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)
Separation
of powers
Horizontal
Form
of 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
Autonomy
Supranational
Organization (EU)
Federal state
Regional state
Centralised state
Unity
Confederation
Union 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 state
Devolution 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 state
The 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 federalism
Subject > 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 France
Separation of power
Rule of law > written and flexible
constitutions
Individual liberties + formal equality
Capitalism > laissez-faire economic +
minimal economics intervention and taxation
by the state
Political 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 equality
Universal suffrage > mass political parties
Written 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 equality
Universal suffrage > mass political parties
Written 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
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
“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 policymaking