Federalism Comparative Constitutional Law II semester Francesca Rosa

Researcher in Constitutional Law (University of Foggia) Classes: Thursday and Friday Office hours: Thursday and Friday Students’ presentation

Table of contents Introduction (article of Gamper) U.S. federalism Canadian federalism German federalism Seminars Spain (5th of April) Canada (first week of May)

Separation of powers Horizontal Form of government Vertical *** Federalism

Our question: How could the government (or the three state functions) be organised over the state territory?

What is constitutionalism? A doctrine born at the time of the British, American and French revolutions according to which the political power has to be limited by the law Written constitution (art. 16): Bill of rights Separation of powers principle (horizontal and vertical)

State Centralised state Federal or Regional state

Centralised (unitary) state Citizens are subject to a single central authority Decentralization of state functions is possible Territorial decentralization is possible

Federal or regional state Citizens are subject both to a central authority and to a number of territorial authorities > diversity Decentralization of state functions is possible (=) Territorial authorities exercise the three traditional state functions in the framework established by the constitution > autonomy principle***

Why is the federal model dominant in the world? To govern complex societies more effectively To govern large countries more effectively To separate political power more effectively and to avoid the power concentration To bring government responsibilities closer to the citizens

What does federalism mean? Prescriptive meaning > an organization of powers that ensures the maintenance of peace in complex societies crossed by social, cultural and religious divisions Descriptive meaning > division of (legislative, administrative and judiciary) powers between central and territorial authorities

Where is federalism? Confederation Supranational Organization (EU) Federal state Regional state Centralised state Autonomy Unity

Confederation Union of independent states (open/close) founded by an international treaty (right of exit) Common interests: defense, market, foreign policy Central authority where the states are equally represented (> unanimity principle) Central authority depends on the states (appointment of representatives, vote, finance) Central authority decisions’ are binding for the States (not for State citizens)

Supranational organization a more complex organization of the central authority (no equal representation, no unanimity principle) some decisions/acts are binding for the citizens directly supranational court

Federal state Association of independent states / devolution of an independent state Written constitution providing the division of powers between federation and territorial units Constitutional autonomy of territorial units Federal tribunal judging conflicts of competences Bicameral Parliament * Territorial units are involved in the revision of the constitution

Features of Second Chambers Arithmetic (USA) / Geometric (Germany) Composition (Direct or indirect) Election (USA) / Appointment of members (Germany and Canada) Senate (USA) / Council (Germany) functioning

Anglo-Saxon vs. European federalism Strict / flexible division of legislative competences Parallelism between legislative and administrative functions / Indirect federal administration Senate / Council Second Chamber

Where is the sovereignty in the federal state? Federalist papers > in the federation and in the states > / the sovereignty cannot be divided Calhoun > in the states > / what is the difference between federation and confederation? Kelsen > in the state as a whole > / no evidence

The sovereignty is in the federation The constitutional autonomy of the territorial units is limited The supremcy clause The federal parliament has the power to modify the federal constitution A federal judge has the power to rule out the conflicts between federation and territorial units The federal government has the power to control what the territorial units do and to order them to respect the constitution

If the sovereignty is in the federation: a) For some scholars all kinds of states are unitary > the federal state is a unitary state as the centralised state and the regional one > the differences between centralised, federal and regional state are only quantitative (more or less autonomy), but not qualitative b) For other scholars federal and regional states are decentralised states different from the centralised one (slights 8 e 9) *** > there is a qualitative difference between states that decide to decentralize the power and the states that decide to do not

Regionalism Ambrosini Region: a) Territorial district created for the decentralisation of (some) state functions b) Administrative regions > administrative autonomy c) Political region > legislative autonomy

Regional state Devolution process within an unitary state Written constitution providing for the division of territory into autonomous regions Regional charters foreseeing the form of government Written and rigid constitution divides legislative and administrative powers between central state and regions State authorities control administrative measures and legislatives statutes State judge rules out conflicts of competence between state and regions Bicameral Parliament “without” a second chamber representative of regions Regions are “weakly” not involved in the revision of the constitution

Commons features between federal and regional state The constitution foresees a level of government intermediate between state and municipalities The constitution foresees the powers/competences of territorial units The territorial units are entitled to legislate The conflicts of competences between state and territorial units are resolved by a state judge

Differences between federal and regional state Features of constitutional autonomy (name, content and source of law) Division of powers Drafting (residual power clause) Functions involved (not judiciary power) Composition and functioning of the second Chamber (no link with the territorial units) Procedure for the revision of the constitution (not a strong participation of territorial units)

Criticisms of the differences between federal and regional state Constitutional autonomy > quantitative but not qualitative difference Separation of powers > quantitative but not qualitative difference Second Chamber > due to the Madison paradox is not a real difference Procedure for the revision of the constitution > the only qualitative difference

The empirical (or dynamic) theories of federalism Subject > the federalizing process = process by which political communities divide among themselves the political power in the course of time The federalizing process does not concern the national state only, but all levels of government > the state is one subject of research Between the different forms of division of power there are only quantitative differences

The empirical theories of federalism and the federal state The federal state is the result of special decentralisation process (constitution) Very often is difficult (useless?) to classify state experiences as federal or regional The functionning of the federal state changes in the passage between liberal and welfare state > from dual to cooperative federalism

Features of the liberal state Liberal revolutions in UK, US and France Separation of power Rule of law > written and flexible constitutions Individual liberties + formal equality Capitalism > laissez-faire economic + minimal economics intervention and taxation by the state Political affirmation of the bourgeoisie > extension of the suffrage (already limited)

Features of the welfare state Economic crisis (1929) Social liberalism > state intevention in political economy > social justice (e.g. New Deal) Social rights + substantial equality Universal suffrage > mass political parties Written and rigid constitutions [special procedure to change the constitution]

Features of the welfare state Economic crisis (1929) Social liberalism > state intevention in political economy > social justice (e.g. New Deal) Social rights + substantial equality Universal suffrage > mass political parties Written and rigid constitutions [special procedure to change the constitution]

The federalist paper n. 45 “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.”

Dual v. cooperative federalisms “the national government and the states are mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government” (Corwin) > > Shared and overlapping powers > cooperation > Centralization of policy- making a) The national government has enumerated powers only b) The purposes that the national government can promote are few c) Within their respective spheres the two levels of government are sovereign and equal d) The relationship of the two levels with each other is one of tension rather than cooperation