THE ESSAYS IN THIS VOLUME

The principal purpose of this collection of essays is to show how constitutional sub-national autonomy in federal states and federal or quasi-federal political systems has contributed to their change and development.

The book is divided into four parts. Part 1 addresses sub-national constitutionalism in what are commonly referred to in the literature on comparative federalism as territorially based federations. These include the United States of America, the Federal Republic of Germany, and the Federal Republic of Austria. John Dinan begins his case study of the United States in chapter 2 with the concept of “constitutional space,” whereby state governments have the opportunity to operate autonomously largely because of the federal constitution’s brevity and its narrow focus on the structure of the federal institutions and enumerated powers. Their combined impact has left unoccupied a potentially large and expansive area for state government activity. Dinan’s chapter brings into focus the prominence of state constitutionalism, political change through state constitutional processes, and the consequences of state constitutional vitality for US political development. He shows how state constitutional processes have been an important avenue for promoting political change in the design of governing institutions, in the regulation of the suffrage, in the extension of individual rights, and in public policy reforms. He concludes his chapter by weighing the perceived advantages and disadvantages of normative variation in the US federal polity as against a national decision-making process that emphasizes uniformity in the pursuit of policy optimality.

If Dinan’s essay furnishes clear evidence of the link between constitutional sub-national autonomy and the overall evolution and adaptation of the US federal political system, the chapter on Germany that follows it, written by Arthur Gunlicks, shows how the pressures for more “constitutional space” in pursuit of sub-national autonomy have simultaneously a top-down and a bottom-up character. Gunlicks’s description of the evolution of Bund-Länder relationships provides the historical background to contemporary change and development in German federalism. His survey highlights the concept of “dual federalism,” the division of legislative powers and the administration of federal laws that together enabled the federal government to expand its powers and competences in the legislative and administrative arenas at the direct expense of the Länder. These factors in turn have influenced the growing contemporary pressures for constitutional reform, in which the demand for a redistribution of competences between the sixteen Land executives and the federal government has come not so much from these executives as from the elected members of the Land parliaments, with some conspicuous support from local authorities. Since the Land executives were already represented in the Bundesrat, where they participated in making federal legislation, it was the Land parliaments and local governments that were effectively marginalized and had only a weak relationship to federal policy-making. In other words, a sense of exclusion from the whole process of policy-making and coordination between executives prompted the renewed critique of “executive-administrative” federalism in Germany.

This momentum for a wide-ranging reappraisal of German federalism led in the early years of the new millennium to a series of efforts to reexamine the operation of the federal system that brought into sharp focus the interrelated questions of territorial reform, legislative competences, the role of the Bundesrat, and major issues regarding federal financial relations.

Gunlicks concludes with some reflections on how far the constitutional proposals of 2006 and 2009 have served to highlight the conflicting objectives of maintaining the commitment to solidarity in a social welfare state while promoting stronger fiscal discipline that will create more centralizing provisions to control deficit spending and debts. This in turn exposes the inherent tensions between the provision of more constitutional space for the Land governments and parliaments, coupled with the desire to strengthen “competitive” federalism, and the underlying political economy of German federalism, which confirms the economic weakness of the poorer Länder.

Turning to Austria in chapter 4, Peter Bußjäger emphasizes the strong historical and constitutional pressures toward homogeneity among the nine Länder constitutions, which are supposed to harmonize with the federal Constitution. The flip side of this is that Länder constitutions and governments cannot contradict federal law. Consequently, while the constitutional position of the Länder is guaranteed, Bußjäger’s essay stresses the express restrictions that serve to curb their constitutional autonomy within the basic principles and framework of the federal Constitution. The Federal Republic of Austria, then, is a highly centralized federation with conspicuous unitary features, and this vice-like constitutional grip that the federal power exercises over the constituent Länder units is one of its obvious hallmarks.

But according to Bußjäger, this is not the whole story. The political role of the Länder is much stronger than their limited constitutional powers might suggest. He reminds us of the pivotal role of the Landeshauptleute (governors of the Länder) as formidable veto players holding key positions in the federal political system. Moreover, since the early 1980s there has been a shift in the perception of the Länder constitutions across important sections of Austrian society.

In part 2, the volume turns to federations characterized by social heterogeneity rather than by the relative social homogeneity of the territorially based federations. It is principally for this reason that we have included Switzerland under the broad rubric of sub-national constitutionalism in the multi-national federations that include Bosnia and Herzegovina, Belgium, and Canada. Strictly speaking, Switzerland is not a multi-national federation, but its conspicuous social heterogeneity – evident in its rich linguistic diversity, its deep-rooted religious cleavages, its strong historical cantonal (territorial) identification, and its contemporary multiculturalism – has resulted from a long process of historical integration that has woven together disparate threads in a close and tightly knit manner to produce a complex federal political culture that is difficult to classify for our purposes in a broad comparative context.

In chapter 5 Jens Woelk presents a survey of Bosnia and Herzegovina (BiH), which he intriguingly depicts as a state built upon a series of paradoxes. Whereas our primary focus has been on the adjustment and adaptation of a federal state or federal political system from below, BiH operates in many ways as the exact reverse of this dynamic. There, the impetus for change and development has not been brought about internally by subnational constitutional means used by constituent state units or federated entities, but rather has been imposed by external forces and international actors. Consequently, the chapter offers a unique insight into the remarkable evolution of a largely ethnically based and territorially decentralized dyarchy into a putative multinational federal political system in which a weak central authority remains at the mercy of its two constituent units.

The idea of constitutional space in this particular case study has therefore been turned on its head. The institutionalization of ethnicity and the partition of power along territorial lines together have solidified a bottom-heavy ethnic federalism in which the constituent units defiantly refuse to surrender their powers and competences to an anaemic and fragile central authority. Woelk thus highlights an emergent multi-national federal state based on a series of paradoxes that appear to defy our conventional understanding of state- and (multi) nation-building processes and challenge our imaginative powers of constitutional and institutional engineering and design. In BiH three distinct historical processes appear to be evident: competitive state building at two levels; nation building in terms of three ethnic nations at the level of the discrete entities; and the larger (multi) nation building at the federal level. From a comparative perspective, then, BiH comes close to the case of the European Union (EU), with strong constituent units in the member states and a relatively weak centre in Brussels.

The case of Switzerland in chapter 6, described by Nicolas Schmitt, exemplifies a constituent sub-national autonomy rooted in the twenty-six cantonal constitutions. This multilingual, multicultural federation is still revered as one of the classical models of federal order and stability in conditions that would appear, prima facie, to be quite unpromising. Schmitt’s focus on the constitutional world of the cantons connects directly with the renowned social diversity of the federation, serving ultimately to confirm the variety and complexity of this fascinating array of unitary actors in the Swiss federal political system.

The chapter also updates the constitutional revisions and amendments in each of the cantons and identifies in admirable detail the reasons and arguments that triggered these contemporary reforms. Rather like the cases of the US states and the Austrian Länder, the Swiss cantons have historically undertaken constitutional and political initiatives well in advance of the federal authorities, especially in terms of popular rights and liberties and in their role as laboratories for democracy and good governance. The overall conclusion of the chapter is that the cantonal constitutions help to fulfill the important role of self-rule in the federation, meet the contemporary challenges of political life, and reinforce the legitimacy of cantonal law and authority in the daily life of Swiss citizens, which links them closely to the socio-political, legal, and ultimately federal reality.

In chapter 7, Patrick Peeters examines the constitutional and institutional autonomy of the regions and communities in Federal Belgium, a country based on three main territorially concentrated linguistic communities, namely, the Flemish speakers (Flanders), the French speakers (Wallonia and Brussels), and the German speakers (Eupen and Malmedy in Wallonia). This essay describes the long, piecemeal, incremental process of federalization that has characterized constitutional evolution in Belgium for more than four decades, a process that Peeters calls devolutionary federalism. This gradual movement from a long-established unitary but territorially decentralized state to a new federation has dramatically changed the nature of the relationship between the federal authority and the various federated entities.

From a formal legal perspective, Peeters claims that the constituent regional committees and community councils have never had the sort of constitutional, sub-national autonomy found in most federations, largely because of the absence of any residual powers allocated to them. This power has been retained by the federal government, while the constituent units have only the enumerated powers awarded to them in the federal constitution. He contrasts this with the more familiar cases of integrated federalism, such as the examples of Switzerland, Germany, and the United States, whereby the residual powers are located in the constituent states, as original entities that antedated the federation, such as is illustrated in the case of the Tenth Amendment to the US Constitution.

This legal understanding of the Belgian federal model prompts Peeters to conclude that its federated constituent units enjoy only a form of “constitutive autonomy,” rather than any substantive sub-national constitutional autonomy, and that it certainly does not furnish a robust legal basis that is sufficiently developed for the regions and communities to adopt their own constitutions. Their status is already firmly entrenched in the federal Constitution, which serves as the legal basis for the federal state, the federal government, and the regions and communities. In this devolved federal model, then, the logic applied is exactly opposite to what pertains in the so-called integrative federal model. Nevertheless, it has served to accommodate the main linguistic identities that continue to shape the federation. Peeters’ survey of the Belgian federal model therefore implies that the process of federalization is a continuous one and that the progressive transformation from a unitary to a federal state in 1993 was just the next stage in this process. The underlying question, however, remains whether this process should be described as one of federalization or confederalization.

Chapter 8, written by Gerald Baier, explores Canada as an example of subnational constitutionalism in multinational federations. As in the Belgian case, the constituent units of the Canadian federation do not have formal written sub-national constitutions, and much of their constitutional identity is subsumed within the Canada Act (1867), which remains the bedrock of the parliamentary federal tradition and serves as the legal basis for the federation, the federal government, and the provincial governments. The formation – or reformation – of Canada as a federation in 1867 contained both aggregative and devolutionary elements. Ottawa replaced London as the new imperial political authority, but the residual powers were retained not by the provincial governments but by the central (federal) power. In this way the Canada Act (1867) reinforced the unitary character of the new federal model. But taking this unique combination of the Westminster model of parliamentary government and the federal principle into account at the outset, Baier explores the essentially fragmentary nature of provincial constitutions – or their equivalents – in multiple sources that include, inter alia, portions of written state constitutions, ordinary provincial legislation, and the variety of unwritten conventions characteristic of Westminster-style government. He construes this as a curious story.

The peculiar nature of Canada’s federal constitution that combined strong unitary elements with significant decentralist federal features – subsequently given greater, if unanticipated, legal expression – established in practice an ambiguous relationship between sub-national provincial autonomy and federal authority. Baier suggests that the lack of formal constitutional entrenchment of provincial political authority has produced a distinctive provincial constitutionalism in Canada. The pressures to develop a sub-national constitutional culture have been much less apparent, or it has been much less consciously pursued by provincial elites, than in either the United States or German federal models. Alternative political channels for asserting provincial interests – both formal and informal – have been exploited instead, and Baier’s essay ably demonstrates how historically the status and nature of provincial constitutions have been adapted and adjusted to achieve a variety of different policy goals. In the absence of formal subnational constitutional autonomy, the provinces have utilized an opportunist political strategy to promote their own discrete interests.

The sense of sub-national constitutional space in Canada, then, has emerged gradually through the interaction of largely unwritten provincial constitutions and constitutionalism and the constitutional culture at the level of the federation. But Canada’s constitutional tradition remains centralized, so that the federal constitutional culture sits alongside an array of distinct sub-national constitutional cultures that are conservative. The provinces have been reluctant to define and express themselves constitutionally. According to Baier, even Quebec has not sought consciously to develop a singular constitutional tradition, despite its own distinctive Charter of Human Rights and Freedoms. His essay encourages us to look beyond the familiar understandings of what is a constitution and emphasizes the mixed constitutional heritage that characterizes Canada and has produced overall governmental and political stability.

The curious story that Baier tells about Canada presages part 3 of the book, which shifts the focus of sub-national constitutional change to the territorially decentralized states of the United Kingdom, Spain, and Italy. Although these countries are not formally federal states, each has pioneered legal and political practices that, in creating constitutional space and promoting constitutional sub-national autonomy, have developed strong federal or quasi-federal elements. Together they prompt us, as in the Canadian case, to distinguish not only between constitutional theory and practice but also between constitutional and political practice.

In chapter 9 Stephen Tierney describes the process of constitutional change in the United Kingdom as a “quiet devolution” and places the recent devolutionary arrangements largely in proper historical context. The marked shift in the constitutional culture of the United Kingdom since 1997 has its roots in the past as well as in the consolidation of recent institutional changes. Tierney explains the factors that have created conditions or opportunities for Wales, Northern Ireland, and Scotland to occupy constitutional space and to infiltrate the central organs of the state in order to influence and shape this new constitutionalism in ways unimaginable only a decade ago.

This historical perspective enables Tierney to identify the peculiarly bilateral approach to incremental union building and to show how the different experiences of administrative devolution have affected the notable asymmetry of the 1998 devolution project. However, he also emphasizes the important shift in what he refers to as the cultural autonomy of the territorial societies of Scotland, Wales, and Northern Ireland that served to prepare the ground for the relatively smooth political transition to devolution. There was in this sense an organic dimension, springing from below, which indicated that a significant change in the constitutional culture was already in place, making it receptive to the emergence of devolution. Accordingly, this largely subterranean aspect of United Kingdom devolution predisposed him to speculate about its intellectual implications for the broader study of constitutionalism in general. This would also have to include the impact of devolution on the United Kingdom constitution, and Tierney’s essay traverses this path with short surveys of parliamentary sovereignty and ad hoc devolution, which together serve to underline its knock-on effects on traditional understandings of both the doctrines and practices of United Kingdom constitutionalism.

Some of the trends and circumstances surveyed in the case of the United Kingdom are similar in important respects to those in Spain, as Carles Viver shows in chapter 10. Looking at the Spanish Constitution and the statutes of autonomy of the seventeen Autonomous Communities (ACs) that together comprise the Spanish state, he describes a series of “bottom-up structural changes” to the constitutional rules that regulate the organization of territorial power. While acknowledging the reality of a two-way process of constitutional change, from the top down as well as from the bottom up, Viver nonetheless focuses on the reforms derived solely from the various statutes of autonomy.

Viver begins by explaining the barriers to reforming the Spanish Constitution, despite a consensus across the political spectrum that such reform is long overdue. These obstacles include a combination of procedural barriers, party political differences at both national and AC levels, the absence of an arithmetical parliamentary consensus, and factors related to the Spanish political culture. But Viver emphasizes that the difficulties of formal constitutional reform have not precluded territorial reforms. Indeed, he shows that in such awkward circumstances it is important that alternative means exist to adapt the constitutional system, such as legislative and de facto approaches, and these have assumed a special significance in Spain.

Turning to the statutes of autonomy, Viver focuses on their crucial role in helping to complete the content of the constitutional text in concretizing general aspects of the Spanish Constitution related to the territorial power structure and – especially during the 1970s and 1980s – in shaping the system of political decentralization that was referred to only as a possibility by the Spanish Constitution. Given the initial non-constitutionalization of the territorial organization of power in the state, coupled with the comparatively open nature of the constitutional rules, the ACs have been cast in the role of leading actors and opportunists in the quest to consolidate and adapt the Spanish system of political decentralization. Their strategic position has been at the very heart of constitutional and political change in post-Franco Spain.

The Spanish model thus appears to involve a parliamentary monarchy with an unfinished constitution that needed to be completed principally by its constituent units using their own statutes of autonomy to “flesh out” the territorial structure of the larger state. This has left open to debate a huge number of legal, political, and constitutional questions. Viver’s account thus highlights the ambiguous and sometimes confusing relationship that appears to exist between what the Spanish Constitution states but does not define, and how far the ACs can legally stipulate their own powers, thereby indirectly affecting the scope of the central government’s specified powers in the Constitution.

Ultimately, the original constituent power, Viver insists, lies neither with the ACs nor with the state-wide and AC-based political parties, which cannot reform and approve their own constitutions unilaterally, but with the Spanish Parliament, and only after a process of detailed negotiations with the central institutions. So the proverbial buck stops with the Parliament, which with a Spanish-wide purview has the constitutional power to give its initial approval to the statutes of autonomy and then formally to approve their subsequent reform. Viver construes the overall position of the ACs to be potentially strong in terms of having the strategic capacity to initiate the process of establishing and reforming their statutes of autonomy, which gives them an important influence on the central institutions’ final decision, but it must also be seen as the only way that they are able to participate in the reform of the Spanish Constitution itself. This curious position is a direct result of the relative silence and incomplete nature of that constitution.

Viver concludes his account of the process and substance of constitutional sub-national autonomy in Spain by emphasizing the asymmetrical nature of the territorial structure of power relationships and the current political pressures for financial reform. And in the midst of the competing perspectives of Spain’s future, so vividly outlined in this chapter, it transpires that there is, after all, something resembling a holistic vision of Spain: the leveling out of asymmetry as the ACs gradually acquire similar powers and competences.

Chapter 11, written by Francesco Palermo, invites us to consider Italy as another formally non-federal but territorially decentralized state. The gist of Palermo’s argument is that Italy has already instituted some important and advanced federal elements in the state structure that enable us to label it quasi-federal, but there is still no real understanding among mass publics about precisely what being federal means. There is therefore no common vision of what a federal Italy might look like or what it should stand for. While not suggesting that a federal political culture is completely absent, he emphasizes its regional character: some parts of the country appear to have developed a federal political culture, while other parts are still anchored in the culture of a centralized past.

His chapter takes as its departure point the historical and constitutional developments that have led to this paradoxical situation. Shedding its Napoleonic blueprint of a highly centralized and bureaucratic state, followed by the more recent fascist legacy of a totalitarian regime, Italy adopted its current postwar republican Constitution in 1948 and implemented its regional prescription only in the 1970s. Italian regionalism – the idea of a regional state – is therefore of recent origin and has from its inception been characterized by an asymmetrical design. With fifteen “ordinary” regions and five “special” regions, it was clearly territorially organized, and this structure has often been construed as a kind of “third way” between a conventional federal system and a unitary political system. Palermo notes that the road toward the regionalization of Italy has been long and winding, with the main influences being constitutional adjudication, shifting political priorities, and political party preferences.

Bringing these developments up to date, Palermo refers to the important constitutional amendments of 1999 and 2001, which provided for the direct election of regional presidents, enhanced the constitutional subnational autonomy of the regions, and reorganized relations between the national government and the regions. These amendments transformed the Italian state, introducing the concept of “functional spheres,” rather than hierarchical levels of government, and authorizing ordinary regions to request additional powers so that they could catch up in some policy areas with the special regions, thus following the Spanish model of a potential leveling out of asymmetry in the future.

Unfortunately, a decade after its adoption, the 2001 reform has still not been completed. Some of the legislative proposals from that package were finally implemented in 2003 and 2005, but the financial details were shelved, and further progress has in some cases been delayed by judicial decisions and in others halted by governmental instability. Moreover, the failure to complete the 2001 reform and the contested nature of some of its content has allowed the Constitutional Court to play an enhanced role in clarifying and determining the precise meaning of the disputed elements, sometimes making judgments that favored the national government at the expense of the regions. Currently the federalization process has been convulsed by several outstanding issues, not least the new financial arrangements that will not now be implemented until 2016. Noting the many problems that still confront Italy in its federal quest, Palermo’s chapter concludes with a solemn and almost despairing recognition of Italy’s current fate: it is at the mercy of the Constitutional Court. The implications have been far-reaching. The Court appears to be the sole actor. In processing a huge increase in intergovernmental litigation as a direct result of the failure fully to implement the 2001 reform, the Court has in practice begun to rewrite the division of legislative and administrative powers originally laid down in the reform. Judicial interpretation, rather than the democratic political process, is shaping the constitutional future of Italy.

In part 4 we shift our focus from territorially decentralized states to supranational constitutionalism and constitutional futures in Europe. This part of the book, comprising two closely related chapters, considers constitutional dynamics in federal systems from the particular standpoint of the European Union. In doing so it necessarily reconfigures the concepts of constitutional space and sub-national autonomy as the sovereign states themselves become the constituent parts of a larger union of states. Anneli Albi, in chapter 12, looks at how far the national constitutions of the EU Member States have been adjusted and adapted in relation to the transfer of powers that membership entails. Its precise purpose is to explore the impact of EU membership on national constitutions, but it also considers how far the national constitutions have served as a catalyst of change at the EU level. This required a detailed investigation into the specific EU-related constitutional amendments in the various Member States and a consideration of how and why these constitutions should be updated. In contrast, Ornella Porchia focuses in chapter 13 on the internal territorial and constitutional character and choices of the Member States. She looks at the adaptation of the domestic institutions and intergovernmental relationships within the Member States as a result of EU membership. Referring in particular to the Italian experience, linked to Palermo’s chapter 11, Porchia addresses three distinct issues related to the impact of EU membership: the scope of the constitutional space available to the sub-national units within the state; the extent to which the Italian regions have occupied the constitutional space; and the effects of the initiatives of sub-national units on internal changes in the state or to the EU.

Together these two chapters point up the essentially two-way nature of the process of adjustment and adaptation that EU membership has entailed. How do we make sense of what has happened here, and what are its implications for the future? Albi provides a set of useful distinctions between the constitutional processes that exist in the various Member States, and this in turn presages a classification in terms of the extent to which national constitutions reflect EU membership. The overall picture of adjustment and adaptation is both patchy and uneven; many Member States are apparently ill-equipped to address the ramifications of EU membership. Albi’s chapter explains why this is so and also indicates where future problems might arise. And in turning to look at the limits imposed on the transfer of powers by national constitutional courts, it also briefly engages in the endless debate about the erosion of national sovereignty in the legal and political relationship between the constituent parts and the larger whole that is the EU. Albi concludes with a consideration of how far the question of national constitutions and the EU has triggered a new debate about the nature of constitutionalism itself, an issue already introduced in a different context by Stephen Tierney’s chapter 9, on the United Kingdom. This naturally leads Albi to conclude with a focus on the role that the national constitutions have played in driving constitutional reforms at the EU level and that in consequence have shaped an emerging constitutionalism in the EU.

Porchia’s chapter introduces the concept of “Europeanization,” which fastens onto both top-down and bottom-up perspectives on the constitutional dynamics of change in domestic state structures, which also go hand in hand with the process of deepening European integration. She underlines the wide-ranging multidimensional impact of top-down EU pressures on sub-national Member State actors, the competences of the regions, the overall domestic balance of power, and, in the Italian case, the pivotal role of the Constitutional Court. But this impact also extends to regional policy implementation of EU law and has important implications for the unity of the state. As to the bottom-up perspective of Europeanization, Porchia identifies factors that assist this process in terms of the representation and participation of both national and sub-national actors in the supranational decision-making process. This raises, inter alia, important questions about the constitutional status of the sub-national level and its relationship to national government, the potential enhancement of regional identity, and the various mechanisms of access to EU policy-making. Her observation that EU policies have generally served to strengthen national executives at the expense of national and regional parliaments is a familiar one, but her contribution makes clear how this has altered the constitutional dynamics of sub-national autonomy in Italy.

Porchia summarizes her survey of sub-national units, Member States, and the EU with a firm conclusion: the EU as the current institutional expression of European integration has in one way or another provoked significant constitutional changes in its Member States, largely but not solely in favor of the sub-national units. There are huge changes between and within Member States, but their overall impact has been to establish some sort of role for these units in EU affairs through both new and old channels. These two case studies of the EU and its Member States therefore provide us with a unique insight into the adjustment and adaptation of federal states and federal political systems both from above and from below in the arena of European integration.

This analytical survey of the twelve chapters that comprise the book emphasizes the general theme of change and development in federations and federal political systems. In particular, it calls attention to the sub-national perspectives of constitutional change and the significance of constitutional space for the evolution of these states and systems. The issues and questions raised in the book emphasize the close relationship between constitutional law and political science, and it is hoped that it will be of great interest to both intellectual disciplines.

1 The term “subnational” is intended to distinguish the constitutions of component units in federal systems from the constitution of the nation-state. The authors recognize that many federal systems contain various nationalities, or “nations,” within them.

2 The province of Kashmir does have a separate constitution.

3 Donald S. Lutz, “The United States Constitution as Incomplete text,” Annals of the American Academy of Political and Social Sciences 496 (March 1988): 23, 26; Donald S. Lutz, “From Covenant to Constitution in America Political Thought,” Publius: The Journal of Federalism 10 (fall 1980): 101–2.

4 Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press 1987), 174.

5 See Ronald L. Watts, “Provinces, States, Länder, and Cantons: International Variety among Subnational Constitutions,” Rutgers Law Journal 31 (2000): 941–59; and Wouter Pas, “A Dynamic Federalism Built on Static Principles,” in G. Alan Tarr, Robert F. Williams, and Josef Marko, eds., Federalism, Sub-national Constitutions, and Minority Rights (Westport, CT: Praeger 2004). Of the federations discussed in this chapter, the following have separate sub-national constitutions in most or all of their constituent units: Argentina, Australia, Austria, Brazil, Ethiopia, Germany, Malaysia, Mexico, Russia, Switzerland, and the United States of America. For an earlier comprehensive listing of those federal systems that have sub-national constitutions and those that do not, see Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama 1987): 178, table 5.1.

6 For a striking confirmation of the effect of Section 133, see Attorney General of Quebec v. Blaikie, 2 S. C. R. 1016 (1979).

7 For discussion, see Campbell Sharman, “The Strange Case of a Provincial Constitution: The British Columbia Constitution Act,” Canadian Journal of Political Science 17 (March 1984): 87–108. Sharman notes (97), however, that “there is no indication in format or wording that the Act is anything more than an ordinary act of the legislature.”

8 See, e.g., Luis Moreno, The Federalization of Spain (Portland, OR: F. Cass 2001). The “Autonomy Statutes” in Spain, at least for Catalonia and the Basque Country ( “Euskadi”), share many of the characteristics of written, sub-national constitutions. They set forth the structure of government in the autonomous region and delineate its competencies. To the extent these differ among the autonomous regions, Spain reflects a system of asymmetrical federalism. Finally, the Autonomy Statutes of both the Basque Country (Article 46) and Catalonia (Article 56) require a favorable vote of the electorate in a referendum in order for the Autonomy Statute to be amended. Jaoquim Sole-Vilanova has referred to the Spanish Autonomy Statutes as “internal constitution [s].” Jaoquim Sole-Vilanova, “Regional and Local Finance in Spain: Is Fiscal Responsibility the Missing Element?” in Robert J. Bennett, ed., Decentralization, Local Governments, and Markets: Towards a Post-Welfare Agendat (New York: St Martin Press 1990). See also Eduardo J. Ruiz Vieytez, “Federalism, Sub-national Constitutional Arrangements, and the Protection of Minorities in Spain,” in Federalism, Sub-national Constitutions, and Minority Rights; and Jaoquim Sole-Vilanova, “Spain: Developments in Regional and Local Government,” in Robert J. Bennett, ed., Territory and Administration in Europe (New York: St Martin Press 1989): 205, 209–13.

9 Indeed, one scholar has described the situation in Italy as “the introduction of a de facto federal system by means of ordinary legislation.” See Francesco Palermo, “Asymmetric, ‘Quasi-Federal’ Regionalism, and the Protection of Minorities: The Case of Italy,” Federalism, Sub-national Constitutions, and Minority Rights, 110.

10 See, e.g., Melissa Magliana, The Autonomous Province of South Tyrol: A Model for Self-Government (Bozen/Bolzano, Italy: European Academy of Bozen/Bolzano 2000); Francesco Palermo, “Self-Government (and other?) Instruments for the Prevention of Ethnic Conflicts in South Tyrol,” in Mitia Zagar, Boris Jesih, and Romana Bester, eds., The Constitutional and Political Regulation of Ethnic Relations and Conflict (Ljubljana: Institute for Ethnic Studies 1999); and Jens Woelk, “From Minority-Protection to Governance of Cohabitation? The Case of South Tyrol.”

11 See G. Alan Tarr, “Symmetry and Asymmetry in American Federalism,” delivered at the 2007 annual meeting of the International Association of Centers for Federal Studies (IACFS), available at http://camlaw.rutgers.edu/statecon/.

12 G. Alan Tarr, “Creating Federalism in Russia,” South Texas Law Review 40 (summer 1999): 689. On more recent developments, see Cameron Ross, Federalism and Democratisation in Russia (Manchester, England: Manchester University Press 2002), chap. 8, and Mark A. Smith, “Putin: An End to Centrifugalism?” in Graeme P. Herd and Anne Aldis, eds., Russian Regions and Regionalism: Strength through Weakness (London: Routledge Curzon 2001).

13 See Andreas Heinemann-Gruder, “Russian Federalism: Legacies, Reforms, and Prospects,” Indian Journal of Federal Studies 3 (2002): 69–100; and Marat Salikov, “Russian Federation,” in John Kincaid and G. Alan Tarr, eds., Constitutional Origins, Structure, and Change in Federal Countries (Montreal: McGill-Queen’s University Press 2005), 290–1.

14 See Ann L. Griffiths, ed., Handbook of Federal Countries 2002 (Montreal: McGill-Queens University Press, 2002), for up-to-date information on constitutional arrangements in various federalist systems.

15 In 1982, Daniel Elazar, observed that “Students of federal systems have tended to focus their attention on the federal constitutions that frame the entire polity while neglecting the constitutional arrangements of the constituent polities… In fact, the constitutions of constituent states are part and parcel of the total constitutional structure of federal systems and play a vital role in giving the system direction.” See Daniel J. Elazar, “The Principles and Traditions Underlying State Constitutions,” Publius: The Journal of Federalism 11 (winter 1982): 18–22.

16 In this respect the study of the sub-national perspective serves the same function as does the study of comparative constitutionalism more generally, namely, to broaden our understanding by making problematic and contingent what seemed obvious. As Kim Scheppele has put it: “One reason [for studying comparative constitutionalism] is that many of the taken-for-granted fixed starting points of our field are actually variables connected to time and space, variables whose variable quality is obscured if we do not know the counterexamples.” Kim Lane Scheppele, “The Agendas of Comparative Constitutionalism,” Law and Courts (spring 2003): 5.

17 This paper focuses on the legal role of sub-national constitutions as independent sources of law. But this is not their only importance. Sub-national constitutions may serve important political purposes, regardless of the contents of the documents. They may be instruments of conflict management during periods of political stability, and the process of sub-national constitution-making itself may contribute to political socialization. For an insightful discussion of how events in South Africa served these purposes, see Jonathan L. Marshfield, “Authorizing Subnational Constitutions in Transitional Federal States: South Africa, Democracy, and the KwaZulu-Natal Constitution,” Vanderbilt Journal of Transnational Law 41 (March 2008): 585–638. Sub-national constitutions may also be important as vehicles for making political statements about the character of the federation. See, for example, the quasi-constitutional Bill 99 enacted by the National Assembly of Quebec in 2000. Sub-national constitutions may also be drafted in order to differentiate the constituent unit from other units within the federation – i.e., as a way of emphasizing asymmetry. Note that this is likely not a comprehensive list of the political functions of sub-national constitutions and sub-national constitution-drafting and that those who devise a sub-national constitution may be divided as to the purposes the constitution is designed to serve.

18 Watts, “Provinces, Länder, and Cantons,” 945. On South Africa, see Bertus de Villiers, ed., Birth of a Constitution (Kenwyn: Juta & Co. 1994); on the Sudan, see Christina Murray and Catherine Maywald, “Subnational Constitution-Making in Southern Sudan,” Rutgers Law Journal 37 (summer 2006): 1203–34; and on Switzerland, see Giovanni Biaggini, “Federalism, Subnational Constitutional Arrangements, and the Protection of Minorities in Switzerland,” in Federalism, Subnational Constitutions, and Minority Rights.

19 Christine Fletcher and Cliff Walsh, “Comparative Fiscal Constitutionalism in Australia and the US – The Power of State Politics,” in Bertus de Villiers, ed., Evaluating Federal Systems (Dordrecht: Martinus Nijhoff Publishers 1994): 348.

20 Six states are exceptions to this statement. Texas was an independent republic before its annexation by the United States, and five states – Vermont, Kentucky, Tennessee, Maine, and West Virginia – were carved out of the territory of existing states. This represents a form of devolutionary federalism.

21 The main provision dealing with the admission of new states is Article IV, section 3, of the US Constitution. Further constitutional support for congressional conditions on admission is provided by Article IV, section 4, of the US Constitution, which directs the federal government to “guarantee to each State in the Union a Republican Form of Government.” In addition to imposing conditions on prospective states, Congress also supervised the constitutions that Southern states adopted in the aftermath of the Civil War, requiring an acceptable constitution as a condition for “readmission” to the Union. However, the effects of these congressional efforts were short-lived. Most Southern states repudiated their Reconstruction constitutions as soon as they could, typically replacing them with documents that by the late nineteenth century entrenched white political control, and Congress did nothing to prevent this undermining of republican government. See Don E. Ferenbacher, Constitutions and Constitutionalism in the Slaveholding South (Athens, GA: University of Georgia Press 1989); Kermit L. Hall and James V. Ely, Jr, eds., An Uncertain Tradition: Constitutionalism and the History of the South (Athens, GA: University of Georgia Press 1989).

22 Some prospective states – for example, Wyoming in 1889 – called conventions and drafted constitutions even without congressional authorization. In such circumstances, however, Congress had to approve the proposed constitution and confer statehood. On the Wyoming example, see Robert B. Keiter and Tim Newcomb, The Wyoming State Constitution: A Reference Guide (Westport, CT: Greenwood Press 1993): 4–5.

23 For a discussion of somewhat similar processes in other countries, such as Switzerland and Spain, see Bertus de Villiers, “The Constitutional Principles: Content and Significance,” in de Villiers, Birth of a Constitution.

24 For a discussion of this process of reunification and constitution making, see Peter E. Quint, The Imperfect Union: Constitutional Structures of German Unification (Princeton, NJ: Princeton University Press 1997): 73–99.

25 See Tarr, “Creating Federalism in Russia.”

26 Cheryl Saunders, “Commonwealth of Australia,” in Constitutional Origins, Structure, and Change in Federal Countries, 22.

27 Biaggini, “Federalism, Subnational Constitutional Arrangements, and the Protection of Minorities in Switzerland,” 220.

28 Watts, “States, Provinces, Länder, and Cantons,” 945.

29 Anna Gamper writes: “Federal constitutions usually provide a large number of legal instruments in order to secure homogeneity among the various units. These include the determination of explicit constitutional rules that must neither be violated by the constitutions nor by the ordinary legislation or administration of the constituent states. The federal constitution may also determine that certain policies or law-making of the constituent units need the consent of the federation or an agreement between the units.” Gamper, “Austrian Federalism and the Protection of Minorities,” in Federalism, Subnational Constitutions, and Minority Rights, 59.

30 John Kincaid, “Comparative Observations,” and Juan Marcos Gutierrez Gonzalez, “United Mexican States,” in Constitutional Origins, Structure, and Change in Federal Countries, 438 and 223. Under nineteenth-century Mexican constitutions, states had more leeway in designing their political institutions.

31 Austrian Basic Law, Art. 28, para. 1, and German Basic Law, Art. 28. However, the Federal Constitutional Court of Germany has noted that the Länder “are states vested with their own sovereign powers… The basic law requires only a certain degree of identity between the federal constitution and state constitutions. To the extent that the basic law [does not provide otherwise], the states are free to construct their own constitutional orders.” Quoted in Norman Weiss, “The Protection of Minorities in a Federal State: The Case of Germany,” in Federalism, Subnational Constitutions, and Minority Rights, 76.

32 Austrian Basic Law, Art. 99.

33 See, e.g., Reitman v. Mulkey, 387 U. S. 369 (1967); Hunter v. Underwood, 471 U. S. 222 (1985); Romer v. Evans, 517 U. S. 620 (1996).

34 See In re: Certification Interim Constitution of the Province of KwaZulu-Natal, 1996 1996 (11) BCLR 1419 (CC), at para. 15. For discussion of this litigation, see Robert F. Williams, “Comparative Subnational Constitutional Law: South Africa’s Provincial Constitutional Experiments,” South Texas Law Review 40 (summer 1999): 648–59, and Dirk Brand, “The Western Cape Provincial Constitution,” Rutgers Law Journal 31 (summer 2000): 961, 966.

35 M. Faroukshin, “The New Trends in the Russian Federalism, Back to Unitary States?” Paper delivered at the International Political Science Association Comparative Federalism Research Committee Conference in Javea, Spain, 4–7 December 2001.

36 Anna Gamper, “The Principle of Homogeneity and Democracy in Austrian Federalism: The Constitutional Court’s Ruling on Direct Democracy in Voralberg,” Publius: The Journal of Federalism 33 (winter 2003): 45–58.

37 Constitution of the Russian Federation, Article 85, section 2. The estimate of subnational laws invalidated was supplied by State Prosecutor Yuri Skuratov, quoted in “Constitution Watch,” Eastern European Constitutional Review 7 (winter 1998): 32. Indeed, President Putin identified harmonization of the constitutions and laws of the Federation’s constituent units with those of the Federation as a major element in his federalism initiative. See Smith, “Putin: An End to Centrifugalism,” 27–8.

38 See Tanja A. Bürzel, “From Competitive Regionalism to Cooperative Federalism: The Europeanization of the Spanish State of the Autonomies,” Publius: The Journal of Federalism 30 (spring 2000): 17; “Toward Convergence in Europe? Institutional Adaptation to Europeanization in Germany and Spain,” Journal of Common Market Studies 37 (1999): 573; and States and Regions in the European Union: Institutional Adaptation in Germany in Germany and Spain (Cambridge: Cambridge University Press 2002): 103–47.

39 The “principle of consideration” within the Austrian federation seems to play a similar role. See Gamper, “Austrian Federalism and the Protection of Rights,” 62–3.

40 See Ronald L. Watts, Comparing Federal Systems, 3d ed. (Montreal: McGill-Queen‘s University Press 2008); Peter Pernthaler, “Asymmetric Federalism as a Comprehensive Framework of Regional Autonomy,” in Forum of Federations, Handbook of Federal Countries 2002 (Montreal: McGill-Queen’s University Press 2002); and Alfred Stephan, “Federalism and Democracy: Beyond the U. S. Model,” Journal of Democracy 10 (October 1999): 19–34.

41 U. S. Constitution, Art. I, sec. 2.

42 See Yonatan Tesfaye Fessha, “Institutional Recognition and Accommodation of Ethnic Diversity: Federalism in South Africa and Ethiopia” (unpublished PHD diss., University of the Western Cape 2008), 425–31. The pertinent provision is Ethiopian Constitution, Art. 39. This right cannot be curtailed even in emergency situations – Ethiopian Constitution, Art. 93 (4) c.

43 Ibid., 244.

44 Stephen Tierney, Constitutional Law and National Pluralism (Oxford: Oxford University Press 2004), 188.

45 See Vieytez, “Federalism, Subnational Constitutional Arrangements, and the Protection of Minorities in Spain,” 149.

46 South Africa Constitution, Ch. 4, sec. 44 (2); India Constitution, secs. 249, 250.

47 See Austria Basic Law, Arts. 102 (1), 103 (1).

48 Gardner, “In Search of Sub-National Constitutionalism,” 333.

49 Celina Souza, “Federal Republic of Brazil,” in Constitutional Origins, Structure, and Change in Federal Countries, 85.

50 Peter Bußjäger, “Subnational Constitutions and the Federal Constitution in Austria: A Case Study,” 6–7 (unpublished paper available from author).

51 Arthur B. Gunlicks, “Land Constitutions in Germany,” Publius: The Journal of Federalism 28 (fall 1998): 111–12.

52 Brandenburg Constitution, Art. 26, para. 2, and Art. 40, para. 5. More generally, see ibid., 120–4.

53 John Dinan, “Patterns of Subnational Constitution-making in Federal Countries,” Rutgers Law Journal 39 (summer 2008): 837–62.

54 Tarr, Understanding State Constitutions, chap. 1; and Book of the States 2008 (Lexington, KY: Council of State Governments, 2008), 10, table 1.1.

55 There is an alternative version of this as well. Sometimes constituent units use their subnational constitutions to preserve what has been jettisoned at the national level. In the United States, for example, controls over liquor were maintained even after the federal government rejected prohibition with the ratification of the Twenty-first Amendment. In addition, state courts have interpreted state constitutions to maintain substantive due process after its repudiation by the US Supreme Court and have recognized rights claims, such as the requirement of public funding for abortions, after the Supreme Court rejected such claims as a matter of federal constitutional law.

56 See Tarr, Understanding State Constitutions, chaps. 3–5.

57 Gunlicks, “Land Constitutions in Germany,” 111–12.

58 See G. Alan Tarr, ed., Constitutional Politics in the States: Contemporary Controversies and Historical Patterns (Westport, CT: Greenwood Press 1996).

59 Elazar, Exploring Federalism, 18–22, and more generally, Daniel Elazar, American Federalism: A View from the States, 3d ed. (New York: Harper & Row 1984).

60 On Ethiopia, see Fessha, “Institutional Recognition and Accommodation of Ethnic Diversity: Federalism in South Africa and Ethiopia,” 399–406; on Germany and the protection of language rights of minorities within particular Länder, see Weiss, “The Protection of Minorities in a Federal State,” 80–1; and on Mexico, where the Oaxaca Constitution extended protections for native people before the federal constitution did, see Gonzalez, “United Mexican States,” 214.

61 Gonzalez, “United Mexican States,” 233.

62 For discussion of these reforms, see Spencer C. Olin, Jr, California’s Prodigal Sons: Hiram Johnson and the Progressives, 1911–1917 (Berkeley: University of California Press 1968).

63 On this so-called “new judicial federalism,” see G. Alan Tarr, “The Past and Future of the New Judicial Federalism,” Publius: The Journal of Federalism 24 (spring 1994): 63–79. For a valuable comparative assessment, see Celine Fercot, “Diversity of Constitutional Rights in Federal Systems: A Comparative Analysis of German, American, and Swiss Law,” European Constitutional Law Review 4 (2008): 302–24.

64 See Rassie Malherbe and Dirk Brand, “South Africa: Sub-National Constitutional Law,” in Andre Alen et al., eds., International Encyclopedia of Laws, Constitutional Law, Sub-National Constitutional Law (Leiden: Kluwer Law International 2001).

65 New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932). For a discussion of Brandeis’s argument, see A. E. Dick Howard, “Does Federalism Secure or Undermine Rights?” in Ellis Katz and G. Alan Tarr, eds., Federalism and Rights (Lanham, MD: Rowman & Littlefield 1996). On the problematic roots of Brandeis’s idea, see G. Alan Tarr, “Laboratories of Democracy? Brandeis, Federalism, and Scientific Management,” Publius: The Journal of Federalism 31 (winter 2001): 37–46.

66 For studies focusing on the United States, see Jack L. Walker, “The Diffusion of Innovations among the American States,” American Political Science Review 63 (September 1969): 880–9; Robert L. Savage, “Diffusion Research Traditions and the Spread of Policy Innovation in a Federal System, Publius: The Journal of Federalism 15 (fall 1985): 1–27; and Virginia Gray, “Competition, Emulation, and Policy Innovation,” in Lawrence C. Dodd and Calvin Jillson, eds., Perspectives in American Politics (Washington, DC: CQ Press 1994).

67 James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown 1950): 224–5.

68 Peter E. Quint, Imperfect Union, 99. For a survey of judicial interpretations of the new German Länder constitutions, see Peter E. Quint, “The Constitutional Guarantees of Social Welfare in the Process of German Unification,” American Journal of Comparative Law 47 (1999): 303, 310–21, 325. See also Igna Markovits, “Reconcilable Differences: On Peter Quint’s The Imperfect Union,” American Journal of Comparative Law 47 (1999): 189, 194–7, 206–9.

69 David Schuman, “The Origin of State Constitutional Direct Democracy: William Simon U’Ren and the ‘Oregon System’” Temple Law Review 67 (fall 1994): 947, 950.

70 See, e.g., Robert F. Williams, “Experience Must Be Our Only Guide: The State Constitutional Experience of the Framers of the Federal Constitution,” Hastings Constitutional Law Quarterly 15 (fall 1988): 403.

71 Donald Lutz, “The State Constitutional Pedigree of the U. S. Bill of Rights,” Publius: The Journal of Federalism 22 (1992): 19–45.

72 Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books 2000).

73 On equal protection, see Robert F. Williams, “Equality Guarantees in State Constitutional Law,” Texas Law Review 63 (1985): 1195, and Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (Lawrence: University Press of Kansas, 1990); on poll taxes, see Keyssar, The Right to Vote; and on prohibition, see Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880–1920 (Chapel Hill: University of North Carolina Press 1995).