FACTORS AFFECTING THE SCOPE OF SUB-NATIONAL C ONSTITUTIONAL 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 influence the scope of subnational constitutional space.

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 reflect 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 qualifications 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 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.

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 influence the scope of sub-national constitutional space is whether the federation has a system of symmetrical or asymmetrical federalism.

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.

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 countries, such as Austria and Germany, have embraced federalism as a way to promote administrative efficiency, 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 fulfilled. 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 significant use of sub-national constitutional space.