Federalism

Comparative Constitutional Law

II semester

Francesca Rosa

Francesca Rosa

Researcher in Constitutional Law (University of Foggia)

Classes: Thursday 14-15 and Friday 14-16

Office hours: Thursday 15-16 and Friday 17-18

E-mail: francesca.rosa@me.com

Students’ presentation

Table of contents

Introduction (article of Gamper)

U.S. federalism

Canadian federalism

German federalism

Seminars

Spain (5th of April)

Canada (first week of May)

Separationof powers

Horizontal

Formof government

Vertical***

Federalism

Our question:

How could the government (or the three state functions) be organised over the state territory?

What is constitutionalism?

A doctrine born at the time of the British, American and French revolutions according to which the political power has to be limited by the law

Written constitution (art. 16):

Bill of rights

Separation of powers principle (horizontal and vertical)

State

Centralised state

Federal or Regional

state

Centralised (unitary) state

Citizens are subject to a single central authority

Decentralization of state functions is possible

Territorial decentralization is possible

Federal or regional state

Citizens are subject both to a central authority and to a number of territorial authorities > diversity

Decentralization of state functions is possible (=)

Territorial authorities exercise the three traditional state functions in the framework established by the constitution > autonomy principle***

Why is the federal model dominant in the world?

To govern complex societies more effectively

To govern large countries more effectively

To separate political power more effectively and to avoid the power concentration

To bring government responsibilities closer to the citizens

What does federalism mean?

Prescriptive meaning > an organization of powers that ensures the maintenance of peace in complex societies crossed by social, cultural and religious divisions

Descriptive meaning > division of (legislative, administrative and judiciary) powers between central and territorial authorities

Where is federalism?

Confederation

Supranational Organization (EU)

Federal state

Regional state

Centralised state

Autonomy

Unity

ConfederationUnion of independent states (open/close) founded by an international treaty (right of exit)

Common interests: defense, market, foreign policy

Central authority where the states are equally represented (> unanimity principle)

Central authority depends on the states (appointment of representatives, vote, finance)

Central authority decisions’ are binding for the States (not for State citizens)

Supranational organization

a more complex organization of the central authority (no equal representation, no unanimity principle)

some decisions/acts are binding for the citizens directly

supranational court

Federal state

Association of independent states / devolution of an independent state

Written constitution providing the division of powers between federation and territorial units

Constitutional autonomy of territorial units

Federal tribunal judging conflicts of competences

Bicameral Parliament *

Territorial units are involved in the revision of the constitution

Features of Second Chambers

Arithmetic (USA) / Geometric (Germany) Composition

(Direct or indirect) Election (USA) / Appointment of members (Germany and Canada)

Senate (USA) / Council (Germany) functioning

Anglo-Saxon vs. European federalism

Strict / flexible division of legislative competences

Parallelism between legislative and administrative functions / Indirect federal administration

Senate / Council Second Chamber

Where is the sovereignty in the federal state?• Federalist papers > in the federation

and in the states > / the sovereignty cannot be divided

• Calhoun > in the states > / what is the difference between federation and confederation?

• Kelsen > in the state as a whole > / no evidence

The sovereignty is in the federation• The constitutional autonomy of the territorial units is

limited

• The supremcy clause

• The federal parliament has the power to modify the federal constitution

• A federal judge has the power to rule out the conflicts between federation and territorial units

• The federal government has the power to control what the territorial units do and to order them to respect the constitution

If the sovereignty is in the federation:a) For some scholars all kinds of states are

unitary > the federal state is a unitary state as the centralised state and the regional one > the differences between centralised, federal and regional state are only quantitative (more or less autonomy), but not qualitative

b) For other scholars federal and regional states are decentralised states different from the centralised one (slights 8 e 9) *** > there is a qualitative difference between states that decide to decentralize the power and the states that decide to do not

Regionalism

Ambrosini

Region:

a) Territorial district created for the decentralisation of (some) state functions

b) Administrative regions > administrative autonomy

c) Political region > legislative autonomy

Regional stateDevolution process within an unitary state

Written constitution providing for the division of territory into autonomous regions

Regional charters foreseeing the form of government

Written and rigid constitution divides legislative and administrative powers between central state and regions

State authorities control administrative measures and legislatives statutes

State judge rules out conflicts of competence between state and regions

Bicameral Parliament “without” a second chamber representative of regions

Regions are “weakly” not involved in the revision of the constitution

Commons features between federal and regional stateThe constitution foresees a level of government

intermediate between state and municipalities

The constitution foresees the powers/competences of territorial units

The territorial units are entitled to legislate

The conflicts of competences between state and territorial units are resolved by a state judge

Differences between federal and regional state

Features of constitutional autonomy (name, content and source of law)

Division of powers

Drafting (residual power clause)

Functions involved (not judiciary power)

Composition and functioning of the second Chamber (no link with the territorial units)

Procedure for the revision of the constitution (not a strong participation of territorial units)

Criticisms of the differences between federal and regional state

Constitutional autonomy > quantitative but not qualitative difference

Separation of powers > quantitative but not qualitative difference

Second Chamber > due to the Madison paradox is not a real difference

Procedure for the revision of the constitution > the only qualitative difference

The empirical (or dynamic) theories of federalismSubject > the federalizing process =

process by which political communities divide among themselves the political power in the course of time

The federalizing process does not concern the national state only, but all levels of government > the state is one subject of research

Between the different forms of division of power there are only quantitative differences

The empirical theories of federalism and the federal state

The federal state is the result of special decentralisation process (constitution)

Very often is difficult (useless?) to classify state experiences as federal or regional

The functionning of the federal state changes in the passage between liberal and welfare state > from dual to cooperative federalism

Features of the liberal state

Liberal revolutions in UK, US and FranceSeparation of powerRule of law > written and flexible constitutionsIndividual liberties + formal equalityCapitalism > laissez-faire economic + minimal economics intervention and taxation by the statePolitical affirmation of the bourgeoisie > extension of the suffrage (already limited)

Features of the welfare state

Economic crisis (1929)Social liberalism > state intevention in political economy > social justice (e.g. New Deal)Social rights + substantial equalityUniversal suffrage > mass political partiesWritten and rigid constitutions [special procedure to change the constitution]

Features of the welfare state

Economic crisis (1929)Social liberalism > state intevention in political economy > social justice (e.g. New Deal)Social rights + substantial equalityUniversal suffrage > mass political partiesWritten and rigid constitutions [special procedure to change the constitution]

The federalist paper n. 45“The powers delegated by the proposed Constitution to the

federal government are few and defined. Those which are to

remain in the State governments are numerous and indefinite.

The former will be exercised principally on external objects, as

war, peace, negotiation, and foreign commerce; with which last

the power of taxation will, for the most part, be connected. The

powers reserved to the several States will extend to all the

objects which, in the ordinary course of affairs, concern the

lives, liberties, and properties of the people, and the internal

order, improvement, and prosperity of the State. The

operations of the federal government will be most extensive

and important in times of war and danger; those of the State

governments, in times of peace and security.”

Dual v. cooperative federalisms

“the national government and the states are mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government” (Corwin) >

> Shared and overlapping powers > cooperation

> Centralization of policy-making

a) The national government has enumerated powers only

b) The purposes that the national government can promote are few

c) Within their respective spheres the two levels of government are sovereign and equal

d) The relationship of the two levels with each other is one of tension rather than cooperation