SUPERVISION OF SUB-NATIONAL CONSTITUTIONAL CHOICES
Once the scope of the sub-national constitutional space is determined, the question becomes how federal systems ensure that constituent units respect the outer limits of the sub-national constitution-making space allotted to them.
One way to minimize conflict between national and sub-national constitutions is for the federal constitution to give the federal government some control over the content of sub-national constitutions at the time they are being created. This, of course, requires that the federal government predate the creation of those constitutions, which is not always the case. In Australia, for example, state constitutions were established before the adoption of the Commonwealth Constitution, and that constitution specifically provided for the continued operation of the existing state constitutions.19 In the United States, the situation was more complicated. The thirteen states that declared independence from England in 1776 devised their initial constitutions before the adoption of the nation’s first constitution, and thus there was no possibility of a federal authority imposing conditions on what would be contained in their constitutions. Most of the other thirty-seven states, however, were formed from territory governed by the United States, with Congress controlling the admission of states.20 This gave the federal government an opportunity to influence the contents of state constitutions at the point that prospective states were applying for admission to the Union.The United States Constitution implicitly confers on Congress the power to impose such conditions. In empowering Congress to admit new states to the Union, it in effect gives Congress the power to establish the conditions under which they will be admitted.21 Acting under this authority, Congress imposed conditions on what state constitutions should contain in the acts by which it authorized prospective states to devise constitutions and apply for statehood. State constitution-makers knew that they must meet those conditions in order to gain admission.22 If a proposed constitution contained provisions of which Congress or the president disapproved, either of them could refuse their consent to legislation admitting the state until the offending provisions were altered or removed.
This congressional and executive power, together with the states’ eagerness to attain statehood, served a deterrent function. State constitution-makers refrained from including certain provisions in their charters lest they excite opposition in Congress and jeopardize or delay admission to the Union.The system just described is not common to all federal countries.23 Germany, for example, imposed no special requirements on the constitutions drafted by the five länder that became part of the country following the collapse of the German Democratic Republic.24 Russia established no principles to guide constitution-making in the eighty-nine constituent units that comprised the Russian Federation.25 And in Australia, “with a few exceptions, there is no obvious framework of national principles with which state institutions must comply.”26 However, in countries in which the federal legislature has responsibility for crafting the functional equivalent of the sub-national constitution, such scrutiny is built into the ordinary process of legislation. This is true, for example, in China, Italy, and Spain. In addition, Switzerland requires that the Federal Parliament “guarantee” that the cantonal constitution be consistent with federal law, and this requirement has had real force: in the late nineteenth century, the Parliament rejected several cantonal constitutions that failed to provide equal political rights.27