Seventh Class
Constitution Making
Constitution Constituent Power
Decentralization
Centralization
How?: Procedure
Step by Step
Inclusive
Who?
Exclusive
Who decides?
Units - Borders?
Reconciliation
International
Community
Pairs of values
Famously, federalism balances and enables
competing values to be secured:
• Self-rule and shared rule
• Unity and diversity
• Uniformity and difference
• Solidarity and self-reliance
• Co-operation and competition
One challenge in designing a federal system
is to capture each of these in a suitable
way
Other constitutional
values
Federalism must be combined with other
constitutional values, in both spheres of
government, for its benefits to be fully
secured. These include:
• Legitimacy
• Democracy
• Constitutionalism, including the rule of law
• Effective and accountable government
• Mutual respect; a willingness to share
power; appreciation of diversity
Importance of institutions
• Importance of specifically federal
institutions are obvious (eg division of
powers)
• Institutions of government equally
important
– Mechanism through which federalism
delivered
– Mechanism through which other values
delivered
• Institutional design must capture
– Aspirations for federalism
– Aspirations for government generally
General observations
• Many of the institutions that we
presently use were designed for
unitary states
• They need to be fully adapted to the
different context of federalism
• Now plenty of experience with this
• But range of possibilities is not fixed
• Increasing experimentation in recent
years
• Eg asymmetry, forms of co-operation
Common standards
Many federations prescribe certain
common standards, applicable to both
spheres of government, in the
Constitution itself. Typically these
apply to:
• Governance (democracy,
accountability, republicanism)
• Human rights
• Economic union (mobility of people,
economic activity)
Constitution of the federal
state
The Constitution should:
– Be made by a suitable process
– Create the central & constituent
governments
– Provide the institutional
framework
– Provide the federal framework
– Provide the means for its own
alteration
Protection & enforcement
• A mixture of rigid and flexible
• Federal quality of amendment procedure
• Effectively enforced:
– Usually, general or specialist constitutional
court
– Other options? Switzerland (sui generis). USA?
• NB techniques for conflict avoidance: SA
• Some internal flexibility eg through cooperation
Challenges
• Making a commitment to federalism
• Developing a federal culture
• Building sufficient capacity in smaller,
poorer units
• Ensuring accountability, transparency,
responsiveness in all spheres of
government and for shared programs
• Avoiding unproductive competition &
disputes
• Providing flexibility to meet new
needs
Different Goals of
Federalism
-
-
Limit governmental powers with
Vertical Separation of Powers
Accommodate Diversities
Strengthen Democracy
Conflict – Management
Strengthen and deepen
legitimacy of a confederal
system (cf. EU)
MULTICULTURAL
MULTICULTURAL
AND
BUT
PEACEFUL
PEACEFUL
Constitution Preamble
We, the People*
United
States
of the United States, in Order to form
a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote
the general Welfare, and secure the
Blessings of Liberty to ourselves and
our Posterity, do ordain and establish
this Constitution for the United States
of America.
Federalist Papers No. 5 (JAY)
The history of Great Britain is the one with which we
are in general the best acquainted, and it gives us
many useful lessons. We may profit by their experience without paying the price which it cost them.
Although it seems obvious to common sense that
the people of such an island should be but one
nation, yet we find that they were for ages divided
into three, and that those three were almost constantly embroiled in quarrels and wars with one
another.
Opinion by Chief Justice Marshall
But the tribes of Indians inhabiting this country were
fierce savages, whose occupation was war, and whose substance was drawn chiefly from the forest.....
However this restriction may be opposed to natural
right, and to the usage’s of civilized nations, yet, if it
be indispensable to that system under which the
country has been settled and be adapted to the
actual condition of the two people, it may, perhaps,
be supported by reason, and certainly cannot be
rejected by Courts of Justice."
(Johnson and Graham's Lessee v. William Mc
Intosh US 1823 523ff)
Switzerland
Old Const.
Switzerland
New Const.
Together, the peoples of the 23
sovereign Cantons of Switzerland united by the present alliance, to wit:
Zurich, Berne, Lucerne, ……Geneva
and Jura, form the Swiss
Confederation.
We the Swiss People and Cantons
… are determined to live our diversity in unity respecting one another;..
Art. 2 Purpose
It (Switzerland) shall promote ..the
cultural diversity of the country
Spain
The Constitution is based on the
indissoluble unity of the Spanish nation,
the common and indivisible homeland
of all Spaniards, and recognizes and
guarantees the right to autonomy
of the nationalities and regions
Specific Problems:
Composed Nations
Germany
the German People have adopted,
by virtue of their constituent
power, this Constitution.
Belgium
Belgium is made up of three
Communities: the French
Community, the Flemish
Community, and the Germanspeaking Community.
Article 2 [Communities]
Belgium is made up of three
Communities: the French
Community, the Flemish
Community, and the Germanspeaking Community.
Belgium
Article 3 [Regions]
Belgium is made up of three Regions:
the Walloon Region, the Flemish
Region, and the Brussels Region.
Article 4 [Linguistic Regions]
(1)Belgium has four linguistic regions:
the French-speaking Region, the
Dutch-speaking Region, the
bilingual Region of Brussels-Capital,
and the German-speaking Region.
Turky
Croatia
The recognition that all Turkish citizens
are united in national honour and pride,
in national joy and grief, in their rights
and duties towards their existence
as a nation, in blessings and in burdens,
and in every manifestation of national
life, and that they have the right to
demand a peaceful life based on absolute
respect for one another's rights and
freedoms, mutual love and fellowship,
and the desire for, and belief, in "Peace
at home, peace in the world
of one's own state, based on the Croatian
nation's historical right to full sovereignty,
Ethiopia
We, the nations,
nationalities and Peoples of Ethiopia
Albania
We, the people of Albania, proud
of our history and with faith in the future;
with determination to build a social and
democratic state based on the rule of law
Comores
Le peuple comorien, convaincu
du bien fondé de l'Accord cadre pour la
réconciliation aux Comores du
17 février 2001
Georgia
The people of Georgia whose strong
will is to establish a democratic social
order, economic independence,
a social and
Madagaskar
The sovereign Malagasy people,
profoundly attached to their cultural and
spiritual values, especially to the basis
of national unity; affirming their belief
in God the Creator;
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom
in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live
in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of
the Republic so as to— Heal the divisions of the past
and establish a society based on democratic values,
social justice and fundamental human rights;
Lay the foundations for a democratic and open
society in which government is based on the will of
the people and every citizen is equally protected by
law; Improve the quality of life of all citizens and free
the potential of each person; and Build a united and
democratic South Africa able to take its rightful
place as a sovereign state in the family of nations.
PREAMBLE:
Serbia
CONSCIOUS OF THE STATE TRADITION OF THE SERBIAN PEOPLE
AND DETERMINED TO ESTABLISH
THE EQUALITY OF ALL THE PEOPLES LIVING IN SERBIA, THE CITIZENS OF SERBIA, AS PART OF
THE EUROPEAN FAMILY OF NATIONS, AND WITH A PLEDGE FOR
MODERN DEMOCRATIC STATE
BASED ON PEACE, TOLERANCE,
RESPECT FOR HUMAN RIGHTS
AND FREEDOMS, ON THE RULE
OF LAW AND SOCIAL JUSTICE,
Persons belonging to a national minority
shall have special rights which they
exercise individually or in community
with others.
Russia
Bosnia
We, the multinational people*
of the Russian Federation, united
by a common destiny on our land,
Bosniacs, Croats, and Serbs, as
constituent peoples (along with
Others), and citizens of Bosnia
and Herzegovina hereby determine that the Constitution of Bosnia
and Herzegovina is as follows:
European
Union
DETERMINED to lay the foundations of an ever closer union
among the PEOPLE‘S of Europe,
RESOLVED to establish a citizenship
common to nationals of their countries,
RESOLVED to continue the process of creating
an ever closer union among the peoples of Europe,
in which decisions are taken as closely as possible
to the citizen in accordance with the principle
of subsidiarity, (Consolidat.Treaties)
This Treaty marks a new stage in the process
of creating an ever closer union among
the peoples of Europe, in which decisions are
taken as openly as possible and as closely
as possible to the citizen.
Treaty EU Common Provisions Art. 2
— to strengthen the protection of the rights
and interests of the nationals of its Member
States through
the introduction of a citizenship of the Union;
Article 17 (ex Article 8)
1. Citizenship of the Union is hereby established. Every person holding the nationality
of a Member State shall be a citizen of the
Union. Citizenship of the Union shall complement and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights
conferred by this Treaty and shall be subject
to the duties imposed thereby.
Preamble Draft of European Constitution
Convinced that, while remaining proud of their
own national identities and history, the peoples
of Europe are determined to transcend their
ancient divisions and, united ever more closely,
to forge acommon destiny,
Convinced that, thus "united in its diversity",
Europe offers them the best chance of pursuing,
with due regard for the rights of each individual and in awareness of their responsibilities
towards future generations and the Earth,
the great venture which makes of it a special
area of human hope, Grateful to the
members of the European Convention for
having prepared this Constitution on
behalf of the citizens and States of Europe,