REVIEW OF SUB-NATIONAL CONSTITUTIONAL CHOICES
Complementing strategies for preventing constitutional disputes are mechanisms for policing or resolving them. One widely used mechanism for policing the boundaries between the federation and its constituent units is review by federal supreme courts or constitutional courts.
In the United States, the Supreme Court has invalidated several provisions of American state constitutions, even though the federal Constitution contains few express restrictions on the states’ constitution-making powers.33 In South Africa, the Constitutional Court rejected the entire draft provincial constitutions of Kwazulu-Natal and the Western Cape Province, noting in the former case that some provisions in the proposed constitution appeared to have “been passed by the KZN legislature under a misapprehension that it enjoyed a relationship of co-supremacy with the national Legislature and even the Constitutional Assembly.”34 In Russia in 2000 the Constitutional Court struck down sovereignty provisions in the constitutions of several Russian republics.35 And the Constitutional Court in Austria declared unconstitutional a provision of the Land Constitution of Vorarlberg concerning direct democracy as violating the federal constitution’s “homogeneity clause.”36Although most federal systems rely on the judiciary to resolve competence disputes, other procedures are possible. The constitution of the Russian Federation, for example, authorizes the president of the Federation to suspend the acts of sub-national executives if he believes them to be in violation of the federal law or human rights. The Justice Ministry also has the power to revoke regional laws that are in violation of the Federation Constitution, and even before the accession of President Putin, it had used that power to revoke nearly 2000 regional laws.37
Finally, in addition to legal mechanisms for resolving disputes about sub-national constitutional space, there are various informal mechanisms as well. For example, in Spain the prior formal, legal/litigation model of resolving competence disputes between the national government and the autonomous regions has been transformed into a process of consultation and negotiation.38 In Italy, by contrast, which is at an earlier stage of creating and recognizing regional autonomy, the legal/litigation model is dominant. These examples raise a question whether the transition from the legal/litigation model of policing sub-national constitutional space to the consultation/negotiation model is one of the hallmarks of a maturing federal system.39