ESTABLISHING AND MAINTAINING THE SCOPE OF THE SUB-NATIONAL CONSTITUTIONAL SPACE
Approaching constitutionalism in federations from the sub-national perspective requires, first, 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 officials charged with interpreting the federal constitution and other federal law. However, some federal systems allow a limited sub-national participation in the definition of sub-national constitutional space. For example, Section 33 of the Canadian Charter of Rights and Freedoms – the so-called “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.
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