RESIDUAL POWERS AS THE BASIS FOR CONSTITUTIONAL AUTONOMY OF THE MEMBER STATES: SOME COMPARATIVE ELEMENTS
In integrated federal states, constitutional autonomy is based on the residual powers of the member states. One example is the Tenth Amendment to the US Constitution: “The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.” The states already existed at the time the Constitution was drafted.
The Founding Fathers’ main concern was to define the scope of national powers and identify the individual rights that the Constitution protects from federal and state encroachment and interference: “The structure of state governments and their sphere of operations simply are not the subjects of the Constitution, except insofar as the Constitution shifts power from the states to the national government, or protects the rights of individuals from governmental violations. There is little reason to expect, therefore, that the Constitution should contain more than a scattering of affirmative guarantees of state sovereignty: the states are simply “there.”1 The US Constitution does presuppose, however, the existence of the states as entities independent of the national government. This is expressly clear in the Tenth Amendment, which puts the states on an equal footing with “the people” as holders of the powers that the US Constitution neither grants to the national government nor prohibits to the states.The state constitutions contrast with the federal constitution insofar as they mainly put limits on the powers of the state governments. G. A. Tarr and R. F. Williams refer to the Kansas Supreme Court’s decision in Schneider v. Kennedy (1978): “It is fundamental that our state constitution limits rather than confers powers. When the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby.”2
Another example is the Federal Republic of Germany. The constitutional autonomy of the Länder is based on the principle of federalism3 and on the residual powers of the Länder.4 Article 28 (1) of the Federal Constitution expressly refers to the constitutional order of the Länder.5 Although all Länder have their own constitutions, they are not obliged to have one, since the constitutional order of the Länder mentioned in Article 28 (1) Const.
refers to material constitutional law rather than to a formal constitution.6The same fundamental scheme is also present in the Swiss federation. The cantons hold residual powers, and the centre has only enumerated powers.7 The cantons are even characterized as sovereign entities, at least insofar as their sovereignty is not limited by the Federal Constitution.8 It is generally accepted, however, that the characterization of the cantons as sovereign is not very accurate. It is the federal government that is truly sovereign, since the cantons exercise their powers within the limits set by the Federal Constitution. The so-called Kompetenz-Kompetenz is situated at the level of the Federal Constitution.9 The characterization of the cantons as sovereign dates back to the 1848 Federal Constitution and merely acknowledges that the cantons pre-existed the federation and established the latter. Article 47 of the Federal Constitution refers therefore more appropriately to the “autonomie,” or “Eigenständigkeit” (autonomy) of the cantons. The constitutional autonomy of the cantons can be based on their (limited) statehood.10 Article 51 even imposes an express obligation for each canton to have a democratic constitution.11