THE USE OF SUB-NATIONAL CONSTITUTIONAL SPACE

If law defines the formal constraints on sub-national constitutional space, what determines the extent to which constituent units occupy – or fail to occupy – the space allotted to them? Four general points should be made at the outset.

Second, occupying constitutional space is not an either/or proposition: constituent units may make use of some, but not all, of the space available to them. For example, John Dinan’s comparative analysis of institutional innovation in sub-national constitution-making found little divergence from national constitutions with regard to presidentialism and parliamentarism. However, he discovered that sub-national constitutions in several federations were easier to amend than their federal counterparts, that many provided more opportunities for direct democratic participation, and that many had over time instituted unicameral legislatures, despite bicameral federal legislatures.⁵³

Third, constituent units within the same federation may vary in the use they make of the constitutional space available to them, and this variation may occur in both symmetrical and asymmetrical federal systems.

Fourth, political factors – ranging from the prevailing political ideas of the era to the nature of the party system to the level of dominance of a particular party throughout the country to the nature of popular demands on sub-national governments – ultimately determine the use of sub-national constitutional space. Let us explore these political factors in greater detail.

The willingness of constituent units to occupy the constitutional space allotted to them may turn in part on timing. That is to say, the similarities and differences among sub-national constitutions, as well as their similarity to or divergence from the federal constitution, may reflect the political era in which they were written. Because different sets of political ideas tend dominate in different eras, sub-national constitutions are likely to reflect the reigning ideas of the era in which they were written.⁵⁵ One sees this in American state constitutions. During the eighteenth and early nineteenth centuries, Americans viewed state legislatures as voicing the popular will and concentrated power in them. Later in the nineteenth century and in the early twentieth century, their distrust of the fidelity and probity of state legislators led them to impose numerous constitutional restrictions on legislative power, to augment executive and judicial powers, to insert policy pronouncements directly into state constitutions so as to foreclose legislation, and to expand the use of direct democracy.

Arthur Gunlicks has identified a similar pattern in Germany. The Länder constitutions that preceded the adoption of the German Basic Law tended to include “the whole array of political and social provisions, including basic human rights.” Those drafted after the adoption of the Basic Law focused on organizational principles, because social concerns and rights guarantees had already been dealt with in the Basic Law. Finally, the Länder constitutions drafted since 1990 have reflected “modern values,” seeking to guide political practice through the inclusion of social rights and state goals.⁵⁷

Yet in order for changing political ideas to encourage constituent units to make use of the constitutional space available to them, there must be some time lag between the adoption of the federal constitution and the adoption of its sub-national counterparts, in order for a shift in political ideas to take place. In many federations, this is simply not the case, either because the federation is of relatively recent origin (e.g., Russia and South Africa) or because it has adopted a new constitution in the recent past (e.g., Argentina, Brazil, Nigeria, and Switzerland). Also, insofar as the federal constitution can be relatively easily changed, the federation may itself respond to changing political ideas with constitutional amendments, thereby keeping the federal charter “up to date” and reducing the need for sub-national constitutions to take the lead in pioneering new directions.

On the other hand, if the federal constitution is substantially more difficult to change than the sub-national constitution, then even if the two constitutions were adopted at the same time, over time their contents are likely to diverge. This may have broader implications as well, since the frequency or infrequency of constitutional change may affect how political actors view the constitutions that are amended or revised. In the United States, for example, the infrequency of formal constitutional change at the national level has imbued the federal Constitution with a sense of being above politics, whereas the frequency of amendment at the state level has encouraged the public to view changes in state constitutions as merely part of “normal politics.”⁵⁸

Another factor encouraging constituent units to occupy the constitutional space available to them may be regional differences reflecting distinctive political or legal cultures or traditions, sometimes linked to ethnic diversity. Daniel Elazar has identified regional differences in political culture in the United States and demonstrated how they have influenced American state constitutions.⁵⁹ Much greater diversity can be found in many other federations, and this can lead constituent units either to enshrine their residents’ distinctive culture in their constitutions or to provide additional protections to ethnic minorities situated within their borders. These efforts to occupy constitutional space may involve matters such as the official language of the constituent unit, as in Ethiopia; or the language rights of minority populations, as in Germany; or the rights of native peoples concentrated in the state, as in Mexico.⁶⁰

Sometimes a change at the sub-national level may precipitate other changes as well. This is particularly likely when the establishment of new avenues for sub-national constitutional change empowers groups that had previously been stymied. A prime example is the addition of mechanisms of direct democracy to sub-national constitutions.

Finally, the distribution of political forces within a federation affects the likelihood that constituent units will occupy the political space available to them by creating either incentives or disincentives for political mobilization for sub-national constitutional change. If the party that is in control at the national level is in control within the various constituent units, then it is more likely that constitutional reform will be pursued at the national level or that constituent units will model their constitutions on the federal charter. While the PRI held power both nationally and within the Mexican states, centralization of power was the norm, and federalism and sub-national constitutions were largely ignored. Insofar as there was significant constitutional change, it was concentrated at the national level: from 1917 to 2000, there were four hundred amendments to the federal constitution.⁶¹ But if political parties that are in political opposition at the national level control the governments of some constituent units, they use that political control to advance their own agenda, and this may include constitutional innovations in the space available to them. Thus, when the Progressives gained control of the California government in the early part of the twentieth century, they constitutionalized a number of reforms that were anathema to the more conservative Republicans who dominated the federal government.⁶² More recently, faced with a conservative US Supreme Court, American state courts have interpreted their state declarations of rights to provide greater constitutional protection than was available under the federal charter.⁶³

The existence of strong national political parties may also discourage distinctive initiatives from constituent units, reducing their interest in occupying the constitutional space available to them. Indeed, some constituent units may make deliberate, rational choices not to fully occupy the space legally allotted to them. South Africa provides a particularly telling example. The African National Congress, as a matter of party policy, mandated that the provincial governments it controlled should not draft provincial constitutions, with the result that only Western Cape Province now has a provincial constitution.⁶⁴ One could speculate that, conversely, the existence of regional or ethnically based parties might have the opposite effect.