (obligation for cantonal constitutions), 151; Federal Constitution of 1874, Article 5 (guarantee of territory), 155; Federal Constitution of 1874, Article 6 (obligation for cantonal constitutions and guarantee of democratic political rights), 151–2; Federal Constitution of 1874, Article 24 (power of Confederation over nuclear energy), 153; Federal Constitution of 1999, 144; Federal Constitution of 1999, Article 3 (allocation of powers between two levels of government), 158; Federal Constitution of 1999, Article 3 (sovereignty of cantons), 144; Federal Constitution of 1999, Article 51 (obligation for cantonal constitutions), 151–2, 153–4;

332

Index

Federal Constitution of 1999, Article 90 (power of Confederation over nuclear energy), 153; Federal Constitution of 1999, Article 49 CF (supremacy of federal law), 158; Federal Constitution of 1999, Bill of Rights, 159 creation of, 11 democratic principle, 151–2 direct democracy, 19, 146, 151–3, 160 European Declaration of Human Rights, 158 European Union law, 261 exclusive powers, 158 Federal Assembly, guarantee of cantonal constitutions, 153–5 Federal Council, “message” to Federal Assembly, 153–4 federal faithfulness, principle of, 155 Federal Tribunal (Supreme Court), 159, 161 Feuille fédérale, 154 Fribourg, 140 functions, 141 Furgler, Kurt, 144–5 Geneva, 140, 153, 156–7, 159, 160, 161n; constitution of 1958, 142; foreign relations, 159 Graubünden, 140, 160 history, 142–3 human rights, 146–7, 158 initiative process, 152–3, 160 integrated federalism, 25 International Asociation of Constitutional Law (IACL), subnational constitutions, 142 Jura: constitution, 144; constitution, Article 138 (welcoming seceded territory), 154–5: constitution, preamble, 158; constitution, creation of, 11, 142–3; constitution,

foreign affairs, 159; constitution, guarantee, refusal of, 154–5 Luzern, 140, 159, 160 multicultural federation, social diversity of, 24 multi-ethnic population, 13 municipalities: referendum, 160; structuring of, 143 Nidwalden, 158; constitution, new, 142–4 nuclear energy, 153, 155 Obwalden, 142–4, 158 ombudsman ofice, 100 Parliament, decision-making process, 154 political rights, 146–7 referendum, 160 same-sex marriage, 161 Schwyz, 140, 156, 159, 160 “self-rule,” 160 sovereignty, constitutional, 141 St Gallen, 147 sub-national constitutions, scholarly research about, 142 supervision of sub-national constitutions by federal systems, 9 Uri, 143 Valais/Wallis, 157, 161n Vaud, 147 Zug, 157 Zürich, 140, 147 symmetrical federal systems, 12–13, 19 Tarr, G. Alan, 166 taxes, 55, 68, 76, 242 territoriality territorial reform, 280 territorially based federations, 21 territorially decentralized states, 26–30 United Kingdom parliament, 211 TEU. See Treaty on the European Union

Index TFEU. See Treaty on the Functioning of the European Union Third Reich, 63 Tierney, Stephen, 26–7 top-down pattern of inluence, 4, 5, 31 European Union, 281, 282–6 Germany, 69–70 Spain, 218, 222, 228–9 topical hour (Aktuelle Stunde), 97 transition to free-market system, 109–10 Treaty of Maastricht (TEU), 258, 267–8, 280–1 Article 4 (principle of co-operation), 282 Article 4, paragraph 2 (respect for internal structures of Member States), 281 Treaty on the European Union (TEU), 269 Article 6(1) (principles for membership), 137n Article 48 (ratiication of treaties), 274 Article 49 (conditions for membership), 137n Treaty on the Functioning of the European Union (TFEU), 269 Article 258 (obligation to EU law), 282, 285 Article 263, paragraph 2 (regions acting as privileged subjects), 291 Articles 2-6 (competences for the EU), 273 Trentino, 251n Trentino-South Tyrol, 238 Trento, 245 Trieste, 246 tripartite contracts, 291 Tudjman, F., 111 Turkey, EU law, 261 Tyrol, 88, 90 Constitution: Article 11, paragraph 2 (right to property), 95; Article 14

333 (obligation to provide assistance in emergencies), 95 direct democracy, 96 elections, majority voting system, 100–1 investigations, requirements for, 99 investigative committees, 97 ombudsman ofice, 100 state goals, 93–4

UCD (Unión de Centro Democrático), 224, 228, 236n uniication of East and West Germany, 63 uniform living conditions, 65 Union of Democratic Centre (Unión de Centro Democrático, UCD), 224, 228, 236n union state, 195, 197 United Kingdom, 26–7, 283, 292 Acts of Union of 1707, authority of United Kingdom Parliament derived from, 197 ad hoc devolution, 206–12 Blair, Tony, 211 bottom-up pressure for devolution, 200 Brown, Gordon, 211 centralization, 195–6 civil service, 209 Concordat on International Relations, 288 “constitutional amendment,” 213 constitutional space, territories, 195 “constitutional statutes,” 204, 206 constitutionalism, study of, 200 coordination of legislation, Westminster and Scottish Parliament, 212 Davies, Ron, 206 devolution of central government powers to sub-states, 195–6 Dicey, Albert V., 203–5

334

Index

England: parliament, 211; regional government, 212 English Court of Appeal, 204 Equality and Human Rights Commission, 208 European Union, 204, 206; membership in, 198; Reform Treaty, 213 federalism, deinitions of, 196 inances, territories, 209 Great Britain, Ireland, relationship with, 199 history of territorial governance, 195–200 Hope, Lord, 204–5 House of Commons, 210 House of Lords, 211, 213 Human Rights Act, 1998, 198, 206, 213 inter-governmental co-operation, 207–10, 288 inter-parliamentary relations, 208, 210–12 Ireland, 197, 199 Jackson (ban on fox hunting in England), 204–6 Joint Ministerial Committee (JMC), Scotland and London, 208–9 Labour Party, 201–2, 209–10 Laws, Lord Justice, 204, 206 Liberal Democrats, 209 London, mayor, 212 MacCormick (supremacy of Westminster Parliament), 204 Memoranda of Understanding and Supplementary Agreements (“concordats”), 209 name of state (United Kingdom of Great Britain and Northern Ireland), 197 nationalism, sub-state, 200–3 Northern Ireland, 26–7; autonomy, 195; Belfast Agreement, 1998 (Good Friday Agreement), 200,

202–3; British unionists, 197; conlict between Irish republicans and British state, 202–3; devolution, bottom-up pressure for, 200–3; home rule movement, 199; Irish nationalists, 197; Northern Ireland Act, 1998, 200, 207, 213; Northern Ireland Human Rights Commission, 208; parliament at Stormont, 199; Provisional Irish Republican Army, 199; referendum for devolution, 202–3, 213; separatist nationalism, 207 parliamentary authority, 197 parliamentary sovereignty, 213; devolution settlements, effects on, 203–6; doctrine of, 204–5; principle of legal supremacy, 197; repeal of acts, 203–6 policy-making, inluence of devolved territories, 208 quasi-federal system, 196, 207 quasi-federal systems, 207 referendum: constitutional change, 213–14; devolution, 201–3 Richard Commission, 206 Scotland, 26–7; autonomy, 195; Campaign for a Scottish Assembly (CSA), 201; civic and legal autonomy, nineteenth century, 198; A Claim of Right for Scotland, 1988, 201 devolution, bottom-up pressure for, 200–3; legal system, independent, 197–8; referendum for devolution, 201–2; Scotland Act 1998, 202, 208, 210; Scottish Constitutional Convention (SCC), 201–2, 204; Scottish Executive, 209; Scottish National Party (SNP), 207, 217n; Scottish Ofice, 1928, 198; Scottish Parliament,

Index 204–5, 210; Scottish Parliament and “legislative consent memorandums” or “Sewel resolutions,” 212; Secretary of State for Scotland, 1885, 198; separatist nationalism, 207; union with England, 1707, 197; Westminster, representation at, 210 Scotland’s Claim, Scotland’s Right, 202 Steyn, Lord, 204–5 sub-state territories, constitutional change, effect on, 196 territoriality, 211 “union state,” 195, 197 unwritten constitutional system, 196–7, 212 Wales, 26–7; autonomy, 195; devolution, 200–3, 206–7; Government of Wales Act, 1998, 201; Government of Wales Act, 2006, 206–7; National Assembly, 207; secretary of state, 1964, 199; union with England, 1536, 197–9 Welsh Assembly, 207; Welsh Ofice, 1964, 199 “West Lothian” question (Scottish inluence in House of Commons), 210–11 Westminster, 210–12 White Paper, Scotland’s Parliament, 202, 204 United Nations, 121, 263 United Nations Covenant against racial discrimination, article 5 (right of equal access to governmental posts), 121 United States of America, 21 abortion ruling, 1973, 51 African Americans, voting rights, 50 age limits on voting, 50–1 aid for the needy, 54 Alabama, 46; Constitution, 15, 45 banks and corporations, political privileges of, 53–4

335 Bill of Rights, 20 bills of rights, 51–2 Blaine, James, 51 blockade politics, 73 Brennan, William, 52 Burger, Warren, 51 Burger Court, 51–2 California, 18: Constitution, amendments to, 55; Constitution of 1879, 54; Convention of 187879, 56; Proposition 13 (limits on property taxes), 185; same-sex marriage, 20; Supreme Court, 52–3 capital punishment, 51–3 Castle Coalition, 55 civil liberties, 47, 52 collective bargaining, 54 Colorado, 50, 58; Constitution, 49, 54; Taxpayer Bill of Rights Amendment (TABOR), 55 concurrent legislation, 65 Congress, 6, 8 Connecticut: same-sex marriage, 20; Supreme Court, 52 Connerly, Ward, 55 Conservative Ascendance era, 53–5 Constitution: amendment process, 264; Article IV (admission of new states), 35n; limits on states, 147, 151; Tenth Amendment (powers reserved to States), 165–6 Constitutions: constitutional space, 7, 14; constitutional-initiative procedure, 56; federal, amendment of, 45–7, 49; federal, design of, 48–9; federal, enumerated powers, 44–5; federal, length of, 43, 44–5; frequency of constitutional change, 16–17; sovereignty, 141; state, amendment of, 43, 45–7, 55–8; state, democratizing reforms, 49; state, inluence on

336

Index

federal constitution, 20; state, issues covered by, 45; state, length of, 45; state, limits on powers of state governments, 166; state, policy provisions, 46–7; state, political changes achieved through, 47–55; state, prominence, consequences of, 44, 55–8; state, public policy reforms, 53–5; state politics, effects on, 55–8; state, suffrage, extension of, 49–51; sub-national constitutions, 4 criminal defendants, rights of, 51–3, 57 death penalty, 51–3 debt, public, 82 decentralization, 57 Delaware, 46 disenfranchised groups, 50 diversity in state political cultures, 58 dual federalism, 63–4, 66 federal government: convention of 1787, 48; sovereignty of, 151; state constitutions, effect on, 55–8; system, criticism of, 57 Florida, 46 free speech, 51 Georgia: Constitution, 51; Constitution of 1777, 48 governing institutions, design of, 48–9 groups, achievement of political goals by, 44, 48, 55–8 Guam, 5–6 Idaho, 50 individual rights: extension of, 51–3; protection for, 44 integrated federalism, 25 Iowa: same-sex marriage, 20; Supreme Court, 52 Jacksonian Era, 53–4 Jefferson, Thomas, 45–6, 55 judicial system, 179

Kansas Supreme Court, Schneider v. Kennedy, 166 Kentucky, Constitution, 51 labor unions, 54 limits on governmental power, 54–5 Louisiana, 15, 46 Madison, James, 45 Maine, 50 Maryland, Constitution of 1776, 48 Massachusetts, 46, 50; Constitution of 1780, 48; same-sex marriage, 20; Supreme Court, 52–3 Mississippi, Constitution of 1832, 49 Native Americans, 6 New Deal Era, 53–4, 64 New Hampshire, 15, 45, 50 New Jersey, Supreme Court, 52 “new judicial federalism,” 52 New York, 20, 50, 54, 56–7 Ohio, Constitution, 49 Oklahoma, Constitution, 49 opposition in government, 69 Oregon, 46, 56; Constitution, 19 Pennsylvania, Constitution of 1776, 48 political eras, 15–16 popular initiative and referendum, 49, 58 Populist Era, 53–4 Progressive Era, 53–4, 181 Progressive Party, 18 prohibition of intoxicating liquor, 47 public policy reforms, 53–5 railroads, regulation of, 54 Reagan, Ronald, 55 religion, 51 republican form of government, 177 Republican Party, 18 Roosevelt, Franklin, 54 same-sex marriage, 52–3, 57 South Dakota, Constitution, 49

Index sovereignty, constitutional, 141 states: admission of, 8, 11–12; courts, interpretation of constitutions, 43, 47; government, 44–5 judges, 47, 49 state legislatures, 49 suffrage, 44, 49–51, 57–8 supervision of sub-national constitutions, 8 supremacy clause of federal constitution, 47 Supreme Court, 10, 18, 43, 47, 51–3 taxes and spending, 55 territories, 5–6 US Constitution, Tenth Amendment, 25 Utah, 50 variation in state constitutions, 15 Vermont, 15, 50; Constitution of 1777, 48; Supreme Court, 52 Virgin Islands, 5–6 Virginia, Constitution of 1776, 48 Warren, Earl, 51 Warren Court, 52 women’s suffrage, 50–1, 57 workers: compensation program, 57; protection of, 54 Wyoming, 50 Upper Austria, 88, 90, 93–4 direct democracy, 96 elections, 100 Law on the Land Audit Ofice, 99 Uri, 143 Utah, 50 Valais/Wallis, 157, 161n Valencian Community, 233 Vaud, 147 Veneto, 245, 250n, 252n Venezia-Giulia, 246 Venice Commission (European Commission for Democracy of Law), 125, 137n

337

Vermont, 50 Constitution of 1777, 48 Supreme Court, 52 vertical federalism, 4 veto mechanisms, 115–16 veto-referendum, 96 Vienna, 88, 92, 93, 97–9 elections, majority voting system, 100–1 Virginia, Constitution of 1776, 48 vital interests, 115–16, 123 Viver, Carles, 27–8, 218–36 Vorarlberg, 88, 90, 91, 99, 103 Constitution: Article 11, paragraph 2 (right to property), 95; Article 12 (obligation to provide assistance in emergencies), 95; Article 33, paragraph 6 (citizen petitions), 91 direct democracy, 96 elections, majority voting system, 100–1 ombudsman ofice, 100 state goals, 93–4 voting age, 103 Waldhoff, Christian, 81 Wales autonomy, 195 devolution, 200–3, 206–7 Government of Wales Act, 1998, 201 Government of Wales Act, 2006, 206–7 National Assembly, 207 referendum for devolution, 201 secretary of state, 1964, 199 union with England, 1536, 197–9 Welsh Assembly, 207 Welsh Ofice, 1964, 199 Walker, Neil, 269 Walloon Region (Belgium), constitutional autonomy, lack of, 165, 171 war, Bosnian, 109–11, 118 Warren, Earl, 51

338

Index

Warren Court (United States), 52 Washington Agreement of March 1994, 111 weapons, control over, 71 Weimar Republic, 63 “West Lothian” question (Scottish inluence in House of Commons), 210–11 Westminster, 210–12 Westminster-style governments in Canadian provinces, 175, 180–1 White Paper, Scotland’s Parliament, 202, 204 Wieland, Joachim, 82 wild-bird conservation (directive 79/409/CEE), 285 Williams, R.F., 166

Wimmer, Norbert, 98 Wiseman, Nelson, 189–90 Woelk, Jens, 23 women’s suffrage, 50–1, 57 workers compensation program, 57 protection of, 54 Wyoming, 50 Yeltsin, Boris, 6 Yugoslavia, 109, 129n Ziller, Jacques, 269 Zug, 157 Zürich, 140, 147 Zustimmungsgesetzgebung (consent legislation), 62, 73–4