Federal Democracies

Federal Democracies

Edited by Michael Burgess and Alain-G. Gagnon

~l Routledge

m~ Taylor&Franc!sGroup LONDON AND NEW YORK

First published 2010 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group. an informa business © 2010 Michael Burgess and Alain-G. Gagnon for selection alld editorial matter; individual contributors t11eir contribution

Typeset in Times by Wearset Ltd, Boldon, Tyne and Wear Printed and bound in Great Britain by TJI Digital, Padstow, Cornwall All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British LibrGlY Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Federal democracies/edited by Michael Burgess and Alain-G. Gagnon. p. cm. - (Routledge series in federal studies, 1363-5670; 19) Includes bibliographical references and index. I. Federal government. 2. Democracy. 3. Comparative government. I. Burgess, Michael, 1949- II. Gagnon, Alain. JC355.F3352010 321.8-dc22 2009037235 ISBNIO: 0-415-55548-5 (hbk) ISBNIO: 0-203-85757-7 (ebk) ISBN13: 978-0-415-55548-7 (hbk) ISBN13: 978-0-203-85757-1 (ebk)

For Louiselle and Marie-Louise whose support continues to sustain us

Contents

List of contributors Preface

xi xiii

1 Introduction: federalism and democracy MICHAEL BURGESS AND ALAIN-G. GAGNON

PART I

Historical perspectives 2 Democracy and federation in the Federalist Papers

27

29

lAIN HAMPSHER-MONK

3 "Togetherness" in multinational federal democracies: Tocqueville, Proudhon and the theoretical gap in the modern federal tradition

46

DIMITRIOS KARMIS

4 John C. Calhoun: federalism, constitutionalism, and democracy

64

MURRAY FORSYTH

5 Variations on a theme: James Bryce, federalism and democracy - from the Holy Roman Empire and the American Commonwealth to the British Empire MICHAEL BURGESS

86

x

Contents

PART II

Case studies 6 Democracy versus federalism in the United States of America

117

Contributors

119

JOHN KINCAID

7 Federal democracy in Switzerland

142

PAOLO DARDANELLI

8 Federal democracy in plural Spain

160

LUIS MORENO

9 Federalism and democracy in the Federal Republic of Germany

Michael Burgess is Professor of Federal Studies, and Director of the Centre for Federal Studies (CFS) at the University of Kent at Canterbury, Kent, UK. 178

FRANZ GRESS

10 Federalism and democracy in the Russian Federation

202

RICHARD SAKWA

11

Executive federalism and the exercise of democracy in Canada

Murray Forsyth is Emeritus Professor of Politics at the University of Leicester, UK. 232

Alain-G. Gagnon is Professor in the Department of Political Science, and Canada Research Chair in Quebec and Canadian Studies at the Universite du Quebec a Montreal (UQAM) in Canada.

251

Franz Gress is a former Professor of Political Science at the Johann WolfgangGoethe Universitat, Frankfurt-am-Main, Germany.

ALAIN-G. GAGNON

12 Federal democracy in a federal Europe

Paolo Dardanelli is Lecturer in European and Comparative Politics and Deputy Director of the Centre for Federal Studies at the University of Kent in Canterbury, Kent, UK.

JOI·IN PINDER

lain Hampsher-Monk is Professor of Political Theory at the University of Exeter, UK.

PART III

Comparative perspectives

273

13 Federalism and democracy: the case of minority nationsa federal deficit

275

John Kincaid is the Robert B. and Helen S. Meyner Professor of Government and Public Service and Director of the Meyner Center for the Study of State and Local Government at Lafayette College, Easton, Pennsylvania, USA.

299

Luis Moreno is a Senior Research Fellow at the Spanish National Research Council (CSIC), Madrid, Spain.

325

John Pinder is former Professor at the College of Europe in Bruges, former Chairman of the James Madison Trust and former Chairman of the Federal Trust, London, UK.

Dimitrios Karmis is Associate Professor in the Department of Political Science at the University of Ottawa in Ontario, Canada.

FERRAN REQUEJO

14 Federalism and democracy: comparative empirical and theoretical perspectives JOHN KINCAID

15 Comparative reflections on federalism and democracy RONALD L. WATTS

Index

347

Ferran Requejo is Professor of Political Science at the Universitat Pompeu Fabra in Barcelona, Catalonia, Spain.

xii

Contributors

Richard Sal{wa is Professor of Russian and East European Politics at the University of Kent in Canterbury, Kent, UK.

Preface

Ronald L. Watts is Principal Emeritus, Professor Emeritus of Political Studies and Fellow of the Institute ofIntergovernmental Relations at Queen's University, Kingston, Ontario, Canada.

The origin of this volume dates back to an international research workshop on 'Federalism and Democracy' held in April 2006 at Howfield Manor Hotel, Chartham, just outside Canterbury in Kent, England. The workshop was generously funded by the James Madison Trust (JMT), London and the participants were invited to contribute on the specific subject offederal democracy. The work presented at that meeting was subsequently revised, updated and resubmitted in 2007 and then subjected in 2008 to the editorial pens of Michael Burgess and Alain G. Gagnon. The result of this lengthy but thorough process has been the collation of the following 15 chapters that constitutes a major contribution to the existing mainstream literature on the theory and practice offederal democracy. This subject has been a strangely neglected one in comparative pofitical science, no doubt partly through a certain intellectual complacency that has simply taken the relationship between federalism and democracy for granted, even if there has always been a rival school of socialist-communist thought that has consistently challenged and frequently refuted the claims made for federal democracy in this book. But when we are reminded that previous scholarship in this area has been largely preoccupied with the modern classic federations, such as the United States of America (USA), Switzerland, Canada and Australia, it becomes much clearer why contemporary scholars of federal studies should come to the general conclusion, as they do here, that federalism and democracy - notwithstanding tensions between them - are ultimately mutually reinforcing. The original purpose of the workshop from which the book derives was to track the evolution of the relationship between federalism and democracy, via a number of historical, philosophical, theoretical and empirical perspectives, in order eventually to arrive at a clear understanding of contemporary federal democracy. This is precisely why the point of departure was taken to be the late eighteenth-century American debate about the new federal model constructed at the Philadelphia Convention (1787) and the subsequent intellectual arguments it generated about federalism and democracy throughout the nineteenth and twentieth centuries. For our purposes, we chose in Part I of the book to use Tocqueville, Proudhon, Calhoun and Bryce as nineteenth-century vehicles for an investigation into different aspects of this evolving relationship that would furnish the foundation for a series of case studies in the twentieth century. No

xiv

Preface

such empirical exploration would have been considered defensible without the inclusion of either the USA or Switzerland or Canada but we wanted nevertheless to have as wide an empirical survey as possible that would include as many interesting varieties of federal democracy as was consistent with our priority also to include some comparative perspectives. The overall result is that we have included in Part n of the book the individual case studies of the USA, Switzerland, Spain, Germany, Russia, Canada and the European Union (EU). These detailed developmental contributions point tip the relationship between federalism and democracy that reflects in each case the unique circumstances in which we must view it. The complex historical, philosophical and empirical context in each case reveals the impOliant similarities and differences that exist between them, thus enabling us to identify the factors that either assisted or impeded the convergence of these concepts into a practical reality, namely, federal democracies. They also furnish the book in Pmi III with a solid basis for some helpful theoretical and empirical comparative perspectives, which include a broad instructive survey of public attitudes towards both federalism and federal democracy, a challenging reconsideration of federal democracy set in the context of pI uri national concerns and, finally, an overarching comparative survey that skilfully summarises the main arguments of the book and serves as its conclusion. . Michael Burgess Alain-G. Gagnon

1

Introduction Federalism and democracy Michael Burgess and Alain-G. Gagnon

For those scholars and students who are interested in comparative federalism, it may come as a surprise to learn that in the contemporary mainstream literature not very much detailed attention has been paid to the relationship between federalism and democracy. Up until quite recently it appears to be one of those relationships in political science that we simply take for granted. When we look at the world, we do not examine the lenses through which we look at it but which neveliheless shape our understanding of what we see - or think we see. The reason for this complacency might be explained by reference to what Ivo Duchacek noted over 30 years ago when he addressed the meaning of federalism. 'Federalism', he claimed, had become 'one of those good echo words that evoke a positive response but that may mean all things to all men, like democracy, socialism, progress, constitution, justice, or peace'.' His observation underlined the essentially elastic nature of these terms that could be stretched to furnish several different meanings. Since then scholarly research has made great analytical strides in the fields of federalism and democracy. Today we are able to make clear conceptual distinctions between federalism, federation and confederation and we have recourse to a variety of democratic theories, models and typologies that lend themselves to comparative analysis. The subjects remain as discrete, if linked, fields of study but there has been an increasing tendency fors"ciiolars of federal studies to equate genuine federations with authentic liberal democracy. One major implication of this equation has been the rejection of previous constitutional claims for federation, such as the Soviet Union, Czechoslovakia and Yugoslavia, where there was very little evidence of a functioning liberal democracy. It is true that historically there is no necessary connection between federalism and democracy, but the evolution of both the theory and practice of liberal democracy and federalism in the twentieth century have effectively fused the two together for all practical purposes. Consequently any traces or imprint of federalism that we might detect - or might be claimed - in cases like the Soviet Union, for example, must be treated with great scepticism and suspicion for the simple reason that their constitutional claims were counterfeit; these political systems operated in practice as centralised, authoritarian single-pmiy dictatorships.2 This Introduction is divided into three parts. The first part establishes the foundation of the relationship between federalism and democracy and looks

2

M Burgess and A.-G. Gagnon

briefly at how previous scholars have construed it, while also taking the opportunity to address some of the key issues that continue to surround this relationship. The second part addresses federalism and contemporary democratic theory with the principal purpose of pointing up some of the major theoretical discussions and controversies that continue to characterise the intellectual debate. Finally, the third part concentrates upon the normative empirical and theoretical aspects of the relationship, as expressed in the chapters in the book, that have increasingly come to dominate the intellectual discourse in response to practical problems in the contemporary world.

Federalism, democracy and federal democracy The nature of the relationship between federalism and democracy is both complex and fascinating, and it requires first that we briefly clarifY and explore the conceptual background to each of these fundamental terms about which we seem to be so complacent. As we will demonstrate, there was originally no necessary connection between them. Conceptually they evolved as discrete historical phenomena dating back· to the Greeks, Romans and to biblical times, and only gradually came together as a result of changes in the structure of. power relations among empires, dynasties, alliances and princely kingdoms. The emergence in the sixteenth century of the modern state in Europe and the relentless religious strife wrought by theological disputes that culminated in the Reformation and the Counter-Reformation served in the seventeenth century to forge the basis for a radical intellectual rethinking of the nature of political authority, obligation and legitimacy. Johannes Althusius, a German Calvinist magistrate, whose Politica Methodice Digesta (known as the Politics) first appeared in 1603, is widely acknowledged to be the intellectual founding father of the federal idea as a form of social and political association in the Continental European tradition of federalism. 3 The intellectual framework and the practical political circumstances conducive to the emergence of the federal idea as part of the larger process of the evolution of democracy can be traced back to the seventeenth century in the major works of Thomas Hobbes, John Locke, James Harrington and Algernon Sydney in England and a string of philosophical writings in eighteenth century Europe, including Baron de Montesquieu and Jean Jacques Rousseau in France, Hugo Grotius in the Netherlands and Immanuel Kant and Samuel Pufendorf in Germany. But it was the dawning of the age of mass politics symbolised by the American (1776) and French (1789) Revolutions at the end of the eighteenth century that unleashed powelful political forces, which transformed the federal idea from a species of international law and order - a formula for forging peace between states - into a form of national political organisation. As we shall see in Chapter 2, in its original incarnation in early American repUblican thought about political liberty, order, consent and obligation, federalism was not associated with democracy at all. Indeed, as integral to a republican form of government, it was firmly contradistinguished from democracy, which was equated with mob rule, popular tyranny and the ignorance of the masses.

Introduction

3

Nonetheless, it is impOitant to recognise that perceptions of federalism changed concomitantly in the nineteenth century with the uneven development of liberal democracy in the United Kingdom (UK), parts of Continental Europe and Latin America and the United States of America (USA). In comparative terms, the imperial federation that constituted Imperial Germany in 1871 sat uncomfortably with the constitutional metamorphosis of Switzerland in 1848 into a new federation, the Canadian Westminster model of parliamentary federation in 1867 and the post-bellum USA but they were different types of federal models that practised different kinds of limited liberal representative democracy. Not surprisingly, it was the USA that became the dominant federal model of emulation in the nineteenth and twentieth centuries for aspiring liberal democracies wishing to utilise federal principles for different purposes. As the USA progressed so impressively in socio-economic and technological terms in the late nineteenth century so did the reputation of federalism not only as an innovative means of state and nation building but also as the archetype of a new form of territorial state and government whose philosophical foundations were anchored in the concept of civitas or res publica. The new republic gradually came to symbolise the ideal of liberal democratic constitutional government with popular sovereignty vested in the written constitution. No better example of the high esteem in which the US federal model was held can be demonstrated than the famous statement made by one of the leading scholars offederalism in the early period after the end of the Second World War. In 1946 Kenneth Wheare's Federal Government was published and in the course of introducing his definition of the federal principle he confirmed the status of the model in the following terms: Many consider it the most important and the most successful example. Any definition of federal government which failed to include the United States would be ... condemned as unreal. ... (For) the federal principle has come to mean what it does because the United States has come to be what it is .... I believe, the government of the United States· isthe most successful federal government in the world. 4 This was a particular interpretation of federal government but in the attention that he clearly paid to the structure and design of the federation itself it was also about the nature of the state. In addition, Wheare's view of the modern USA was one that fused federalism and liberal democracy. There was never any doubt about this in his mind. He rejected outright those autocracies and dictatorships that might use the federal label to describe their states and governments. Whether in the federal government itself or in the governments of the constituent units, Wheare believed that sooner or later they would 'destroy that equality of status and that independence with its one-party government and its denial of free election', that was clearly 'incompatible with the working of the federal principle'. Federalism clearly demanded forms of government that had 'the characteristics usually associated with democracy or free government' and while there was 'a

4

Introduction

M Burgess and A.-G. Gagnon

wide variety in the forms which each government may take', the main essentials were 'free election and a party system, with its guarantee of a responsible opposition' .s In hindsight, Wheare's references to 'democracy' appear conceptually to be somewhat limited and outdated but there can be no doubt that his understanding of federal government in the federal state was predicated firmly upon liberal democratic assumptions. These included a belief in the rule of law, free and regular elections by secret ballot, a competitive political party system, an in dependent judiciary, a free media, the protection of individual freedoms and human rights, and the legitimacy of government opposition. Today we would construe Wheare's condemnation of authoritarian single-party governments in federations candidly to mean a basic contradiction in terms. Their constitutional claims were simply fraudulent. Where they exist or have existed, they are impostors. In the great intellectual debate during the post-war years about the meaning of federalism in the mainstream Anglo-American literature, William Livingston's Federalism and Constitutional Change appeared in 1956 and in its principal advocacy of the 'sociology of federalism' it nonetheless gave unequivocal approval to the liberal democratic credentials required of federal states.6 Livingston put it thus: Federal government is suitable only to those polities that are organised upon a democratic or repUblican foundation. By this is meant merely that it is incompatible with any form of dictatorship or absolutism. Federal government presupposes a desire and an ability to secure the component units against encroachment by the central government. If the latter is an authoritarian dictatorship, it is difficult to see how the safeguards of the federal structure can be worth much; the states would continue perhaps to exercise their functions, but only on the sufferance of the central government '" so far as the scheme itself is concerned it would be at the mercy of the dictator. Logically the two are not incompatible, but practically one would contradict the other. 7 Looking in particular at Latin America and the Soviet Union, Livingston confirmed that the central governments of federal states had effectively 'reduced the federal elements of the constitutions to nullities' .8 In such states the central governments had put placemen or stooges in the constituent state governments who were subservient to the regime. The constituent units had in consequence become mere 'agencies of the ruling group in the central government' so that 'the independent and coordinate status' which characterised federal-state relations 'in a true federation' had become in practice 'meaningless'.9 With concluding assurance, he declared that 'Dictatorship and democracy seem clearly incompatible in a federal scheme of government,.10 Our third major scholar of federalism, William Riker, established his reputation in this field with the publication in 1964 of his Federalism: Origin, Operation, Significance and occupies a somewhat curious position in relation to

ll

5

federalism and democracy discussed in this chapter. Indeed, for such an important contributor to the intellectual debate about federalism, it comes as something of a surprise to learn that as a political scientist he added very little to the subject of federal democracy, apmt from his infamous statement about the equation of federalism with the local repression of slavery and racism in the American South. 12 In retrospect, it beggars belief to recall that he included both the Soviet Union and Argentina in the category of federal states alongside such liberal democratic federations as the USA, Canada, Germany and Australia. However, if we situate his contribution in the context of the so-called 'behavioural revolution' in the social sciences in the 1960s we can begin to appreciate his primary concern for 'systematic analyses' of political science as a science with all that that implied. 13 Riker eschewed 'the legal and administrative formalism' that had been 'such a constant feature of most past studies' and he similarly rejected the 'moral evaluation' approach he deemed so typical of constitutional historians and commentators of politics' ,preferring instead to arrive at value-free, scientifically rigorous conclusions. 14 The overriding purpose of his research in federal studies was to search for 'testable and tested generalisations' that would add to our knowledge of empirical theory and this led him to appropriate several of the advances made in the theories of bargaining and rational choice. IS The influence of systems theory in general led such scholars to gloss over what to others might have seemed impOItant ideological or normative theoretical obstacles in their quest to find significant patterns of regularities in political systems. Riker's approach to federalism, then, was very much a product of the new intellectual climate in the social sciences. This made him more concerned with how political systems, as systems, worked more than with what kind of systems they were or purported to be. He was able therefore to refer to the Soviet Union and Yugoslavia as 'dictatorial federalisms' and again to the Soviet Union 'where federalism was introduced under a tyranny' without the slightest hesitation. 16 For him, these were or had a constitutional claim to be federal systems and he took them at face value, incorporating them in his comparative analyses from the standpoint of how they functioned as political systems. Riker's refusal to construe federal states in terms of western liberal democracy must also be seen in the context of his early belief that federalism had no particular significance in the study of political science. Indeed, in a famous short review article published in 1969 in Comparative Politics he roundly dismissed federalism as 'no more than a constitutional legal fiction' which could be given whatever content seemed 'appropriate at the moment'. And when he considered whether or not federalism made any difference in the way that people were governed, his conclusion was 'hardly any at all' .17 This negative, almost scornful, depiction of federalism was highly unlikely to lead him to see in it any kind of liberal democratic redemption. If it existed at all, federalism in his view was merely a compromise or contrivance that was the result of a political bargain and it was erroneous to attach any moral or ideological significance to it beyond this limited claim. It is however fair to add finally that Riker did later recant his

6 M Burgess and A. -G. Gagnon belief that federalism was an impediment to good government and he reversed his original ideological judgement. 18 In hindsight, Riker's early position on the question of federalism and democracy remains instructive to us today. This is because some scholars still insist that it is possible to sustain federal government in federal states that are in practice dictatorships or perpetuate strong authoritarian characteristics. The source of this mistaken claim lies in Riker's original statement that 'even though all the forms of federalism are fairly scrupulously maintained, it is possible to convert the government into a dictatorship'. 19 In other words, he made a distinction between the outward constitutional and institutional forms and the practical realities of government. But while Riker was right to distinguish between appearance and reality, he nevertheless ignored the basic premise - already expressed by Wheare and Livingston above that federal democracy and dictatorship are fundamentally incompatible. The very process of conversion from a liberal democratic form of government to a single-party dictatorship necessarily destroys the federal idea so that contrary to Riker's claim federations cannot simultaneously be dictatorships.20 There is, then, only one logical conclusion to be drawn from this reasoning: genuine federalism (federal government) is one species of the larger genus liberal democratic cO!1stitutionalism (constitutional government). It is also appropriate at this point to probe Riker's democratic assumptions a little further. While he did not explicitly address the relationship between federalism and democracy, he certainly came close enough to it - when he discussed freedom - to enable us to confront another important question related to liberal democracy. In his spirited analysis of federalism and freedom he chose to juxtapose majoritarian and minoritarian conceptions of freedom in the federal state and, in using the American South as his only case study, his logical deduction led him to conclude that in several senses, including majority and minority perspectives, the asseltion that federalism was a guarantee of freedom was demonstrably false. Without wishing directly to engage Riker's argument about freedom per se, it is pertinent nonetheless to take up the issue of constitutional majoritarianism and minoritarianism in federal states that was so integral to his reasoning. The structure of Riker's argument at the time he made it might certainly have been convincing for the purpose of condemning slavery and the racism of civil tyranny in the American South, but it also serves to raise another question of continuing significance about national and local majorities and minorities in federations. This, as we shall demonstrate, is an argument that has different implications in different contexts. As we will see in many of the chapters in this book, the debate about precisely how democratic federal democracy can be is implicit in Riker's argument about freedom. Of course we can always defer to the role of constitutional law and traditions of civil liberty in such matters, but there is nevertheless a priori a fundamental tension inherent in liberal democratic federations that requires a constant public debate, namely, the regular exchange of views and opinions among majorities and minorities according to different public policy areas. We

Introduction

7

will recall Livingston's rejection of the coexistence of federalism and dictatorship but he also went further in referring to the quality of federal democracy in a way that called attention to majority-minority relations. His argument is relevant for our purposes here in the following way: It seems ... clear that federalism is inconsistent with a doctrine of strict majority rule if applied to the whole federal community .... By its very nature federalism is anti-majoritarian. A federal government is designed to protect and afford a means of articulation for the territorial diversities within the larger community. All the instrumentalities of federal government are devices whose purpose is to prevent the unqualified majority of the whole society from riding unchecked over the interests of any of the federated elements. It is a technique for the protection of a minority within one state or several states against the majority in the rest of the states .... Federalism cannot be dismissed as evil because it does not fit into a theory of majoritarian democracy ... what ad hoc majoritarians forget is that a federal state is a different thing, that it is not intended to operate according to a majority principle. 21

Livingston's analysis went right to the heart of the matter. No amount of a priori reasoning from Riker regarding federalism and freedom could disprove the fact that in circumstances other than those pertaining to his case study of the American South the implications of majority-minority relations for federal democracy might be very different. We would scarcely reach the same negative conclusions, for example, about the protection and preservation of national minorities, such as Quebec in Canada, using Riker's premises. It does not follow that all local majorities (which are national minorities) will represent narrow repressive interests at variance with the political values and beliefs of the national majority. But it has to be acknowledged that Riker's general conclusion about federalism and freedom (itself closely linked to liberal democracy) derived fi'om a selfconfessed singular understanding of the American· federal experience and was arguably based upon somewhat fixed and rigid conceptions of what constituted the majorities and minorities in a federal state. Clearly the arguments he deployed and the rationale for deploying them no longer apply in practice although they do still resonate in theory. Our inclusion of his memorable contribution in this mainstream literature review of federalism and democracy is therefore thoroughly justified. When we turn to look at the contribution to this subject of Carl Joachim Friedrich whose Trends of Federalism in Theory and Practice was first published in 1968 we return to much safer ground where it is possible to be more sure footed. 22 Friedrich's position on federalism and democracy was finnly rooted in his understanding of modern constitutionalism and can be traced back at least to 1937 when his Constitutional Government was first published; it was subsequently expanded and re-titled in 1941 as Constitutional Government and Democracy.23 The link between these concepts was clearly established in the following way:

8 M Burgess and A. -G. Gagnon The rise of modern constitutional government has been accompanied by the establishment of an increasing number of federal schemes. The parallel is so striking that federalism must be considered one of the most important aspects of constitutionalism. 24 Friedrich regarded constitutionalism, which evolved into constitutional democracy, as 'probably the greatest achievement of modern civilisation' because in practical terms it divided power and furnished the basis for effective restraints upon governmental action. 25 He recognised that constitutionalism could be both monarchical and democratic and that historically it had been both, but he also traced the democratisation of constitutionalism that led him to construe federalism as a guarantee of local autonomy and civil liberties. If we return to his position in the late 1960s, we can see that it was entirely consistent with his earlier rejection of totalitarian and authoritarian political systems, such as Stalin's Soviet federal model and Hitler's Nazi Germany, although he was much more accommodating in his brief survey of Yugoslavia. In describing the Soviet federal model as 'a legal recognition ofthe tribally determined regionalism of its polyethnic population base' that went hand in hand with 'a vigorous and often oppressive centralisation of administration of th~se functions which concerned the central imperial power', he continned it as a federal facade. 26 But Yugoslavia seemed a much more hopeful federal prospect. Although designated a 'federal community' that functioned in practice as a 'multinational federal Communist society', it had just adopted a small 'measure of constitutionalism' specifically in tenns of judicial review. Nevertheless, he concluded that much depended upon 'the degree of self-restraint' that the Communist Party exercised in 'the deployment of its concentrated power' because it was in reality 'a monolith under Tito's dictatorial leadership' .27 In his Comparative Federalism: The Territorial Dimension to Politics, first published in 1970, Ivo Duchacek to whom we have already referred in our opening remarks, also fervently endorsed Friedrich's presumption of a fundamental incompatibility between socialist-communist federalism and liberal democracy. He sketched out the bare essentials of his own position about federalism and democracy in unequivocal terms: In a word, democracy is a condition for federalism, whereas a totalitarian system excludes autonomy of all political groups, including the territorial ones. Federalism is incompatible with any type of system that means an unrestrained rule, whether by a majority or a minority, that excludes any dilution of power and makes the authority unresponsive to the wishes of all minorities, including the territorial ones. 28 Duchacek also observed that in authentic federal states that had 'a meaningful distribution of power and a free competition between territorial units and the national centre' there existed two-party or mUlti-party political systems, such as the USA, Canada, Australia, West Germany, Austria and Switzerland.29 He con-

Introduction

9

trasted this set of conditions with that of a single party system where the dominant party was monolithic, that is, totalitarian or authoritarian, and 'could not allow its monopolistic power to be in any real sense decentralised, divided, distributed, or diluted'. For him the one-party monopoly put 'in grave doubt the reality of federalism in countries such as the Soviet Union, Latin-American federations, Burma,Pakistan, Libya, Cameroun, Yugoslavia and Czechoslovakia' .30 This short list of the views, statements and arguments of established scholars of federalism identified above confirms the basic premise of the book that while not all liberal democracies have federal governments, all cases of genuine federal states are founded upon liberal democratic constitutionalism. This implies the existence of a constitutional culture that can be defined as interpretive 'practices that a people follow in instituting and constraining their government' rather than just a constitutional text. 31 There is, then, very little scope for taking the historical socialist-communist federal models or the early authoritarian South American federal versions very seriously as federations. And on this reckoning there are also good reasons to question the authenticity of virtually all of the purported federal experiments in Africa, the Middle East and Asia where there exists no liberal democratic constitutional culture, rule of law or real human rights and freedoms. To paraphrase Kenneth Wheare's well-known claim, federal democracy has come to mean what it does because the USA has come to be what it is.32 In his classic work, Exploring Federalism, Daniel Elazar argued forcefully that the federal political system of the USA was 'the first modern federal polity to link federalism and popular government, or democracy': It set the tone for the federal polities that came after. Since then, no federal polity has been established in which the case for federalism has not been argued on democratic grounds. Not only do all modern federal systems claim to be democratic and seek democratic legitimacy, but there is likely to be general agreement among true democrats that the great majority of those polities held up as models of democracy are either-federal in form or extensively use federal principles.33 One obvious conclusion to draw from this introductory survey of federalism and democracy is that these two concepts are closely interrelated. Clearly established scholarship confirms this. But the conceptual interrelationship raises several interesting questions about precisely how we should classify federations according to the quality of liberal democracy in tenns of its institutions and processes. Scholars of federalism and democracy are well aware of the important distinction between constitutional law and political practice. In tenns of federal studies, Wheare made this point over half a century ago: It is not sufficient to look at constitutions only. What matters just as much is

the practice of government. A country may have a federal constitution, but in practice it may work that constitution in such a way that its government is

10

M Burgess and A.-G. Gagnon not federal. Or a country with a non-federal constitution may work it in such a way that it provides an example of federal government ... it is obvious that the practice of the constitution is more important almost than the law of the constitution.34

Ronald L. Watts has recently pointed up the difference between 'constitutional form and operational reality' and emphasised how far political practice in some cases has transformed the way that constitutions operate. 35 Consequently our first step in the direction of classification must take account of theory and practice. We do not have to think very hard or search for too long to find contemporary examples of what Wheare and Watts referred to above. Wheare himself alluded to the Canadian case whereby Canada had a federal government but its constitution was only 'quasi-federal' .36 Today the constitutions of the Russian Federation, the Federation of Malaysia and the Federal Republic of Nigeria might also be categorised using this distinction to contrast their constitutional law and political practice, but in these three instances it leads us instead to question their liberal democratic practices. However, in the case of Spain and perhaps South Africa the relationship is reversed, with political practice far outstripping legal theory. The point is that in neither set of cases do.es the constitutional form correspond to the political practice. The federations of Russia, Malaysia and Nigeria exhibit strong authoritarian practices that call into question the quality of their federal democracy while the parliamentary monarchy of Spain and the presidential-parliamentary Republic of South Africa already operate in many ways as functioning liberal democratic federations. 37 The conceptual interrelationship between federalism and democracy, then, presents the political scientist with a tantalising predicament that engages both theory and practice. The world presents us with some states whose constitutions claim to be federal but whose political practices are at variance with conventionalliberal democratic theory and some states whose constitutions are formally non-federal but whose political practices are both liberal democratic and federal. This reality check reminds us that the world of states is both complex and untidy, and requires that we constantly re-examine our basic concepts in order to explain and understand it. In this quest the distinction between constitutional form and political practice in federations leads us logically to investigate precisely how the institutions and processes of liberal democracy work if our analysis is to be consistent and our classification internally coherent. But to be consistent we must also apply this approach to all those non-federal liberal democracies that function in practice as federal states. They are countries where we must distinguish between the formal constitution of the non-federal state and the practical reality of the federal political system. In other words, it is necessary to confirm the fundamental distinction between the state and the political system. In our attempt to assess the validity of the constitutional claims made by federal states, we must perforce examine not only the federal character of their constitutions but also their liberal democratic credentials in theory and practice. Similarly we must also adopt the same approach to those formally non-federal

Introduction

11

states that in practice appear to function as federations. In order to do this we need first to establish clear criteria of liberal democracy according to which we can make judgements about which states quality for the label federal democracy and which states fall outside this category. In most cases these assessments will be relatively straightforward, but there will be what we might call borderline cases where some states do not in practice meet all or most of the criteria. It is not always possible to be scientifically precise about this method of classification and in many cases we can only make proximate judgements, but this would nevertheless be a useful advance from our current position where there is often a tendency to make highly subjective assessments based upon judgements that are largely impressionistic and value-laden. What follows is only a brief sketch outline for the purposes of this Introduction and we will focus principally on the criteria of liberal democracy that together form the basis of the liberal democratic credentials widely deemed necessary in the mainstream literature to establishing whether or not a state can justifiably be labelled as federal. We will not begin with the structural characteristics offederations for the simple reason that these have already been identified and are well known in the work of Ronald Watts mentioned above.38 They do not need repeating here. However, it is particularly noteworthy that in most of the standard definitions of federal states the assumption of liberal democracy is almost always implicit rather than explicit. Naturally if it is taken, as it is in Friedrich's terms, to be a species of the larger genus 'constitutionalism' then we can see that liberal democracy is immanent in federal states. Indeed, it is elevated to the status of a hallmark of federation. However, scholars of federalism and federation do not always make this clear. Indeed, they frequently take it for granted. Watts, for example, refers to it only in qualitying terms when acknowledging the distinction between the structural character of federal political systems and their political processes: Significant characteristics of federal processes include a strong predisposition to democracy, since they presume the voluntary consent of citizens in the constituent units; non-centralisation as a principle expressed through multiple centres of political decision-making; open political bargaining as a major feature of the way in which decisions are arrived at; the operation of checks and balances to avoid the concentration of political power; and a respect for constitutionalism and the rule of law, since each order of government derives its authority from the constitution. 39 But if, according to Watts, these represent the broad liberal democratic preconditions that constitute the sine qua non of federation and provide the conceptual foundation upon which we can build something called federal democracy, what are the specific criteria of liberal democracy that can be distilled from his general reference above? In this introductory survey the background context already provided by the contributions of Wlleare, Livingston, Riker, Friedrich, Duchacek, Elazar and Watts admirably equips us to refine these criteria in the following way:

12

M. Burgess and A.-G. Gagnon A written and supreme constitution based upon 'unity and diversity' which are formally entrenched by the combination of 'self-rule and shared rule'. A constitutional culture in which citizens of the federation freely perceive and accept norms and rules of interpretation as well as the institutions, processes and practices of government. A constitutional political system as a two-level system of political norms and rules that distinguishes between higher level authority superior in legal and/or moral force and lower level authority that is subject to the legal and/ or moral restrictions imposed by higher constitutional norms, including the ability to create 'ordinary' norms and rules as well as to settle the meaning of 'constitutional' when conflicts arise. 40 A constitutional government based upon the recognition of constitutional and ordinary political rules that place binding legal and/or moral limits upon government officials such that no group can have all of the authority to resolve conflicts. The rule of law means that government itself is subject to the law and cannot govern in an arbitrary way. The existence of multilevel political party competition based ·upon parties with internal democratic party structures and candidates that have been duly elected by open accountable legitimate means .. The existence of electoral systems that guarantee regular elections by secret ballot and which are free from corruption, intimidation and bribery. The existence of an organised party political opposition that has the freedom publicly to criticise, the right to challenge and the ability to replace the existing government by peaceful legitimate democratic means. The existence of a free media that cannot be controlled by government.

Together these eight elements constitute the criteria of liberal democracy that combine with the structural characteristics of federations to produce something distinctive that we can identify asfederal democracy. Clearly if this reappraisal and reassessment of federal democracy is convincing, it has several important implications for the subject of this book. At the very least it raises significant questions about which federations and federal political systems should be included and which should be excluded from contemporary classifications. For example, while it effectively rules out the fonner Soviet Union, does it also exclude the current Russian Federation? And in this context what are we to make of Nigeria and Malaysia as genuine federations? Similarly where should we situate Spain and South Africa in such a classification of formally non-federal liberal democratic states? It would seem that the clarity and precision provided here is long overdue but that in enabling us to dismiss the socialist-communist federal models as fakes it comes at a high price. It brings with it fresh conceptual problems created by contemporary international change. Since the end of the Cold War in November 1989, we have witnessed a resurgence of new federal models that have challenged our old established liberal democratic values and assumptions, and effectively called into question some of our basic conceptual categories used to define federal democracies. The appearance of

Introduction

13

the Russian Federation and Belgium (1993), Bosnia and Herzegovina and Ethiopia (1995), South Africa (1996), Nigeria (1999), Iraq (2005) and Nepal (2007), as well as incremental constitutional and political change in Spain, Italy and the European Union (EU), have combined to prompt a serious reappraisal of what we mean by federal democracy in theory and practice. It is time therefore for us to consider briefly the relationship between federalism and democratic theory.

Fede"alism and democratic theory Federalism has been evaluated and assessed from a variety of angles, ranging from sociological perspectives to functionalist accounts, and from the vantage point of democratic theory.41 In each particular case federalism is clearly presumed to be endowed with some specific capacities or what we might calliegitimating properties. Should it be about the expression of community will; should it value effectiveness in the delivery of public programmes; or should it focus instead on the enlargement of democratic practices? Naturally there are some important tensions between these three understandings of federalism and providing answers to such questions can have major political repercussions. There is an expanding literature that links federalism and democracy. However, while scholars have written extensively on these two basic concepts, they have for the most part focused much less on the relationship between them. The rich and prominent work of John Rawls on liberalism and democratic theory, for example, has become an inescapable reference point, but he has actually paid very little attention to federalism in his influential publications. It is as though his general theoretical concerns rested upon the existence of a single national culture, oblivious to the federal nature of the USA. 42 Americans, as is well known, have been inclined to seek ways to limit government's influence and power. This has been achieved by implementing devices such as a system of checks and balances through the separation of powers between the executive, legislative and judicial branches of government. Scholars employing the concepts of federalism and democracy;· however, must be sensitive to a variety of political considerations that go beyond the particular attributes of the American model of federalism. These political considerations entail issues of justice, democratic representation (territorial and non-territorial), as well as stability (institutions) and culture (political traditions). A desire frequently identified on the part of proponents of federalism, as noted by Richard Simeon and Ian Robinson and several other scholars, has been to seek ways to serve 'the interests of popular sovereignty by placing governments closer to the people and by allowing citizens to pursue their interests through several governments' .43 This constitutes an enduring feature of American federalism. However, in this case, federalism is simply used as a tool to advance democratic practices. Concurrently one should also note the existence of a well founded desire among American scholars of federalism in favour of the central (federal) government rather than merely the compartmentalisation of jurisdictions. 44

14 M Burgess and A.-G. Gagnon The connection between federalism and democratic theory has also been advanced in the Canadian context. 4S Indeed, these two bodies of literature are usually discussed in tandem, infen'ing that federalism and democracy go hand in hand. Research projects currently patronised by the Forum of Federations, for example, point very clearly in this direction. Canada, Switzerland and the USA have often been used as yardsticks for federal practice or examples to be emulated by those countries in search of po litical stability. But it is important to note that specialists of federalism in Canada and Switzerland have not only emphasised the significance of legitimacy in the relationship between federalism and democratic theory but they have also tended to insist on political stability in their defence of federalism. Indeed, this .particular characteristic of these federal systems has been taken to its limits in Canada where the Quebec government has already held two provincial referenda in 1980 and 1995 on its future in the country. Of special relevance here is the reference case on Quebec secession in which the Supreme Court of Canada provided an opinion on the legality of unilateral secession in 1998, only three years after the second failed referendum on the part of the Quebec government to renegotiate its constitutional arrangement with the Canadian federation. The Supreme Court recognised in its 'Reference re the Secession of Quebec' tabled in August 1998 that Canada's constitutional democracy is finnly founded upon four binding principles of equal value, none of which could trump the others. These broad constitutional principles were identified as federalism, democracy, constitutionalism and the rule oflaw, and, finally, the protection of minority rights. According to the highest court in the land, the principle of federalism 'recognises the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdictions , (Section 58 of the 1998 ruling). This statement contrasts significantly with the American understanding of federalism and corresponds much more closely to the mainstream European federal tradition. Moreover, the prinCiple of democracy is central to the Court's understanding of a constitutional democracy. Among the legitimate initiatives that can be formally undeltaken, we should here note the possibility for a constituent member state to initiate constitutional reform. A 'people' is taken as sovereign and can express its sovereignty through the free expression of the will of the majority. However, formal negotiations with its constituent partners cannot be avoided without rejecting the principle of democracy on which this initiative is based in the first place. As such, both federalism and democracy, intertwined as they are, remain central tools in the process of (re)negotiation ofthe fundamental terms of association. The two principles of federalism and democracy are accompanied by a third, namely, constitutionalism and the rule of law. According to the nine Canadian Supreme Court judges, 'Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. (... ) A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle'

Introduction

15

(Section 67). As a result, it is highly improbable that a unilateral act of secession on the part of the Quebec government would be acceptable since it would 'usurp the power' (Section 74) of the central government. In addition, the central government itself cannot 'usurp the power' of the National Assembly of Quebec. In other words, the central government is not allowed to circumvent the principle of constitutionalism which protects the division of powers between orders of government in a democratic federation. The political philosopher, James Tully, notes that 'the constitutionalism principle places the division of powers beyond the reach of the. will of the majority exercised through the federal parliament, thus protecting Quebec from assimilation by the majority of the rest of Canada (s. 74)' .46 The fourth principle identified by the Supreme Court of Canada, and well known to scholars of federalism, pertains to the protection of minority rights. However, the Supreme Court mentioned in its ruling that no one principle can trump the others since each needs to be taken into account simultaneously and are of equal value. This suggests that the 'democratic principle', as important as it undoubtedly is, must be taken into account concurrently with the ideal of federalism, and constitutionalism and the rule of law, along with the protection of minority rights. The Canadian case, then, is a very good example of the complex interrelationship of these fundamental principles that are woven together to produce what we take in this book to meanfederal democracies. The relationship between federalism and democratic theory expressed in this way of course is not always followed through in practice, as we have already noted in the previous section. Indeed, a close examination of those countries considered to display important federal features, especially at the institutional level, might make it clear to students of federalism that 'democracy' is often secondary and that what really matters is the stability ofthe political regimes already in place. But the pursuit of political stability for its own sake does not always go hand in hand with the democratic tradition. We only have to look at the example of the Russian Federation where, according to Cameron Ross, we find a particularly weak democratic tradition and where 'political and economic relations rather than constitutionalism and the rule of law' dictate federal relations. 47 Chapter 10 by Richard Sakwa in this volume also serves to point up precisely this problem and underlines the fundamental question about federalism and democratic theory, namely, how far can we stretch this relationship without breaking the link and losing the basic values and principles that inhere in federal democracy itself?

COlltestillg sovereigllty The fact that in the Western world federalism and democracy are often paired together reveals that the very notion of sovereignty itself can be contested. Our understanding of democratic theory and federalism in the Canadian context is inspired by scholars like Reginald Whitaker and Donald Smiley, while Daniel Elazar and more recently Ferran Requejo have made significant contributions to this understanding in the mainstream Continental European setting. Whitaker

16 M Burgess and A.-G. Gagnon noted that 'taking federalism seriously is a way of "deconstructing" sovereignty' and that it also allowed him to 'become rather more sympathetic to regional distrust of centralism' than his location in central Canada would suggest. 48 In his landmark study of Canada as a democratic federal community, he claimed that 'Modern federalism is an institutionalisation of the formal limitation of the national majority will as the legitimate ground for legislation. Any functioning federal system denies by its very processes that the national majority is the efficient expression of sovereignty of the people' .49 This is of course a particularly difficult claim for a majority nation to accept, as the continuing tensions between Quebecers and the 'Rest of Canada' (ROC), Catalans and other Spaniards, and Walloons and Flemish ably testify:50 Federalism allows us to account for more than one demos. In a federal state, the concept of limited sovereignty should prevail over the notion of absolute sovereignty. In other words, it is the victory of Johannes Althusius, Joseph Proudhon and Baron de Montesquieu over Jean Bodin and Thomas Hobbes. In Montesquieu's terms, 'In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions; it depends on accidents. In a small one, the public good is better felt; better known; lies nearer to each citizen; abuses are less extensive there and consequently less protected' .51 Montesquieu's advocacy of liberty by way of small republics, we· are reminded, provided useful ammunition to the Anti-federalists in their defence of states' rights in the USA. Limited sovereignty also provides some resonance to what constitutional lawyers and philosophers today call 'constitutionalism'. This constitutionalism refers to a large body of values, principles and traditions on which each and every written constitution is ultimately constructed. Political claims that emerge from fragmented societies and are constitutive of the federation in question would thereby be considered to have a deeper legitimacy to the extent that they can connect directly with these values, principles and traditions, construed widely as existential. 52 In summary, we should conceive of federalism as essentially a democratic expression that emerges simultaneously from both the central state and its constituent member states. In a federal country, legitimacy cannot be said to reside in one single undifferentiated body; it is, on the contrary, a shared objective and both orders of government should inspire each other as they seek together to concretize its goals. Contesting sovereignty, then, is an integral part of another purpose of the book which is to enrich the notion of federalism through a detailed exposition of expressions of democratic practices in fragmented societies. The cases of Canada, Switzerland and Russia, as well as federalizing Spain, are employed to illustrate the richness of the examples under scrutiny and to highlight the significant tensions that exist within federal states.

introduction

17

increasingly centralized United States, to moderately diffused Germany, to very non-centralized Canada' .53 It is worth remembering that federations are highly diverse and have reached different modus operandi for the coexistence of their constituent political communities. Moreover, these arrangements are in a constant state of flux as power relations evolve and can be frequently revised following demographic, economic and social changes that occur in a wide variety of ways. A central objective of the book is to discuss federalism rather than just to focus upon federations per se, for the simple reason that federalism as a normative predisposition presumes the existence of democratic practices. Federalism constitutes a potential expansion of democratic practices as sovereignty adapts to a more complex pattern of governance in general and provides the necessary backdrop for innovative strategies. This 'federal condition' allows individual constituent member states in federations to be held accountable before their own respective communities, thus contributing to a better fit between citizens and their democratic institutions. As we have already noted above, several scholars of federalism are uncomfortable with the notion of a limited or segmented sovereignty. American scholars in particular are probably the leading ones who have challenged this conception with the most conviction. A strong basis for the indivisibility of sovereignty certainly remains to the extent that each decision can still be made by a single sovereign. Indeed, it is perfectly conceivable for the locus of sovereignty to change according to the issues being debated; it is in this specific sense that sovereignty remains indivisible. According to Whitaker, 'the belief that sovereignty is indivisible is correct in that only one ultimate decision is made in each case, but different questions may be settled by different sovereigns' .55 This perspective has had some echoes in Canada during the constitutional discussions that surrounded both the Meech Lake (1987-90) and the Charlottetown (1992) Accords. 55 Federalism has also been advanced by many scholars principally as a mechanism for achieving the principle of equality in a highly diverse state. However, the search for equality of treatment must not be allowed either to obstruct or obscure the equality of outcome. With particular reference to Canada, Donald Lenihan et al. summarised this crisply: The claim that provincial equality implies sameness of treatment is open to the same kind of objection raised against a formal approach to the equality of persons. Those who argue this way seem to confuse the (sound) claim that the federal government should treat the interests of all provinces with equal concern and respect with the (unsound) claim that all provinces should be treated the same. This ignores the fact that provinces (like individuals) sometimes have special needs or may be burdened by circumstances. 56

ExpfllUlillg l/emocralic practices

Daniel Elazar observed that 'Federations themselves range from Nigeria, perennially under centralized military government, to rather centralized India, to the

The idea advanced here is that contrary to formal equality implied by a classical conception of federalism, it is possible to imagine other forms of representation that expand democratic practice by providing more effective channels of

18

M Burgess and A. -G. Gagnon

representation for particular communities. In other words, the equality of the constituent member states does not necessarily imply sameness of treatment because this could conceivably contribute to the maintenance of an unjust predicament for a given community in a federal setting. In this book the authors are expounding notions of limited and shared sovereignty, and they generally agree with the idea that sovereignty cannot go unchallenged in a democratic society. Indeed, in several chapters, several authors stress the concepts of self-rule and shared rule rather than promoting a monistic approach to politics. s7 Self-rule and shared rule in federations illustrate the extent to which sovereignty can be addressed differently to expand democratic practices. Some federations have a tendency to encourage self-rule for both constituent member states and the central state, whereas in some other contexts it is possible to witness cases in which shared rule is the main integrative principle. In most cases it is the intensity of trust that will likely determine the extent to which self-rule will be allowed to prosper in any given federation. Federalism and democratic theory constitute a complex relationship which permeates each of the chapters that follow and serves as the main connecting link that binds them together in this book. As we have already noted, federalism and democracy have not always been so closely. intertwined as we have presented them here, but it is surely obvious today that no contemporary federal model would be taken seriously unless it was introduced in the context of democratisation processes. This is confirmed if we consider the recent examples of Bosnia and Herzegovina (1995), Iraq (2005) and Nepal (2007) where in each case the attempt to build a federation has gone hand in hand with efforts to forge a democratic political culture. And at the heart of federalism and democracy today has been the simultaneous focus upon minority identities, cultures and rights and the expression of majority rule within contemporary polities. Indeed, it is the expression of precisely these tensions that makes them central to our understanding offederalism and federation. Consequently this predicament leads us to conclude that despite our continuing admiration for the American federal legacy, we must nevertheless go beyond the US model if we hope effectively to address problems of deep diversity which would appear increasingly to prevail in contemporary federal democracies.

Commentary and contl'ibutions The book is divided into three distinct parts. Part I takes the American federal experience in the New World as our departure point, and it begins in Chapter 2 with a late eighteenth-century exploration of the relationship between republicanism, democracy and constitutionalism in order to furnish the conceptual basis deemed indispensable for understanding contemporary federal democracies. Written by lain Hampsher-Monk, this chapter explores the various theoretical constructs, arguments and controversies that surrounded the epic debate about what sort of union the Americans thought they had created. It also takes us into a world of intricate argumentation among political elites representing different and

Introduction

19

often competing perspectives about what they wantedto create. Such an exploration serves to remind us that one of the most enduring characteristics of what eventually became federal democracy has been its historically contingent nature that has subsequently produced varieties of different federal models, reflecting the unique circumstances in which each of them was created. Some of these early models, such as Argentina and Brazil, were clearly not 'democratic' in the sense sketched out above because of their pre-modern authoritarian past, but the major influence upon them was nonetheless the original American template. This contextual late eighteenth-century background is both extended and enriched by reference to four distinct nineteenth-century contributors to the intellectual evolution of federalism and democracy that follow it. These are, respectively, Alexis de Tocqueville, Pierre-Joseph Proudhon, John C. Calhoun and James Bryce whose mainstream contributions constitute historical miiestones that together represent four quite different commentaries on the nature and meaning of the federal idea. Chapter 3, written by Dimitrios Karmis, is an innovative essay that brings together the major federalist writings of Alexis de Tocqueville and Pierre-Joseph Proudhon in order to explore the nature and meaning of 'togetherness' as the flip side of 'separateness' in understanding the federal idea. Karmis construes the neglect of 'togetherness' - what it really means to be together not only in a federal democracy but also in a multinational federal democracy - to be symptomatic of the failure of contemporary political theory formally to address this particular dimension of federalism. This failure, he argues, leaves theorists of federalism in a strange predicament: they remain preoccupied with saving a form of togetherness that they never completely understand. Working his way through the early nineteenth century insights and observations of Tocqueville, which he collectively categorizes as 'equivocal' and 'monistic' federalism, and the midnineteenth century federalist conceptions of Proudhon, which he calls 'apologetic', Karmis finds both of them wanting in terms of what federal togetherness means. His brief comparative study of Tocqueville and_Proudhon demonstrates that it was the strong influence of nationalism and colonialism in the nineteenth century that prevented them from theorising about multinational dialogues as a major feature of modern federation. This theoretical gap enables him to conclude with a warning to contemporary political theorists about the danger of internalising these nineteenth century nationalist and colonialist assumptions about modern federalism. . Murray Forsyth looks in Chapter 4 at Calhoun's interpretation of the American Constitution, his theory of concurrency, his unflinching belief in states' rights and his alternative conception of federalism itself that retains such an enduring contemporary significance far beyond the American federal experience. In this thoughtful and reflective essay, Forsyth revisits Calhoun's contribution to federalism, constitutionalism and democracy, and he compels us to think again about the possibilities of vibrant sub-national autonomy and the limits of federal power. Finally, Michael Burgess continues the nineteenth century focus upon different aspects of the emerging and evolving conceptions of federal democracy

20

M Burgess and A. -G. Gagnon

in Chapter 5 with a broad survey of the contribution of James Bryce to our received understanding of modern federalism and federation. The major works of Bryce that relate to federalism and democracy are usually boiled down to his mammoth contribution to our understanding of the American federal model, but in this chapter Burgess insists upon expanding this well known contribution to include his writings on the less well known Continental European and British imperial federal traditions. These make him a much more interesting and accomplished contributor to the pantheon of federal ideas and practices that we shall encounter in this book. Having constructed our historical and philosophical framework within which it is possible to chart the evolution of the relationship between federalism and democracy, the thrust of the book turns in Part II to look at a series of case studies of federations carefully selected for what they reveal about the contemporary nature and significance of this relationship. What do these case studies tell us about the different conceptions and forms that liberal democracy can take? How do federal states operate in ways that can both strengthen and weaken democracy and what are the fundamental stresses, strains and tensions that inhere in this relationship? Indeed, is it possible for us to conceive of federations today that permit only very limited possibilities for authentic democratic structures and processes in the sense that they have been defined here, yet remain viable as federations? What are we to make of federal states that retain the trappings of liberal democracy but do not function in this way? In short, what do we understand by the phrase federal democracy today? These questions are addressed in a variety of different ways in the various case studies that include the United States of America (USA), Switzerland, Spain, Germany, Russia, Canada and the European Union (EU). Each chapter situates the concepts of federalism and democracy in their appropriate historical setting, and the particularities of the evolving relationship peculiar to each context is skilfully sketched out by each author so that we can obtain a unique empirical focus with a distinct emphasis according to each individual case study. Clearly the evolution of this relationship varies in each case but there are also underlying themes, trends and tendencies that are common to several federal states or federal political systems and these lend themselves to comparative analysis. In some cases - as in Spain, Russia and the EU we can construe the relationship in terms of distinct dynamic processes of evolution so that we can legitimately refer to 'democratisation' and 'federalisation', affording us the possibility to consider one as a function of the other. Consequently, in the context of these examples, we might view the increasing federalisation of Spain (see Moreno) and the EU (see Pinder) as a function or a by-product of the primary drive for their democratisation. Here the prevailing conception of federal democracy often pits the demos against the demoL Neither of these entities is recognized as a federation in the formal constitutional sense, but in their fidelity to federal principles they nonetheless operate informally in precisely this way. Russia, on the other hand, purports to be a formal federation in the language of constitutional law, but its weak commitment to federal principles in practice

Introduction

21

must be seen as part of the larger problem it has in coming to terms with the idea of an authentic liberal democracy, as defined above. In practice Russia's 'managed democracy' (see Sakwa) displays many of the trappings of liberal democracy, but in retaining much of its authoritarian past practice it also calls into question its federal credentials. Here, as in Spain and the EU, federalisation must also be construed as a vehicle for democratisation but it is only a limited democratisation. Taking each case study in the order in which it is arranged in the book John Kincaid presents in Chapter 6 an intriguing interpretation of the USA as federalism versus democracy - a paradoxical theme that we first encountered in lain Hampsher-Monk's earlier Chapter 2. Indeed, in the way that he characterises the evolution of this relationship during the nineteenth and twentieth centuries, the broad historical aspects of his analytical survey serve very much to complement Hampsher-Monk's chapter. Turning to Switzerland in Chapter 7, Paolo Dardan~lli highlights so~e prominent developmental features that demonstrate precisely how federahsm and democracy have become so intimately intertwined in what m?ny. s~holars :evere as a mo?el ~f political and governmental stability. B:lt while It IS certamly true that historically federalism and democracy have remforced each other in this Willensnation (nation by will), Dardanelli also pOint.s up the existence of multiple tensions existing between them together with a series of contemporary challenges that will serve to test this complex relationship in the future. Chapter 8, written by Luis Moreno, takes us into the world of democratisation and federalisation as processes of contemporary change in Spain. While not formally a federation in constitutional law, Moreno argues that a combination of fa~tor~, including the fundamental character of Spanish society, the dual deter~matJon to recover democratic liberties and achieve a decentralisation of power m t?~ post-Franc~ state, together with the contemporary operation of the Spanish poht~cal system m ge?eral, brings Spain so close to this legal reality in practice ~hat It should be claSSified as one. Indeed, he boldly claims that in essence Spain IS already 'a federation in disguise'. In Chapter 9, Franz-Gress shifts our attention to a very different kind of federation in Germany, but one that nonetheless has also had to grapple with an authoritarian past to try to forge a broad consensus-based political and governmental stability from the interaction between federalism and democracy. Gress demonstrates how the historical detachment of federalism from democracy up until the early twentieth century hence an old federation but a young democracy - has only fused these two concepts and practices together relatively recently and in a very difficult way. He construes the relationship in terms of a kind of path dependency that has left the legacy of a strong unitary executive federalism in a uniform legal order embedded in a political culture of output-oriented social transfers. Richard Sakwa's Chapter 10 also calls attention to the notion of path dependency when he explores the relationship between federalism and democracy in the Russian Federation. Clearly the point of departure for the federal idea in the constitutional and political evolution of modern Russia and Germany is very

22

M Burgess and A.-G. Gagnon

different but the democratic dimension offederal democracy is not nearly so far apalt, even if it is in its ideological aspect. In conveying the nature, meaning and purpose of federalism in the Soviet Union and its successor state, Russia, during the period of Boris Yeltsin's leadership, Sakwa is able to show convincingly how the already tangled relationship between federalism and democracy became even more complicated as a result of the resurgence of the regions in the 1990s and the subsequent reaction of Vladimir Putin in using 'compacted statism' to shore up the Russian state. The establishment of this 'power vertical' has left many questions unanswered, not least the one that asks whether or not Putin's fOlm of're-centralisation' might also mean a process of 'de-federalisation'. The penultimate case study, written by Alain Gagnon, in Chapter 11 brings into sharp focus the question of executive federalism and the exercise of democracy in Canada. In a federation that historically has been regarded as binational rather than multinational, it comes as no surprise to learn that the development of executive federalism or intergovernmental relations (where representatives and agents of constituent governments bargain and negotiate with the federal government) has usually been construed by minority nations as a distinct disadvantage in the political system. In his chapter, Gagnon offers a novel argument that turns this assumption upside down. He w~nts to encourage us to consider the possibility of executive federalism as a counter-hegemonic instrument that, in certain circumstances, could be utilised in the interests of minority nations. The gist of his argument is that we should reflect upon the well-known deficiencies of executive federalism - such as lack of transparency, low-level citizeninvolvement and conflict incentives - but reconsider how political elites might be able to serve as effective brokers between governments and nations. This leads him to suggest that executive federalism should be reinvigorated as a new forum for Quebec's political elites to champion the special needs of their nation in an institutional environment that would foster bilateral political solutions. Far from being a device that always favours majority nations, then, executive federalism could conceivably become the basis for a reconfiguration of distinct national policy preferences that could herald a revitalization of federal democracy in Canada. Describing the European Union (EU) as an 'emergent federal democracy' in Chapter 12, John Pinder brings Part II of the book to an appropriate close with his empirical focus upon the past, present and future of the project that has become such a success in Europe and the world. Closely shadowing the great Philadelphia Convention (1787) in the USA, Pinder's account of post-war European integration succinctly highlights the intriguing similarities and differences in the nature of these two grand projects over two hundred years apart and points up the often neglected factor of political leadership in the quest to theorise about Europe and the USA. Through a process of piecemeal incremental federalism, the EU has gradually evolved via the accumulation of elements of federal institutions and powers into what Pinder calls an 'incomplete federal democracy' that continues to respond to the perceived inadequacies of its own constituent member states.

Introduction

23

These optimistic normative possibilities evident in the chapters on Canada and the EU are also echoed in a different way in Chapter 13, written by Ferran Requejo, which signals entry to Part III of the book. In his contribution to this volume of essays, Requejo addresses the topical subject of minority nations within plurinational federal democracies. As a political theorist, he has developed three theoretical criteria upon which to ground his comparative survey of the political accommodation of these nations in 19 federal and regional democracies, bringing the monist and pluralist versions of the demos of the polity into direct conflict. According to normative liberal democratic patterns, his overall comparative analysis demonstrates the existence of a federal deficit in these kinds of polities and concludes with a strong recommendation to introduce a deeper form of 'ethical' pluralism that will display normative agonistic trendsin addition to the conventional confederal-asymmetrical options - that would be congruent with the real national pluralism characteristic of these kinds of polities. The comparative dimension to the volume is further enriched and extended by John Kincaid in Chapter 14 which enables us to take a step back to consider the larger question of just how democratic federal political systems are compared to other political systems. Kincaid asks not only this question but he also probes into whether or not federal democracy is in theory more democratic than nonfederal democracy. His detailed exploration of both these perspectives reveals a series of striking insights and observations, viewed globally, that suggest federal principles to be the only non-imperial basis for organizing both political life and democratic governance on a large scale. He concludes that empirically federal polities compare well with non-federal political systems on democracy and rights protection but much better than other systems in terms of quality of life, adding for good measure that theoretically federal democracy is more democratic than non-federal democracy. The book concludes its long journey, in tracking some of the major historical, philosophical, theoretical and empirical milestones in the evolving relationship between federalism and democracy across two centuries with Chapter 15, written by Ronald L. Watts, who provides some incisive and detailed comparative reflections on the whole project that we have titled Federal Democracies. His overarching omnibus conclusion for our purposes is that the contemporary federal idea is expressed as a form of limited constitutional government that is firmly grounded in liberal democracy. Indeed, contemporary trends strongly indicate that federalism and democracy have become mutually reinforcing so that it is now unthinkable to construe new federal models that do not embrace some form of liberal democracy that includes the prerequisites already identified in this Introduction. So we may legitimately question the form of federation or federal political system and we may probe the quality of the different varieties of liberal democracy utilised to achieve certain goals, but it is at least clear that while not all democracies must be federal it is now the case that all federal states and federal political systems - to be taken seriously - must be democratic.

24 M Burgess and A.-G. Gagnon

Notes 1 I.D. Duchacek, Comparative Federalism: The Territorial Dimension 0/ Politics (London: Holt, Rinehart and Winston, 1970), 191. 2 See M. Burgess, 'Between a Rock and a Hard Place: The Russian Federation in Comparative Perspective', Chap. 2, 131-49 in C. Ross (ed.), Federalism and Local Government in Russia (London: Routledge, 2008). 3 K.C. Wheare, Federal Government (London: Oxford University Press, 1963), 4th edition, 1, II and 85. 4 Wheare, Federal Government, 46. 5 Wheare, Federal Government, 47. 6 W.S. Livingston, Federalism and Constitutional Change, (Oxford: Clarendon Press, 1956). 7 Livingston, Federalism and Constitutional Change, 308-9. 8 Livingston, Federalism and Constitutional Change, 309. 9 Livingston, Federalism and Constitutional Change, 309. 10 Livingston, Federalism and Constitutional Change, 310. 11 W.H. Riker, Federalism: Origin, Operation, Significance (Boston: Little, Brown, 1964). 12 Riker, Federalism, 139-45 and 155. 13 See the Foreword by Sheldon Wolin in Riker, Federalism, vi. 14 See the Foreword by Wolin, viii and the Preface by Riker in Riker, Federalism, xii. 15 Preface in Riker, Federalism, xi. . 16 See W.H. Riker and R. Schaps, 'Disharmony in Federal Government', Chap. 4, 76 in W.H. Riker, The Development 0/ American Federalism (Boston: Kluwer Academic Publishers, 1987). 17 W.H. Riker, 'Six Books in Search of a Subject or Does Federalism Exist and Does it Matter?', Comparative Politics, 2: 1 (October 1969),135-46. 18 Riker, 'A Note on Ideology' in The Development 0/American Federalism, xii-xiii. 19 Riker, Federalism, 14. 20 Riker referred here to 'counterinstances of the coexistence of federalism and dictatorship' in Federalism, 145. 21 Livingston, Federalism and Constitutional Change, 310-14. 22 C.J. Friedrich, Trends 0/ Federalism in Theory and Practice (London: Frederick A. Praeger, 1968). 23 C.I Friedrich, Constitutional Government and Democracy (New York: Ginn, 1950), 4th edition. 24 Friedrich, Constitutional Government, 189. 25 Friedrich, Constitutional Government, preface to the second edition, ix. 26 Friedrich, Trends o/Federalism, 5. 27 Friedrich, Trends o/Federalism, Chap. 22, 162-9. 28 Duchacek, Comparative Federalism, 335. 29 Duchacek, Comparative Federalism, 335. 30 Duchacek, Comparative Federalism, 330. 31 J. Ferejohn, IN. Rakove and J. Riley (eds), Constitutional Culture and Democratic Rule (Cambridge: Cambridge University Press, 2001), 15. 32 Wheare, Federal Government, 11. 33 Daniel I Elazar, Exploring Federalism (Tuscaloosa, University of Alabama Press, 1987), 108. 34 Wheare, Federal Government, 20. 35 Ronald L. Watts, Comparing Federal Systems (Montreal: McGill-Queen's University Press, 2008). He had also stressed this point in the earlier second edition of this book on page 14. 36 Wheare, Federal Government, 20.

Introduction

25

37 Watts claims that both Spain and South Africa meet the criteria of a functioning federation but their constitutions have not adopted the label. See RL. Watts, Comparing Federal Systems, 10. 38 See RL. Watts, Comparing Federal Systems, 9. 39 Watts, Comparing Federal Systems, 18. 40 For this part of the list we have relied upon the editors' introductory survey in Ferejohn, Rakove and Riley, Constitutional Culture and Democratic Rule, 10-12. 41 Livingston, 'A Note on the Nature of Federalism', Political Science Quarterly, 67 (March 1952),81-95. 42 In his Multinational Federalism and Value Pluralism (London: Routledge, 2005), 61, Requejo, in discussing American federalism, notes that it constitutes a mononational context and adds that it is not clear 'who the people are, and who decides who they are?'. 43 R Simeon and I. Robinson, 'The Dynamics of Canadian Federalism' in I Bickerton and A.-G. Gagnon (eds), Canadian Politics, 5th edition (Toronto: University of Toronto Press), p. 157. For a further development, see R Simeon, 'Criteria for Choice in Federal Systems', Queen's Law Journal, 18 (1982-83), 131-57. 44 Elazar, American Federalism: A New Vision from the States, 4th edition (New York: Harper & Row, 1984). 45 It is worth mentioning that C.B. Macpherson, one of Canada's most acclaimed philosophers in the twentieth century, does not even dare mention the word 'federalism' in his studies on democratic theory or even in his research on the emergence of third parties in the Prairies. C.B. Macpherson, Democracy in Alberta (Toronto: University of Toronto Press, 1953). 46 J. Tully, 'The Unattained Yet Attainable Democracy: Canada and Quebec Face the New Century', Les Grandes Conferences Desjardins, McGill University (23 March 2000),20. 47 C. Ross, 'Russia's Multinational Federation: from constitutional to contract federalism and the 'war of laws and sovereignties' in M. Burgess and I Pinder, (eds), Multinational Federations (London: Routledge, 2007), 122. 48 R. Whitaker, A Sovereign Idea. Essays on Canada as a Democratic Community (Montreal: McGill-Queen's University Press, 1992), 165. 49 Whitaker, A Sovereign Idea, 167. 50 See A.-G. Gagnon, The Case lor Multinational Federalism: Beyond the AIlEncompassing Nation (London: Routledge, 2010) for a larger development. 51 This passage is quoted in 'The Anti-federalist Papers and the Constitutional Convention Debates" Brntus, 18 October 1787. Montesquieu, The-Spirit 0/ Laws, A. Cohler, B. Miller and H. Stone (eds) (Cambridge: Cambridge University Press, 1989), Part 1, Book VIII, Chapter 16. 52 On this, refer to M. Burgess, Comparative Federalism: Theory and Practice, (London: Routledge, 2006), Chapters 4 and 6-8. 53 D. Elazar, 'Extending the Covenant: Federalism and Constitutionalism in a Global Era,' Consultation on Abraham Kuyper: A Public Theologian and His Legacy Assessed, Princeton Theological Seminary (Jernsalem, Israel: The Jernsalem Centre for Public Affairs, 1998). 54 Whitaker, A Sovereign Idea, 171. 55 See the work of I Webber, Reimagining Canada: Language, Culture, Community and the Canadian Constitution (Montreal: McGill-Queen's University Press, 1994). 56 D. Lenihan, G. Robertson and R Tasse, Canada: Reclaiming the Middle Ground, (Montreal: Institute for Research on Public Policy, 1994), 133-4. 57 D. Karmis and 1. Maclure, 'Two Escapes Routes from the Paradigm of Monistic Authenticity: Post-Imperial and Federal Perspectives on Plural and Complex Identities', Ethnic and Racial Studies, 24 (2001), 361-85.

Part I

Historical perspectives

2

Democracy and federation in the Federalist Papers lain Hampsher-Monk

In 1787 the newly United States of America became only the third considerable republic in the early modern world. There were a number of small city-states with republican institutions, some with a popular or 'democratic' constitution, but there were only two besides America which had achieved republican government at the scale of the then prevalent dynastic states - Switzerland and the Netherlands. Curiously, these were also federal states, a point to which I shall return. Neither claimed to be democracies, although some amongst them might have claimed to be popular - that is to derive their legitimacy from that elusive entity 'the people'. The creation and adoption of the Constitution of the United States took place in a situation of considerable political and conceptual turbulence. I This turbulence formed the immediate context for the writing of the Federalist Papers, but the writers of those papers also contributed in no small measure, and by no means innocently, to that turbulence. For the Federalist Papers were written, not with the philosophical aim of clarifying the vocabulary of politics, but with the essentially rhetorical purpose of persuading New Yorkers to adopt the constitution which was being offered to the States. Rhetorical, or persuasive speech starts from (rather than analysing) premises that its audience accepts, and moves them towards the desired position by insinuating shiftsin the denotation of contested and emotively loaded terms. 2 In such polemical contests are the vocabularies of politics formed. 3 The arguments of the Federalist therefore comprised not only empirical claims about the properties of organising political life in one way or another, but conceptual claims about how we should characterise those organisations. Before we can see how and why - these moves affected the meanings of these terms we must reconstruct the language within which these vocabularies were deployed, that is to say, we must understand the language of politics which American Englishmen - and other Europeans for there were many - had brought across the Atlantic. 4 In outlining this language we are also sketching sets of political possibilities and action inasmuch as political action is conducted through the speech acts that language makes available to actors, and it is at the least difficult to imagine actors setting out to perform actions which their language does not make available to them.

30

1. Hampsher-Monk

America - according to the proposed constitution - was to be a republic - in the sense that Federal offices (including the first) were to be filled by the citizens (Constitution, article I, 1-3, II, 1), and that the Federal government guaranteed republican government to the federating states (IV, 4). Although entitled 'The Federal Constitution', neither the word 'federation' nor the word 'democracy' or their cognates appears within its text. This was a sensitive area. Indeed, arguably, the constitution was at best equivocally federal in the original, etymological, but still recognisable sense of providing a treaty (foedum) based relationship between sovereign states. 5 For, in seeking as they were charged - to overcome the weaknesses in the Articles of Confederation the Founders had vested extensive powers in the national governinent (article I, 8), completely abrogating the external and severely limiting the internal competence of individual states. Although the definition of citizenship remained within the competence of individual states, the Federal jurisdiction - at least in Federal or inter-state matters reached ultimately to the individual citizens of such states. Only later, in the tenth amendment (the Bill of Rights), was it clearly stated that powers not explicitly granted to the Federal Government were to be reserved to the individual states - or to the people. This republic was only minimally or equivocally democratic in that whilst it was to have no her~ditary titles or officeholders (article I, 9), the extent of the franchise was left to individual states. Finally, quite apart from the content of the constitution, there was the question of how it was to be adopted. At the convention many argued - some on principle, some on prudential grounds - that the State governments themselves were competent to ratify the new constitution. But Madison not only urged that the derivation of the constitution 'from the people ... [was] the basis of free government' . He claimed the very distinction 'between a system founded on the Legislatures only, and one founded on the people to be the true difference between a league of treaty, and a constitution' (Farrand 1911-37, I: 122-3). What then was the vocabulary and presuppositions within which the Federalist argued its case? And what were the issues that exercised both it and its opponents, and how did the ensuing argument, to which the Federalist Papers made such an important and enduring contribution, shape the conceptual development and meaning of these key terms? The term Republic, or repUblican, in early modernity is peculiarly protean.6 The example of the most successful polity in history - Ancient Rome - was, through a tradition of commentary and analysis that ran from Livy through many now less well known historians to giants such as Machiavelli, Montesquieu and Gibbon himself, both an exemplar and a warning about the difficulties of maintaining the liberty that a republic was supposed to embody.7 Republics had to guard against selfish or sectional interests demolishing the common enterprise which was the polity. Schematising wildly for presentational purposes we might distinguish two divergent republican constitutional tactics (which in practice were often combined). One was a theory of moral economy - it was to construct a polity in which the experience of the citizens was so managed as to guarantee, or at least encourage the emergence of the desired moral qualities: their inde-

The Federalist Papers

31

pendence, public-spiritedness and commitment to the republic. Military service, agrarian self-reliance, demanding laws, austerity of living, were all means that were explored in pursuit of this. Such a model was popular or democratic or at least possessed important popular elements since the citizens formed the soldiery - which provided security both against foreigners and domestic military takeover, and they had to be numerous if the state were to survive - here the model was Rome, where these latter properties were ultimately undermined by the very success of the republic, which, in its acquisition of empire, relaxed the demands, military, civic and cultural, on citizenship, giving way to a diversionary culture of bread and circuses, as the second-century Roman satirist Juvenal had notoriously labelled it, and where the divorce of the roles of citizen and soldier meant that the military, first Roman and later barbarian mercenaries, captured the state. 8 But there was another republican archetype which was essentially structural. This version placed emphasis on constitutional constraints which offered even the determinedly un-public spirited citizen no opportunity to undermine the integrity of the whole. The model here was Venice, notoriously morally corrupt, its citizens devoted to the pursuit of selfish interests and the growth of commerce and luxury, yet stable through the impersonality of its ballotings and electoral colleges, so complex that no one - it was believed - could subvert the polity to their own ends (see Pocock 1976: ch. ix 'Venice as concept and Myth'). The classical version of this was the idea of the mixed constitution articulated by Aristotle, Polybius, and Cicero (von Fritz 1954). Here the three types of constitution - Monarchy, Aristocracy and Democracy - were melded into one, and the principles associated with each - unity, wisdom or virtue, and liberty - and their corresponding social groups - Royalty, 'the best' (often, but not always an hereditary aristocracy), and the free-born - were combined in such a way as to conserve their good qualities and prevent anyone group usurping the common enterprise. In early modern Europe this idea of the mixed constitution became identified with the Feudal Legislative Estates, of King, Lords and Commons as, across the continent, often somewhat bemused humanists woke up to the fact that their traditional gothic institutions made them· possessors of the much vaunted mixed constitutions of Classical Antiquity. This meant that the ideology and self-ascription of mixed constitutionalism became readily available to the political classes of constitutionally limited, or as they tended to be called, 'mixed' monarchies, blurring the distinction between the two (van Gelderen 2002, I: 195). Civic republican language could thereby make headway in large monarchies (Collinson 1990, McDiarmid 2007). And even though it might have been dangerous to present England's monarchy as limited or 'mixed', local worthies and national figures alike invoked humanist authorities and values, and praised each individual city not only as a/arum in which civic virtue could be displayed, but 'as it were, a commonwealth amongst themselves' (Goldie 2001: 180-3). Despite - because of - the persistently 'civic' dimension of republicanism it was able to crop up with plausibility in some decidedly monarchical environments. Patrick Collinson 1990, Markuu Peltonen 2007, and David Norbrook 1999 have

32

I. Hampsher-Monk

shown how a civic humanist discourse flourished in Elizabethan England, the cultural background, perhaps, to ideals which were to emerge in the civil war of the mid-seventeenth century, to be kept alive in the eighteenth-century oppositionist thought of the commonwealthsmen, transplanted to America, in the opposition to British Tyranny. The civic humanism that Norbrook identifie~ is mostly aesthetic - how, after all, at the national level, could one be an aC~I~e citizen in the English Monarchy? But the argument about the central role of CIVIC experience and activity was rhetorically important to republicanism and of course in America, active citizenship was a reality. Americans were activists, they had won their independence by military endeavour, they had governed themselves, they were undoubtedly, in this sense virtuous - but could they remain so? Republican language which relied on civic participation suggested a number of specific threats to the survival of republicanism and the li~erty it .embodi~d. One crucial dimension was size. Large size was clearly associated with Empire - a quality of n.IIe as well as of geographical extent. Large states simply required powerful central governments to hold themselves together, and such gove~nment threatened individual liberty. A huge conceptual leap was therefore reqlllred to conceive of republicanism being applicable in a community the size of the US. Machiavelli, Montesquieu and Rousseau amongst many others agreed that republics were regimes of small polities, of cities, or city-states.9 Rouss.eau expressed this in terms of the tension between government and the sovereign. The larger the state the larger the sovereign (the assembly of citizens) and the more powerful the government needed to be. But a larger sovereign made its assembly problematic and each individual weaker in relation to it, and to the necessarily more powerful government which was always a threat to the liberty: 'From which it follows,' he wrote 'that the more the state grows the more liberty diminishes' (Rousseau 1964[1762]: 397). In this argument he was following Montesquieu, who had pointed to a similar logic of the relationship between size and power. 'Un grand empire suppose une autorite despotique dans celui qui gouvern. [... ] la propiete nature lie des petits etats est d'etre gouvernees en republique.' [A large empire supposes a despotic authority in he who governs: .. (whereas) it is a natural propelty of small states to be govern~d as a republ.I~] (Montesquieu viii, chs xix-xx). This was not then a merely contIngent ~r e~ptrl­ cal correlation, the small size of republics was intimately related to their lIberty. Republicanism required and presupposed not only tl~e a~tive politi~al. e~gag~­ ment of its citizens, but more generally the subordInatIOn of an Indlvldu.al s interests to the common good. Both the size and degree of field control exercised by larger states, as well as the loss of civic identity militated decisively against the possibility of their being able to sustain republican institu~ions. But !n early modernity successful states, which were almost all monarcllles, were Increasingly large, and republics found it hard to compete militarily. The prognosis for the republic in modernity was poor; as Montesquieu reflected right at the opening of the second part of The Spirit of the Laws: 'Si une republique e~t petite, elle est detruite par une force etrangere; si elle est grande, elle se detrlllt

The Federalist Papers

33

par un vice interior.' [If a republic is small it is destroyed by foreign force, if it is large it destroys itself through internal vice] (Montesquieu 1951 [1748]: ix, 1). Humans were doomed to live under the rule of a single man, with the accompanying loss of libelty if they could not devise a constitution which managed to combine 'the internal advantages of republican government with the external force of monarchy'. But there was though, one slim chance, for there was such a constitution: the federal republic. It was, therefore, no accident that Montesquieu was the single most quoted authority in the ratification debate over the new American Constitution (Lutz 1984: 189-97). But even accepting Montesquieu's authority (which not all did) it was not decisive in deciding whether the Constitution was a good thing, or truly republican or capable of maintaining libelty. For many these questions hinged on the degree of power retained by the states. Montesquieu had defined the 'republique federative' which presented the answer to the problem of establishing the large scale republic as 'une convention par laquelle plusiers Corps politiques consentent a devenir citoyens d'un Etat plus grand qu'ils veulent former' (Montesquieu 1951 [1748]: ix 1) ['a pact (or agreement) by which several political bodies agree to become citizens of a larger state than they wish to form ']. This, together with his claim about retaining the internal advantages of the republic (presumably including liberty) with the external force of monarchy suggested a politics which was internally devolved and only externally consolidated. The question was: where did the new Constitution sit on these two axes? This issue of the way in which size and liberty were inversely related was intimately implicated in the relative allocation of powers between state and federal levels. For loss of power from the states and its concentration in a 'continental' federal government would effectively be a single 'big' government over a territory of large extent, therefore being inconsistent with a 'republican' polity, and so with liberty. By contrast, the retention of power in the states sufficient to assuage such doubts might be thought by those in favour of the new constitution to undermine the efficacy of the Federation. There were both practical and conceptu~1 issues: could the proper balance be struck and to what name would the resulting institution be entitled? The fear of consolidated power clearly weighed strongly with anti-Federalists - and comprised a rhetorical challenge to the Federalists.lO Opponents of stronger federal powers saw clearly that (civic) republicanism - and hence, they thought, civic identity and the maintenance of liberty - could only operate at the more local level of the individual states. 'Agrippa' ('It is the opinion of the ablest writers that no extensive empire can be governed on republican principles'), 'Brutus' ('A free republic cannot succeed over a country of such immense extent'), and 'A Federal Farmer,ll ('A free elective government cannot be extended over large territories'), all used this argument against the consolidation of Federal power proposed by the constitution. The Federalist countered this objection at a number of levels. Hamilton, who tended to meet anti-Federalists head-on (both on matters of fact and value), echoing David Hume in his Essay On the Populousness of Ancient Nations, pointed out that as a matter of fact, even the individual states were already far

34 1 Hampsher-Monk larger than any ancient republics, so the issue of size was already redundant. America was moreover a natural unity - it comprised a People - as both the Constitution and the Declaration had claimed in their preamble, and it was appropriate for a people to have political embodiment. Again, a point I shall return to. Although Anti-Federalists were worried about the potential for authoritarianism and the militarisation of life from an aggrandising national government, the Federalists argued that failure to control the undoubtedly divergent interests of individual states under a strong central constitution could well lead to inter-state conflict which would result in the. militarisation of civic life at the very level the state - where anti-Federalists thought civil liberty could be best preserved (Federalist 9). But such an argument was a two-edged sword. If the different states really were that different how could their needs be dealt with through a single consolidated government? As Brutus - Publius' main opponent - put it, a consolidated national government would 'be too numerous to act with any art or decision, [and] composed of such heterogenous and discordant principles as would constantly be contending with each other' (Dry 1985: 114-5). If the issue of size rendered problematic the possibility of a closer, more consolidated union being consistent with freedom, thus challenging the civic elements within republican discourse, the issue of an equal-status (for white, propertied males at least) citizenry posed problems for the mixed constitutionalist strand. For without estates, or some form of Aristocracy (let alone a monarch) what was to be the social basis of the balancing elements within the constitution? In the view of anti-Federalists, the logic of the abolition of differentiated legal status seemed to imply the abolition of limited government which was another dimension of the threat to liberty. In any popular republican government, the legislature was thought properly to be the dominant organ of government as an expression of the people's will. Anti-Federalists were concerned about the threat to liberty from government effectively from the executive - and thought it best guarded against by a legislature that was both untrammelled and closely responsive to the people's will. Democracy might not be direct, but it could be the next best thing - very representative and very answerable to constituents, which is what anti-Federalists argued it should be. But the best authorities cautioned against this. Popular republics were notoriously dominated by volatile legislatures. Montesquieu argued that one of the greatest threats to liberty in Rome had been the popular assembly's license to debate celiain issues independently of the senate (Montesquieu 1951[1748]: ix, 16). Even Locke, who agreed the main danger came from the Executive and thought that it was 'in their Legislative, that the Members of a Commonwealth are united, and combined together into one coherent living body', recognised that legislatures could become tyrannical where they acted 'contrary to their Trust'and where they did, might be resisted. (Locke 1960[1690]: II, §§212, 221). And even Harrington had sought to guard against this by allowing the popular house only to vote but not debate. (Harrington [1656 (Pocock 1977)]: 172-4) On which Pocock has remarked that the

The Federalist Papers

35

idea that any political body of mid-seventeenth-century Englishmen might be able to meet without speaking represented probably Harrington's furthest flight of political fancy. The Federalist urged both the undesirability and the impossibility of the 'actual representation of all classes of people by persons of each class' - seeking (as indeed did some of its proponents) to identifY it with some of the negative, associations of turbulence and disorder of direct democracy. Instead, Madison and Hamilton urged that representatives should be those 'who have a knowledge of the interests and feelings of the people' and not people who themselves have those interests and feelings. Against anti-Federalist claims that only the most direct expression of popular will can sustain liberty the Federalist claims that liberty is best safeguarded where the popular will is filtered and limited in its expression. The argument that large size led to loss of liberty relied not only on Rousseau's claim that it increased the size and power of government against the people. It was also an argument about moral psychology, and the loss of cohesiveness, and the growing power of selfish motives as community size increases. As early public choice theorists would later elaborate, by sharing an identity, by knowing (and perhaps commenting on) one's neighbours and through the easy application of informal sanctions, small republics more easily engender and sustain commitment to the collective good. In larger publics the effectiveness of these moralistic motives is diminished in proportion to the number which is to share the praise or blame. Consequently as states became large they became vulnerable to faction - groups which cohered, not from a sense of commitment to the public good, but from a sense of commitment to their own. As 'the public' became larger, the strength of partial ties became stronger. Moreover factions are defined in tenns of the interest that motivates them, not their size - a faction is 'any number of citizens ... a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregated interests of the community' (Federalist 10). The kind offaction Madison feared - indeed which had appeared in the disturbances associated with Shays's rebellion - were factions of a majority, the poor, keen to help themselves to the property of others. At the Congress Madison had warned of the threat to property rights from unfiltered representation since 'power will slide into the hands of the indigent' (Farrand 1911-37: 1,243). But even selfish factions are subject to the law of size and decreasing cohesiveness. As the size of the political community increases even selfish factions break down. Madison turns the premises of the argument against the danger of faction (again part of the distrust of size, and through that, of the issue of the degree of consolidation versus federalism) against itself, size itself becomes benign in protecting against faction: 'The degree of security ... will depend on the extent of the country and the number of people apprehended under the same government' (Federalist 51). Thus, famously, 'enlarging the sphere' will provide the diversity of interests - even if factious - which would prevent the capture of

36

L Hampsher-Monk

the state by anyone group. Representation played a key role here only as long as it was allowed to distance the deliberations of the representatives from the passions and narrower interests of the represented. Disarmingly Madison claimed that representation at the national level - which in turn implied large constituencies - could be applied 'to the total exclusion of the people'. In his view this was an excellent consequence. Larger representative constituencies filter the electorate's demands through more educated and public spirited persons (for the available talent increases in direct proportion to the size of the pool), make its focus less likely to be parochial, and rendered bribery more difficult. Thus on all these grounds government is better conducted. Conversely by making constituencies smaller and more representative the very faults of the direct democracy will be reproduced in the legislature - 'the countenance of the government may become more democratic but the soul that animates it will be more oligarchic' (Federalist 58). But as well as the substantive arguments about how best to organise government there were conceptual and rhetorical issues about the identity of federalism, republicanism and democracy. Indeed the very title Federalist was a claim to the constitutional territory their opponents identified as their own - a claim Madison had begun to stake out as early as the review of the faults of the Articles of Confederation he had undertaken in preparation for the Convention. There he had refelTed to the Articles deprecatingly as 'A Treaty'. Many opponents claimed that one of the essential distinctions between a federal and a consolidated national government was a set of relationships between its constituent states or whether it exercised jurisdiction over or derived institutions directly from individuals within states. Indeed Madison himself, at the Convention, had made the distinction in these terms (Farrand 1911-37, I: 37). But in the Federalist, this hostage to rhetorical fortune could not be given up. Hamilton sought to muddy the conceptual waters, claiming that the precise nature of these distinctions was a matter of discretion, and pointed, again, to the authority of Montesquieu's discussion of the Lycian confederacy in which the federal level had had the power to appoint within the states, thus breaching the supposed principle appealed to by his opponents. 'The distinctions insisted upon [by the anti-Federalists]" Hamilton concludes, 'were not within the contemplation of this enlightened writer [Montesquieu]: and we shall be led to conclude that they are the novel refinements of an elToneous theory' (Federalist 9). Madison, as often, is more ameliatory. He points both to 'the plan of adoption' (ratification) and the derivation of powers within the constitution as being hybrid. The constitution is to be ratified on a state-by-state basis, and in this sense can be regarded as federal (though opponents - such as Brutus - argued that each state being required - by the terms of the convention - to summon popular conventions rather than referring the matter to existing state legislatures, was more like 'an original compact' of the people, rather than the (con)federal idea of 'a number of different states entering into a compact, thus already presupposing a federal element' .

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Within the constitution the derivation of powers was sometimes from the existing states - as in the selection of senators by state legislatures - sometimes from the people considered apart from their state-constitutedness - as in the House of Representatives whose constituencies, whilst all intra-State, were defined by the federal and not by the existing State constitutions. And they were sometimes combined - as in the Presidential election through an electoral college proportionate to the total numbers of representatives from each state in Congress - with the House deciding in a runoff election if no absolute majority were obtained. Although considered in their operation powers were likewise distdbuted to both levels of government. Madison had sought hard (and unsuccessfully) to get a clear right of veto for the national government on state legislatures, as a way of protecting minorities within states from oppressive majorities. In residually insisting on the right of the national government to decide in 'cases of dispute he appealed to the logic of a sovereignty he normally denied, and to this signal deficiency in the articles of confederation. Finally if one looked to the powers of amendment and change the constitution is amendable by two thirds of congress or two thirds of the state legislatures, Madison concludes ecumenically, that it was 'in strictness neither a national nor a federal constitution but a composition of both' (Federalist 39). But in the end Madison feels confident enough of his rhetorical ground hereas he evidently did not on the issue of republicanism - to join Hamilton in downgrading the whole issue of the essential meaning of 'Federal' as 'a secondary enquiry'. Surely, he urges, state-national power relations are relevant only to the primary issue: 'The public good, the real welfare of the great body of the people is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object' . If the defenders of the new constitution could succeed in rhetorically dissolving the 'essential' meaning of 'federal', the essential meaning of 'republic' was not susceptible of the same treatment. 12 Americans were (by 1787) very attached to the ideal of republicanism, although far from united as to what it consisted in and they were split about the desirability of the democratic variant of it. John Adams famously declared that the 'true meaning' of a republic was 'a government in which all men, rich and poor, magistrates and subjects, officers and people, masters and servants, the first citizens and the last are equally subject to the law'. Thus the abolition oflegal privilege comprised the establishment of the republic. Moreover Adams subscribed - in this as in much else - to the classical view that saw democracy as one variant of the republican form; republics might not be democratic, but democracies were all republics: 'A democracy is really a republic as an oak is a tree or a temple a building' (John Adams A Defence . .. ). Suspicion of strong central government led to a tendency to identify republican with popular and m~oritarian institutions. Jefferson, absent in Paris at the time of the convention thought that the sacred principle of a republic was that 'the will of the majority is in all cases to prevail'. It was true that 'that will, to be rightful, must be reasonable' and that 'the minority must possess their equal rights which the law must protect' (Jefferson 1955[1801]: 42). Jefferson, in explicitly

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rejecting Adams' claim that any government that respected the rule of law was republican, advanced the claim that popular majority rule was the defining characteristic of a republic: 'Governments are more or less republican as they have more or less of the element of popular control in their composition' (Jefferson (1955[1816a]): 53). Apart from defending a bill of rights, Jefferson thought the less the majority will was impeded the more free and republican a government was. Checks and balances had come about to prevent governments from tyrannising over people. If, through the new device of representation, the legislature could be kept close to the people and dominant within government, the people themselves could be the check on tyranny. What Jefferson would later famously call 'this new principle of representative democracy which has rendered useless almost everything written before on the structure of government' virtually identified 'democracy' with 'republic', whereas distinguishing between them was one of the crucial grounds of contestation in the Ratification debates. Jefferson, in his 'wish to see the republican element of popular election and control pushed to the maximum of its practicable exercise', (Jefferson 1955[1816b]: 87-8) was not only substantively closer to the anti-Federalists than the Federalists, but conceptually so too. Indeed if this view of the identity of 'republic' and 'democracy' had been widespread in the 1780s it might not have b~en possible to make the argumentative moves so adroitly accomplished in the Federalist Papers. The Federalist disagreed both with John Adams' minimalist definition of a Republic as a government of legal equality, and with Jefferson's and the antiFederalist substantive argument that to be a democratic republic required as close as possible a fit between the opinions of the people and those represented in the legislature. Madison denied altogether that democracy could be a kind of republic, claiming rather that they were distinct species of government: democracy was 'a society consisting of a small number of citizens, who assemble and administer the government in person'. Whereas, he claimed a Republic was 'a government in which a scheme of representation takes place' (Federalist 10), 'a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour' (Federalist 39). If democracies and republics were different species of government, the antiFederalists' claims that republics could maintain liberty only to the extent that they were democratic made no sense. This would be to say that republics paradigmatically the government identified with liberty - would be republics only to the extent that they were really something else. But for Madison, on the contrary, representation and a degree of distance, a filtration of the direct influence of 'the people' was of the essence of republicanism rather than a threat to it. As commentators have pointed out, Madison's rhetorical ploy here (which he had acknowledged as being essential to the winning of the argument) was to capture and to comer for the new constitution the increasingly positive emotional connotations of the term 'Republic' (Ball 1988). But there is more than this going on. Madison's re-classificatory ploy also avoids a potentially damaging implication of his claim that the new, federal

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republic was the right kind of republic. Under the inherited classification, republics might be more or less democratic - the less democratic the more aristocratic. The concept of the aristocratic republic need not be one in which political power was identified with birth or some objective legal or social status, the 'aristoi' were merely 'the better sort'. There were various ways of identifying the better sort and, startlingly to modem democrats, election was one of them. In classical democracies civic offices were filled by lot, in non-hereditary aristocracies, by election. According to this classificatory scheme, if the new Federal Republic was not a (direct) democracy, then it was an aristocracy and the argument (although of course not the claim) of Madison's famous Federalist 10 seemed to confinn precisely this. This classical association between election and aristocracy was well known to contemporaries. It was a common charge from anti-Federalists that the new constitution was an aristocratic one. 'Centinal' predicted that the new government 'so far from being a regular balanced government, ... would in practice be a permanent ARISTOCRACY'. 'A Federal Fanner' thought post-war difficulties were being used cynically to 'furnish aristocratic men with weapons and means' and the new constitution was being rushed through by the 'consolidating aristocracy'. Brutus claimed that it was the 'natural aristocracy [who] will be elected ... there will be no patt ofthe people represented but the rich - even in the branch of the legislature which is called democratic'. In the fifth of his essays 'A (Mmyland) Fanner' argued that wherever election had been introduced it had only disgraced itself and opposed itself to 'governments of simplicity and equal right'. He opposed electoral aristocracy to the fi·ugal, honest, agrarian and virtuous Swiss - an example of a federal and direct, democracy (Storing 1981: 263-8). Electoral representation was, at least by some, categorically identified with comlpt aristocracy. Irrespective of these conceptual and classificatory disagreements, the question of whether it was democracy or elective aristocracy that made for better (or freer) government was in large degree an empirical claim, and whilst the argument proceeded along these lines, Federalists were always vulnerable to additional charges of introducing a kind of aristocracy,-thus having to run the empirical and normative arguments alongside each other. But Madison's brilliant conceptual coup was that, in claiming that categorically speaking republics were representative governments, and that [direct] democracies were a completely different species, he, at a stroke, not only denied the epithet 'republic' to his opponents, but also thereby obliterated the dichotomy within the category 'republic' which implied that his alternative (not being the democratic one) could only be aristocratic. In his new classification the term 'aristocracy' was now reserved for what had originally only been one kind of aristocracy - hereditary aristocracy, and what had been thought of as an elective aristocracy - representative government - was now presented as definitive of the repUblic. It was some time later- initially through Jefferson's neologism - 'representative democracy' and polemically in the franchise debates of the 1830s that 'democracy' overcame its traditional associations with lawlessness and became yoked to Republic and (at least in America) an unequivocally GOOD THING!IJ

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We began by observing the peculiarity that the only successful entities to deploy republicanism at the level of the emergent nation-state were federations. I want to close by claiming that this is no accident. The problem of establishing a national republic faced two intractable issues. The first was the problem of founding. The second problem is that of how the active political life envisaged by - and which legitimated - republican institutions could be realised at the level ofa nation. The founding of a secular Republic as an attempt by humans to establish the self-government of a community is always perceived as perilous. Selfgovernment, that is, might seem to entail self-founding, yet how, as Rousseau wondered, could a people give laws to itself? (Rousseau, 1964 [1762]: II, 6) Mundanely (in the proper and original sense of the word), if founding is a normal (speech) act, what is it that enables it to founcl? Why and how does it distinguish itself from other political speech-acts and so structure and control those that come after? And (a subversive thought) if it can be done once why should it not be repeatable at will, so defeating its object of establishing once-and-for-all a stable and enduring norm- and institutionally structured - space for political action.14 The founding of the secular republic therefore, whilst pulled towards normal human action by the requirement that the comm.unity demonstrate its capacity for political self-sufficiency, is pulled in the direction of the exceptional, (the superhuman? or the supernatural) by the need for the act of founding to exercise authority over the time and the people, and therefore the actions that follow. Virtually all classical societies told themselves a story about their origin that, in one way or another, made claims about the extraordinary and superhuman features of their own origin or founding, either some extraordinary heroic and super-human personality - a Solon, a Lycurgus or an Aeneas or some act that scarred the moral face of time such as Romulus' fratricide. Such actions are presented as creating a break or fracture in 'normal' temporal continuity which effects a founding by restructuring and insulating what follows from what went before, but also, as is less often remarked, stresses the enormous difficulty of any similar act again successfully changing what now is. Not only the ancients, but early modern polities too, looked to identify their origins as located in a special time. Thus Italian renaissance city states claiming Roman ancestry won'ied about whether their founding was in the time of the Republic (so guaranteeing their 'free' character) or under the Empire. The Dutch states in revolt from Spanish rule identified themselves with the Batavians, the Patriot movement of the late eighteenth-century in revolt against the Estates too identified themselves with the Batavian peoples (now purged of that late Feudal distortion, the estates' claim to institutional sovereignty), and the Belgians in 1790 with Caesar's Belgae - who were so notoriously jealous of their liberty that he wisely made a treaty with them rather than try to conquer them,15 and the English identified their (Ancient) constitution with that of the Anglo-Saxons - in turn commonly identified with Tacihls' freedom-loving Germans. 16 Even where the long continuity of political institutions could not be plausibly claimed, the existence of an ancestral community, 'a people', provided the entity

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for which a modern political vehicle could be sought. This need to give founding a special status by locating it outside normal time in antiquity or myth can seem to us to belong to an essentially pre-modern and certainly pre-rationalist, enlightenment, cast of mind. But it is striking that in each of the two first paradigmatically modern republics - America and France - founding still involved recognisable attempts to control, shape or suspend secular time so as to make foundation special and to establish a break with the past. The creation of the French Republic Calendar is perhaps the most obvious but also the most extreme case (Hunt 2003: 1-19). Less often seen in this way, let alone commented on - but still a striking example of this attempt to create a suspension of normal time - are the measures taken by the American 'Founding Fathers' to assure the authority of their founding document which has come to exercise such extraordinary authority over the state to which it gave birth. Here there was, it is true, no new calendar, no revolutionary year one, much exhortation to virtue and wisdom, indeed, but hardly - as many delegates remarked - (and some insisted upon) any to be expected beyond the nonnal range of human excellence. Yet the founders debating in that Philadelphia Courthouse in 1787 determined that they would do so in such a way as to place themselves outside normal time and so put their deliberations beyond the scrutiny of human reason. Their constitutional discussions, they decided, were to be secret, delegates were not to communicate with those outside the courthouse, and records of the discussion were to be embargoed from publication for 20 years (Rossiter, 1966: 167-9). The temporal events of constitution making were thus chronically insulated, de-coupled from the sequence of secular time, and the possibility of rational interrogation. In a word they were able to turn themselves and the constitution (as much as might be in an age of enlightenment) into Myth. But the establishment of the American Republic was rendered far easier by the fact that it had also comprised an act of secession. Secession renders foundation easier because it involves a claim only to change the status of existing institutions, it does not require the establishment of them ab initio. Victory in the War of Independence and physical distance had given Kmericans the breathing space to reflect on and discuss how to incorporate their existing state governments into a federal structure. The only two other early modern republics, the Dutch and the Swiss, had also established themselves by the secession of their already extant organs of local self-government from the Spanish and Austrian empires respectively. The Dutch and the Swiss accompanied the capture of their local representative institutions with claims to be re-asserting an ancient ethnic and political identity, an ideological move not open to Americans. However, despite the modish Enlightenment rhetoric of the Declaration of Independence, many did claim - and even as late as the constitutional convention continued to be claiming - that they were reasserting the traditional rights of Englishmen, particularly those fought for in the seventeenth century regarding 'no taxation without representation' rights which were being denied them by a tyrannical House of Commons in England itself. But the great advantage for American Founding was that their state governments, although much amended in the years

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between independence and 1787, already existed. Founding was thus, at least institutionally, a matter of reconfiguring the external relations between those state governments. Where foundation is achieved in this way - as a separation of pre-existing political entities many otherwise intractable problems of founding can be disposed of. Issues of identity, of authority, and even of institutional form can be presented as already resolved, even where they canoy what might be regarded as a lot of imperial baggage from their previous status. Early modern empires were segmented, not integrated and centralised, thus separation could be effected without necessarily raising the huge issue of how to restructure internally the new entity. The mythical pre-existence of a people without institutional form could, in the right circumstances, aid the expulsion of unwanted rulers and so enable purely local institutions of self rule at the level of cities or provinces to step forward and perform a state role. This is particularly true where those separating were a group of relatively self-contained politico-legal units - cantons, provinces and cities, or, as in the American case, states already possessed of their own constitutions. Secession on the basis of a previously existing identity minimises the problems of legitimation which founding invariably encounters. Institutions and cultures of local self-government provide already legitimised political forms. These admittedly need to be successfully configured to become a Federal entity, but that, as Rousseau might have said, is being asked to perform only half a miracle, not a whole one. Yet there is another element to this synergy that explains the unique success of secessionist federations in establishing republican regimes and this relates to my opening account of civic republicanism as a language of participation. It is the 'federal' character of successful republics that preserves a real forum for the language and practice of active citizenship, and which makes plausible its legitimate deployment as a national ideology. For it is in the local state units that citizens can still act out the civic role which republican language marks out for them, whilst the existence of the federation enables successful republics to achieve a size and weight that enables them to compete with those otherwise Ubiquitous early modern forms the Dynastic - and later the nation - state. The two factors of secession and confederation thus operate synergistically to enable the possibility of projecting republican language and practices at the level of the nation state. Indeed, up to the French Revolution (1789), secessionist federal states were the only examples of such forms. Thus, far from the old Palmerian idea of an Atlantic Republican Revolution - of which the French and the American were variants - this perspective shows how completely different was the federal republic from that later, and distinctively modern, French variant, founded as it was on the Sieyesian premise ofthe utter indivisibility and unity ofthe nation.

Notes The national declaration of independence was preceded by numerous local and state declarations and succeeded by a rash of state constitution-making. See Maier 1997, especially 47-96. On conceptual issues see Ball and Pocock 1988.

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2 Since the formal study of rhetoric was part of most eighteenth-century syllabi, this technique is something of which all educated eighteenth-century individuals would have been aware. 3 This understanding of political argument and its role in the history of ideas has been re-articulated and analysed in particular by Quentin Skinner 2002. 4 A number of scholars have now documented the relationship between American's thought and a specific English 'oppositionist' or 'country' ideology. The classic statements of this view are Bailyn 1967 and Wood 1969. See also Lutz 1984: 189-97; Hyneman and Lutz 1983; and McDonald 1985. 5 The Continental Congress, that operated from the Revolution until the adoption of the new Constitution was, as many, including John Adams, remarked, 'more a diplomatic than a legislative body ... a congress, and not a parliament'. Cited in Carey and McClellan 2001 [1787-8], xxiii. 6 For a collection revealing something of the range of contexts and circumstances in which the term was deployed see van Gelderen and Skinner 2002. 7 The historiography of the decline of Rome - as a context for Gibbon's extraordinary effort - has recently been compendiously explored in Pocock 2003. For a brief sketch ofthe tensions between Empire and republican liberty see Armitage 2002: 29-46. 8 iam pridem, ex quo suffragia nulli uendimus, effudit curas; nam qui dabat olim imperium, fasces, legiones, omnia, nunc se continet atque duas tan tum res anxius optat, panem et circenses. Juvenal, Satire X, 11 77-8\. [Long past now is the time when we sold our votes to no-one. Responsibilities are shirked. Those who once appointed the highest authority, public office, military command, everything, now hold themselves in hope for only two things: bread and circuses.] 9 Machiavelli's claim was in tension (as he recognises) with his aspiration to achieve 'glory' for which great deeds and expansion were required. The expansion which accompanied success invariably corrupted virtll and destroyed liberty. For Montesquieu, the need for intimate civic relations followed from the principle of the republic which was love of the res publicae, the common good: 'II est de la nature d'une repubJique qu'elle n'ait qu'un petit territoire ... [ou] Ie bien publique est mieux senti, mieux connu, plus pres de chaque citoyen' Montesquieu, 1951[1748]: livre viii, ch. 16 ['It is in the nature of a republic that it only possesses a small territory ... there the public good is better felt, better known, closer to each citizen. ']. 10 Examples abound in the original works of the anti-Federalists many of which are included in Dry 1985, e.g. 'a very extensive territory cannot be governed on the principles of freedom other wise than by a confederation of republics, possessing all the powers of internal government' (Address of the minority of the Convention of Pennsylvania) (Dry 1985: 209). For a discussion with citations see Kenyon 1985[1966]: xxxixff. II All reprinted in Herbert Storing's The Anti-Federalist (1981: 235, 113, 139). 12 Federalist 39 concedes that 'If the plan ofthe Convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible'. 13 With apologies to Sellars and Yeats, 1066 and all that. 14 For a highly insightful conceptual analysis offounding see Honig 1991. 15 On the Dutch see Tilmans 2002; on the Patriot's revision see Leeb 1973: 200ff., and on the Belgians, Geert van den Bosche, Enlightened Innovation and the ancient constitution: the intellectual justifications of the Brabant Revolution (1787-1790). Cambridge University Ph.D. 1995. 16 The classic English version is of the myth of the Norman Yoke, according to which the indigenous Saxon institutions of political liberty were suppressed by the Norman Conquest, but remain as a recoverable heritage. See the classic piece by Chistopher Hill 1958, Pocock 1987 [1957] and, more extensively, Burgess 1992.

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Bibliography Adams, John (1970) 'Works', in Stourzh, G. (ed.) Alexander Hamilton and the Idea of Republican Government, Stanford: Stanford University Press, p. 55. Armitage, D. (2002) 'Empire and Liberty: a republican dilemma' in Gelderen, Martin van and Skinner, Quentin (eds) (2002) Republicanism, a shared European Heritage, Cambridge: CUP, vol. 2: 29-46. Bailyn, Bernard (1967) The Ideological Origins of the American Revolution, Cambridge, Mass.: Harvard UP. Ball, T. and Pocock, .J.G.A. (eds) (1988) Conceptual Change and the Constitution, Lawrence, Kansas: University of Kansas. Ball, Terence (1988) 'A Republic - if you can keep it' in Ball, T. and Pocock, J.G.A. (eds) (1988) Conceptual Change and the Constitution, Lawrence, Kansas: University of Kansas. Burgess, Glen (1992) The Politics of the Ancient Constitution, Basingstoke: Macmillan. Collinson, Patrick (1990) De Republica Anglorum: or, HistOlY with the Politics put back, Cambridge: CUP. Dry, Murray (ed.) (1985) The Anti-Federalist, Chicago. Farrand, Max (1911-37) Records of the Federal Convention of 17B7, 4 vols, New I-laven, Conn.: Yale U.P. Gelderen, Martin van and Skinner, Quentin (2002) Republicanism, a shared European Heritage,2 vols, Cambridge: CUP. Gelderen, Martin van (2002) 'Aristotelians, Monarchomachs and Republicans: Sovereignty and respublica mixta in Dutch and German Political Thought, 1580-1650' in Gelderen, Martin van and Skinner, Quentin (2002) Republicanism, a shared European Heritage, Cambridge: CUP. Goldie, Mark (2001) 'The Unacknowledged Republic, Officeholding in Early Modern England' in I-Iarris, Tim (ed.) (2001) The Politics of the Excluded c.1500-1B50, Basingstoke: Pal grave. Hamilton, Jay and Madison (2001 [1787-8]) The Federalist, George W. Carey and James McClellan (eds), Indianapolis: Liberty Fund. Hampsher-Monk, I. W. (2009) 'The Idea of the Republic in Anglo-American Political Thought' in Veit Elm, GUnther Lottes and Vanessa de Senarclens (eds) Erfimdene Antike?Vom Umgang mit del' Antike im Europa des lB. Jahrhunderts, SaarbrUcken: Wehrhahn Verlag: 77-94. I-Iampsher-Monk 'Founding and Federation in Early Modern Republics' in Ivo Comparato, Hans Bodecker and Catherine Lan!rre (eds) (forthcoming) Republican Foundings, Florence: Olschki. Harrington, James, Oceana [1656], in lG.A. Pocock (ed.) (1977) The Political Writings ofJames Harrington, Cambridge: CUP. I-Iarris, Tim (ed.) (200 I) The Politics ofthe Excluded c.1500-1B50, Basingstoke: Palgrave. Hill, Christopher (1958) 'The Norman Yoke' in Puritanism and Revolution, London: Secker and Warburg. Honig, Bonnie (1991) 'Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic', American Political Science Review 85: I. Hunt, Lynn (2003) 'The World We Have Gained: The Future of the French Revolution', The American Historical Review, 108, 1: 1-19. Hyneman, Charles S. and Lutz, Donald S. (1983) American Political Writing during the Founding Era, 1760-1B05, Indianapolis: Liberty Fund.

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Jefferson, Thomas (180 I) First Inaugural Address, in Dumbauld, Edward (1955), The Political Writings of Thomas Jefferson, Indianapolis: Bobbs Merrill. Jefferson, Thomas (I816a) Jefferson to John Taylor, 28 May 1816. Jefferson, Thomas (1816b) Jefferson to Isaac H. Tiffany, 26 August 1816. Kenyon, Cecilia (1966) The Antifederalists, Boston: North Eastern University Press. Leeb, I.L. (1973) The Ideological Origins of the Batavian Revolution, HistOlY and Politics in the Dutch Republic 1747-1BOO, den Hague: Martinus Nijhoff. Locke, John (1960 [1690]) Two Treatises ofGovemment, Cambridge: CUP. Lutz, Donald S. (1984) 'The Relative Influence of European Writers on Late Eighteenthcentury American Political Thought', American Political Science R~view LXXVIII: 189-97. McDiarmid, John F. (ed.) (2007) The Monarchical Republic of Early Model'll England: Essays in response to Patrick Collinson, Aldershot: Ashgate. McDonald, Forrest (1985) Novus Ordo Seculorum: The intellectual origins of the constitution, Lawrence, Kansas: University of Kansas Press. Montesquieu, Charles Louis de Secondat, Baron de La Brede et de, (1951 [1748]) De L 'Esprit des Lois, Paris: Gallimard. Maier, Pauline (1997) American Scripture: Making the declaration of independence, New York: Knopf. Norbrook, David (1999) Writing the English Republic, Poetl)', Rhetoric and Politics 1627-1660, Cambridge: CUP. Pelton en, Markku (1995) Classical Humanism and Republicanism in English Political Thought, Cambridge, CUP. Peltonen, Markku (2007) 'Rhetoric and Citizenship in the Monarchical Republic of Elizabeth I' in McDiarmid, John F. (ed.) (2007) The Monarchical Republic ofEarly Modem England: Essays in response to Patrick Collinson, Aldershot: Ashgate. Pocock, J.G.A. (1976) The Machiavellian Moment, Princeton: Princeton UP. Pocock, J.G.A. (ed.) (1977) The Political Writings ofJames Harrington, Cambridge: CUP. Pocock, lG.A. (1987) [1957] The Ancient Constitution and the Feudal Law, Cambridge: CUP. Pocock, lG.A. (2003) Barbarism and Religion: The First Decline and Fall, Cambridge: CUP. Rossiter, Clinton (1966) 1787: The Grand Convention, New York: Macmillan, republished New York: W.W. Norton ( 1 9 8 7 ) . - .-" Rousseau, Jean-Jacques, (1964 [1762]) 'Du Contrat Social', in B. Gagnebin et al. (eds) Rousseau: (Eevres Completes, volume Ill, Paris: Gallimard. Skinner, Quentin (2002) Visions of Politics, 3 vols, Cambridge: CUP: vol. I, Regarding Method. Storing, Herbert (1981) The Anti-Federalist. An abridgement, by Murray Diy of the Complete Anti-Federalist . .. by Herbert J Storing, Chicago and London. Tilmans, Karens (2002) 'Republican Citizenship and Civic Humanism in the Burgundian-Hapsburg Netherlands', in van Gelderen and Skinner (eds) RepUblicanism: A Shared European Heritage, vol. II: 107-26. von Fritz, K. (J954) The Mixed Constitution in Antiquity, NY: Columbia U.P. Wood, Gordon S. (1969) The Creation of the American Republic 1776-1787, Chapel Hill, N.C.: U.North Carolina Press.

"Togetherness"

3

"Togetherness" in multinational federal democracies Tocqueville, Proudhon and the theoretical gap in the modern federal tradition Dimitrios Karmis

In the post-colonial and post-communist era, it has become commonplace to state, like Will Kymlicka, that federations are "the best [form of 'togetherness'] we can hope" in contemporary multinational democracies. However, as Kymlicka himself admits, "the nature of this looser fqrm of togetherness" is "somewhat mysterious" and "there is very little in contemporary political theory that sheds light on it".1 In other words, while federal arrangements appear to be a major piece of the democratic puzzle in contemporary multinational states, we still have a very porous understanding of what it means to be together in a multinational federal democracy. How can we understand this somewhat surprising failure of contemporary political theory? What does it mean and how can we cope-with it? At first glance, two obvious reasons may help us to understand - and, to a certain extent, justify - why contemporary theorists of multinational federal democracies have not been able to shed much light on the "mystery" of federal togetherness. First, in the context of what Charles Taylor called the "politics of recognition",z most theorists of multinational federal democracies have spent their best efforts at understanding and justifying the "separateness" dimension of federalism rather than its "togetherness" side. Among other things, they have emphasized that multinational federalism may contribute to the maintenance and development of cultural diversity by granting self-government and asymmetric recognition and powers to territorially concentrated minority nations. Second, those who have devoted serious thought to the togetherness side of federalism have been mostly preoccupied by finding just and efficient ways of preventing instability and secession in multinational federations. In other words - and I say it without irony - contemporary political theory has been preoccupied by saving a form of togetherness it does not understand very well. What does it mean to be together in a multinational federal democracy? Does it make sense to talk about a nation of nations? Through what institutions and forms of encounters and dialogues should the nations of a multinational federal democracy interact? What role should the central government institutions adopt

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to engage multinational encounter and dialogue? What are the main forms of multinational encounters and dialogues that may occur in multinational federal democracies? What are the basic requirements and benefits of federal togetherness? What particular civic virtues do multinational federal citizens need? Since multinational federal democracies are complex and used to living with tensions, what type of tensions should be seen -as exceptional and dangerous? If one accepts that federal democracy represents the best form of togetherness contemporary multinational democracies may aspire to, contemporary political theory must address such difficult questions and many others. However, from the perspective of the history of political thought, the first step on the road towards a deeper understanding of federal togetherness is a better grasp of the failure of contemporary political theory to make a more serious effort at understanding it. In this chapter, I want to retrace the sources of this failure. On a general level, I suggest that one of the most important sources lies in nineteenth-century political thought. Since modern federalism and federation have been largely structured by the nineteenth-century debate on the nature of the new form of federalism adopted by the United States of America (USA), established by the constitution of 1787, we may assume that nineteenth-century writings on federalism have had a major impact on our theories, concepts, and typologies, notably the now classical distinction between unitary state, federation, and confederation. This should not be too contentious. On a more specific - and perhaps more contentious - level, I contend that the strong influence of nationalism and colonialism in that century made it particularly difficult for political thinkers to theorize - and even imagine - multinational encounters and dialogues as major features of federations. Based on these findings, contemporary political theorists should wonder to what extent they have internalized nineteenth-century nationalist and colonialist assumptions about federalism. This thesis is supported through a study of the writings of Alexis de Tocqueville and, to a lesser extent, Pierre-Joseph Proudhon. This seemingly unorthodox selection is justified on two grounds. First, both Tocqueville and Proudhon are rarely associated with nationalism andlor colonialism. Showing that nationalism andlor colonialism led them to neglect the theorizing of federal togetherness says a lot about the impact of nationalism and colonialism on Western federal thinking. Second, while Tocqueville's selection makes obvious sense - since he is a major representative of the dominant tradition of federal thinking3 - Proudhon is also important as a key figure of an altemative and more marginal one.4 In other words, the nineteenth century's theoretical neglect of federal togetherness cuts across various trends. This chapter is divided into two parts. In the first part, I argue that Tocqueville's neglect of the togetherness side of federalism derives largely from an equivocal and monistic defence of federalism. More precisely, Tocqueville's strong nationalism and colonialism made him incapable of imagining - and, still less, of predicting and supporting - multinational federalism in his work. The second part of the Chapter is devoted to Proudhon's alternative and much more

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apologetic conception of federalism. We will see that his obsessive fear of Jacobin ism helps us to understand his 'small is beautiful' nationalism and his confederalist view of the federal government as a 'subordinate function' without executive capacity.s In other words, Proudhon's anti-Jacobin nationalism led him to support confederal arrangements in which togetherness is very much limited in scope and amounts to nothing more than the sum of its parts. Finally, in conclusion, I briefly discuss two prerequisites for a more serious and sustained reflection on federal togetherness in contemporary multinational federal democracies.

Nationalism in Lower Canada and colonialism in Algeria: Tocqueville's equivocal and monistic federalism Published in 1835, almost haIfa century after the Federalist Papers, Tocqueville's opening volume of Democracy in America represents a major step in the study of the relationship between federalism and democracy. Three contributions appear particularly imp0l1ant. First, as a French observer writing in the 1830s, Tocqueville does not have to downplay - as James Madison, Alexander Hamilton, and John Jay did - the innovative character of the federal cOl1stitution of 1787.6 Thus, while using the language of federalism to refer to the American political system, Tocqueville points out that "the human understanding more easily invents new things than new words, and we are hence constrained to employ many improper and inadequate expressions." Talking about the "central power", he adds, "evidently this is no longer a federal government, but an incomplete national government, which is neither exactly national nor exactly federal; but the new word which ought to express this novel thing does not yet exist." In short, for Tocqueville, the political system delineated in the Constitution of 1787 - and advocated by Publius - was a "new species of confederation". 7 Second, though its focus is on the American federal system, Democracy in America is more comparative in nature than the Federalist Papers. As Tocqueville emphasizes in the introduction, he studied democracy in America "not ... merely to satisfy a curiosity" about America. He "sought there the image of democracy itself ... in order to learn what we [France and its still incomplete process of democratization, and more generally Europe] have to fear or to hope from its progress".8 This led him to compare the 1787 "new species of confederation" with older and contemporary federal systems. Third, Tocqueville's treatment of federalism takes place in the context of his classical analysis of democracy. In Tocqueville's lexicon, democracy refers primarily to a social structure - he uses the term "social condition" characterized by the possibility of equality of condition and to the laws, usages, sentiments, beliefs, and ideas connected to that social structure. According to Francyois Furet, "modern equality is an abstraction and it is as such that it governs the behaviours of individuals .... [It] does not mean that the conditions are equal, but that they can be equal and even that they should be equal, and that this sentiment is sufficient to modify even - and especially - the most inegalitarian relationship."g

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In other words, democratic societies favour the sentiment of an equality of status that impacts on all aspects of collective life. From Tocqueville's perspective, such a sentiment was introduced in Europe by Christianity. Then, it made significant progress with the advent of the second millennium, when the criteria of social, economic, and political power started to become less exclusive. Finally, by the early nineteenth century, it had produced an "irresistible [democratic] revolution" in the Christian world, an irreversible process of democratization. lo However, Tocqueville warns his readers that this process may lead to two very different outcomes: the liberal republic or the oppressive republic; democratic liberty or democratic tyranny. Based on his observation of the development of democratization in Europe, and especially in France where it is more rapid than elsewhere, he believes that the signs of a new form of oppression and tyranny are already there: the European movement towards democracy being anarchic, incomplete and still strongly opposed, "the result has been that the democratic revolution has taken place in the body of society without that concomitant change in the laws, ideas, customs, and morals which was necessary to render such a revolution beneficial." In a nutshell, Europeans "have a democracy without anything to lessen its vices and bring out its natural advantages". I I What should be done? It is here that Tocqueville issues one of his most famous prescriptions: "A new science of politics is needed for a new world".12 Without such a new science of politics aimed at educating and adapting democracy to time and place, two mutually reinforcing and fatal evils will necessarily prosper to an unprecedented level: individualism and centralisation. 13 In Democracy in America, Tocqueville introduces the American type of federal system as one of the main sources of liberty saving Americans from the development of these two potential democratic evils, along with administrative decentralisation, voluntary associations, and the press. However, on close scrutiny, Tocqueville's federalism is very equivocal. Eqll iVOClli jetiemlisl1l

Tocqueville does not renew the lexicon of federalism. Like his predecessors, he interchangeably employs federation, confederation, federal system, and other federal terms. While he laments that "the human understanding more easily invents new things than new words",14 he is well aware of the innovative character of the American Constitution of 1787. After careful reading of the Federalist Papers and some comparative work, he claims that the Constitution of 1787 institutionalizes a "new species" of federalism that belongs to the new science of politics the world needs. ls At the core of the American invention lies the autonomous executive capacity of the federal government in its areas of jurisdiction: "the old confederate governments presided over communities, but that of the Union presides over individuals. Its force is not borrowed, but self-derived; and it is served by its own civil and military officers, its own army, and its own courts of justice." In other words "the Federal power has the means of enforcing all it is empowered to demand" .16 Despite his praise for the federal Constitution

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of 1787 - "the most perfect federal constitution that ever existed"l? - Tocqueville's overall evaluation and endorsement of federalism for a democratic age is equivocal. In ShOlt, he depicts federalism as an ingenious recipe for liberty that can rarely be prescribed because most patients are allergic to it. Tocqueville's evaluation is derived mainly from his historical knowledge of ancient federal systems and his first-hand knowledge of federalism in America and, to a lesser extent, federalism in Switzerland. On the positive side, borrowing from Montesquieu, he states that "the federal system was created with the intention of combining the different advantages which result from the magnitude and the littleness of nations" .18 He points out six of these advantages. First, the federal system favours the tranquility and libelty usually peculiar to small (republican) states. According to Tocqueville, the smallness of states both mitigates the ambitions of conquest and orients citizens' interests towards the practice of self-government. Second, the federal system provides another major advantage usually characteristic of small states: While "in great centralized nations the legislator is obliged to give a character of uniformity to the laws, which does not always suit the diversity of customs and of districts", the federal system makes possible a diversity of laws corresponding to the exigencies and the customs of the population of the various feqerated states. Thus, it prevents "a great cause of trouble and misery".19 The third advantage mentioned by the French traveller is associated with large states: their "more rapid and energetic circulation of ideas" and the concentration of ideas that we found in their multiplelarge cities. 20 In Tocqueville's view, such circulation and multiple concentrations of ideas favours enlightenment and, along with it, the progress of republican ideas. Moreover, it contributes to the dissemination of a patriotic feeling towards the federal government to counterbalance the narrower and usually stronger patriotism that attaches each citizen to his federated state. 21 The fourth advantage of the federal system, force, usually belongs to large states as well. For Tocqueville, this is a matter of pure "necessity". Large states are "unavoidable" and they will always threaten small states' prosperity, liberty, happiness and even existence. The federal system may provide small states with the "physical strength" they need to protect their freedom, without forcing them to abandon the benefits of their smallness. 22 The fifth and sixth advantages mentioned by Tocqueville are characteristic of the federal system. The fifth advantage is that the federal system has the rare capacity to gather together communities animated by simultaneous opposite tendencies to union ("the same religion, the same language, the same customs, and almost the same laws; ... a common enemy") and division (their own government, interests, and patriotic feelings).23 Finally, the sixth advantage mentioned by Tocqueville springs from one of the most distinctive features of the federal system, that is, "divided sovereignty". Since neither the federal state nor the federated states have all the powers, every attempt at administrative centralization and every infringement upon liberties is likely to meet organized resistance from a government. This checks and balances mechanism has the potential to thwart the enemies of liberty.

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After analyzing the numerous advantages of the federal system, Tocqueville turns to its darker side. He basically emphasizes three major "faults" explaining why this ingenious political system "is not practicable for all nations".24 The first defect of federal systems is "the complicated nature of the means they employ." The federal system involves "two sovereignties" that are very likely to collide at "celtain points". Therefore, it "rests upon a theory which is complicated at the best, and which demands the daily exercise of a considerable share of discretion on the palt of those it governs." And since "a false notion which is clear and precise will always have more power in the world than a true principle which is obscure or involved", the federal system is "ill adapted to a people which has not been long accustomed to conduct its own affairs, or to one in which the science of politics has not descended to the humblest classes of society." For Tocqueville, this is such "good sense and practical judgment" that distinguished the success of the American federal system from the failure of the federal system in Mexico. 25 The second defect emphasized by TocquevilIe, which is said to be the "most fatal of all" and "to be inherent in the federal system", derives from the principle of divided sovereignty. Tocqueville's evaluation of this key federal principle is subtle. On the one hand, Tocqueville praises divided sovereignty and maintains that the checks and balances mechanisms it provides is a protection for liberty this is his sixth advantage mentioned above. On the other hand, he contends that the federal principle of sovereignty division leads to "the relative weakness of the government of the Union".26 In other words, divided sovereignty in principle rarely means equal sovereignty in practice, even in the context of the new American form of federal system. Tocqueville explains this by the fact that federated governments benefit from a structural advantage in federal systems. Possibly inspired by Rousseau 2? and Publius28 , he writes that state patriotism is naturally stronger than the patriotism directed to the union because "the Union is a vast body which presents no definite object to patriotic feeling", while "the forms and limits of the state are distinct and circumscribed, since it represents a certain number of objects which are familiar to the citizens and dear to them all".29 This means that federal systems are marked by a tendency to dismemberment or, at least, instability. According to TocquevilIe, this is precisely what explains that patriotism towards the US federal government has gradually weakened in direct proportion to the latter's success in the tasks for which it was created. 30 The third and last major difficulty mentioned by Tocqueville is the federal systems' extreme dependence upon favourable circumstances for duration. First, the member states must have common material interests. This condition is usually in place in both the USA and Switzerland, where no member state is self-sufficient or disproportionately powerful. Second, the more dissimilar federated popUlations are in terms of their institutions, sentiments, customs, and ideas, the more likely they are to feel estranged from the federal government and ultimately to threaten concord and stability in the federation. 31 In Tocqueville's view, this is one of the major differences between the American and Swiss

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federations. In the former case, a common origin, a common language, a c~mmon sta~e of civiliza~ion, a common pride, and common opinions made possible the rapid and relatively peaceful development of the federation. 32 In the future, the threat might come from "the various characters and passions of the Americans .... climate, and more especially slavery, have gradually introduced marked differences between the British settler of the Southern states and the British settler of the North".33 In the case of Switzerland, the dissimilarities of the populations are very strong and they coincide with the cleavage between small and large cantons. Here lies the source of numerous conflicts and constant opposition of small cantons to the strengthening of the federal government. 34 Third, even if federalization provides small nations with more "physical strength" - the fourth advantage mentioned earlier - federations tend to be w~aker than large unitary states, because their central government is weaker and ~ill nec~:sarily ~e weakened in time of war. This makes necessary "a geographIcal posItion which renders such wars extremely improbable", as in the USA 35 and, to a lesser extent, Switzerland.36 In sum, despite his emphasis on six major advantages of the federal system, Tocqueville's assessment is very equivocal. When he writes that "the federal system is not practicable for all nations,m, he really means that it is not practicable for most nations. In fact, he neither prescribes nor predicts federalization anywhere else than in the USA and Switzerland. And even in these two cases he sometimes raises doubts about the future offederalism. 38 In Tocqueville's vi~w federalism is ingenious on the theoretical level, but very few nations possess th~ virtues and circumstances to benefit from it. In other words, Tocqueville does not believe much in the possibility of the federal equilibrium between political unity and cultural diversity that we today call "multinational democratic federalism" or more simply "multinational federalism". In the next sub-section, we show that behind this scepticism is more than the sane prudence of a sociologist usually known for his wisdom and his democratic liberalism. 39

MOllistic federalism Why is Tocqueville so reluctant to prescribe or even predict federalization? Whil~ .he :vas well aware of the risk of limiting too much "what is possible" by defimhveJudgements on the future (1990,161), this is precisely what he does in h.is. ~verall evaluation ?f fe~eralism. Of course, he never overtly denies the posSibilIty of new federations III the democratic age, but major omissions tell us a lot about the source of his equivocal defence of federalism. Often recognized as a master in prospective synthesis,40 Tocqueville appears to be blind to the potential of federalism. Why did he omit to mention that the "defect" of federal complexity might be softened by the progress of enlightenment that he himself predicted? Why did he omit to mention that the benefits the Swiss federalism was enjoying fi'om the democratic revolution might prosper elsewhere as well? On close scrutiny, it is fair to say that Tocqueville could directly observe three cases of potential multinational federalism, even if only for a distant and uncer-

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tain future: 1) French-English relations in Canada; 2) Natives and newcomers in the USA; 3) Algeria and France. In this chapter, for reasons of space, I will concentrate upon the first and the third cases. 41 A study of these two cases shows that TocqueviIle's sympathies for French nationalism and colonialism lead him to a narrow monistic federal imagination and to an equivocal federalism. TocqueviIIe and his fellow traveller, Gustave de Beaumont, reached the USA in May 1831. They did not plan to go to Canada until they heard it was still inhabited by a French-speaking society. They improvised a short trip to Canada from August 21 to September 3, mostly in the Quebec City region. 42 Tocqueville's reflections on Lower Canada are dispersed in his voyage notes, letters, and Democracy in America. 43 They mostly revolve around the issue of the survival of a French-speaking society in Lower Canada and are coloured by TocqueviIle's French nationalism. After only five days in Lower Canada, Tocqueville's identification with what he calls "the French people of Canada" appears obvious. For example, when he writes that he cannot believe that the French and English peoples of Canada will ever form an "indivisible union", he cannot refrain from adding that he "still hopes that the French, despite conquest, will manage to build their own beautiful empire in the New World".44 Several years later, in the wake of the Rebellion of 1837, Tocqueville's identification with "the French" seems to be the same. On JanuaIY 3, 1838, in a letter to Henry Reeve, he warns the clerk of the Privy Council in London against trusting what the English of Canada and the Americans of the United States say about "the Canadian population".45 Tocqueville praises Canadians for forming "a special people in America, a people with a distinct and vivid nationality, a new and sane people [... J that can be defeated, but that will never be forced to belong to the place of the Anglo-American race" .46 In fact, from the beginning to the end of his writings on Lower Canada, Tocqueville constantly emphasizes two conflicting trends. He obviously hopes that the first trend will prevail, but a doubt seems to reappear constantly in his mind. According to him, the first trend comes from the fact that the French of Canada were conquered47 and from their inferior level of civilization.48 It makes them particularly vulnerable to extinction through a gradual "fusion of races".49 The second trend comes from their majority status in Lower Canada50 and from typically French virtues in their purest forms. 51 It makes the French people of Canada a serious candidate for self-government and political independence. In sum, as surprising as it may seem, Tocqueville's prediction for the future of the French people of Canada does not make any mention of a possible federalization of Canada or of the British colonies of North America: it is either disappearance or independence. This major omission may be understood in four complementary ways, with TocqueviIle's French nationalism emerging as the most convincing way. First, it is important to note that Tocqueville's stay in Canada and most of his writings on Canada predate the core of his reflection on federalism. However, this is not enough to understand why Tocqueville neglects the potential of federalism in Canada. In the famous chapter titled "The Federal Constitution" in

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Democracy in America - published in 1835, that is, four years after the voyage in Canada - Tocqueville states that the population of Canada "is divided into two inimical nations,,52 and he does not write anything about the potential offederalism in Canada. Second, given the short duration and the unplanned nature of his stay in Canada, it is hardly surprising to note that Tocqueville's writings on Canada are not particularly well informed. This is obvious from his poor sample of interviews and his neglect of Upper Canada. 53 Thus, he fails to notice, as he did in the case of Switzerland, that democratization may facilitate a rapprochement between the two Canadas and, eventually, a stable federation. Third, it is very likely that prudential reasons disqualified the federal scenario in the short run. In Tocqueville's view, adding the complicated nature of the federal system to the French-Canadian people's lack of political education and self-government experience most certainly appeared as a recipe for failure. 54 However, since he talks many times about the progressive "awakening" of the French55 , this rationale is clearly insufficient for the long run. Fourth, and most importantly, Tocqueville's French nationalism is key to understanding his neglect of the federal option for Canada. His national identification with the French of Canada is particularly detrimental to his view of the relationships between the French and English peoples of Canada. Tocqueville tends to exaggerate the persistence of the French and English national characters in a new continental context that might have favoured a certain rapprochement. 56 Unable to break away from historical European rivalries and bewitched by the similarities he perceived between the French of Canada and the French of France, Tocqueville seems to have been incapable of imagining that the descendents of France and Britain could have relationships other than "inimical" and confrontational. Thus, when he talks about "English allied to Canadians", it is to say that this "class of men" is the most dangerous for the future of the Canadians. 57 Moreover, since Tocqueville regrets France's abandonment of Canada, 58 it is safe to say that he still thinks about the grandeur of his nation when he hopes that "the French, despite conquest, will manage to build their own beautiful empire in the New World".59 In other words, he hopes the French people of Canada will make up for the failure of French colonialism in the eighteenth century and will restore France's tarnished image. This French nationalism by procuration largely interfered with Tocqueville's assessment of the Canadian path to liberty: Canada could not be a multinational federation because the French and the English could not (and should not) share the same polity. One might conceivably argue that Tocqueville's reluctance seriously to consider the possibility of a multinational federation cannot be founded solely on a few scattered writings on Lower Canada. However, that reluctance becomes more obvious when we study his writings on Algeria. The question of Algeria ranks high in Tocqueville's priorities. Concurrently with his first voyages and writings, he shows an increasing interest for Algeria - or more precisely, a French Algeria. In 1828, he already favoured a military expedition. In October 1833, he thought about CUltivating a domain in the Sahel or the Mitidja. Four

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years later, when thinking of getting elected in Versailles, he published two letters in La Presse de Seine-et-Oise, in which he favoured the French domination and colonization of Algeria. Then, from his first election as deputy for Valognes in March 1839 to his retirement from politics in December 1851, the colonization of Algeria was at the core of his political action and writings and appeared as one of the most determining issues for the future of France. Tocqueville travelled to Algeria twice, he wrote one independent study on Algeria, two reports in his capacity as a deputy, as well as several letters, newspaper articles, and political speeches. 60 In these writings on Algeria, we are very far from the French nationalism by procuration expressed in the writings on Lower Canada. Tocqueville's nationalism loudly and clearly took on the tone of an ideology incompatible with multinational federalism, that is, colonialism as a distinctive form of imperialism. Colonialism constantly drove Tocqueville's writings on Algeria. As soon as 1837, he wrote having "no doubt that we shall be able to raise a great monument to our country's glory on the African coast".61 Then, in 1841, he emphasized both the symbolic and the strategic importance of Algeria: I do not think France can think seriously of leaving Algeria. [... ] Any people that easily gives up what it has taken and chooses to retire peacefully to its original borders proclaims that its age of greatness is over [... ] and seems resigned to let the control of European affairs pass into other hands. [... ] The truth is that if we can manage to hold the cost of Africa firmly and peacefully, our influence in the world's general affairs would be strongly enhanced. 62 In 1843, he reiterated that colonies were a key ingredient of France's strength and grandeur. 63 As a case in point, he mentioned that the example of British India showed that financial and cOlmnercial considerations were not always sufficient to assess the value a colonial possession. Conquest might generate a feeling of grandeur and power in the whole people;64-Finally, in 1847, Tocqueville's first parliamentary rrport on Algeria was unequivocal on the merits and suitability ofa French colonial empire in Africa: "We thus submit, as a demonstrated truth, that our domination in Africa should be firmly maintained. We limit ourselves to studying what that domination is today, what are its true limits and what is required to strengthen it".65 In his Essay on Algeria of 1841, Tocqueville claimed that "France must not seek domination as our goal; rather, domination is the necessary means we must use for achieving tranquil possession of the coast and the colonization of a part of the territory, the real and serious goal of our efforts".66 In fact, this distinction between the colonization of part of the territory as the goal and domination of the population as a necessary strategy did not hold if we read the First Report on Algeria, issued six years later. Domination and colonization became the two faces of the same coin; they were both ends in themselves and the means to assure the French nation's interests and grandeur:

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D. Karmis The peaceful domination and rapid colonization of Algeria are assuredly the two greatest interests that France has in the world today; they are great in themselves, and in the direct and necessary relation that they have with all the others. Our preponderance in Europe, the order of our finances, the lives of part of our citizenry, and our national honour are engaged here in the most compelling manner.67

The incompatibility between Tocqueville's colonialism on the one hand and multinational federalism for the future of Algeria on the other - either within Algeria or regrouping France and Algeria - appears still more obvious when we look at the very illiberal nature of Tocqueville's colonialism. In his writings on Algeria, "Tocqueville subordinated his liberal values to what he judged to be more urgent imperatives of national interest and international competition".68 This is especially obvious when we analyze the means he considered justified to achieve France's colonization of Algeria. First, while Tocqueville wrote that "all means of desolating [Abd-el-Kader's] tribes must be employed", with the exception of "those condemned by humanity and by the law of nations",69 he considered that the right of war authorized France to "ravage the country" and to make razzias,70 and he remained silent in the face of blatant violations of human 71 rights. Second, even if he pretended to support building a "community of interest" between French colonists and the indigenous population,72 Tocqueville advocated much fewer rights for the latter. 73 Third, Tocqueville's Eurocentrism drove him toward a purely instrumental conception of Algeria. Algerians being at best partially civilized, they were unfit for federalization with a civilized nation. In Tocqueville's view, the raison d'etre of Algeria was "the extension of France itself across the Mediterranean".74 In sum, Tocqueville's French nationalism and colonialism are constitutive of a narrow monistic federal imagination incompatible with any serious inquiry into the potential of multinational federalism, even for a distant future. However, Proudhon's inability to address the issue of federal togetherness in multinational federal democracies requires a very different interpretation.

"Small is beautiful" nationalism in revolutionary Europe: Proudhon's apologetic federalism and the fear of Jacobin unity Proudhon's work on federalism must be contrasted with Tocqueville's in at least three major ways. First, Proudhon has a stronger pretension to innovation. He does not refer to The Federalist Papers or to any previous writing on federalism, and even claims that "The theory of the federal system is quite new; [... ] that no one has ever presented it before" (1979, 5).75 While this claim is an obvious exaggeration, it is not an overstatement to say that Proudhon significantly renewed federal theory. Thomas Hueglin (2003) may be right to present Althusius as the first theorist of social or grassroots federaIism,76 but Proudhon is the first systematically to conceive grassroots federalism in the terms of what would

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later become known as "integral federalism", that is, a form of federalism that is both territorial and social,77 and that provides a response to both the question of nationalities and the question of social inequalities. 78 Second, far fi'om being reluctant or equivocal, Proudhon's federalism is apologetic. For him, "all political constitutions, all systems of government, including federations, fall within the scope of one formula, the balancing of authority by liberty, and vice versa".79 What makes "the idea of federation ... the highest to which in our time political genius has attained"80 is its capacity to provide the "universal equilibrium,,81 between the opposed and (inextricably) interconnected ideas of authority and liberty: "liberty is raised to its third power, authority reduced to its cube root".82 In other words, this means the maximum of liberty possible with the minimum of authority required. According to Proudhon's philosophy of history, federalism is the form of government of the future, the only one that may actualize the creed of the French Revolution. Third, far from being monistic, Proudhon's federalism emphasizes the value of diversity against the homogenizing tendencies of other forms of government. 83 As Richard Vernon has pointed out, Proudhon conceived the federal system as the best way to institutionalize several potentially conflicting forms of liberty. 84 Among these forms of liberty is the historical communities' capacity to cultivate and express their differences: Unity into diversity; that is what we should strive for, by respecting the independence of jiteros, cantons, principalities, and circles. [... ] Not that unity which tends to absorb the sovereignty of cities, cantons, and provinces into a single central authority ... Leave everyone their feelings, affections, beliefs, language, and costume!85 In ShOlt, compared to TocqueviIle, Proudhon's view of federalism is innovative, apologetic, and pluralist. For him, integral federalism is the revolutionary and progressive alternative to the authoritarian, centralizing, and homogenizing tendencies of Jacobinism, monarchism, imperialism, and communism. At first glance, this view may seem to be a promising candidate for thinking about federal togetherness in multinational federal democracies. However, there is no such reflection in Proudhon's work. His confederalist view of the federal system and his "small is beautiful" nationalism shed light on this surprising gap. They both appear to be largely driven by Proudhon's fear of Jacobinism.

COlljelieralism allli 'lie limited scope ojjederal togetltemess Proudhon's definition of federation is largely confederalist in nature. 86 It is based on what he considers to be a democratic political contract: it is "synallagmatic" (or reciprocal), "commutative" (or mutualist), "confined; in its object, within definite limits", and it should "become profitable and convenient for all".87 For such a contract to really come into existence, there are two basic conditions: "the citizen who enters the association must 1) have as much to gain from the state as

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he sacrifices to it, 2) retain all his liberty, sovereignty, and initiative, except that which he must abandon in order to attain that special object for which the contract is made, and which the state must guarantee".88 According to Proudhon, this "contract of federation, whose essence is always to reserve more powers for the citizen than for the state, and for municipal and provincial authorities than for the central power, is the only thing that can set us on the right path".89 In practical terms, Proudhon's view of the federal contract leads to advocating con federal arrangements in which togetherness is very much limited in scope. First, Proudhon argues that the "central authority" should be "a mere delegate and subordinate function". Otherwise, it "will be seen as dominant" and will launch a Jacobin centralizing spiral: [I]nstead of being confined to a specific task, it will tend to absorb all activity and all initiative; the confederated states will be reduced to administrative districts, branches, or local offices. Thus transformed, the body politic may be termed republican, democratic, or what you will; it will no longer be a state constituted by a plenitude of autonomies, it will no longer be a confederation. 90 Proudhon recommends to "reduce the role of the centre to that of general initiation, of providing guarantees and supervising, and make the execution of its orders subject to the approval of the federated governments and their responsible agents".91 Vernon is probably right to maintain that a federal government with stronger executive autonomy would have been better equipped to strike Proudhon's balance between liberty and authority, but he is wrong to state that Proudhon's favourite federal arrangement was closer to federation than confederation. 92 Second, Proudhon's views on sovereignty and secession are also typical of confederalism. Contrary to Tocqueville, Proudhon dissociates "divided sovereignty" and federation. He even argued that federated states should retain their complete sovereignty and have the power to secede and break the compact "ad libitum".93 Finally, Proudhon also opposed the idea of a supreme federal court of justice. The authority of tribunals at the central level should be limited to matters of federal jurisdiction. 94 "Small is bealltiflll" Ilatiollalism amlfederal togelf1emess as Ilotflillg more tflall tfle slim of its parts

Proudhon's "small is beautiful" nationalism concurred with con federal arrangements in which togetherness was very much limited in scope. In fact, such antiJacobin nationalism helps us to understand that Proudhon's view of federal togetherness amounted to nothing more than the sum of its parts. To a large extent, Proudhon's views on nationalism and confederalism may be interpreted as a response to the Jacobin homogenizing principles of "nationality" and "unity" - conceived as the source of an absolute, indivisible and immutable power over large and artificial entities95 - that he considered to be dominant

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in nineteenth century European nationalist movements, notably in Italy (1863). According to Proudhon, Jacobin unity is artificial and undemocratic because it is based on Sieyes' abstract and purely administrative territorial division into departements and it aims at the triumph of the "one and indivisible" view of the French nation. 96 Such nationalism is "a pretext ... to avoid the economic revolution" and to implement a unity regime that will necessarily benefit the "dominant classes".97 It favours homogeneity, while diversity is what should drive the national principle of unity: We say: Rome to Italians. I reply that Rome belongs to Romans in the same way that Naples belongs to Neapolitan and Paris to Parisians; that the Italians, like the French, are an abstraction; that the truth is that the existence of a large political agglomeration called France is no justification for giving it a counterpart on the other side ofthe Alps; quite the contrary.98 This "small is beautiful" view of the nation was based on a definition of the nation largely determined by geographical 99 and historical loo criteria, though Proudhon's work is not exempt from essentialist arguments,101 which were almost inevitable to counteract the Jacobin rhetorical arguments. 102 What is important for us to note here is that such a polemical view leads to the following conclusion: the federal political community is an "artificial" entity that does not amount to more than the sum of its parts. As such, no one should wonder why Proudhon did not devote much energy to think about federal togetherness, since he saw it as merely artificial and instnnnental to "small is beautiful" fonns of togetherness.

Conclusion Contemporary political theory has a porous understanding of what it means to be together in multinational federal democracies. In this chapter, I have tried to retrace the sources of this theoretical gap. Through a comparative study of Tocqueville and Proudhon's works, I have argued that the strong influence of nationalism and colonialism in nineteenth-century federal thinking made it particularly difficult for political thinkers to theorize - and even imagine - multinational encounters and dialogues as major features of federations. Based on these findings, contemporary political theorists should pause and consider to what extent they have internalized nineteenth-century nationalist and colonialist assumptions about federalism. Whatever its fonn either by procuration, colonial, Jacobin, or "small is beautiful" - nationalism has had a major impact on the way we address the issue of federal togetherness. This means that a better understanding of the relationships between federalism and nationalism is crucial to a better understanding of federal togetherness.

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Notes Kymlicka, Will, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford: Oxford University Press, 2001), p. 94. 2 Taylor, Charles, "The Politics of Recognition", in Multiculturalism and "The Politics oj Recognition" (Princeton: Princeton University Press, 1992), pp. 25-73. 3 Tocqueville made much to refine and spread Publius's interpretation of the American invention of 1787 (see Karmis, Dimitrios, "Federalisme et relations intercommunautaires chez Tocqueville: entre prudence et negations des possibles", Politique et societes, 17 (3), 1998, pp. 67-72). 4 Proudhon is generally recognized as "the real father of nineteenth-century social anarchism" (Morland, 1997, pp. 33) and of the integral and ¥rassroots form of:c: deralism that came with it. For two slightly different typologies of federal traditIOns, see Hueglin, Thomas, "Federalism at the Crossroads: Old M.eanings, N~w Signi~­ cance", Canadian Jou/'/1al oj Political Science/Revue canadlenne de sCience polttique, 36(2), 2003 and Karmis (2006). 5 Proudhon, Pierre-Joseph, The Principle oj Federation (Toronto: University of Toronto Press, 1979), pp. 38-41. 6 See Diamond Martin "The Federalist's View of Federalism", in George C. S. Benson (ed.): Essays' in Federalism (Claremont, California: Claremont Men's College, 1961), pp. 21-64; and Hueglin, 2003, pp. 275-294. . 7 Tocqueville, Alexis de, Democracy in America (New York: Vmtage Books, 1990), volume I, pp. 158-159. 8 Ibid. p. 14. 9 Furet, Franyois, "Tocqueville, De la democratie en Amerique", in Franyois Chiitel~t, Olivier Duhamel and Evelyne Pisier (eds), Dictionnaire des tElIvres po/itiques (Parrs: Presses Universitaires de France, 1989), pp. 1066-1067. 10 Tocqueville, 1990, pp. 3-8. II Ibid. p. 8. 12 Ibid. p. 7. . 13 For a summary of Tocqueville's understanding of these two threats, see Karmls, 1998, pp. 64--66. 14 Tocqueville, 1990, p. 158. 15 Ibid. pp. 156-159. . . 16 Idem, p. 158. This innovation will later be at the core of the now claSSical termmological distinction between federation and confederation. 17 Ibid. p. 166. . ' 18 Ibid. p. 163. For Montesquieu's original statement, see Montesquleu, Charl.es-Lou~s de Secondat, "De I'esprit des lois", in Oeuvres completes, volume II (Parrs: Galllmard, 1951), p. 351. 19 Ibid. p. 163. 20 Ibid. p. 162. 21 Ibid. pp. 404-405. 22 Ibid. pp. 162-163. 23 Ibid. pp. 112-114. 24 Ibid. p. 165. 25 Ibid. pp. 166-167. 26 Ibid. p. 167. 27 Rousseau, .lean-Jacques, "Discourse on Political Economy", in Rousseau's Political Writings (New York: W. W. Norton, 1988), p. 69. 28 Madison, John, Alexander Hamilton and John Jay, The Federalist Papers (New York: Penguin, 1987), pp. 157 and 297. 29 Tocqueville, 1990, p. 386. 30 Ibid. pp. 406-407.

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31 Tocqueville, Alexis de, "Rapport sur 'La democratie en Suisse' de Cherbuliez (1848)", in Alexis de Tocqueville, Oeuvres, volume I (Paris: Gallimard, 1991 b), p. 652. 32 Tocqueville, 1990, pp. 170 and 393-394. 33 Ibid. p. 394. 34 Tocqueville, Alexis de, "Voyage en Suisse (1836)", in Alexis de Tocqueville, Oeuvres, volume I (Paris: Gallimard, 1991a), p. 617. 35 Tocqueville, 1990, p. 172. 36 Tocqueville, 1991 a, pp. 626-628. 37 Tocqueville, 1990, p. 165. 38 Tocqueville, 1990, pp. 432-434, and Tocqueville, 1991 a. 39 For a paradigmatic example of this one-sided picture of Tocqueville, see Melonio, 1997. 40 Drescher, Seymour, "More than America: Comparison and Synthesis in Democracy in America", in Abraham S. Eisenstadt (ed.), Reconsidering Tocqueville's Democracy in America (New Brunswick: Rutgers University Press, 1988). 41 For a study of all three cases from a different angle, see Karmis, 1998. 42 On the motives and itinerary ofTocqueville and Beaumont's trip, see Jardin, 1984. 43 Tocqueville's writings on Lower Canada were collected by Jacques Vallee in Tocqueville, 1973. Since, there is no equivalent collection in English, I refer to Vallee's work and I translate all citations. 44 Tocqueville, Alexis de, Tocqueville au Bas-Canada (Montreal: Editions du Jour, 1973), p. 89. 45 Following the common use of the time, when Tocqueville talks about "the Canadian popUlation" or "Canadians", he generally refers to those he also calls "the French people of Canada". 46 Tocqueville, 1973, pp. 169-170. 47 Ibid. pp. 88, 90, 92, 103, and 104. 48 Ibid. p. 154, note I. 49 For Tocqueville, a "fusion of races" is a type of cultural assimilation in which exogenous marriages playa major role. 50 Ibid. p. 104. 51 Ibid. p. 10 1. 52 Tocqueville, 1990, p. 172. 53 For a well contextualized and nuanced critique of Tocqueville's methodology, see Bergeron, 1990, pp. 60-68. 54 Tocqueville, 1973, pp. 100-101. 55 Ibid. pp. 88-89 and 106. 56 Ibid. pp. 105, 109, and 112-113. 57 Ibid. pp. 10 1-1 02. 58 Ibid. p. 114. 59 Ibid. p. 89. 60 On the context of Tocqueville's political action and writings on Algeria, see Jardin, 1984. 61 Tocqueville, Alexis de, "Second Letter on Algeria (22 August 1837)", in Alexis de Tocqueville, Writings on Empire and Slave/y, ed. Jennifer Pitts (Baltimore: The Johns Hopkins University Press, 200Ia), p. 24. 62 Tocqueville, Alexis de, "Essay on Algeria (October 1841)", in Alexis de Tocqueville, Writings on Empire and Slavery, ed. Jennifer Pitts (Baltimore: The Johns Hopkins University Press, 200Ib), pp. 59-60. 63 Tocqueville, Alexis de, "The Emancipation of Slaves (1843)", in Alexis de Tocqueville, Writings on Empire and Slave/y, ed. Jennifer Pitts (Baltimore: The Johns Hopkins University Press, 200Id). 64 Tocqueville, Alexis de, "L'Inde (plan de la suite de I'ouvrage)", in Alexis de Tocqueville, Oeuvres, volume I (Paris: Gallimard, 1991c), p. 986.

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65 Tocqueville, Alexis de, "First Report on Algeria (1847)", in Alexis de Tocqueville, Writings on Empire and SlavelY, ed. Jennifer Pitts (Baltimore: The Johns Hopkins University Press, 2001c). 66 Tocqueville, 2001b, p. 65. 67 Tocqueville, 2001c, pp. 167-168. 68 Richter, Melvin, "Tocqueville on Algeria", The Review of Politics, 25 (3), 1963, pp. 362-398. For a similar view, see Todorov, Tzvetan, NOlls et les autres. La reflexion franr;aise sur la diversite lilli/wine (Paris: Seuil, 1989) p. 269. Contrarily to Richter and Todorov, I maintain that the fluclllations ofTocqueville's liberalism are not limited to his writings on Algeria. They also characterize what he wrote on natives in America (see Karmis, 1998, pp. 82-84). 69 Tocqueville, 2001b, p. 71. 70 Ibid. p. 71. 71 Richter, 1963, pp. 388-390. 72 Tocqueville, 2001c, p. 145. 73 Tocqueville, 2001 b, pp. 97-116 and Tocqueville, 2001c, pp. 139-145. 74 Tocqueville, 2001c, p. 161. 75 Proudhon, 1979, p. 5. 76 Huguelin, 2003. 77 Proudhon calls the social pillar offederalism "agro-industrial" federalism. The political and the agro-industrial pillars are not subordinated to each others, they are interdependent (see Proudhon, 1979, pp. 67-74). 78 On Proudhon's influence on twentieth century· European federal thinking, see Voyenne, 1981. 79 Proudhon, 1979, p. 7. 80 Ibid. p. 66. 81 Ibid. p. 67. 82 Ibid. p. 73. 83 While Proudhon's work is not completely exempt from colonialist remarks on Algeria (see, for instance, Proudhon, 1924, pp. 306-307), it is not very substantial and far from central. 84 See Richard Vernon, "Alienation, Corruption, and Freedom: Proudhon's Federalism", in Citizenship and Order: Studies in French Political Thought (Toronto: University of Toronto Press, 1986), pp. 94-95 and "'Proudhonism': Or, Citizenship without a City", in Friends, Citizens, Strangers: Essays on Where We Belong (Toronto: University of Toronto Press, 2005). 85 Proudhon, Pierre-Joseph, Carnets, volume II: 1847-1848 (Paris: Marcel Riviere, 1961). 86 Like Tocqueville, Proudhon interchangeably employs federation, confederation, federal system, and other federal terms. 87 Proudhon, 1979, pp. 37-38. 88 Ibid. p. 38. 89 Ibid. p. 45. 90 Ibid. p. 40. 91 Ibid. p. 49. 92 Vernon, 1986, p. 83. 93 Proudhon, Pierre-Joseph, "De la capacite politique des classes ouvrieres", in Oeuvres completes. De la capacite politique des classes ouvrieres (Paris: Marcel Riviere, 1924), p. 207. 94 Proudhon, 1979, pp. 42-43 and 46-47. 95 Proudhon, Pierre-Joseph, "Du principe federatif', in Oeuvres completes de PierreJoseph Proudhon, volume 14: Du principe federati[ et oeuvres diverses sur les problemes politiques europeens (Paris: Marcel Riviere, 1959a), p. 263 and Proudhon, 1979, pp. 78-79.

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96 Proudhon, 1979,pp. 78-79. 97 Proudhon, Pierre-Joseph, La federation et I 'unite en Italie (Paris: E. Dentu, 1863), p.27. 98 Ibid. pp. 56-57. 99 Proudhon, Pierre-Joseph, "Nouvelles observations sur I'unite italienne", in Oeuvres completes de Pierre-Joseph Proudhon, volume 14: Du principe federati[ et oeuvres diverses sur les problemes politiques europeens (Paris: Marcel Riviere, 1959b), p.211. 100 Ibid. pp. 225-237. 101 See Proudhon, 1959a, pp. 392, 507, 546, 550-551; Proudhon, 1959b, p. 216; Proudhon, 1863, p. 104. 102 Karmis, Dimitrios, "Pourquoi lire Proudhon aujourd'hui? Le federalisme et Ie defi de la solidarite dans les societes divisees", Politique et societes, 21 (1), 2002, pp.60-61.

John C. Calhoun

4

John C. Calhoun Federalism, constitutionalism, and democracy Murray Forsyth

Should we read Calhoun? It is sometimes maintained that there can be no gain in studying the ideas of John C. Calhoun. It is argued that Calhoun's cause - the cause of the South was crushingly defeated in the American Civil War, and that therefore there is little point in giving serious attention to the ideology that sustained it. 'World history is the world's court of justice', and Calhoun's teaching has been roundly condemned by that court. Why, then, should one uriearth it? Another objection, which leads on from the first, is that the cause that Calhoun defended embraced and included that of slavery, and slavery is not a cause that anyone in the civilised world now dreams of defending. Once again history has spoken, in this case the evolution of humanity, and this makes it doubly unnecessary to take Calhoun's ideas seriously. A final objection - which is perhaps better described as an instinctive reaction or suspicion, rather than a reasoned argument - is that in trea.ti~g Calhoun ~s a profound thinker about politics, one is casting doubt on the vIsion ~f.Amenca.n history as a steady unfolding of right and reason in the world, a VISIOn that IS closely bound up with American self-consciousness. One is, so to speak, obscuring the message that America gives to the world. . There is something in all these objections. However, the assumptIOn that underlies them, which is that history is a linear progression of might and right, and only this linear progression is worthy of study, means that historical u~der­ standing is necessarily stunted, and that its lessons may not be learnt. Ten.slOns, oppositions and collisions are patently an inherent part of .the dynamics of history, and not mere accidents, or minor appendages, of an mexorable movement. Wars do indeed settle things, and no one would dream of saying after 1865 Calhoun's alternative for the South, and for the Union, should have been revived and asserted once more. But wars, and in particular civil wars, are also expressions of a deep tension within a society or polity, a tension which cannot be resolved by normal legislative methods, or rational d.e~iber~tion, or by t!le decision of an external arbiter. They are a response to a disjunctIOn or contradiction in society a statement that smooth linear progression is not, or no longer possible. The; are furthermore a method of settlement which has its own

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dynamic, taking the initial antagonism on to a new level, and creating a world at the end that not even the eventual victor had envisaged at the outset. Only by viewing history in a way that gives full weight to the friction, the opposition, and the build up of contradictions, as well as to the dynamic of war itself, can one properly or fully understand it. This is another way of saying without any Marxist over- or under-tones that one must understand it as a dialectical process. The American Civil War was an intense four-year struggle of huge geographical extent, in which approximately one million people died. It was not a mere interruption, but a very real break and re-assemblage of American unity on a new, or at least a fundamentally renovated, basis. One cannot conceive of a struggle being conducted on such a scale, and with such intensity unless each side had a profound conviction that their cause was right and just. The incompatibility between slave-holding and free-labour societies within the Union, and the ever-renewing friction between them, undoubtedly provided the underlying antagonism behind the war, but it was the right to secede from the Union claimed by the South, and the right forcibly to oppose that secession - to treat it as rebellion - claimed by the North, that finally transfonned the antagonism into war. These rights were each claimed by appeal to the structure and purpose of the United States of America as a political entity, or, put more simply, to the nature of the federal Union that had been created in 1787. It was only in the course of the war, and under the pressure of war, that the abolition of slavery became a war-aim of the North. For these reasons students of American federalism and of federalism in general, cannot ignore the Civil War, as if it were a regrettable accident. It has somehow to be integrated into their conceptualisation of federalism, and this is difficult, if not impossible to do, without coming to grips with the most coherent and comprehensive statement of the rights of the South, that made by Calhoun. Calhoun's rigorously analytical manner of thought sheds light not only on the original structure of the American federal system, an~ on its dynamics from 1789 to 1850, but also on the interaction between federalism and democracy. His philosophical turn of mind links the particular issues at stake in the conflict between North and South with perennial issues of political power and liberty. There is no need to claim for Calhoun a monopoly of the truth, or to agree with his endorsement of slavery, in order to acknowledge his profound contribution to our historical and theoretical understanding.

Calhoun's life, cha..acter, intellectual evolution John C. Calhoun's analyses of American politics sprang from his direct experience of it. He never became President of the United States, but he came close to it. Born in South Carolina in 1782, he was elected to the House of Representatives in 1810 at the age of 27, having previously served for two years in the legislature of his home state. After six years in the House he was appointed Secretary of War in the cabinet of President Monroe (1817-1825). In 1825 he was

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elected Vice-President of the United States alongside President Jackson, and on standing down in 1832, was elected by his home state to the Senate. With a brief intermission, during which he served as Secretary of State under President Tyler, he remained in the Senate until his death in 1850. During this long career he spoke and wrote copiously on politics, moving from one level of political reflection to another with remarkable ease. He was able to address specific issues in a practical manner; to weld his political ideas into a programme (nullification); to synthesise his successive arguments about the grievances and rights of the southern states into a comprehensive Discourse on the Constitution and Government of the United States; and to discuss the ultimate ends of the political order itself in his Disquisition on Government. Both these works were published posthumously. What linked Calhoun's various pronouncements was an unflagging detennination to ground his political opinions on logic and principle, and to give them a rigorous consistency. This inevitably raised the criticism that he indulged in 'metaphysics', a criticism he had little difficulty in rebutting. As he said in a response to an attack of this sort in the Senate: The Senator from Delaware ... calls this metaphysical reasoning, which he says he cannot comprehend. If by metaphysics he means that scholastic refinement which makes distinctions without difference, no one can hold it in more utter contempt than I do; but if, on the contrary, he means the power of analysis and combination - that power which reduces the most complex idea into its elements, which traces causes to their first principle, and, by the power of generalization and combination, unites the whole in one harmonious system - then, so far from deserving contempt, it is the highest attribute of the human mind. 1 As a, systematic reasoner, Calhoun was, by definition, an original one, in the sense that he did not defer to the authority of other writers but to the logic of ' the thing itself'. He had unquestionably read and absorbed much, and occasionally cited another author, but it is significant that in his most theoretical book, the Disquisition, he made no reference at all to any other author or book. Pinckney's description of Calhoun is particularly telling in this context: His originality impressed me the more I saw of him. He seldom quoted books or the opinions of others. A rapid reader, he would absorb the congenial thoughts of an author and reject whatever did not assimilate with his own mental habits. His mind seemed to work from within, by spontaneous impulse, not by external influences, educational, social or political. It drove on its rapid way like some mighty automatic engine, without friction, without noise, without apparently ever stopping for fuel or water.2 This machine-like quality of Calhoun's mind was not, of course, necessarily an attractive one. Judge Prioleau, on being asked how he liked Calhoun, after

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meeting him for the first time at a dinner party, replied: 'Not at all. I desire never to meet him again. I hate a man who makes me think so much. For the last three hours I have been on the stretch, trying to follow him through heaven and earth. I feel wearied with the effort; and I hate a man who makes me feel my own inferiority. ,3 In the early years of Calhoun's career, his political orientation seems to have been broadly in line with that of the authors of the Federalist Papers, and of the early (not the later) Federalist Party. In other words, he boldly asserted the rights and power of the American nation externally, in particular in the war of 1812 with Great Britain. He was also happy to see the powers of the federal government enhanced and extended internally for the sake of the national welfare. He was, in the language of the day, a nationalist, and a consolidationist. Here it is worth noting that, while he later deviated from this alignment, he always retained a lively appreciation of the need for a state to be powerful externally. His early experience as Secretary of State for War was not forgotten. It was not until the middle of the 1820s that Calhoun began to have serious concerns about the policies being pursued by the federal government, and in 1828, with the publication of his famous Exposition on the tariff bill of that year, it became immediately clear to all that his underlying political orientation had changed radically. It was not an attack on slavery, but what he saw as blatant fiscal discrimination by the federal government against the South, that kindled his revulsion from the 'national' cause, and its theoretical underpinnings. It was this that drove him to re-examine the Constitution and to spell out what he saw as its essential characteristics. From 1828 until his death his speeches and writings were devoted to deepening, extending, and refining his altered conception of the American body politic, culminating in the two major works already mentioned. In these writings and speeches he developed his critical analysis of the relationship between federalism, constitutionalism, and democracy, an analysis on which his lasting fame is deservedly based. Perhaps the best way to approach Calhoun's thinking <.!.n these subjects is to say that at heart he was profoundly conservative. It is true that he believed that secession was a legitimate final step for a state to take in response to what it judged as unconstitutional interference in its affairs by the federal government, and when there was no more possibility of resolving the conflict between the two by the means provided by the constitution. He thought that such an act of withdrawal fi·om the Union would be as legitimate as the act by which the 13 original American states had broken away from Great Britain, and indeed he sometimes drew an analogy between the economic oppression of the South by the North and the oppression of the original colonies by Great Britain. However secession was never for him the goal and endpoint of his political endeavours, either theoretical or practical. It was rather for him a melancholy final step that had to be taken, that would be taken, whether one liked it or not, if the existing trend towards the concentration of power and authority in the central government, and towards the domination of the central government by the NOlth, continued unchecked. It would be an act of self preservation, which for Calhoun was man's highest right.

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The whole thrust of Calhoun's thought and action was not towards encouraging this cataclysm but rather towards preventing it by the clarification and the reassertion of the principles and practices embedded in the constitution. It was for 'restoration 'and 'preservation' that he contended, not for 'revolution'. The full potential of the existing constitution had to be deployed, and the task was one of grim urgency because the future of the Union was at stake. He made his underlying position crystal clear in his speech to the Senate in January 1837: I am a conservative in its broadest and fidlest sense, and such I shall ever remain, unless, indeed, the Government shall become so corrupt and disordered, that nothing short of revolution can reform it. I solemnly believe that our political system is, in its purity, not only the best possible that can be devised for us. It is the only one by which free States, so populous and wealthy, and occupying so vast an extent of territory, can preserve their liberty. Thus thinking, I cannot hope for a better. Having no hope of a better, I am a conservative; and because I am a conservative, I am a State Rights man. I believe that in the rights of the States are to be found the only effectual means of checking the overaction of tins Government; to resist its tendency to concentrate all power here, and to prevent a departure from the constitution; or, in case of one, to restore the Government to its original simplicity and purity.

He continued a little later: As a conservative and a States Rights man, or if you will have it, a nullifier, I have resisted, and shall resist, all encroachments on the constitution whether of this Government on the rights of the States, or the opposite: whether of the Executive on the Congress, or Congress on the Executive. My creed is to hold both governments, and all the departments of each to their proper sphere, - and to maintain the authority of the laws and the constitution against all revolutionary movements. I believe the means which our system furnishes to preserve itself are ample, if fairly understood and applied; and I shall resort to them, however corrupt and disordered the times, so long as there is hope of reforming the Government. And he concluded: The result is in the hands of the Disposer of events. It is my part to do my duty. Yet, while I thus openly avow myself a conservative, God forbid I should ever deny the glorious right of rebellion and revolution. Should corruption and oppression become intolerable, and not otherwise be thrown off - if liberty must perish, or the government be overthrown, I would not hesitate, at the hazard of life, to resort to revolution, and to tear down a corrupt government that could neither be reformed nor borne by freemen. But I trust in God that things will never come to that pass. 4

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The mooring post, or touchstone, of Calhoun'S conservatism was the American Constitution. It was, he once said, 'the Deity of our political system. ,5 Time and again he went back to it. American political practice, in the period since the making of the Constitution, had, he believed, led to the growth of confusion and misconceptions about the founding charter, and to the American system of government becoming gradually detached from its constitutional moorings. He was convinced that the Constitution, once understood and applied in its true sense had within itself the capacity to correct most of the growing injustices of Amer~ ican political practice. It is true that he came in the end to believe that an amendment to the Constitution was desirable in relation to the office of President but this was by no means a major theme in his writing. It seems most approp~iate therefore to begin by examining Calhoun's concept of the basic nature of the American Constitution, and to explore his other leading ideas from this foundation.

Calhoun's conception of the American Constitution For Calhoun the Constitution that had emerged from the Philadelphia Convention was not a national constitution. That is to say the central government that it established had not been created and authorised by one united American nation in order to give political representation to that united nation. For him the locus of the 'constituent power' was crucial. For him - and here he showed himself a true child of the age of democratic revolution - sovereignty inhered not in the govermnent but in the creative power that defined and bounded govermnental ~ower, and prevented it from being oppressive, and this power belonged unquestIOnably to the 'people.' Thus far Calhoun shared the passionate belief of all his ~ellow countrymen - so vividly documented by his contemporary, TocqueviIIeIn the 'sovereignty of the people.' The sovereign people were not, however, in Calhoun's view, one nation. Who, then, were the 'people' who made the American Constitution? It was not, Calhoun argued, a single thing, but plural - the 'peoples' of the individual states. It was they who ratified the Constitution, not the American people as one entity. For Calhoun the several states were real, living things. The people of the individual states had separately formed their own state constitutions and governments, and together - federally - they had created the common Constitution which established the common government. In each case they, the creators, remained sovereign. It followed that in the American polity as a whole there was not one sovereign, but many, or to put it another, more paradoxical, way: if one assumes that in any system of government there must be a sovereign, and that sovereignty implies oneness, then there was no sovereign in the American system of government. What then was the American Constitution and what did it create? For Calhoun it wa~ essenti~lly a positive pact between the states acting in their sovereign capaCIty, that IS, not merely as governments, but as constituent powers, by which they had delegated governmental powers over matters of common concern to a

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central authority and reserved governmental powers over their own individual concerns to themselves. This very process of delegating and reserving again implied that sovereignty itself, the ultimate creative power behind both the common and particular governments, had not been relinquished. Assuredly, the Constitution was not merely a positive pact, but also a positive law. It was a positive law over the government it created, and all its functionaries, and over the individuals composing and inhabiting the various states in so far as they came within the sphere of the delegated powers; it was not, however, a law over the peoples as constituent unities. Their obligation was to a positive compact, not to a positive law. It can be seen from this summary that Calhoun did not believe that sovereignty had been divided in the making of the Constitution. He believed as vehemently as Hobbes or Bodin that sovereignty by definition was indivisible - to divide was to destroy it. The states had not destroyed their own sovereignty by dividing it with the centre; they had delegated what he called the exercise of certain of their 'sovereign powers' to the centre. Calhoun's analysis led him to dismiss the contention of the Federalist Papers that the constitution was 'partly federal' and 'partly national' as 'contradictious'.6 For him the constitution was federal through and through. 'Federal', for him, meant the binding together of a multiplicity, without destroying the multiplicity. 'National' implied the transformation of a mUltiplicity into a thoroughgoing unity. The first implied several sovereigns (or 'no' sovereign), the second implied one sovereign. How possibly, then, could the two be combined? Calhoun attempted to clarify his conception of the whole to the parts in the American system by borrowing some terminology from the English historian Palgrave. In describing the early English polity, Pal grave had written that: 'Every ancient Teutonic monarchy must be considered as a federation; it is not a unit, of which the smaller bodied politic are the fractions, but they are the integers, and the state is the multiple that results from them.'7 For Calhoun 'the great question at issue is, whether ours is a federal or a consolidated system of government; a system in which the parts, to use the emphatic language of Mr. Palgrave, are the integers, and the whole the multiple, or in which the whole is an unit and the parts the fractions.' On the decision of this question, he believed, depended the 'liberty and prosperity of this country.'8 This was in his speech on the so-called 'Force' Bill in 1833; later, in 1842, in his speech on the veto power he defined the American system in a succinct, classic statement: [O]ms is a union, not of individuals, united by what is called a social compact - for that would make it a nation; nor of governments - for that would have formed a mere confederacy, like the one superceded by the present constitution; but a union of States, founded on a written, positive compact, forming a Federal Republic, with the same equality of rights among the States composing the Union, as among the citizens composing the States themselves. Instead of a nation, we are in reality an assemblage of

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nations, or peoples (if the plural noun may be used where the language affords none), united in their sovereign character immediately and directly by their own act, but without losing their separate and independent existence. 9 What was the nature of the governmental structure established in and by this 'union of states'? To expound in detail Calhoun's reasoning on this topic is beyond the scope of this discussion and would be in any case a rather absurd endeavour, for the reasoning is admirably and concisely expressed in his most substantial book. The most we can do here is to outline his leading conceptions.

His conception of the governmental structure established by the Constitution The Constitution had established what Calhoun defined as a 'system of governments.' It was composed of, on the one hand, the common and joint government of all the states, exercising the powers delegated for the benefit and safety of each . and all, and, on the other, the separate governments of each state, exercismg the reserved powers. Both components were genuine governments, possessing, within the sphere of their respective powers, all the powers pertaining to government. They were, in this sense, equal in status, and not subordinate one to the other. The system, in a word, was 'co-ordinate.' The component parts of the system, as genuine governments, necessarily possessed the right to judge of the extent of their powers in relation to each other. They did not, however, as parts of a co-ordinate 'system of governments', possess the right to enforce their judgments on this matter, in cases of conflict. To 'give either the right, not only to judge of the extent of its own powers, but, also, of that of its co-ordinate, and to enforce its decisions against it, would be, not only to destroy the equality between them, but to deprive one of an attribute - appertaining to all governments - to judge, in the first instance of the extent of its powers. The effect would be to raise one from an equal to a ;uperior - and to reduce the other from an equal to a subordinate; and, by divesting it of an attribute appertaining to government, to sink it into a dependent corporation.' 10 Calhoun reinforced his thesis by arguing that such an assignment of power would be contrary to the very notion of a division of power. A division which gave one assignee the exclusive right to say how much was allocated to each would be in reality no division at all. To assume that both sides possessed this right would also destroy the equality at the root of the constitution, because it would leave the decision, in case of confl~ct, to 'mere brute force' - the right of the stronger. Calhoun's reasoning led him to a fundamental principle of his political philosophy. If neither side has the exclusive right to judge and enforce, 'the effect, where they disagree, would be, a mutual negative on the acts of each, when they come into conflict. And the effect of this again, would be, to vest in each the power to protect the portion of authority allotted to it, against the encroachment of its co-ordinate government.

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Nothing short of this can possibly preserve this important division of power, on which rests the eqUilibrium of the entire system.' II Calhoun gave vast importance to the 'negative' or veto power. It was not merely vital within and between the different organs of the central governmentthe two chambers of Congress and the President - but between the central government and the several states. In oft-quoted words he wrote: 'It is this negative power, - the power of preventing or arresting the action of the government, - be it called by what term it may, - veto, interposition, nullificat~on, check, or balance of power, - which, in fact, forms the constitution. They are all but different names for the negative power.' And he added: 'In all its forms, and under all its names, it results from the concurrent majority.' 12 This last sentence brings us immediately to another of Calhoun'S central concepts, that of 'concurrency'. Federalism, as we have seen, meant for him a multiplicity of powers bound together in a union, with each retaining their sovereign constituent power; and constitutionalism meant not merely a division or separation of powers, but the possession of a negative power, or a power to resist the invasion of their powers, by the different branches into which government was divided. Concurrency meant the incorporation into government of processes or institutions which allowed the 'sense' of each major 'pOltion', or 'interest' that divided a community to be taken and to have a guaranteed role in determining government action. It was the least sharply defined of Calhoun's basic concepts, and he was not wholly consistent in employing it. Most frequently, in his analysis of the Constitution, he used it to describe the blending of two different forms of suffrage in the organisation of government, the one expressing the majority voice of the people considered as one unit made up of individuals, and the other expressing the voice of the people considered, not as a single unit, but as a multiplicity of different groups or unities. On other occasions he used it more generally to describe the method by which different groups or interests in a corrununity can and ought to be given a fixed place in government, one which invested them with veto powers regarding governmental action that affected them. Sometimes in referring to the 'pOltions' or 'interests' into which a community was divided, he meant quite specifically the states of a federal system such as the American. But he defined them on other occasions in a broader, looser sense. Here we shall focus on the narrower, more specific usages, and consider the broader usages later. Concurrency in Calhoun's narrower sense is perhaps best seen as federalism and constitutionalism expressed in the language of democracy, that is, in the language of popular voting. Alternatively it can be seen as democracy itself - or the principle of majority voting - tempered by the principles of constitutionalism and federalism. Calhoun can certainly be classified as a democrat; his 'union of states' was rooted in democracy. As we have seen, he argued that the peoples of the several states were the constituent power of both state and central governments and ipso facto the sovereign powers within the American union. He also believed that those who occupied the chief legislative and executive offices within government had to be chosen from below, not appointed according to

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hereditary or divine right. The right of suffrage, he wrote, 'is the indispensable and primary principle in the foundation of a constitutional government.' 13 But democracy, like everything else, was for him unjust and to be resisted, if it meant a single legitim ising principle of government action, and did not incorporate within itselfthe principles of multiplicity, balance, mutual restraint. Calhoun argued that concurrent democracy, in this sense, ran right through the governmental structure of the American union as it was originally constituted. In the provisions for the election of the two houses of Congress and the provisions for the election of the President, there were always two principles of democratic legitimacy at work, albeit in different proportions. One was based on 'federal numbers'. This considered the population of the whole union, for the purpose of calculating voting rights and majorities, as one society of equal individuals - though even this principle admitted of important exceptions in the Union, for example, with regard to slaves. The other principle had regard for the several states as distinct societies, or corporate entities, not as mere fractions of a whole. Calhoun's conclusion was concise: 'it was the object of the framers of the constitution, in organizing the government, to give the two elements of which it is composed, separate, but concurrent action; and consequently a veto on each other, whenever the organization of the department, or the nature of the power would admit: and when this could not be done, so to blend the two, as to make as near approach to it, in effect, as possible. It is, also, apparent, that the government, regarded apatt from the constitution, is the government of the concurrent, and not of the numerical majority.'14 We have now mapped out the leading features of Calhoun's interpretation of the American Constitution. We need not follow here his elaboration of the rights of 'nullification' and 'interposition' for they are, as he himself stated, nothing other than the assertion of the veto power possessed by the individual states under a different name. We have tried to show that for him there were three fundamental political principles embedded in the American political system, principles in which he passionately believed. These principles were federalism, constitutionalism and concurrency (or concurrent democracy). These principles overlapped and interwove, and implied one another. Put in simple algebraic terms, for Calhoun a federal system = a constitutional system = a concurrent democratic system. It is worth stressing again that the right to self-protection possessed by the American states, which was so dear to Calhoun, was more than a procedural veto contained in a constitutional document; it was a recognition of the political status of the parts or 'integers' that formed the union. At the same time, as we have seen, Calhoun specified that it was not a right to use force, that is, to go to war. The right to go to war - the ius belli - had been implicitly suspended in the making of the union. The suspension of the ius belli, so to speak, was the union. The use of force by one level of government against the other was ipso facto the overturning of the balance created by the union and hence the ending of the union. Secession in this event was self-evidently legitimate. It was also legitimate, Calhoun argued, if, in a grave constitutional conflict over the extent of the powers possessed by the constituent parts of the union, all the machinery for

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effecting a mutually agreed settlement - notably the use of the procedure for amending the constitution - had been exhausted, and if there was patently no will to compromise.

His notion of concurrency further considered Calhoun, as we have seen, took pains to demonstrate that the democracy embodied in the American Constitution was not of the simple majoritarian or 'numerical' variety, but rather 'concurrent' in nature. By this he meant essentially that a calculation of the numerical majority of the civilian population taken as a whole was not the only element that determined the election of legislative and executive offices in the federal government. The states as corporate entities always entered into the calculation. Calhoun was not content, however, to argue that concurrency was right because it was embedded in the constitution, and because it gave protection to the rights of the individual states of the union. He also strove to ground his belief in concurrent democracy on more abstract considerations of political justice, and to demonstrate that it gave protection to the socioeconomic interests which divided society. This important strand in his reasoning on concurrency, which is most fully expressed in his Disquisition on Government, demands separate consideration. It will be recalled that Madison had written in Federalist 51: It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by common interests, the rights of the minority will be insecure. There are but two ways of providing against this evil: the one by creating a will in the community independent of the majority, that is, of the society itself; the other, by comprehending in the society so many different descriptions of citizens as will render one unjust combination of a majority ofthe whole very improbable, if not impracticable. IS It was, of course, not in the first or monarchical, remedy, that Madison trusted,

but the second. This, he believed, would protect America against the tyranny of particular interests. Calhoun agreed completely with Madison's diagnosis of the danger of the majority oppressing the minority, but he disagreed entirely with his notion that multiplicity brought security. Like Lord Acton, he must have thought such a thesis was 'absurd.' For Calhoun, an increase in the number of interests heightened the danger rather than cured it. In America the diversity of interests was rooted not primarily in class, but in geography. It resulted from differences of climate, soil, situation, and production. By enlarging the scale of their political organisation the Americans had not reduced these differences but had rather increased them, the diversity within the new body being far greater than that within the component units.

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In confronting this problem, which of course manifested itself most obviously in the opposing interests of the Northern and Southern 'sections' of the United States, Calhoun went back to first principles. He argued that even in the smallest, most homogeneous, communities it was inevitable that a divergence of interests would emerge and pose problems for the equal application of the laws. As he explained in his speech on the Force Bill: The view which considers the community as a unit, and all its parts as having a similar interest, is radically erroneous. However sm:all the community may be, and however homogeneous its interests, the moment the government is put into operation, as soon as it begins to collect taxes and to make appropriations, the different portions of the community must, of necessity, bear differing and opposing relations in reference to the action of government. There must inevitably spring up two interests - a direction and a stockholder interest - an interest profiting by the action of the government, and interested in increasing its powers and actions; and another, at whose expense the political machine is kept in motion. 16 The establishment of government thus itself divides society into competing interests. It is a challenging thesis. In small, relatively simple societies, Calhoun conceded, the problem need not be acute. In larger, more sophisticated communities, however, the divergence of interests necessarily became much greater, and the opposition between them sharper. In such a country common laws and taxes inevitably weighed more heavily on one part of the community than another. The 'more extensive and populous the country,' he wrote, 'the more diversified the condition and pursuits of its population, and the richer, more luxurious, and dissimilar the people, the more difficult it is to equalize the action of government - and the more easy for one portion of the community to pervert its powers to oppress and plunder the other.' 17 Calhoun went further. The establishment of democracy in the conventionally defined sense of the granting of the right of suffrage to -the citizens together with the acceptance of the right of the numerical majority to determine the personnel of government and their policy, did not, and could not, resolve the problem. It could not, in itself, prevent the minority interest from being oppressed by the majority interest. If it be supposed, he wrote, that, from diversity of interests in the several classes and sections of the community, the laws act differently, so that the same law, though couched in general terms and apparently fair, shall, in reality, transfer the power and property of one class or section to another - in such case responsibility to constituents, which is but the means of enforcing fidelity of representatives to them, must prove wholly insufficient to preserve the purity of public agents, or the liberty of the country. It would, in fact, fall short of the evil. The disease would be in the community itself - in the constituents, and not their representatives. The opposing interests of the community would

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M Forsyth engender, necessarily, opposing hostile parties - organised on this very diversity of interests - the stronger of which, if the Government provided no efficient check, would exercise unlimited and unrestrained power over the weaker. The relation of equality between the parts of the community, established by the Constitution, would be destroyed, and in its place would be substituted the relation of sovereign and subject, between the stronger and weaker interests, in its most odious and oppressive form. IS

Calhoun's analysis of the growth and impact of party politics in a democracy proceeded further. The right of suffrage, he wrote, by placing the control of the government in the community, must lead to conflict among its different interests, each striving to obtain possession of its powers, as the means of protecting itself against the others - or of advancing its respective interests, regardless of the interests of others. For this purpose, a struggle will take place between the various interests to obtain a majority, in order to control government. If no one interest be strong enough, of itself, to obtain it, a combination will be formed between those whose,interests are most alike - each conceding something to the others, until a sufficient number is obtained to make a majority. The process may be slow, and much time may be required before a compact, organized majority can thus be formed; but formed it will be in time ... When once formed, the community will be divided into two great parties - a major and a minor - between which there will be incessant struggles on the one side to retain, and on the other to obtain the majority - and, thereby, the control of the government and the advantages it confers. 19 Calhoun underlined the fact that as the sphere of government enlarges, and the number of places and positions at its disposal concomitantly expands, so the party struggle intensifies. It becomes not merely a battle to influence the shape of legislation, but to obtain the manifold perks or 'spoils' of office in terms of money and honours. The seeds of corruption are sown. At the same time, competitive pressures compel each party to resort to measures to concentrate the control over its movements in fewer and fewer hands ... This in process of time must lead to the conversion of the honours and emoluments of government into means of rewarding pattisan services, in order to secure the fidelity and increase the zeal of the members of the party. The effect of the whole combined, even in the earlier stages of the process, when they exert the least pernicious influence, would be to place the control of the two parties in the hands of their respective majorities; and the government itself, virtually, under the control of the majority of the dominant party, for the time, instead of the majority of the whole community - where the theory of this form of government vests it. 20

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The possibility that parties could alternate in power in the process of successive elections, so that the minority of one day could become the majority of the next, did not, in Calhoun's view, cure the perniciousness of the system. The 'very unceltainty of the tenure, combined with the violent party warfare which must ever precede a change of parties under such governments, would rather tend to increase than diminish the tendency to oppression. ,21 Government, Calhoun concluded, would eventually 'vibrate' between two factions at each successive election, until confusion, corruption, disorder, and anarchy would lead to an appeal to force and a change in the form of government. 'Such must be the end of the government of the numericalmajority.'22 Perhaps the most interesting aspect of Calhoun's uncompromisingly 'realist' - and deeply pessimistic - exposure of the workings of a simple majoritarian democratic system is that it anticipates by many years the critique of democracy, and of party government, that was launched in Europe at the end of the nineteenth century by writers such as Pareto and Michels. The 'circulation of elites' and the 'iron law of oligarchy' are theses that are both prefigured in his writings. The whole thrust of Calhoun's reasoning was to demonstrate that the assumption that rule by the numerical majority was identical with rule in the common interest was a fallacious one, and that in a large country with deep geographical divisions of interest majority rule did little more than give legitimation to the subordination of the weaker interest by the stronger one. It was a mask - a tool, even - for oppression. In short, on an issue where no common interest binds together the parts of society, adjudication by simple majority voting is unjust, and will not be accepted. Rousseau had made the same point succinctly when he said that 'the general will derives its generality less from the number of voices than from the common interest which unites them. ,23 What was the remedy? Calhoun recognised that the framers of the American Constitution had sought to meet the difficulties that arose from the geographical diversity of the country through the basic federal principle of delegating to the general government the powers necessary to regulate the common interests of the states, while leaving the other 'peculiar and local interests' under the control of the states separately. For him the institution of slavery was quite plainly a 'peculiar and local interest' which could not be intruded upon or regulated by the federal government in the name of the 'common interest.' As we have seen, he believed that the Constitution had provided the states with the means of protecting their 'reserved' rights against erosion. But he clearly came gradually to believe that these provisions were not sufficient to prevent one interest or 'section' from oppressing the other. Only by applying more extensively the principle of concurrency could the necessary protection be given. In Calhoun's words, the only way to prevent any one interest, or combination of interests from using the power of government to aggrandize itself at the expense of the others was 'by taking the sense of each interest or portion of the community, which may be unequally and injuriously affected by the action of the government, separately, through its own majority, or in some other way by which its voice may be fairly expressed; and to require

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the consent of each interest, either to put or to keep the government in action. This; too, can be accomplished only in one way - and that is, by such an organism of the government - and, if necessary for the purpose, of the community also - as will, by dividing and distributing the powers of government, give to each division or interest, through its appropriate organ, either a concurrent voice in making and executing the laws, or a veto on their execution. It is only by such an organism, that the assent of each can be made necessary to put the government in motion; or the power made effectual to arrest its action, when put in motion - and it is only by the one or other that the different interests, orders, classes, or portions, into which the community may be divided, can be protected, and all conflict and struggle between them be prevented - by rendering it impossible to put or to keep it in action, without the concurrent consent of all. ,24 It can be seen that Calhoun was quite flexible in his consideration of how 'concurrency of interests' was to be put into practice. His one specific proposal came towards the end of the Discourse on the Constitution. This was for the creation, by an amendment of the constitution, of a dual executive, with two Presidents, one Northern and one Southern, each with a right of veto. Although nothing came of this it is interesting, and ironic, that after the Civil War the South succeeded in retaining power in the federal government by a number of informal devices which, as Potter has written, Calhoun would probably have recognised as instrumentalities of the 'concurrent majority.' The most impOitant was the system of control of committee chairmanship whereby the South 'entrenched itself at the crucial loci of power in Congress. ,25

His analysis of the early development of the American federal system Calhoun's exposition of the American Constitution and his theory of the concurrent majority were both developed out of his experience of political reality. His analysis of political practice in the United States between 1789 and 1850 forms the necessary complement to them. Although more diffuse in its presentation, his historical critique may stand comparison with the critique contained in the first volume of Tocqueville's celebrated work Democracy in America, which was published in 1835. Tocqueville cites Calhoun directly at one point, and his analysis of the American political system and its dominant democratic ethos has many significant points of contact with that of Calhoun, most notably in its well known thesis of the 'tyranny of the majority.' Tocqueville's viewpoint is that of the deeply curious but dispassionate outsider, while Calhoun's is that of the deeply committed insider. Calhoun's account is sharper-edged, Tocqueville's more comprehensive. They supplement each other admirably. There is not space here to range over all aspects of Calhoun's account. Suffice it to say that Calhoun identified two main developments in the years since the making of the Constitution which had changed the original system of government and which, progressively interacting with one another, now threatened the whole structure. The first was one in which the character of the government had

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changed from that of 'a federal republic, as it originally came from the hands of its framers', to that of 'a great national consolidated democracy.'26 and the second was the alteration in the original equilibrium between the two great 'sections' which divided Union. The first development had been initiated and encouraged in the first years of the Republic. Measures had been taken by the leaders of the Federalist Party during the first Congress to protect the central government against what they perceived as the over-mighty states. Calhoun did not impute wickedness to them; they were not trying deliberately to suborn the system. But they ,had given an initial twist, a bias to the system. He singled out the Judiciary Act of 1789 in particular for criticism, but there were several other measures of the same ilk, which are well known and need not be specified here. The development, thus set in motion, had not been an uninterrupted one. It had been resisted at times, and Calhoun saw in the Kentucky and Virginia Resolutions, and the subsequent rise to power of the states-rights Republican Party (1801-1809) a counter current that prefigured his own stance. The War of 1812 re-stimulated 'national' sentiments, however, and the policies followed since the ending of Monroe's Presidency, reaching a climax in the Tariff Bill of 1828 and the 'Force' Bill of 1833, showed that the original consolidating, democratic tendencies were once again in the saddle. Calhoun believed that the agitation for the abolition of slavery, which began in the North in 1835, had been encouraged by these earlier indications that the federal government considered itself justified in intervening, ifnecessary forcibly, in the domestic affairs of the South. For him, since then, the tide was running remorselessly in a centralising, national direction. While Calhoun saw particular measures taken by paIticular statesmen as having played an important part in encouraging this underlying trend away from the original system, the strength of his analysis lies not in this, but rather in his contention that the distortion sprang from the practical operation of the system established in 1789. It was inherent, or, as we might say today, 'systemic.' The Founding Fathers had not recognised the ineluctable consequences of their own creation, and in part he criticised them for this; but he also accepted that these consequences were largely unforeseeable at the outset. Calhoun underlined especially the effect of a particular feature which differentiated the federal system of 1789 from that of the Confederacy that preceded it, namely the replacement of the old largely ineffectual Congress by a genuine government. The latter had real powers: powers to make directly applicable laws rather than laws that depended for their effectiveness on the intermediary authority of the states; powers similarly to raise taxes with which to provide for the common defence and general welfare of the Union; powers hence to found extensive public establishments civil and military; and to pay a host of employees, agents, and officers. It was inevitable that a struggle would be unleashed to capture such a power, both in order to steer it in a particular direction and to profit fi'om the manifold disbursements at its disposal. It was from these springs that Calhoun derived the gradual, inexorable rise of two great competing political patties in America, each being essentially

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aggregates of interests struggling to subordinate the federal government to their will and to 'plunder' its resources. This struggle ineluctably centred on capturing the Presidency, not only because the President had ever widening administrative responsibilities, which affected directly the lives and welfare of the people, but because his broad discretionary power to appoint and dismiss from office, sanctioned by an early (and in Calhoun's view, mistaken) decision of Congress, gave him vast powers of patronage. This contest brought in its wake an ever increasing emphasis on the numerical majority as the means to win and control governmental office. The original provisions for the election of the President had been complex, and in Calhoun's terminology, concurrent, balancing the voice of the numerical majority and the voice of the states, though giving marginally more importance to the former. In the heat of the party struggle the concurrent element had been progressively whittled away and the role of party conventions and caucuses, not mentioned in the Constitution, had advanced to become the decisive elemen,t in the choice of Presidential candidates. The elections themselves had become essentially battles between parties to win a majority of the popular vote for their candidate, with the parties becoming increasingly 'oligarchic' in organisation. These changes, together with the emergence of the notorious 'SP?i1s System' had become fully apparent by the time of Jackson's presidency (1829-1837). As Calhoun said, the framers of the constitution had not realised the magnitude of the change that they had made. Had they realised it, they would never have assumed that those who administered the government of the United States, and those of the separate States, would stand in hostile relations to each other; or have believed that it would depend on the relative force of the powers delegated and the powers reserved, whether either would encroach on, and absorb the other; - an assumption and belief which experience has proved to be utterly unfounded. The conflict took, from the first, and has continued ever since to move in, a very different direction. Instead of a contest for power between the government of the United States, on the one side, and the separate governments of the several States, on the other, - the real struggle has been to obtain the control of the fonner; - a struggle in which both States and people have united: And the result has shown that, instead of depending on the relative force of the delegated and reserved powers, the latter, in all contests, have been brought in aid of the former, by the States on the side of the party in possession and control of the government of the United States, - and by the States on the side of the party in the opposition, in their eff0I1s to expel those in possession, and to take their place. 27 These developments, Calhoun argued, had altered the original institutional balance of the system of government established by the constitution. As a result the federal elements in the constitutional structure, which as we have seen, were for him virtually identical with the constitutional structure, had been rendered

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largely irrelevant. Federalism had been outflanked by reality. In place of a federal constitutional government at the centre, there was now a national unconstitutional one. In place of concurrent democracy there was now absolute democracy. A change in what might be called the dominant ideology, or ethos, of political life had taken place concomitantly with these gradual changes in political behaviour. The will of the numerical majority was now - in the 1830s and 1840swidely identified with the will of the people or nation, and the federal government, now generally called the 'national' government, was seen as the agent of this will, with the right to use force if necessary - this was the profound significance of the 'Force' Bill of 1833 in Calhoun's eyes, despite the fact that it was never implemented - to repress a minority that resisted this will. This was now what was meant by the 'sovereignty of the people,' and 'republicanism.' In 1850, Calhoun composed what was to be his final address to the Senate, though physical infirmity prevented him from delivering it in person. It summarised his account of the developments outlined above: That the Government claims, and practically maintains the right to decide in the last resort, as to the extent of its powers, will scarcely be denied by one conversant with the political history of the country. That it also claims the right to resort to force to maintain whatever power she claims, against all opposition, is equally certain. Indeed it is apparent, from what we daily hear, that this has become the prevailing and fixed opinion of a great majority of the community. Now, I ask, what limitation can possibly be placed upon the powers of a government claiming and exercising such rights? And, if none can be, how can the separate governments of the States maintain and protect the powers reserved to them by the constitution - or the people of the several States maintain those which are reserved to them, and among others, the sovereign powers by which they ordained and established, not only their separate State Constitutions and Governments, but also the Constitution and Government of the United States? But, if they have no constitutional means of maintaining them against the right claimed by this Government, it necessarily follows, that they hold them at its pleasure and discretion, and all the powers of the system are in reality concentrated in it. It also follows, that the character of the Government has been changed, in consequence, from a federal republic, as it originally came from the hands of its framers, and that it has been changed into a great national consolidated democracy. It has indeed, at present, all the characteristics of the latter, and not one of the former, although it still retains its outward form. 28 The second main development that Calhoun discerned in the years up to 1850 was the disruption of the equilibrium between the two great socio-economic sections into which the United States were divided, namely the south, with its plantation economy based on slavery, and the n0I1h with its nascent manufacturing economy based on a labour force free and equal in status. The makers of the

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Constitution had touched only indirectly on the issue of slavery. The Constitution stipulated that the slave trade would not be abolished before 1808; it endorsed the obligation to deliver up runaway slaves; and it recognised the existence -of slavery in the calculation of the representation of the states in the House of Representatives. The regulation of slavery was implicitly reserved to the states. The drafters of the Constitution had avoided a direct confrontation of the issue, not because they regarded it as unimportant, but precisely because it ran so deep and was so contentious that a public debate might have threatened the making of the Constitution itself. This tacit agreement not to disturb the status quo, or this mutual recognition of legitimacy, was, so to speak, the pact underlying the Constitution. It was facilitated and guaranteed by the fact that at the time of the making of the Constitution the two sections were roughly equal both in terms of the number of states they embraced, and in terms of population. There is no need to follow here the step by step alteration of the original equilibrium between the sections traced by Calhoun. He believed that the seeds of unequal development had been sown as early as 1787 with the passage of the Northwest Ordinance, which excluded slavery from the region lying between the Ohio· and Mississippi rivers. From 1820 onwards. the maintenance of equality in the number of states belonging to each section had become a contest renewed whenever new states sought to join the Union. By the 1840s the overall population of the North had far outstripped that of the South. The erosion of 'mutual recognition,' or non-intervention, accompanied this erosion in the 'balance of power.' As already noted, abolitionist agitation began in the North in 1835. The small, but growing, proportion of the people there who regarded slavery as a sin, now believed, in addition, that they were in some degree responsible for its continuance in the South, and hence obliged to extirpate it. For Calhoun the ultimate stage was reached when the two broad developments he had outlined converged into one, that is to say, when the two parties struggling to gain control of the federal government, a government he believed was no longer restrained by federal or constitutional limits, came to align themselves with the two sides of the sectional division. This is what he saw happening in the 1840s, and for him this combination, unless protective barriers could be erected, presented a fatal threat to the South, and to the Union as originally constructed. His efforts to construct protective barriers have been described earlier in this chapter. There is no need to repeat them here. We may conclude with two sentences from his last major speech to the Senate, in which he described the 'great and primary cause' why the people of the Southern states believed they could no longer stay 'as things are, consistently with honour and safety, in the Union.' This, he said, 'is to be found in the fact that the equilibrium between the two sections in the Government, as it stood when the constitution was ratified and the Government put in action, has been destroyed. At that time: there was nearly a perfect equilibrium between the two, which afforded ample means to each to protect itself against the aggression of the other; but, as it now stands, one section has the exclusive power of controlling the Govern-

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ment, which leaves the other without any adequate means of protecting itself against its encroachment and oppression. ,29

Conclusion This study has tried to elucidate Calhoun's analysis of federalism and its relationship to constitutionalism and democracy. Perhaps the most valuable contribution he makes to our understanding of these three fundamental concepts is to show that the relationship between them is by no means simple or obvious. I have argued that he in effect equated them, and this, of course, suggests simplicity, but I trust I have also made it sufficiently clear the equation results solely from his very careful and specific definition of the three concepts. Calhoun was well aware that they could run, or could be interpreted, to run counter to one another, indeed to demolish one another. Democracy, most obviously, could run counter to federalism he feared greatly that it was so running in America. Federalism - to be true to itself - had to resist democracy in certain of its manifestations. Similarly a constitution - the American Constitution in particular - could be interpreted so as to destroy federalism. Democracy, finally, could erode and sideline the Constitution. Calhoun's equation of the three concepts was far from bland; it rested on a searching investigation of all tenns. Definitions, he rightly believed, were crucial. The federalism which Calhoun saw expressed in and through the American Constitution, and which he expounded so meticulously and endorsed so fully, was of a distinctive variety, and must be distinguished from the type generally set out in modern textbooks. It helps towards an understanding of the American Constitution since the Civil War by way of contrast - by showing what was definitively overcome. It helps towards an understanding of bodies such as the European Union in a more direct manner. Federalism as Calhoun conceived it is misunderstood if it is seen as a form of organising the powers of a state - the state being, so to speak, a given unity, and federalism being a particular technique of distributing governmental responsibilities within it. Federalism was not with him an appendage; and 'federal' was not for him an adjective of the noun 'state'. Nor did he see it as a kind of preliminary to a fully fledged state. Calhoun clearly believed that if the right measures were taken to repair the federal system which he defined and endorsed, there was no reason why it should not last until the end of time. Federalism, as he conceived it, meant a free-standing 'union of states,' endowed with a 'system of governments,' which had its own distinctive nonstate logic. Calhoun is remarkable in that he explores this logic so thoroughly and remorselessly. In this sense he is the nec plus ultra of federalists, following through the implications of federalism in and for itself, undiluted by non-federal elements, and defending it as the best possible method of uniting and simultaneously preserving states. Calhoun's federalism was ipso facto a constitutional system. His vigorous constitutionalism is distinctive because of his definition of the essence of a

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constitution, namely, the presence of a 'negative' or veto power. It is a definition with long historical roots. It has a strong affinity with the notion of constitution so long upheld and venerated in England, namely that of the 'mixed' or 'balanced' constitution, one formed not by any supreme constitutional text but by the three basic components of the political community itself-King, Lords, and Commonseach of them possessing a veto power, and coming together regularly in Parliament. What is so interesting about Calhoun is that he grafts this old concept of a constitution on to the revolutionary idea of the people as constituent power. This brings us to his notion of democracy. His federal union of states was democratic in the sense that the peoples of the member states were the constituent power of the whole structure; they were the sovereigns. It was democratic in the sense that he believed the right of suffrage was fundamental in any constitutional government. Calhoun, however, bitterly opposed democracy in the sense of a governmental system in which the legitimising principle of the will of the numerical majority was paramount, precisely because democracy in this sense was unfederal and unconstitutional; it lacked the essential ingredients of plurality and veto. The only legitimate democracy is a 'concurrent' one, in which the 'parts' of the body politic, whether defined in a strictly federal way or in a more 'socio-economic' fashion, had a guaranteed role in the making of government policy, alongside the numerical majority. From this concluding summary it can be seen that the overarching idea in Calhoun's political philosophy, the one that permeates his notions offederalism, constitutionalism, and democracy, is that of balance, equilibrium, equipoise - a notion that itself presupposes a multiplicity of powers mutually restraining one another. His anathema is oneness, monism, or absolutism in government, or - as he himself tended to express it, the presence in government of any single power that has the discretion to determine the extent of its own powers. Sovereignty in this sense, as opposed to sovereignty as the constituent power, he abhorred. The other unity he resisted was of course the unity of the people who formed the union. He viewed the peoples of the various states as potent forces - constituent powers - but the people of the union as a whole were for him but a passive entity, the 'object' of the laws made by the federal government but not the 'subject' behind that government. He could not accept that, however true his categorisation of them might have been in 1787, they might gradually grow, by dint of all kinds of unpredictable pressures, within and outside the union, into a positive self-conscious unity - a constituent power! - themselves. He saw indeed the germs of this process, and described them perceptively, but he held steadfastly to his belief in the overriding value of balance, equilibrium, equipoise, multiplicity. In the end battle was joined; the storm blew; and a new and far closer political unity emerged.

Notes 1 Ross M. Lence ed. Union and Liberty: The political Philosophy of John C. Calhoun (Indianapolis, Liberty Fund, 1992), p. 434. Lence's volume is by far the most accessible source of Calhoun's main writings and speeches. 2 Gaillard Hunt, John C. Calhoun (Philadelphia, Jacobs, 1908), pp. 275-276.

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3 Hunt (1908), p. 228. 4 Richard C. Cralle ed., The Works of John C. Calhoun, Vol. 2 (New York, Appleton, 1853), pp. 614-615. 5 Lence (1992), p. 504. 6 Lence (1992), p. 109. 7 Lence (1992), p. 440. 8 Lence (1992), p. 444. 9 Lence (1992), p. 493. 10 Lence (1992), pp. 171-172. 11 Lence (1992), p. 173. 12 Lence (1992), pp. 28-29. 13 Lence (1992), p. 13. 14 Lence (1922), p. 129. 15 Calhoun attributed the authorship of Federalist Paper 51 to Hamilton; it is now more usually attributed to Madison. 16 Lence (1992), p. 446. 17 Lence (1992), p. 15. 18 Lence (1992), p. 338. 19 Lence (1992), pp. 15-16. 20 Lence (1992), p. 32. 21 Lence (1992), pp. 20-21. 22 Lence (1992), p. 33. 23 Rousseau, The Social Contract, Book 2, Chapter 4. 24 Lence (1992), pp. 21-22. 25 David M. Potter, The South and the Concurrent Majority (Baton Rouge, Louisiana State UP, 1972), p. 6. 26 Lence (1992) p. 582. 27 Lence (1992), pp. 162-163. 28 Lence (1992), pp. 581-582. 29 Lence (1992), p. 575

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5

Variations on a theme James Bryce, federalism and democracy - from the Holy Roman Empire and the American Commonwealth to the British Empire Michael Burgess

In the pantheon of major contributors to our understanding of the federal idea, James Bryce occupies a place that is respectfully recognised but little explored. He is best known for his great work titled The American Commonwealth that first appeared in three volumes in 1888 and ran~ed alongside Alexis De Tocqueville's classic Democracy in America (Vol. 1), published 50 years earlier in 1835, for its enduring historical significance. This territory has been well traversed in the mainstream literature on American federalism. But it is Bryce's general standing in a much wider conceptual and methodological survey of federalism as a subject of scholarly analysis that is much less appreciated and will provide the main focus of this chapter. It is contended here that his intellectual legacy in the field of comparative federal studies merits much closer examination than has hitherto been the case and is deserving of much greater recognition than has so far been attributed. In this chapter I want to assess the contribution of James Bryce to the mainstream literature on the evolution of federal theory and practice in the late nineteenth and early twentieth centuries. In particular I want to examine his views and perspectives on federalism and democracy in order to identify the essential unity in his thinking about them and to underline a fundamental predisposition or political persuasion in favour of the federal idea both as an instrumental 'political contrivance' and at its core a moral form of political association. My approach to this task is to focus principally upon four of his major works that together encompass what I take to be 'variations on a theme', the basic theme being the evolving relationship between federalism and democracy in theory and practice during the years between 1864 and 1921. Bryce's characterisation of the federal idea as a form of political association in Europe, the United States of America (USA) and the British Empire written over six decades includes the following publications: The Holy Roman Empire, first published in 1864; the three volumes of The American Commonwealth that first appeared in 1888; his less well known two-volume Studies in HistOlY and Jurisprudence that surfaced in 1901; and finally his two-volume Modern Demo-

cracies that was published toward the end of his life in 1921. Traversing these four scholarly projects that link federalism and democracy enables us to engage four different dimensions to Bryce's contribution to the theory and practice of federalism. Chronologically these are the following: facets of the Continental European tradition of federalism (and especially the Germanic dimension); the American federal experience in all of its multidimensional complexities; the British tradition of federalism in the era of empire and imperialism; and, not least, his intellectual gravitation toward empirical social science and comparative politics. A detailed textual exegesis of each of these works enables us to use them as vehicles or lenses through which we can not only identify a fundamental continuity of thought about the nature and meaning of different forms of political association - mainly linked to the federal form - but also his evolving appreciation of the adaptability and significance of federalism in a wide variety of historical settings and political contexts. This kind of engagement with Bryce's scholarly works should not be construed as something devoted entirely to his academic pursuits as if they were detached from what Hugh Tulloch calls his 'multifarious life of politician, jurist and traveller'.2 Rather I prefer to stress the complex interaction of these roles and activities for we cannot make any sense of Bryce's scholarly views about federalism and democracy without relating them directly to his role as a Gladstonian Liberal Member of Parliament (MP), a member of successive Liberal govermnents, a Professor of Civil Law at Oxford, British Ambassador to the United States and latterly a peer in the House of Lords. Consequently his early predisposition in The American Commonwealth to convey what he called 'a full and clear view of the facts of today' when seeking to 'present ... a general view of the United States both as a Govermnent and as a Nation' could not be completely divorced from his established party political leaning in favour of Irish home rule. Tulloch claimed that it was impossible for Bryce to keep the constitutional commentator and liberal parliamentarian apart: It was impossible for anyone, author or reader, to look at the United States

and not think of Ireland .... In this sense The American Commonwealth is a ringing vindication of achieved federalisation and a sustained three-volume refutation of Diceyan unionism. 3 Clearly the lawyer, historian and political scientist could never effectively prevent the political practitioner from consciously and unconsciously welding theory and practice together in his approach to contemporaneous problems. Bearing in mind our 'variations on a theme', then, we are dealing with some very complex interactions made all the more complex by a veritable welter of highly opinionated contemporary British and American commentary on Bryce's publications. Our purpose, however, is not to engage directly with what are now largely historical disputes and debates about the accuracy and significance of Bryce's major works. Instead our goal is to distil and crystallise his main contribution to federalism and democracy in theory and practice. We will therefore

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begin with a brief sketch outline of his background, education and subsequent political career before casting a selective eye over the first of his variations on a theme, namely, The Holy Roman Empire. James Bryce was born in Belfast in May 1838, the eldest son of James Bryce (1806-77), a schoolteacher and geologist, in a family of Ulster Scots whose links can be traced back at least to the eighteenth-century 'covenanting radicalism of south-west Scotland' which, according to Christopher Harvie, had 'such a profound impact on the ideology of the American revolutionaries'.4 The young Bryce inherited strong dissenting views characteristic of his Presbyterian background and the traditions of the Scottish Enlightenment, attending Glasgow University in 1854 and leaving Scotland in 1857 on a scholarship to Trinity College, Oxford. His successful career at Trinity during 1857-62 culminated in his BA but his nonconformist beliefs ruled out automatic progression to the standard Oxford MA.5 Harvie noted that most of Bryce's friends were, not surprisingly, from the intellectual milieu of the enlightened radical and in origins 'to a great extent Scottish or northern English'.6 Elected to a fellowship at Oriel College in 1862 [which he retained until 1889], he developed many enduring links with continental jurists and historians, was called to the bar in 1867, contributed regularly to liberal literary and political periodicals,. became a palt-time lecturer in law in Manchester during 1868-74 and took an active part in London literary life where he became a founder member of the Century Club, the forerunner of the National Liberal Club, along with Leslie Stephen, Henry Sidgwick, Frederic Harrison and other Liberals and radicals. His lifelong close personal friendship with Albert Venn Dicey is notable mainly in hindsight for their political parting of the ways over Irish home rule and Dicey's adoption of Bryce's 'flexible and rigid constitutions' argument in his dogmatic Introduction to the Study of the Law of the Constitution first published in 1885. 7 Bryce developed a close academic friendship with Gladstone and shared his moral liberal political sympathies about the oppression of national minorities, becoming Liberal MP for Tower Hamlets during 1880-85, moving to the constituency of South Aberdeen during 1885-1906 and holding a succession of government posts that included the non-cabinet position of under-secretary for foreign affairs in 1886, the cabinet post of Chancellor of the Duchy of Lancaster in 1892, the President of the Board of Trade in 1894 (in Lord Rosebery's ministry) and Chief Secretary for Ireland in 1905 (in Campbell-Bannerman's ministry), culminating in his role as British Ambassador to Washington during 1907-13 and Liberal peer in 1914.8 Throughout most of his active political life he also sustained his Regius Chair in Civil Law during 1870-93. With this important background context now established and many of the complex threads that provide clues to the foundations of Bryce's thinking about the federal idea already identified, let us proceed to a brief sketch outline of the first part of his intellectual legacy.

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The Holy Roman Empire Nothing else so directly linked the old world to the new - nothing else displayed so many strange contrasts of the present and the past, and summed up in those contrasts so much of European history. (James Bryce) This epic work - Bryce's prize essay as a student at Oxford - recorded 1,800 years of the Holy Roman Empire not in terms of events or as a state but rather as 'an Institution, an institution created by and embodying a wonderful system of ideas'. It was intended to be a treatise on what he called 'the inner nature of the Empire, as the most signal instance of the fusion of Roman and Teutonic elements in modem civilization', with a concluding emphasis upon how far it preserved 'the memory of its origin, and influenced the European commonwealth of nations'.9 What does Bryce's Holy Roman Empire contribute to our understanding of federalism and what in particular does it tell us about a specifically 'European' species or tradition of state-society relations? Clearly it would be impossible to underestimate the seminal intellectual influence of his close friend and mentor Edward Augustus Freeman, Regius Professor of Modem History at Oxford during 1884-92, on Bryce's historical approach to his subject. The historical method he employed reflected Freeman's central belief in the fundamental continuity of history with all of its mid-Victorian racial assumptions about the linear progress and advancement of Aryan development through its Greek, Roman and Teutonic evolution and the direct transmission of innate characteristics (such as the capacity for orderly self-government) and indirect assimilation of one race by another. In this way Bryce was able to portray the emergence of the new Gennan empire in 1871 - with its roots deep in this venerable past - as a vindication of his basic thesis about the organic development of institutions and societies, a discovery, as Tulloch reminds us, that would have been 'impossible without Freeman's inspiration'. Indeed, his Holy Roman Empire was written essentially as 'an act of homage to illustrate Freeman's thesis of historical continuity'.10 It is also worth noting at this juncture Freeman's lasting influence upon Bryce in terms of comparative politics, his taste for comparative philology, anthropology and mythology serving the larger ends of historical continuity, racial evolution and the prevalence of the organic over the spontaneous and the novel. Notwithstanding these intellectual influences that served both to underpin and contaminate Bryce's first major work at the outset, several important characteristics of what we might call 'supranational' unity emerged from this 'theory of medieval society' that continue to resonate today. Throughout his largely chronological survey of the Empire's long evolution Bryce presents his readers with what appears as both a lament and a mystery. He alludes to the formal demise of the Empire in August 1806 as the end of the oldest political institution in the world that had miraculously preserved almost unaltered through 18 centuries

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'a title and pretensions from which their ancient meaning had long since departed'. By 1806, it had clearly become a relic of a bygone age. But long before then it had in reality become 'a piece of antiquarianism hardly more venerable than ridiculous - till, as Voltaire said, it was neither Holy nor Roman nor an Empire', and yet still 'the phantom of imperial authority' lingered on for a time. 11 Bryce's explanation for its survival was due partly to the belief, still unshaken, that 'it was a necessary part of the world's order', but that it was due chiefly to its by then indissoluble connection with the German kingdom. In short, he believed that the needs of the Hohenstaufen coincided with those of the Empire and that in an age of conflict and instability that epitomised the thirteenth cenhlry 'no force save feudalism was able to hold society together; and its efficacy for that purpose depended ... upon the presence of the recognised feudal head'.12 But we do not have to subscribe meekly to Freeman's dictum about history as past politics to appreciate that the sources of stability and endurance in the Holy Roman Empire can be traced back to AD 800 which witnessed the coronation of Charles Augustus (Charles I and/or Charles the Great) to the imperial title - the year which therefore witnessed 'a King of the I:ranks ... crowned Emperor of the Romans' - and which Bryce confirmed was the year 'that the beginning of the Holy Roman Empire must be dated' .13 A brief focus upon the tenure of Charlemagne as Emperor during 800-14 enables us to identify several significant feahIres pertinent to our purpose. First is the important reference that Bryce underlines to 'his imperial authority' as 'theoretically irrespective of place' as was clear 'from his own words and acts'. Second was Charlemagne's determination to 'weld discordant elements into one body, to introduce regular gradations of authority' and to 'control the Teutonic tendency to localization by his missi officials commissioned to traverse each some part of his dominions, reporting on and redressing the evils they found - as well as by his own oft-repeated personal progresses' so that 'Charles was guided by the traditions of the old Empire'. A third feature that we can identify in Bryce's study refers to 'the revival of order and culture, seeking to fuse the West into a compact whole, whose parts are never thenceforward to lose the marks of their connection and their half-Roman character, gathering up all that is left in Europe of intellect, knowledge and skill' and welding it to the new force of Christianity to renew the original expansion of the Empire via the transmission of values and beliefs in the name of the cross. This renewal was the reaffirmation of a Christian Europe. A fourth feahlre of Charlemagne's legacy is what today we would call the Germanic [then Frankish] imperative, namely, the striving for a strong central authority that was simultaneously compatible with regional autonomy: 'each nation retains its laws, its hereditary chiefs, its free popular assemblies'. Bryce remarked that 'one may think of him as trying to maintain the traditions of Rome and to breathe a new spirit into the ancient forms'. And his summary of Charlemagne's overriding legacy is couched in language that we can easily comprehend today:

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From him, in whose wise deep mind the whole mediaeval theory of the world and human life mirrored itself, did mediaeval society take the form and impress which it retained for centuries and the traces whereof are among us and upon us to this day. 14 In hindsight we can appreciate the binding force that Charlemagne represented: 'the unity of the Empire was a reflection of the unity of the Church',15 But subsequent events and developments in succeeding centuries, such as the religious schism of the Reformation and Counter-Reformation, the accumulated wealth of literature, major advances in science, the rise of new powers and the decline of old ones, the emergence of industrialisation and the increasing secularisation of modern society, have blurred our image of the Holy Roman Empire. Today it is as Bryce wrote about the impact of the fifteenth and sixteenth centuries upon the old Empire: 'the old has been transformed and overlaid by the new till its origin is forgotten' .16 By the end of the eighteenth cenhlry The Holy Roman Empire was on its last legs although its existence was 'almost forgotten by its subjects' and it was reduced to 'a feudal investiture now and then in Vienna ... a concourse of solemn old lawyers ... puzzling over interminable suits, and some 30 diplomatists at Regensburg, the relics of that Imperial Diet where once a hero-king ... had issued laws for every tribe from the Mediterranean to the Baltic'. The Romano-Teutonic inheritance gradually faded away, the 'pedantic formalism of old Germany' all that was left ... and it had 'crushed under a mountain of rubbish whatever meaning or force its old institutions had contained'. Bryce reflected that 'it is the penalty of greatness that its form should outlive its substance: that gilding and trappings should remain when that which they were meant to deck and clothe had departed'. It was merely 'our sloth or our timidity' that maintained in being 'what once was good long after it has become helpless and hopeless' Y Bryce acknowledged unequivocally that the Holy Roman Empire really expired for all practical purposes with the Peace of Westphalia in 1648 and that 'properly speaking, it has no history after this'. It was the history of the particular states of Germany that took its place. IS While the implications of the settlement of Westphalia for European and international affairs continue to be disputed by contemporary scholars, Bryce was surely right to emphasise the devastating impact of the Refonnation on the Empire, its revised constitution signifying an 'abrogation of the sovereignty of Rome and of the theory of Church and State with which the name of Rome was associated'. Indeed, 'the last link which bound Germany as a whole to Rome was snapped, the last of the principles by virtue of which the Empire had existed was abandoned'. And accompanying the inclusion of the Protestant 'schismatics to a full share in all those civil rights which, according to the doctrines of the Middle Age, could be enjoyed by no one who was out of the communion of the Catholic Church, was the transference of power within the Empire from its head to its constituent parts, thus effectively converting what had become 'in everything but title purely and solely a Gennan

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Empire' into what was 'properly ... no longer an Empire at all, but a Federation, and that of the loosest sort' . 19 The mystery of its survival for so long after the Peace of Westphalia in 1648 Bryce certainly believed was the consequence of mere inertia: Where the sacrifice of imperial, or rather federal, rights to state rights was so complete, we may wonder that the farce of an Empire should have been retained at all. A mere German Empire would probably have perished; But the Teutonic people could not bring itself to abandon the venerable heritage of Rome. Moreover, ... if the Empire had fallen, something must have been erected in its place, [and] they preferred to work on with the clumsy machine so long as it would work at alJ.2° However, his ultimate verdict on its capacity to endure was something far more measured, reflective and insightful than just doing nothing. Inertia in appearance masked the reality of its significance to its neighbours: Useless and helpless as the Empire had become, it was not without its importance to the neighbouring countries, with whqse fortunes it had been linked by the Peace of Westphalia. It was the pivot on which the political system of Europe was to revolve: the scales, so to speak, which marked the equipoise of power that had become the grand object of the policy of all states. This modern travesty of the plan by which the theorists of the fourteenth century had proposed to keep the world at peace, used means less noble and attained its end no better than theirs had done .... The Diet had become contemptible ... collective action through the old organs was confessed impossible and ... at European congresses the Empire was not represented at al1. 21 Bryce reserved his most damning criticism for the Hapsburg Emperors whose overall custodianship of the Empire he blamed for having been largely a 'selfish family policy': 'they had cared for nothing, sought nothing [and] used the Empire as an instrument for nothing but the attainment of their own personal or dynastic ends'.22 But as his biographer, H.A.L. Fisher, pointed out: 'Bryce, like his friend Freeman, was vehemently opposed to the Austrian Empire as an unnatural tyranny, based upon the oppression of non-German races' .23 His historical assessment was therefore more than a little jaundiced. This brief descriptive survey of the Holy Roman Empire through the prism of Bryce's mid-Victorian chronicle of the rise and fall of the oldest political institution in the world enables us to bring this variation on a theme into sharp focus. The really interesting part of his conclusion for our main purpose is his historical portrayal of the practical evolution of the social and political theories of the Middle Ages. Fisher acknowledged his 'gift of sound generalisation based upon a wide study of facts' and the following extract from his 'Theory of Mediaeval Empire' underlines something that for scholars of federalism today has a resounding resonance:

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The Middle Ages were, as compared with the ages that preceded and the ages that followed, essentially unpolitical, ideas as familiar to the commonwealths of antiquity as to ourselves, ideas of the common good as the object of the State, of the rights of the people, of the comparative merits of different forms of government, were to those generations, though such ideas often found an unconscious expression in practical expedients, in their speculative form little known, and to most men incomprehensible. Feudalism was the one great secular institution to which those times gave birth, and feudalism was a social and a legal system, only indirectly and by consequence a political one. Yet the human mind, so far from being idle, was in certain directions never more active; nor was it possible for it to remain without general conceptions regarding the relation of men to each other in this world. Such conceptions were neither made an expression of the actual present condition of things nor scientifically detennined by an induction from the past; they were partly inherited from the imperial scheme of law and government that had preceded, partly evolved from the principles of that metaphysical theology which was ripening into scholasticism. Now the two great ideas which expiring antiquity bequeathed to the ages that followed were those of a World-Monarchy and a World-Religion. 24 This lengthy passage admirably encapsulates Bryce's perceptive observation that the Holy Roman Empire was 'far less an institution than a theory or doctrine'.25 If the venerable feudal system was its great institutional legacy, it was really the enduring social and political assumptions, values and beliefs upon which it was based that connect it to an emergent, embryonic federalism so characteristic of what we now call the Continental European tradition of federalism. Today we can easily see how Bryce's 'Ti1'eOlY of Mediaeval Society' opens up the study of European politics, government and administration to a consideration of federalism in terms of associational values and societal relations. Indeed, it is, in retrospect, tantamount to an historical introduction to the Continental European tradition of federalism. Consequently its'la-:;;ting significance for us today revolves less around its relationship to the emergence of the so-called Westphalian state system of (national) sovereignty and more to what it represents as a multidimensional polity that represents an alternative to this accepted model of state organisation. The Holy Roman Empire should be construed on its own terms as a form of political association that constituted an evolving, highly differentiated, federal union with constitutional, legal, political and socioeconomic dimensions of authority and legitimacy. Current scholarship, especially in the study of International Relations (IR), has already begun to construe the Holy Roman Empire as just this: 'the habit of misunderstanding and largely ignoring the Holy Roman Empire in the last century and a half of its existence goes back to the nation-state-oriented historiography of the nineteenth century'. 26 Blyce of course must be considered part of this scholarly misdemeanour although Fisher, his biographer, shrewdly observed that his Holy Roman Empire bore 'clear traces of the particular point of time at

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which it was given to the world' and that 'it is difficult to believe that had [it] been written after Sedan, it would not have lost some of the affectionate glow with which it is warmed'.27 Nonetheless, there is no doubt that the Holy Roman Empire has recently been "rediscovered" by historians and political scientists. Today there has been a renewed interest in its constitutional-legal structure, decision-making processes and emergent 'federal spirit' that in comparison with the larger European states system of which it was a part made it 'essentially a more developed regime with more elaborate institutions, providing a system of governance for matters of common interest while leaving internal government to each of the participating actors individually'. This 'collective entity' was 'based on a shared, rather elaborate code of structural and procedural legitimacy' .28 And it is also interesting to note that the sense of being 'part of a single society' was widely shared and recognised as such by rulers so that 'in cultural terms' it 'obviously fonned a single society almost entirely unaffected by geographical borders between actors'.29 Given this profile of the Holy Roman Empire, it is difficult to avoid the conclusion that as an historical phenomenon it demonstrates 'that relations among autonomous actors do not require those actors to be completely "sovereign" and that the alternative to "sovereignty" is not necessarily "empire" (in the ordinary sense of the word), .30 . Bryce referred to the Holy Roman Empire as a 'mediaeval empire' and a 'European commonwealth of nations', but what was his real sense of his subject? In this chapter his meaning is taken to be not so much the new German Empire (which he called 'that predecessor's representative' and 'the offspring of the old Empire') that developed cumulatively during 1815-71 as an 'Institution', as much ecclesiastical as secular, that represented 'the unity of all mankind' and whose 'soul and essence' was 'the love of peace, the sense of the brotherhood of mankind and the recognition of the sacredness and supremacy of the spiritual life'. These remarks with which he concluded his epic historical journey brought his chronicle full circle. If we remember that his introductory comments alluded to the Empire 'exercising over the minds of men an influence such as its material strength could never have commanded', it is small wonder that some observers have seen in these ideals the European Union (EU) as a fonn of neo-medieval union of states and peoples. 31

The American Commonwealth The institutions of the United States are deemed by inhabitants and admitted by strangers to be a matter of more general interest than those of the not less famous nations of the Old World. They are ... institutions of a new type. They fonn ... a symmetrical whole .... They represent an experiment in the rule of the multitude, tried on a scale unprecedentedly vast. (James Bryce) Edmund Ions claimed that in assessing The American Commonwealth 'it is easy to detach a chapter here or a section there and submit it to rigorous

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examination in the light of subsequent research' and arrive at 'new historical interpretations and re-interpretations,.32 Tulloch wrote that 'The American Commonwealth is now, I suspect, a book more frequently alluded to than read', but this can never detract from what he acknowledged to be Bryce's 'singular intellectual and practical achievement' in helping to bring about 'a realignment of understanding, a new perception of the United States as ally and friend,.33 The American Commonwealth was many things: a plea for Anglo-American unity; the promotion of a common rhetoric about liberty and democracy; an empirical examination and a normative recommendation of successful federation (in certain circumstances); a validation of historical and racial continuity; a trenchant reaffinnation of the 'laws of political biology' that detennine the nature of institutional evolution; and a practical demonstration of the comparative method in political science. It was also, as we have seen, a project that emerged in a decade that was 'saturated in the Irish problem, theoretical speculation and current controversy' so that 'the example of the United States held peculiar relevance to this debate' .34 Fisher believed that in its methods and motives it had 'the value of an original source' and that 'from the first the book enjoyed a character of authority which the lapse of time [had] apparently done little to impair'.35 The origins of The American Commonwealth lie in Bryce's three visits to the USA in 1870, 1881 and 1883 and to the circumstances surrounding Gladstone's decisive influence upon him. 36 In his primary goal of seeking to 'present ... a general view of the United States both as a Government and as a Nation', he claimed that 'during the last fifty years no author has proposed to himself the aim of portraying the whole political system of the country in its practice as well as its theory'. He wanted to present 'a full and clear view of the facts of today' .37 This brought him to confront Alexis de Tocqueville's famous Democracy in America, first published in 1835, with which he hoped his own book would bear direct and favourable comparison. 38 Unlike Tocqueville, Bryce wanted to 'paint the institutions and people of America as they are, tracing what is peculiar in them not merely to the sovereignty of the masses, but also to the history and traditions of the race, to its fundamental ideas, to its material environment'. His own plan was first to identify 'the salient and dominant facts' and then to test the views that he had reached. His conclusions - to the extent that he intended to reach any - would be the direct result of being there, so to speak, 'upon the spot' .39 Tulloch identified three main differences between the two projects set 50 years apart: first, Bryce disagreed with Tocqueville's simple conception of democracy as if it was a single unchanging phenomenon; second, he was opposed to Tocqueville's deductive method which utilised vast abstract generalisations like 'liberty', 'equality' and 'democracy' as if they were self-explanatory; and, third, he disliked Tocqueville's use of the USA for the didactic purpose of preparing France for the inevitable advent of a democracy that in reality had a contextual significance only for Arnerica. 40 Bryce preferred the inductive method of gathering verifiable data before he was prepared either to build a model or make sweeping generalisations about democracy.

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Turning to our main purpose, it is fair to state, as Fisher does, that 'the least original' part of The American Commonwealth was that which dealt with the National Government in Volume One, but he acknowledged that Bryce's 'synoptic view of their thirty-eight State governments in their principles, their framework and their practical working' in this volume together with 'a clear account of the party system in its organisation and actual operation' in Volume Two were significant contributions and had in consequence become in these areas 'an original authority' .41 In hindsight there is no reason to quarrel with this judgement, but it is worth more than a moment's reflection to dwell for a short while on the significance of Bryce's research in The American Commonwealth for contemporary federal studies. The attention devoted to the constituent state units - their constitutions, governments, legislatures, executives and judiciaries together with financial affairs, the territories, local governments and metropolitan authorities - was tantamount to a survey of the whole subterranean institutional complex that underpinned the more familiar visible features of the federation. This alone was a considerable contribution to the late nineteenth-century understanding of the American federation as indeed was Bryce's devotion to an explanation of the party system. But there were still more invaluable insights that merit greater recognition by contemporary scholars of federalism and federation. These might best be identified in the following list of research areas that form part of Bryce's sketch outline of the 'American States as separate political entities' and continue to this day to constitute an agenda for comparative federal political studies: Variations in the territorial and demographic size of constituent units; Distinctions between their different historical origins; Distinctions between the different patterns of immigration; The classification of constituent units into distinct territorial groups; The artificiality of the state boundaries; The politics of constitutional imitation of the older states by the newer states; The comparative impact of movements of population affording assimilation; The impact of the moving frontier and transport infrastructure on the development of national communications; The pervasiveness of the same political parties in every state as a binding force for national integration. 42 Bryce's comparative reflections on the American federal experience and Continental European thinking about federalism remain instructive. He noted that conventional European thinking was accustomed to construe federalism as either a convenient way of 'giving free scope to the sentiment of nationality' that might exist in any part of an empire or for meeting the need for local institutions and distinct legislation which might arise from 'differences between such a part and the rest of the empire'. This was not, however, the case with the American states. The basis of their self-government was due primarily to 'the historical fact that they existed as cOlmnonwealths before the Union came into being' and 'second-

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arily, to the belief that localized government is the best guarantee for civic freedom, and to a sense of the difficulty of administering a vast territory and population from one centre and by one government'.43 Another field of comparative federal studies identified by Bryce is now beginning to repay closer contemporary research attention in the USA, namely, the role and importance of state constitutions. That this area of study has been - and in some respects continues to be - neglected in much of the contemporary mainstream literature in federal studies is probably understandable, but this fact makes it all the more remarkable that Bryce should have included it in his original three-volume project. 44 And this must rank as one of his major intellectual contributions to federal studies if only for the salutary reminder that it gives us about the enduring political significance of the role and nature of constituent units as thriving autonomous polities in federations. His point of departllre was to remind his readers that the state constitutions were 'the oldest things in the political history of America': for they are the continuations and representatives of the royal colonial charters, whereby the earliest English settlements in America were created, and under which their several local governments were established .... But ... they have a pedigree which goes back to a time anterior to the discovery of America itself.45 His intellectual prescience was further extended to include scholarly observations about the legal intricacies of the transition from colonial charters to state constitutions and its implications as a subsequent 'potential source of the local patriotism of their inhabitants' that bequeathed a 'sense of historic growth and indwelling corporate life which they could not have possessed had they been the mere creatures of the Federal Govermnent'. 46 This sort of historical research confirms a percipient late Victorian understanding of federal state-building and national integration in the USA that would probably still be considered quite sophisticated today. Bryce also engaged the comparative study of these state constitutions with those of the self-governing colonies of the British Empire, contrasting the imperial power legally to amend them with the absence of an equivalent congressional federal power to do likewise, a confirmation reminiscent of Freeman's famous dictum that what was 'imperial' could not be 'federal' and what was 'federal' could not be 'imperial'. The breadth of Bryce's relentless pursuit of facts - of empirical evidence was, in retrospect, frankly breathtaking. In his quest to explore and explain both the development and the consequences of constitutional development in the constituent states he was able to amass 113 constitutions enacted since the Declaration of Independence in 1776, including both pre-Revolutionary charters and those framed in the shadow of the Revolutionary War itself (1775-83), highlighting in particular the Frame of Government of Pennsylvania, (1682 and 1683) and the Fundamental Constitutions of Carolina (1669) that- only partially implemented - were originally constructed by John Locke and revised by the

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first Lord Shaftesbury.47 And the empirical drive in Bryce the political scientist propelled him to distinguish between different types of state constitution that corresponded to the different parts of the Union in which each state was situated. This in turn produced a threefold formal classification of state constitutions: the old colonial type (best seen in New England and the older middle states); the Southern or slave state type; and the new or Western type that characterised the post-bellum USA.48 These comparative historical surveys enabled him to chart the important political changes that had occurred in the overall fabric of the constituent states and their societies, furnishing him with a deep and thorough appreciation of democratic change in the USA that went beyond the more familiar surface of the federal level. In the less visible world of the constituent states, Bryce identified trends of development that he characterised as 'endless variety in details, but a singular agreement in essentials' meaning linear progress 'towards more democratic arrangements'. One marked shift in emphasis that he noted in the democratic character of even the first set of constitutions was the shift from chiefly 'negative provisions' that manifested a dread of executive power and military force to a 'new democratic spirit' that was 'positive as well as negative' in its tendency to refer everything to 'the direct arbitration of the people', calling their will into 'constant activity' ,49 Moving away from Bryce's general impressions of the condition of the American Commonwealth, his views and opinions about the strengths and weaknesses of the federal political system and their implications for federal systems in general still make for riveting reading. Chapters 29 and 30 of Volume I in particular underline the intellectual foundation to his own consideration of federal government and conveniently furnish us with a useful analytical framework for assessing federation itself. I have identified what Bryce referred to in Chapter 29 as 'the faults generally charged on federations as compared with unified government' in the following seven criticisms: Weakness in the conduct of foreign affairs; Weakness in home government, that is to say, deficient authority over the component states and the individual citizens; Liability to dissolution by the secession or rebellion of states; Liability to division into groups and factions by the formation of separate combinations of the component states; Absence of the power of legislating on certain subjects wherein legislation uniform over the whole union is needed; Want ofunifonnity among the states in legislation and administration; Trouble, expense and delay due to the complexity of a double system of legislation and administration. 50

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Bryce argued that the first four of the alleged faults were related to the nature of federal government itself which pennitted 'centres of force' located in the component states that could be sustained by a constituent government, a revenue, a militia, and a local patriotism to unite them. These centres of force could form the basis of a 'resistance to the will of the majority of the whole nation' that was 'likely to be more effective than could be the resistance of individuals' .51 But tlle gravity of the first two of tllese four weaknesses, according to Bryce, had been 'exaggerated by most writers' who had assumed on insufficient grounds that federal governments were 'necessarily weak'.52 He responded to each of these seven criticisms as they affected the USA and while he conceded some of them his general support for federation was undiminished. One defence of federal systems in particular remains of continuing relevance today, namely, that many of the problems and deficiencies associated with them were not the fault offederation itself but were endemic in the society. Consequently federation did not cause tlle problems but merely gave to them 'the particular fonn of a series oflegal controversies'.53 When he looked at the merits of the federal system in Chapter 30 of The American Commonwealth Bryce insisted that he could comment only upon those advantages that the experience of the American union had illustrated. Nonetheless they retain their relevance for the purposes of this chapter. Broadly speaking, he identified eight distinct advantages of federation: a

b

c

That federation furnished the means of uniting commonwealths into one nation under one national government without extinguishing their separate administrations, legislatures and local patriotisms. That federation supplied the best means of developing a new and vast country because it permitted an expansion whose extent, rate and manner of progress could proceed with more of a variety of methods and adaptation of laws and administration to the circumstances of each part of the territory in an altogether more truly natural and spontaneous way than could be expected under a centralised government. That federations prevented the rise of a despotic central government.

Bryce observed that the following two arguments related to and recommended not so much federation as local self-government, but since this is precisely what lies at the heart of federal principles we shall, like him, include them here: d

e These putative weaknesses of federation go to the very heart of the contemporary intellectual debate about federalism and democracy. They are as much a part of the public discourse about the EU today as they were about the USA in the late Victorian era.

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Self-government stimulates the interests of the people in the affairs of their own neighbourhood, sustains local political life, educates the citizen in his civic duty and teaches him that the sacrifice of his time and labour are the price that must be paid for individual liberty and collective prosperity. Self-government secures the good administration of local affairs by giving the inhabitants of each locality due means of overseeing the conduct of their business. That federation enabled a people to try experiments in legislation and administration which could not be safely tried in a large centralised country.

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That federation, if it diminished the collective force of a nation, diminished also the risks to which its size and the diversities of its parts exposed it. That federation, by creating many local legislatures with wide powers, relieved the national legislature of a part of that large mass of functions which might otherwise prove too heavy for it.54

Bryce concluded his list of merits by noting that 'all of these arguments' recommending federation had 'proved valid in American experience'. Federation was the only recourse simply because 'the Americans in 1787 would probably have preferred complete state independence to the fusion of their states into a unified government. 55 One final contribution that Bryce made to our contemporary understanding of the modern federal state is a particular historical interpretation of the formation of the USA that appears to have been overlooked in much of the commentary literature about The American Commonwealth. This is his perspective - a quite specific perspective - of precisely what happened during the period 1787-89 and its legal and political implications for the nature of the union created. Here Bryce took issue with the conventional explanation of the formation of the new federal union as one that merely 'revised' the Articles of Confederation. In his narrow focus upon the term 'perpehIaI union' to refer to the USA, Bryce put his finger on the very nub of the dilemma of explanation: As respects the argument that the Union established by the Constitution of 1789 must be perpetual, because it is declared to have been designed to make a previous perpetual Union more perfect, it may be remarked, as a matter of history, that this previous Union (that resting on the Articles of Confederation) had not proved perpehIaI, but was in fact put an end to by the acceptance in 1788 of the new Constitution by the nine States who first ratified that instnunent. After that ratification the Confederation was dead, and the States of North Carolina and Rhode Island, which for some months refused to come into the new Union, were clearly out of the old one, and, de jure if not de facto, stood alone in the world. May it not then be said that those who destroyed a Union purporting to be perpetual were thereafter estopped from holding it to have been perpetual, and from founding on the word "perpetual" an argument against those who tried to upset the new Union in 1861, as the old one had been upset in 1788? The answer to this way of putting the point seems to be to admit that the proceedings of 1788 were in fact revolutionary. In ratifying their new Constitution in that year, the nine States broke through and flung away their previous compact which purported to have been made for ever.56 Bryce acknowledged that this 'revolutionary' act was 'for the sake of forming a better and more enduring compact' but that the act in and of itself was nonetheless an 'extra-legal' action, although, in his view, 'amply justified by the necessities of the case'.57 With such logical precision he had fastened upon the politics

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of deception. What occtmed in 1787-89 was not a mere revision of the Articles of Confederation - the first federal union in the United States - but rather its replacement by a new constitutional framework that made possible a much more consolidated, national union to which the name 'federal' had been attached. 58 This conclusion, it hardly needs to be emphasised, remains today the source of much intellectual debate and political discussion and not a little controversy in the United States. Ifwe reflect upon the significance of The American Commonwealth today, we must be aware that it remains 'a picture of America at a given point of time painted with the fresh colours of contemporary life', but it is also true, as Fisher observed, that 'from the first the book enjoyed a character of authority which the lapse of time has apparently done little to impair'. Consequently it remains 'an accepted classic' that continues today to 'form a basis for the study of American instihltions' .59 In hindsight, it is clear that the analysis of the federal system of the USA and the insights revealed about federal systems in general in The American Commonwealth remain of inestimable value to us today. In the course of his intellectual sojourn in the USA he had identified the firm historical and philosophical bases of the Anglo-American tradition of federalism, a political tradition that has only relatively recently been clarified and updated in the pages of Publius: The Journal of Federalism. 60 In particular, then, Bryce's mammoth work pointed up both general principles and problems of federation as well as those that pertained solely to the USA. Consequently The American Commonwealth still offers more to the student of comparative federal systems than simply the American federal experience. It emphasises the universality of federal principles and problems.

Studies in history and jurisprudence Bryce's ability and willingness to venhrre beyond the American model in his evolving appreciation of federalism and federal political systems is demonstrated yet again in the two volumes of his Studies in History-and Jurisprudence, first published in 1901. Among these essays was one that is still used by students of government today for the subject 'Flexible and Rigid Constitutions' but it was also one that focused upon the legal-historical dimension to our understanding of federal systems and introduced the twin notions of centrifugal and centripetal forces in constitutional law. 61 This essay, about 65 pages long, has been relatively neglected in the mainstream literahlre and deserves to be reinstated as an important and interesting contribution to our understanding of the forces that give rise to what we might call the 'federal predicament'. In his survey of rigid and flexible constitutions - the tendencies that operate either as centrifugal or as centripetal forces and the complex relationship of these factors to the formation of federations and the operation of federal political systems - he made a series of important statements and claims that remain of immense significance and not a little controversy in the contemporary debate about federalism and federation. In particular Bryce called attention to what are

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often alluded to today as the preconditions of federal union. Centripetal forces were those that drew men or groups of men together into one organised community while centrifugal pressures were those that impelled men to break away and disperse. He remarked that a 'political constitution or frame of government' - which he defined as 'the complex totality of laws embodying the principles and rules whereby the community is organized, governed and held together' was exposed to both of these opposing forces. 62 It was context that determined whether or not the impact of a particular tendency was binding or fissiparous. Bryce identified 'obedience and individualism' as factors that could operate in both directions and added 'interest and sympathy' to the source of these tendencies. The juxtaposition of obedience and individualism was useful because it enabled him to illustrate how both 'the readiness to submit and follow', the 'love of independence' and the 'desire to let each man's individuality have full scope' could operate in both associative and dissociative directions. Similarly with interest and sympathy; their juxtaposition revealed how far property, industry and commerce - influences that flowed from calculation and the desire for gain - on the one hand, and the sense of community; whether of belief, taste or feeling - deriving from emotion or sentiment - on the other, could be both centripetal and centrifugal. The federal predicam~nt was both contextual and circumstantial. 63 Bryce identified what he called 'a large and rather miscellaneous category of sources of sympathy'. These included common ancestry, the use of a common speech, the enjoyment of a common literature, religion and a group of factors that he labelled 'elements of compatibility', namely, traits of character, ideas, social customs, similarity of intellectual culture, of tastes, and even of the trivial usages of daily Iife. 64 His reference to the 'sentiment of nationality' was also interesting. It was based upon a complex feeling of affinities of race, of speech, of literature, of historic memories and of ideas that owed their existence to the French and American Revolutions. But the centripetal forces that impelled groups to come together to make them 'prize the unity of the state' was often accompanied by the parallel development of an opposite tendency, based on sentiment that caused men to 'intensify the life of the smaller group', making it draw apart and weaken the state. In summary, the march of civilisation tended to break down local prejudices and create 'a uniform type of habits and character over a wide area', but it also heightened 'the influence of historical memories' and rekindled resentment at 'old injuries' that disposed such groups and communities to organise themselves, assert what they deemed to be their rights and could even impel them towards separation. 65 Bryce also identified the elements of a political strategy for framing a constitution to maintain and strengthen the unity of the state. Ideally these were trade, a common law and a common system of courts, a system of education that would spread common ideas and aspirations to the citizens and encourage a common language and common festivities, and the linking of ecclesiastical arrangements to those of secular government. Where centrifugal forces were strong, there were several constitutional contrivances that could be usefully employed to reassure

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citizens who were members of a significant minority community. In those cases where only a minority section of the population entertained real grievances it was important to assuage their resentment. But at least two tendencies had to coexist for the problem to be significant: a sentiment of dislike on the part of the disaffected section towards the rest of the nation and a belief that great material advantages would be secured by separation. Leaving aside physical force, a bill of rights, intricate legal variations and the establishment of local autonomy offered the basis for achieving harmony between different communities. It was here that the federal idea was compelling. Already we can construe these remarks in the context of what we would call de jure asymmetrical federalism. And the implications of these remarks for the study of contemporary federalism and federation are self-evident. Clearly the law and the constitution, history, philosophy, politics and government were each indissolubly connected in Bryce's approach to studying both the preconditions of federal union and the maintenance of federal systems. But having analysed these relationships in some depth he was drawn briefly into a discussion of sovereignty and federalism - another conceptual relationship that lingered long and often agonisingly into the late twentieth century. His discussion of sovereignty was detailed but his analysis of its relationship to federalism was concise. Bryce claimed that the source of the confusion lay in the conceptual distinction between two separate but closely interrelated dimensions to sovereignty: de jure and de facto. The former was created by and concerned only law. It had nothing to do with the actual forces that existed in a state nor with the question to whom obedience was rendered in reality by the citizens in the last resort. It represented merely 'the theory of the law, which mayor may not coincide with the actual facts of the case' .66 The latter - de facto or practical sovereignty - on the other hand, denoted simply the strongest force in the state whether or not it enjoyed any recognised legal supremacy. And Bryce's 'Practical Sovereign' was the person or persons who could make his/their will prevail whether with the law or against the law. This was de facto rule. Federations in law were states that were characterised-by divided government, 'each having a sphere of its own determined by the constitution of the federation'. The legal sovereign, then, was to be found in the authority whose expressed will could bind others and whose will any other legal force could not overrule. The law, in giving this supremacy, could limit it to certain bodies and might conceivably divide the whole legislative field or executive command between two or more authorities. In a legal sense this was a 'partial sovereignty' but nonetheless a 'true sovereignty' that was capable of being divided between coordinate authorities. In modem federal states sovereign authority in its legal sense resided in the people but it was entrenched in the federal and state constitutions that could in tum be amended only by special legislative procedures. Practical sovereignty was conceptually problematic. This was because obedience was achieved not so much by physical force (although this was certainly possible) but more likely by 'religious influence, or moral influence or habit'. And it was most likely to be witnessed in communities where legal sovereignty

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was in dispute or had simply disappeared. The relevance of this short survey for our purposes is clear. It is demonstrated in the case of the USA where the law had no answer to the rival legal claims to federal and state autonomy - often referred to as 'states rights' - brought to a crisis over the question of slavery. The ensuing American Civil War was tantamount to both the redundancy of legal sovereignty and the trial of de facto sovereignty. War not law was the determining factor. In summary, Bryce had clarified the nature of the relationship between the law and politics in his survey of sovereignty and federalism. He had gone to the very heart of one of the most difficult and contentious of conceptual relationships in the study of federalism, one, indeed, that had exercised the keenest and sharpest of intellects during the debates at the Philadelphia Convention a century earlier.

Modern democracies It has sometimes seemed to me when writing this book that it was being

addressed rather to the last than to the present generation. That generation busied itself with institutions; this generatiqn is bent rather upon the purposes which institutions may be made to serve. (James Bryce) This two-volume work for which Bryce had 'begun to make collections as early as 1904' reveals exactly the same 'method of enquiry' as we have witnessed in The American Commonwealth: 'it is Facts that are needed - Facts, Facts, Facts' .67 His chief purpose in these two weighty tomes was 'to provide a solid basis for argument and judgement by examining a certain number of popular governments in their actual working, comparing them with one another, and setting forward the various merits and defects which belonged to each'. But he acknowledged that 'it is not current politics but democracy as a form of government that I seek to describe' and this is why he was not unduly bothered that most of the material for his study was gathered in the period shortly before the First World War during which time Bryce travelled to the USA, Canada, Australia, New Zealand, Latin America, Switzerland and other parts of Europe. 68 Given that the Bryce of Modern Democracies is the Bryce of The American Commonwealth, we would expect the same sort of inductive method of enquiry to yield similar kinds of emphases, cautions and a general reluctance either to theorise or to make many, if any, generalisations from his careful observations, discreet conversations and reflective thinking. For our limited purposes here, it is appropriate to identify in particular Chapters 67 and 68 respectively titled 'Comparison of the Six Democratic Governments Examined' and 'Types of Democratic Government' because they underline his penchant for the comparative method in political science and tell us something about his views of both the American and Swiss federal experiences.

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As a man whose principal experience of democracy was the evolution of British parliamentary democracy in the second half of the nineteenth century, we should not be surprised to learn that his own preconceptions and predispositions embraced 'democracy' according to something that he called 'usage'. This meant democracy in the accepted sense of the term as in 'the community as a whole': 'this means, in communities which act by voting, that rule belongs to the majority, as no other method has been found for determining peaceably and legally what is deemed to be the will of a community which is not unanimous'. He used the word in 'its old and strict sense' as 'denoting a government in which the will of the majority of qualified citizens rules, taking the qualified citizens to constitute the great bulk of the inhabitants, say, roughly at least three-fourths, so that the physical force of the citizens coincides (broadly speaking) with their voting power'. 69 In this he was very much a man of his time but we must also remember that he did acknowledge some flexibility in his predispositions when he noted that 'democracy' could acquire 'attractive associations of a social and indeed almost of a moral character' in the federations of the United States, Switzerland, Canada and Australia. 70 Ifwe distil the results of Bryce's survey of democratic government in France, Switzerland, Canada, the USA, Australia and New Zealand we can see that four of his six countries surveyed were established federations. In his comparative summation of these six governments, therefore, we can isolate what Bryce underlined as the following seven strengths that pertained in particular to the federal states of Switzerland, Australia, Canada and the USA: A high degree of administrative decentralisation (especially in Switzerland); A high degree of public participation in public affairs (especially in Switzerland); The wide application of popular election to the choice of officials (especially in the USA); The recent introduction in many states of direct popular election (especially in the USA and Switzerland); The positive role of the Federal Courts in developing the Constitution to adapt and adjust to new conditions (especially in the USA); The vitality of local self-government in creating a sense of civic responsibility; The Westminster model of parliamentary federal government had produced overall governmental and political stability (especially in Canada). These acknowledged strengths were tempered simultaneously by the following six perceived weaknesses in federations: The undue power and control of party organisations (especially in Australia); Recurring differences between both horizontal and vertical structures of authority;

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M Burgess The growth in influence of money power that can pervert administration; The inordinate number of elections (mainly the USA); The tendency to make politics a gainful profession; Extravagance in administration.

Among these weaknesses, Bryce observed that the first three deficiencies had been observed in all governments, whether democratic or not, while the remaining three were 'more definitely connected with popular government' whether federal or not. His overall sense was that modern democracy had created additional channels through which the 'familiar propensities to evil' could flow while at the same time closing down 'some of the old channels'.71 In other words federal democracy came at a price. Turning to his 'Types of Democratic Government' in Chapter 68, Bryce identified three 'representative Frames of Government', namely, the parliamentarycabinet system of Great Britain and France, the presidential system of the USA, and the executive council system of Switzerland. The comparative method prompted his enquiry to focus upon three key questions: Which of them succeeded best in giving pronJ.pt and full effect to the will of the people? Which of them was best calculated to guard against errors into which the people might be led by ignorance, haste or passion? Which of them secured the highest efficiency in administration?72 Inevitably each system was possessed of distinct advantages and disadvantages but the comparative method enabled him to rank each type of democratic government in a way that pointed up the perceived strengths and weaknesses of federal government. Broadly speaking the balance of advantage in the USA hinged upon the following key elements: The federal system erred on the side of safety not speed; The federal system introduced formal checks and balances to preserve liberty; The federal system provided administrative certitude and continuity; The federal system allowed legislatures to concentrate on the work of legislation; The federal system furnished the basis for strong party organisation but a relatively weak party discipline; The federal system promoted a sense of stability based upon fixed elections, financial constraints on the executive and the use of the executive veto. In the case of Switzerland, Bryce tUlned to the complex relationship between its constitutional design, institutional strnctures and historical traditions: The federal system had the advantage of simplicity and of a concentration of authority;

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The federal system was characterised by a low level of party strife; The federal system provided both economy and efficiency; The federal system guaranteed policy continuity in both the foreign and domestic spheres; The use of the popular referendum and initiative furnished the basis of a democracy based on the sovereignty of the people. Switzerland was 'a humdrum State', its politics 'less spectacular' but its political culture made Swiss democracy 'more truly democratic than in any other country.73 These reflections on the character and undoubted success of the Swiss federal model accorded with his own intellectual predilections regarding historical continuity and what he had already identified much earlier as 'political biology': Can the advantages which this type of government has bestowed on Switzerland be secured elsewhere by like institutions? The conditions are peculiar: a small nation, its citizens not indeed poor, but very few of them rich, highly intelligent, long trained by local self-government, little distracted by party spirit. It is hard to suppose in any other country a coincidence of these conditions sufficient to give such an institution as the Swiss Federal Council a like chance of success. 74 The quality of federal democracy was the result of a judicious, not to say fortuitous, combination of historical circumstances that had enabled Swiss political institutions, socio-economic conditions, geographical size and location and a long experience of civic duty and local self-determination to interact in producing a unique federal model characterised by governmental and political stability. Published in the aftermath of the First World War, Modern Democracies reflects the new age of hope combined with a cautious expectation about the future trends and tendencies for both good and ill in delnocratic government as it seemed to an octogenarian in public life who had just witnessed the creation of seven new democratic states in Europe. Fisher noted that Bryce saw 'nothing inevitable in moral progress' and that he had no illusions about democracy, it being preferred to other forms of government largely because they were 'even more open to abuse' .75 Our brief excursion into Bryce's contribution to the debate about the condition of modern democracy in the early twentieth century provides us with useful insights into some of his main thoughts about federal democracy. He was certainly more sanguine about the future of Swiss federalism than American federalism and he was more optimistic about federal democracy in Canada than in Australia, but there remains another dimension to Bryce's intellectual predisposition to favour federal democracy - another variation· on a theme - that touched practical politics more irresistibly than any of his written contributions on the federal idea could possibly have done. This was the question of Irish Home rule and its relationship to British imperial unity in the late

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nineteenth century. Nowhere else did his intellectual predilections for the federal idea mesh so closely with the practical politics of late Victorian England.

Empire, Ireland and the federal idea In the late Victorian era, one major public policy issue, namely the 'Irish Question', dominated British party politics. Bryce was himself 'a reluctant home ruler, his conversion slow and ambivalent', but the key to understanding the evolution of his political thinking in terms of the federal idea was to establish a firm link between America's federal solution and the seemingly stark alternative of Irish nationalist destruction of the union. 76 In the specific context of British politics in the decade of the 1880s, it is not an exaggeration to claim that 'the writing of this decade was saturated with the Irish problem, theoretical speculation and current controversy becoming inextricably mixed'.77 As we have already noted, the publication of The American Commonwealth owed its appearance to a mixture of motives. Tulloch stated that the idea for it had been in Bryce's mind for a long time, but it served many purposes not least Gladstone's appeal for greater cooperation and understanding between the English-speaking world, his desire for a closer A'1glo-American friendship and his belief that it could buttress the larger cause of liberalism in the world. In the heady atmosphere of British party politics, the celebration of the USA as a highly successful example of federation also served the purpose of strengthening the argument in favour of constitutional reform in the United Kingdom (UK). More especially, it helped to promote the case for home rule against unionism. But it also fuelled the intellectual debate about the federal idea per se and this debate inevitably spilled over into the larger quest for the constitutional reconstruction of the empire itself. Irish home rule was inextricably tied to the larger question of British imperial unity. It was an integral part of the political discourse to equate Irish home rule with the disintegration of the British Empire. After all, if the British could not preserve the union by keeping Ireland, so the argument went, how could they retain the empire? To argue in favour of home rule therefore was tantamount to imperial disintegration. It was here that Bryce was able to challenge the politics of unionism by emphasising the versatility of the federal idea. Home rule of course did not mean federalism, but it was nonetheless wrapped up in the potent ideas of local autonomy, the divisibility of sovereignty and Lord Acton's belief that democracy's innate tendency toward unity of power was a threat to liberty and required the protection that federalism could provide. 78 Consequently it was hardly a giant leap of the imagination to extend the argument in favour of Irish home rule to the UK as a whole, what came to be called 'home rule all round'. In this particular context we can much more easily appreciate the relevance of Bryce's American Commonwealth to the Irish debate. As Acton famously put it, 'To admit the American principle was to revolutionise Ireland' .79 It was also potentially to revolutionise the imperial idea. There was, in other words, a clear logical line of intellectual and practical political thought about Irish home rule

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and imperial federation. The fonner might involve a variety of constitutional changes in the UK that included institutional reform in conjunction with new procedures and mechanisms to regulate the relationship with Ireland while the latter also included a spectrum of possibilities ranging fi'om an imperial council and colonial representation in the British Parliament to a fully fledged imperial parliament. By the start of the 1890s, schemes for the federation of the empire had flourished in the mid- and late Victorian literature for nearly 20 years. It was simply impossible to construe the 'Irish Question' in anything other than an imperial context. Both Ireland and empire forged a unity of political thinking in Blyce's mind that converged on the federal idea. In a letter to Freeman, he rejected his mentor's reprimand about his support for the Imperial Federation League, a political movement dedicated to the federation of the empire, when he remarked that 'there was a sound idea at the root'. For Bryce, that sound idea - the federal idea - was inextricably bound up with the British national interest. Parallels with loss of the American colonies in the late eighteenth centlllY echoed throughout this debate in the attempt to deter the white self-governing colonies of Australia, New Zealand, South Africa and Canada from arriving at formal constitutional independence by leaving the empire. The much vaunted 'crimson thread of kinship' was put to the test by utilising a political discourse that the colonists in these countries were actually 'Englishmen overseas' who had transmitted fundamentally British ideas of Iibeliy, autonomy and parliamentalY practices from the parent body to its offspring of an empire on which the sun never set. Bryce's understanding of the relationship between Irish home rule and imperial unity did not stretch to support for a new kind of liberal federalism as a brand of revitalised British imperialism. There was unquestionably an inherent intellectual tension in this seemingly attractive proposition. The intellectual influences of the 'historical method' bequeathed to him by Freeman and Goldwin Smith could conceivably accommodate 'Anglo-Saxon' racial unity, but certainly not the glaring racial heterogeneity that constituted the reality of the British Empire. He did not therefore concur with the SOli of arguments and connections made by Sir John Seeley, Regius Professor of Model11-HistOlY at Cambridge, in his The Expansion of England that first appeared in 1883. Indeed, he was extremely wary of the American federal experiment as an analogy for the British Empire. Seeley simply went too far in his ambitious conception of imperial federation: 'when we have accustomed ourselves to contemplate the whole empire together and call it England, we shall see that here too we have a United States'.80 In contrast, Bryce believed that the particular brand of federation exhibited by the American union would lead in precisely the wrong direction and would in practice mean a resort to imperial coercion. In summmy, we can see that there were many cross currents of informed opinion and thought about the relationship between federalism, Ireland and the British Empire. It was both a complex and complicated relationship at several different levels of political analysis and discourse, as well as party politics. Blyce, it has to be stated, was never a committed imperial federationist in the sense that he believed in the conversion of an empire into a federation of states

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and peoples. But he saw the Imperial Federation League as symbolic of the need for a significant shift in British imperial relations that would consolidate British power in world affairs. In this he was not alone among liberals who in late Victorian Britain struggled to find new ways, new constitutional and political arrangements, that would facilitate this readjustment in what was really about the future of national security.

Conclusion: variations on a theme What does our short survey of the four major works written by James Bryce tell us about his contribution to the mainstream literature on federalism and democracy in the late nineteenth and early twentieth centuries? How should we assess his place in the pantheon of writers on the theory and practice of federalism and democracy? It is important that we acknowledge his intellectual, ideological and political party predispositions before we attempt to distil the different elements of his contribution. Clearly Bryce was a nineteenth-century liberal but he was more accurately a Gladstonian Liberal who embraced the established principles of liberty and autonomy as fundamentally moral questions of political community. Quoting A.V. Dicey, Tulloch identified Bryce as the epitome of 'the moralisation of English public life, and the triumph of English humanitarianism' rooted innonconfonnist evangelicalism and Benthamite refonnism that translated into spiritual salvation and moral self-improvement. 8' Intellectually Bryce was both an historian and a lawyer and it is impossible to arrive at an aCClll'ate assessment of his work on federalism and democracy without a prior recognition of the enduring intellectual influence of both Goldwin Smith and Edward Freeman. Together these two Oxford historians epitomised the belief in a fundamental historical continuity of the English race abroad that was conveniently encapsulated in the mid- and lateVictorian assumption of' Anglo-Saxon unity' . Smith was 'the incarnation of liberal Oxford' whose conception of America was rooted in the spiritual rupture of the seventeenth centllly Puritan exodus followed by the physical secession from empire in 1776 that wrought a schism in this Anglo-Saxon world. 82 And it was to this liberated America that Smith sought intellectual solace as the ultimate harbinger of a rejuvenated and revitalised England that would presage a future AngloAmerican unity as part of an 'Anglo-Saxon Commonwealth'. Freeman's intellectual impact on Bryce was no less enduring. It is clearly detected in both his Holy Roman Empire and The American Commonwealth that underlined the continuity of history as essentially the racial evolution of the Aryan through the Greek heritage in Roman civilisation via the Teutonic branch to the English stock and their kinfolk abroad in America. Americans were simply 'Englishmen abroad'; their rebellion - their republican experiment - had not undermined the basic racial unity of the Aryan for they had taken with them certain ineradicable traits that perpetuated the capacity for self-government, moral progress and the civilising mission. Bryce carried these assumptions in modified fonn with him all of his life.

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In addition to these underlying intellectual and ideological predispositions we must add his practical formative encounters with the contemporary age. These included in particular the struggle for secularisation and liberal values at Oxford, the political debate about British parliamentary reform and the impact of the American Civil War on the British political and intellectual elite in midVictorian England. Adopting John Stuart Mill's mantle of the abolitionist moral imperative in the Civil War, Bryce championed the cause of the North, conveniently ignoring the liberal moral ambivalence towards the constitutional minoritarianism of states' rights and the co~tested right of secession from the union. Set against this mid-Victorian liberal background, let us tum to look at what Bryce contributed to our subject then and now. We can see immediately that the theme of historical continuity pervaded everything that he wrote. He always wrote from the standpoint of the pervasive significance of the past upon the present, even when shifting into empirical political science in hot pursuit of comparative studies. As a result, we can always find in his overall contribution to federal studies this fundamental unity in his thinking about the subject. Even when he devoted his attention to the neglected area of state constitutions in the United States, he was instantly predisposed to emphasise what he construed as the 'vital missing link between English laws and the Federal Constitution,.83 Similarly the Holy Roman Empire was a legacy of the Empire of Rome with an emperor as imperium but construed as an idea and an institution it evolved gradually from an imperial union to become a 'European commonwealth of nations' at the heart of which was the 'political biology' of Gennan federalism. The slow organic growth of this remarkable edifice revealed itself to be a natural racial evolution - in homage to Freeman - of the stalwart Aryan genus. One particular contribution that Bryce made to our contemporary understanding of federalism is one that has been consistently overlooked, namely, his identification of the 'Continental European' tradition as a distinct tradition of federalism. His Holy Roman Empire is nothing less than a descriptive historical survey of a specifically 'European' species or tradition-bf state-society relations that traces the evolution of imperial authority through the emergent feudal relationships to a particular brand of Germanic 'European' federalism. His chapter titled the 'Theory of the Mediaeval Empire' lays bare the socio-economic elements, territorial and non-territorial pluralities and authority relationships characteristic of this tradition that exhibits informal as well as formal arrangements in furnishing the basis of local autonomy and self-determination. Today Bryce's chronological survey of an idea and an institution invites us to revisit the study of European government and politics in tenns of a long-standing historical pedigree of socio-economic and political thought and practice. As an institution that exercised over the minds of men 'an influence such as its material strength could never have commanded', perhaps we can see for the European Union a potential future role in the equivalent transmission of international values. Similarly with his The American Commonwealth, the historical continuity of a purported Anglo-Saxon unity leads him to a distinct species of federalism in

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America, different in many respects from Canada, and one that underlines the ideological dissonance between eighteenth century republican ideals and nineteenth century British imperial parliamentary assumptions about the emergence of mass democracy. But his version of American federalism and the American federal experience is, as we have seen, one that is anchored in mid- and lateVictorian racial assumptions about 'the English Abroad' and the organic conception of English legal and political institutions and practices that had evolved slowly to produce an historical continuity of English customs, habits and traditions. His reliance on the historical method of Freeman ensured that his approach to understanding the 'Anglo-American' tradition of federalism would be one based upon 'biological laws of transmission and adaptation, of adjustment and survival'. It was, in short, the result of a fusion of Darwinian political biology and Freeman's historical method. 84 Consequently American federalism was largely a modern form of English traditionalism: Undoubtedly he did largely succeed in placing American democracy resolutely within its own context, but ... the dynamics of environmental adaptation interacted with and were hampered by the static predeterminations of race; instead of seeing an American, he tends to search for an AngloAmerican. 85 • What The Holy Roman Empire tells us about the emergent Germanic tradition ofa distinct Continental European federalism, The American Commonwealth informs us about the growth and expansion of the English stock. And in this light we must also construe his support for imperial federation in the specific context of the famous 'crimson thread of kinship', that is, the white self-governing colonies that carried within their biological make-up an inherent governing capacity guaranteed to further that civilising mission of the mother country.86 This excessive reliance on the historical method certainly does not render Bryce's contribution to federal studies either invalid or superficial. As long as we are continuously aware of and alive to the underlying intellectual assumptions upon which his work is based, there remains much profit in revisiting these four major works on federalism and democracy. Bryce the Liberal MP was clearly a man of his time, imbued with the intellectual and moral values and beliefs typical of the Victorian liberal political elite, but Bryce the peripatetic historian, lawyer and political scientist has left a lasting scholarly legacy for students of federal studies. For our purposes, his contribution serves to bridge the Anglo-American and Continental European traditions of federalism and federation. It also reminds us about the enduring value of studying constitutions and political institutions in relation to both legal and historical perspectives and it encourages us to think carefully about how we view the past. Above all, Bryce's political empiricism, his penchant for comparative analysis, his conceptualisations and his historical method have combined to furnish us with a strong nonnative basis for arguing that federal democracy remains in essence a species of the larger genus, liberal democratic constitutionalism.

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Notes

2

3 4

5

6

7 8

9 10 II 12 13 14 15 16 17 18 19 20 21 22 23

24 25 26

I have used the following sources: The Holy Roman Empire, (London: Macmillan, 1925), fourth edn. reprinted in 1925; The American Commonwealth, (London: Macmillan, 1895), third edn, 2 vols; Studies in Histo/y and Jurisprudence, (Oxford: Oxford University Press, 1901); and Modern Democracies, (London: Macmillan, 1923), reprinted 1923. H. Tulloch, James Blyce's American Commonwealth: The Anglo-American Background, (Woodbridge, Suffolk: The Boydell Press, a Royal Historical Society Publication, 1988), p. I. Tulloch, Blyce's American Commonwealth, p. 7. C. Harvie, 'Bryce, James, Viscount Bryce (1838-1922)', Oxford DictionGlY of National Biography (ODNB), (Oxford University Press, 2004) [www. Oxforddnb. com/view/article/32 141, accessed I March 2006], p. I of 12. His biographer, H.A.L. Fisher, observed that 'for a man of his singular activity and reach of mind, Bryce was curiously exempt from metaphysical misgivings and scruples and indifferent to much that most interested his contemporaries in the region of philosophical speculation' while noting that 'a strong vein of Christian feeling entered into his attitude towards public questions'. See H.A. L. Fisher, James Blyce (Viscount Blyce ofDechmont. O.M.), (London: Macmillan, 1927), Vol. II, pp. 301-302. Harvie, 'Bryce, James, Viscount Bryce (1838-1922)', p. 2. See also C. Harvie, The Lights of Liberalism: University Liberals and the Challenge of Democracy, 1860-86, (London: 1976). A.V. Dicey, The Study ofthe Law ofthe Constitution. According to Fisher, 'Liberty was his watchword. His belief in Liberty in its widest sense, and in every sphere of thought and action, was deep-rooted and remained unshaken through life'. The three causes with which he had been principally identified as a parliamentarian were Armenia, the Boer Republics and Ireland so that Bryce was 'a Pro-Armenian, a Pro-Boer and an Irish Home-Ruler'. See Fisher, James Bryce, Vol. II, pp. 5-6 and 298. Bryce, The Holy Roman Empire, p. 2. There is a useful summary of Freeman's intellectual influence on Bryce in Tulloch's James Blyce 's American Commonwealth, pp. 38-44. Bryce, The Holy Roman Empire, pp. 1,211-212 and 351. Bryce, The Holy Roman Empire, p. 212. Bryce, The Holy Roman Empire, pp. 2-3. Extracts from the era of Charlemagne taken from --The Holy Roman Empire, pp.68-74. Bryce, The Holy Roman Empire, p. 73. Bryce, The Holy Roman Empire, p. 249. Bryce, The Holy Roman Empire, pp. 400-40 I. Bryce, The Holy Roman Empire, p. 392. Bryce, The Holy Roman Empire, pp. 388-390. Bryce, The Holy Roman Empire, p. 392. Bryce, The Holy Roman Empire, pp. 393-395. Bryce, The Holy Roman Empire, p. 396. Fisher, James Blyce, Vol. I, p. 69. Fisher also quoted Bryce's trenchant rebuke of the Hapsburgs: 'the one thing which is wholly absurd is to make Francis Joseph of Austria the successor of Frederick of Hohenstaufen and justify the most sordid and ungenial of modern despotisms', Fisher, James Blyce, Vol. I, p. 70. Bryce, The Holy Roman Empire, Chapter 7, 'Theory of the Mediaeval Empire', p. 90. Bryce, The Holy Roman Empire, p. 380. A. Osiander, 'Sovereignty, International Relations and the Westphalian Myth', International Organization, Vol. 55(2), (Spring 2001), p. 269.

114 . M Burgess 27 Fisher, James Bryce, Vol. I, p. 69. 28 Osiander, 'Sovereignty, International Relations and the Westphalian Myth', pp. 270 and 279. 29 Osiander, 'Sovereignty, International Relations and the Westphalian Myth', 179-180. 30 Osiander, 'Sovereignty, International Relations and the Westphalian Myth, p. 277. 31 Bryce, Holy Roman Empire, pp. 505 and I. 32 E. Ions, James Blyce and American Democracy, 1870-1922, (London: Macmillan, 1968), p. 141. 33 Tulloch, Bryce's American Commonwealth, p. 2. 34 Tulloch, Bryce's American Commonwealth, pp. 78-79. 35 Fisher, James Blyce, Vol. I. p. 239. He also claimed that it was 'generously welcomed by American publicists and men of letters, sensibly advanced the march of reconciliation' ... and was 'so accurate and well-informed that no American student of the institutions of his country could be dispensed from reading it', p. 234. 36 See Tulloch, Bryce's American Commonwealth, pp. 68-69 and 78-79. 37 Bryce, The American Commonwealth, Vol. I, p. 2. 38 Tulloch, Blyce 's American Commonwealth, p. 6. 39 Bryce, The American Commonwealth, Vol. I, pp. 4 and 10. 40 Tidloch, Blyce 's American Commonwealth, pp. 62-67. See also Fisher, James Blyce, Vol. I, pp. 227-228. 41 Fisher, James Blyce, Vol. I, p. 229. 42 See Bryce, The American Commonwealth, Vol. I, Chap. XXXVI, 'Nature of the American State', pp. 413-418. 43 Bryce, The American Commonwealth, Vol. I, p. 418. 44 This lacuna in historical and political research into the origins of the state constitutions and the political theology of early American federalism has now been filled by the variety of publications in Publius: The Journal of Federalism. See, for example, the articles by Elazar, Kincaid, Taylor, Freeman, Ostrom, Lutz and Riemer in D.J. Elazar and J. Kincaid (eds), 'Covenant, Polity and Constitutionalism', Special Issue, Publius, Vol. 10(4), (Fall 1980), while Alan Tarr, Director of the Centre for State Constitutional Studies, Rutgers University, New Jersey, USA is currently active in conducting research into this area. 45 Bryce's historical analysis traces the origins of the colonial charters back to the fifteenth, sixteenth and seventeenth centuries in the course of which he also identified the 'democratic spirit' of the state constitutions as largely due to 'the ideas with which the theology ofthe Reformers, and especially of Calvin, had filled the minds of the Puritan emigrants; and the ecclesiastical arrangements they had set up powerfully influenced those of the nascent political communities', Bryce, The American Commonwealth, Vol. I, Chap. XXXVII, 'State Constitutions', pp. 427-429, esp, fn. 1,429. 46 Bryce, The American Commonwealth, Vol. I, Chap. XXXVII, p. 432. He noted that his was a brief sketch of 'the most instructive sources for the history of popular government which our century has produced', p. 458. 47 See Bryce, The American Commonwealth, Vol. I, Chap. XXXVIII, fn. I, pp. 450-451. Fisher noted that 'what Americans did not possess and what was a matter of very great difficulty to supply was a synoptic view of their [then] thirty-eight State governments in their principles, their framework and their practical working' which Bryce supplied with 'copious generosity'. He added that 'not many people are likely to take the trouble to read the one hundred and five State constitutions .... They will be content to take their knowledge of State Politics ... from the pages of Bryce', Fisher, James Bryce, Vol. I, p. 229. 48 Bryce, The American Commonwealth, Vol. I, Chap. XXXVIII, p. 453. 49 Bryce, The American Commonwealth, Vol. I, Chap. XXXVIII, pp. 454-455. 50 Bryce, The American Commonwealth, Vol. I, p. 34 I. 51 Bryce, The American Commonwealth, Vol. I, p. 342.

Variations 52 53 54 55 56 57 58 59 60 61

62 63 64 65 66

67 68

69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86

011

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Bryce, The American Commonwealth, Vol. I, p. 342. Bryce, The American Commonwealth, Vol. I, p. 348. Bryce, The American Commonwealth, Vol. I, pp. 350-353. Bryce, The American Commonwealth, Vol. I, p. 350. Bryce, The American Commonwealth, Vol. I, pp. 322-323, fn. 1. Bryce, The American Commonwealth, Vol. I, p. 323, fn. 1. For further details about this intellectual debate, see M. Burgess, Comparative Federalism: TheO/y and Practice, (London: Routledge, 2006), Chap. 2, pp. 50-75. Fisher, James Blyce, Vol. I, pp. 239-240. See the special issue of Publius entitled 'Covenant, Polity and Constitutionalism', Vol. 10(4), (Fall 1980). The essay dates back to a series of lectures that Bryce gave at Oxford in 1884 on 'Flexible and Rigid Constitutions' and which influenced Dicey who employed the classification in print in 1885 in his own Law ofthe Constitution. See Essay IV entitled 'The Action of Centripetal and Centrifugal Forces on Political Constitutions' in Bryce, Studies in Histo/y and Jurisprudence, Vol. 1,217. Bryce, Studies in Histo/y and Jurisprudence, Vol. I, 221-225. Bryce, Studies in Histo/y and Jurisprudence, Vol. 1,226. Bryce, Studies in HistOlY and Jurisprudence, Vol. I, 227-228. See Essay X entitled 'The Nature of Sovereignty' within which there is a sub-section IX entitled 'Sovereignty in a Federation' in Bryce, Studies in HistOlY and Jurisprudeltee, Vol. II, 549-552. See Fisher, James Blyce, Vol. II, p. 265 and Bryce, Modern Democracies, Vol. I, p. 13. Bryce, Modern Democracies, Vol. I, Preface, pp. vii-viii. Collini observed that 'as a political scientist, [Bryce's] genius largely consisted of an indefinite capacity for taking trains', S. Collini et aI., That Noble Science of Politics, (Cambridge: Cambridge University Press, 1983), p. 243. Bryce, Modern Democracies, Vol. I, Chap. 3, pp. 23 and 26. Bryce, Modern Democracies, Vol. I, p. 26. Bryce, Modern Democracies, Vol. II, pp. 504-505. Bryce, Modern Democracies, Vol. II, pp. 509-510. Bryce, Modern Democracies, Vol. II, pp. 493 and 519. Bryce, Modern Democracies, Vol. II, pp. 519-520; see also his 'Concluding Reflections on Swiss Political Institutions', Chap. 32, Vol. I, pp. 490-507. Fisher, James Blyce, Vol. II, p. 274. Tulloch, James Blyce 's American Commonwealth, pp. 76 and 77. Tulloch, James Blyce 's American Commonwealth, p. 78. See G. Himmelfarb, 'The American Revolution and the Political Theory of Lord Acton', Journal ofModern HistOlY, Vol. 21, No.3 (December 1949). Quoted in Tulloch, James Blyce 's American Commonwealth, p. 8. Sir J.R. Seeley, The Expansion ofEngland, (London: Macmillan, 1883), p. 184. Tulloch, James Blyce 's American Commonwealth, p. 3. Tulloch, James Blyce 's American Commonwealth, p. 34. Tulloch, James Blyce 's American Commonwealth, p. 45. Tulloch, James Blyce 's American Commonwealth, pp. 49-51. Tulloch, James Blyce 's American Commonwealth, p. 66. Recently there has been a lively scholarly debate about Bryce's constitutional legacy to Australia and the Australians conducted in the pages of Publills: The Journal of Federalism. See J.S.F. Wright, 'Anglicizing the United States Constitution: James Bryce's Contribution to Australian Federalism', Publius, Vol. 31(4), (Fall 2001), 107-129 and G. Maddox, 'James Bryce: Englishness and Federalism in America and Australia', Publius, Vol. 34(1), (Winter 2004), pp. 53-69.

Part II

Case studies

6

Democracy versus federalism in the United States of America John Kincaid

The United States, the world's oldest republic, has been a continuously functioning and continually changing democracy for 234 years. The historical trend has been for democratic reforms to erode federalism by enhancing federal (Le. national) power. This erosion has occurred because the U.S. Constitution reserved to the states authority to define voter qualifications and protect individual rights; therefore, expansions of individuals' rights have often shrunk states' rights. Although various states pioneered every expansion of democracy in U.S. history, national action has been employed to align laggard states with new democratic dispensations. If democracy consists 'of a small number of citizens, who assemble and administer the Government in person' (Federalist 10), then neither the United States nor its constituent states have been democratic. However, what the founders of the United States regarded as 'republican', namely, an elected government representative of the people, is similar to what is called 'democratic' today. Although there are important differences between 'republic' and 'democracy', and the idea of 'republic' in the founding era carried more moral freight and civic obligations than most contemporary notions of 'democracy', this chapter treats democracy as synonymous with republic because virtually every democracy is based on elected representation. If democracy is defined as a government in which there is competition for power among individuals and groups, inclusive participation based on citizen equality, and protected political rights and civil liberties, then the history of Alnerican democracy has been marked mainly by battles to expand inclusiveness. Competition for power already existed at the founding in 1776, as did rights protections, although these, too, changed over time. One also can estimate the closeness of a democratic government 'to the ideal by finding answers for three questions: (a) how much of the population shares, (b) in how much of the critical decision making, (c) with how much impact or influence?' (Hyneman 1968, p. 9). This question has been answered in U.S. history by expanding the electorate while also constricting its impact because centralization of the federal system has moved crucial decision-making into the recesses of national institutions. If one regards federal democracy as a constitutionally guaranteed diffusion of power territorially, coupled with a sharing of power among multiple centers of

120 J. Kincaid

democratic authority (Elazar 1987), then American democracy has become more majoritarian and less federal since 1789. The long-term struggle for inclusiveness has entailed corresponding assaults on federal democracy to the point that some critics argue that virtually every provision of the u.s. Constitution pertaining to federalism and the separation of powers is undemocratic and deserving of expurgation (Levinson 2006).

Debating the founders' democracy Given that the original 13 colonies had variable degrees of democratic selfgovernance within the British Empire and, arguably, more democracy than England by the 1770s (Bailyn 1968), then America's democratic experience is more than 400 years old. The General Assembly of Virginia, the first statewide legislative body, was established in 1619. During the Revolutionary era, the people acted through their colonial assemblies, temporary assemblies and conventions elected when the Crown closed the colonial assemblies, citizen committees, mass meetings, and mobs. Furthermore, the United States has never had a homegrown monarchy or feudal past. Instead: The emigrants who colonized America ... separated the principle of democracy from all those other principles against which they contended when living in ... the old European societies, and transplanted that principle only on the shores of the New World. It could there grow in freedom and, progressing in conformity with mores, develop peacefully within the law. (Tocqueville 1969, p. 18) Consequently, democracy was consolidated by the time the United States was founded in 1776. Elections were guaranteed by law, political leaders had internalized the rules of democratic institutions embodied in written documents of constitutional caliber, and most Americans shared a political culture supportive of democracy, including a spreading attitude that each man's opinion was as valid as any other man's opinion (Wood 1986, p. 134). This culture located sovereignty in the people, and 'a constitution had become, as [James] Madison pointed out, a charter of power granted by liberty rather than, as in Europe, a charter ofliberty granted by power' (Wood 1969, p. 601). George Washington exemplified this consolidation. He rejected importunities to declare himself king, resigned as commander of the army and returned to private life after the Revolutionary War in 1783, and, tmlike many later revolutionary leaders, never declared himself president for life. This consolidation also was reflected in Thomas Paine's 1776 declaration: 'The cause of America is in a great measure the cause of all mankind' (Paine 1995, p. 5) and in President Abraham Lincoln's call to Americans in his 1863 Gettysburg Address to ensure 'that government of the people, by the people, for the people, shall not perish fi'om the earth'. This consolidation was the most successful of its day. The founders participated in a trans-Atlantic network of humanists who ushered in modernity (Winik

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2007). For example, Benjamin Franklin was intellectually notable in Europe; the Marquis de Lafayette became a general in Washington's Continental Army; Thomas Jefferson, author of the American Declaration of Independence in 1776, contributed to the drafting of the French Declaration of the Rights of Man and of the Citizen (1789); the Pennsylvania Constitution of 1776 was admired in revolutionary France; the new French Republic made Washington, Madison, and Alexander Hamilton honorary citizens; Paine joined the French Revolution and was elected to the French National Convention in 1792; Talleyrand took refuge in the United States during the Reign of Terror; Thaddeus Kosciuszko led a Polish revolt against Russia after fighting in the American Revolution; Jefferson corresponded with Catherine the Great; and the empress recruited John Paul Jones, a U.S. Navy hero, to fight the Ottomans in 1788. Yet, in nearly all of Europe, democracy gained no foothold. At the same time, the American democratic consolidation was thoroughly con federal; it was rooted in the states and local communities, not in a national government. This contributed substantially to the democratic success of the Revolution. Americans had a history of covenanting and compacting for local and regional self-governance and had created the 'public freedom' (Arendt 1963, p. 120) that arises from people deliberating and acting together in open forums where citizens engage each other as equals. One of the great challenges of the founding of the United States, therefore, was to create a constitution that would translate this confederal democratic consolidation into a system of national democratic governance while preserving the democratic foundation. In attempting to do so, the framers of the U.S. Constitution did seem to have a 'vision of the ideal makeup of a democracy: an inclusive electorate, political participation, and political power sharing' (Patterson 2008, p. A35). Nevertheless, as critics have charged since the founding, this democratic consolidation excluded the majority of the popUlation, namely, blacks, women, the poor, and Indians. To some historians, colonial governance was more hierarchical and paternalistic than democratic (Greene and Pole 1984). Not only that, but in Charles A. Beard's classic critique (1913), the founders represented well-off commercial interests and, therefore, established a constitutional regime that protected those interests by thwmting majority rule. The founders, writes a contemporary critic, wanted to make the United States safe for investors; therefore, they crippled the country's democratic system (Holton 2007). Yet, writing at about the same time as Beard, James Bryce contended: 'There are no struggles between privileged and unprivileged orders ... [because] Everything that government ... can give them, the poorer class have already, political power, equal civil rights, a career open to all citizens alike' as well as education (1907, II, p. 599). Such contending perspectives have characterized the evolution of American democracy. Debate arises partly from emphasizing different facets of the founders' beliefs. For example, Madison and other founders regarded debtor relief as a majoritarian violation of property rights, but they also saw property rights as essential for economic development, which would benefit all of the people and

122 J. Kincaid strengthen democracy. Most of the founders wanted most people to acquire property, mainly land. Debate also arises from failures to engage the past on its own tenns and to recognize that the principal working democratic referents for the framers were England and the 13 states. For example, in contrast to modern presidents who travel frequently using a large well-appointed airplane, expensive armored vehicles, and huge entourages, the early presidents rarely toured the country. Were they elitist? Not necessarily; they feared communicating monarchical pretensions (Ellis 2008). Washington would likely view contemporary presidential travel as the 'royal progress' ofa regal presidency. On his few tours as president, Washington traveled with a secretary and stayed in often decrepit inns and taverns rather than in the homes of friends. This attitude, plus local embarrassment about not having better accommodations for presidents, helped launch the hospitality industry as a commercial as well as democratic phenomenon (Sandoval-Strausz 2007). Madison anticipated this in Federalist 14 where he suggested that the large federal republic created by the Constitution would function well because, among other things, roads will be improved and 'accommodations for travelers will be multiplied and meliorated', namely, hotels to host business people, politicians, and ordinary citiz~ns - thereby facilitating the mobility that still characterizes American life. When the new 79-room Queen's Hotel in Cheltenham was called 'the finest hotel in Europe' in 1838, some hotels in the United States had about 500 rooms. Contending perspectives also arise from the penchant to impose contemporary standards on the past. The existence of slavery and the exclusion of so many people from the electorate in the 1780s are abominable to contemporary democrats. However, as Tocqueville noted, American democracy 'progressed' within the cultural parameters of historical eras. Only in the early twentieth century, for example, did countries begin to grant women the right to vote, and the United States did so in 1920, but most countries did not extend the franchise to women until after World War II. Therefore, the United States has been a democratic leader as well as laggard in various eras. For instance, the British abolished the slave trade in its empire on 25 March 1807; the United States prohibited the importation of slaves on 1 January 1808 - a date set in the Constitution in 1787. The British abolished slavery in 1833; the United States did not do so until 1865. The tendency for the United States to lag at times in advancing democracy can be attributed to various factors, but an important factor was the existence of a democratically deficient South, which created an asymmetric distribution of the consolidation of democracy by the time of the founding. The 'great division of interests in the U. States', said Madison, 'did not lie between the large & small States; it lay between the Northern & Southern' (Farrand 1966, I, p. 486). The South 'was not exactly aristocratic' in the European sense, but the South did have 'an upper class, with its own ideas and tastes, and in general it did concentrate political activity in its hands' (Tocqueville 1969, p. 51). The South was generally more hierarchical and paternalistic and less egalitarian than the North, and its citizens were less participatory. George Washington, a southerner, was

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shocked to see, when he took command of the Continental Army, that the 'officers of the Massachusetts part of the Army are nearly of the same kidney with the Privates' (quoted in Gaines 2007, p. 88). In order to lead his largely volunteer army effectively, Washington had to become more egalitarian. Insofar as the federal Constitution contained provisions that amplified the South's voice in the national government, the South alone or in alliance with conservative northerners delayed national advances toward contemporary standards of democracy. Of the five amendments to the U.S. Constitution that expanded the franchise, two ended malevolent southern practices (black disenfranchisement and poll taxes), two (women's suffrage and presidential voting rights for residents of Washington, D.C.) were opposed by most southern states, and the most recent (18-year-old voting) was supported lukewarmly in the South. Consequently, given the protections afforded the South in the national political process by federalism, advocates of democratic inclusiveness often turned against federalism. Nevertheless, a singular accomplishment of the federal Constitution was to liberate democracy from its small-republic prison and, thereby, for the first time in history, make democracy possible across a huge expanse of territory occupied by a large popUlation. The federal Constitution also advanced democracy by effecting a transition from simple forms of repUblican governance to a more complex repUblicanism that has functioned in a comparatively democratic, humane, and rights-protecting manner for more than two centuries.

The constitutional framework The 'complete constitution' of the United States can be said to include the Declaration of Independence, the U.S. Constitution, and the state constitutions. The Declaration has occupied a sacred (though non-justiciable) spot beside the Bible and the federal Constitution since President Lincoln (1861-65) elevated it to the status of a higher law that defines the ends of the U.S. Constitution. The Declaration, which was intended to express common opinion-,-is fundamentally democratic insofar as it affirms human equality, 'unalienable rights', and consent as being the only bases for just governance. Most of the charges leveled against the British Crown in the Declaration involve alleged deprivations of democratic selfgovernance. For example, the king is said to have 'dissolved representative houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people'. The Declaration also anticipates the federal system by declaring Americans to be 'one people' who, at the same time, reside in 13 independent states. Given that Jefferson, the principal author of the Declaration, owned slaves and that the Declaration speaks of 'merciless Indian savages', the document is, in contemporary eyes, shockingly hypocritical. Yet, in the context of 1776, it represented a significant advance for democracy, and reformers ever since have wielded the Declaration as a jeremiad summoning the country to egalitarian, democratic righteousness. The Articles of Confederation, ratified in 1781,

124 J. Kincaid established a very limited general government, leaving the underlying confederal democratic consolidation intact. 'Much of the democratic action in confederate America took place within each state, usually featuring an annual election of the state legislature as the main event' (Amar 2005, p. 40). Significant change came with ratification of the federal Constitution in 1788. The institution of a new constitution was driven strongly by alarms about hobbled commerce, lawless disorder, and foreign threats, supporters of the new constitution argued, as well as by fears that the con federal democratic consolidation was at risk of being destroyed by domestic disorder and foreign intrusions under the weak confederation. In this respect, the federal Constitution aimed to preserve democracy, as well as enhance it, by providing governmental arrangements conducive to democratic sustenance in the states. However, ratification of the document triggered a vigorous debate between supporters of the Constitution who called themselves Federalists and opponents of the Constitution who were labeled pejoratively as Anti-Federalists. Generally, the Anti-Federalists believed that democracy was possible only in small repUblics. They contended that the proposed constitution was undemocratic (i.e. unrepublican), anti-con federal, and despotic. Ambiguity o/lVe the people The U.S. Constitution was not ratified by the state legislatures but by elected conventions in the states. The framers wanted to root the Constitution in the people because the document authorized the proposed federal government to pierce the veil of state sovereignty so as to legislate directly for individuals (e.g. levy taxes). Hence, the framers, like later reformers, appealed to the people over the heads of their state governments. Legislative ratification, moreover, would have implied a con federal bargain as well as a possible right of states to secede from the union - an argument later made anyway by antebellum southerners who regarded the Constitution as a compact among the states. The Constitution also displays an implicit democratic logic. It rests on a democratic base - the people; then Article I structures the Congress, the most democratic branch of the federal government, Article II provides for the executive, the second most democratic branch, and Article III establishes the Supreme Court, the least democratic branch. Ratification by conventions, however, triggered a two-century debate about whether the opening phrase of the Constitution's preamble - 'We the People of the United States' - refers to the whole people of the United States acting as a national democratic majority or to the peoples of the united states acting both independently and collectively as dispersed democratic majorities. Although the Constitution provides no way for a majority of Americans as a whole to elect anyone or decide anything, proponents of national power have emphasized such a majoritarian interpretation. One of the greatest U.S. senators (in northern eyes), Daniel Webster, a Whig from Massachusetts, delivered one of the most famous orations in the U.S. Senate's history in 1830 when, in opposing Senator Robert

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Y. Hayne, a Democrat from South Carolina, who argued that state legislatures can nullify federal law, Webster proclaimed that the federal Constitution is 'the people's Constitution, the people's government, made for the people, made by the people, and answerable to the people ... the State legislatures, ... however sovereign, are yet not sovereign over the people ... We are all [federal and state] agents of the same supreme power, the people' (Webster 1929, p. 481). This theme was echoed by Theodore Roosevelt, a Progressive Republican, in 1910: 'The national government belongs to the whole American people, and where the whole American people are interested, that interest can be guarded effectively only by the national government. ... The New Nationalism ... is impatient of the utter confusion that results from local legislatures attempting to treat national issues as local issues' (Roosevelt 1929, p. 569). Dissenting from a state-friendly U.S. Supreme Court ruling in 1990, Justice Harry A. Blackmun declared: 'Ours ... is a federal republic, conceived on the principle of a supreme federal power and constituted first and foremost of citizens, not sovereign states' (Coleman v. Thompson 1991). COllgress Although the Constitution's creation of a bicameral legislature - a signature feature of American federalism - is commonly treated as a compromise between large states that wanted representation based on population and small states that wanted equal state representation, the House of Representatives also signifies an historic breakthrough for liberal democracy because it represents a large population dispersed across a huge territory and because House representation is based solely on total population - not on estates, classes, cultural communities, or other popUlation segments. Both representatives and direct taxes are apportioned according to population. Also, because the people elect the House, it is the only chamber authorized to originate new taxes or tax increases, pursuant to the Revolutionary slogan, 'no taxation without representation'. The Constitution, endeavoring to accommodate small-republic principles, mandated a two-year term for House members and no more than one House representative for every 30,000 citizens (with each state having at least one representative). If this rule were followed today, the House would have about 10,200 members; hence, the House was limited by statute to 435 members in 1913. The Constitutional Convention of 1787 envisioned a 65-member House. Even so, many Anti-Federalists viewed the House as undemocratic because it was smaller than 11 state houses and one-eighth the size of the British House of Commons and 30,000 was too many people to be represented accountably by one man. House seats are re-apportioned among the states every ten years based on the results of the national decennial census mandated by the Constitution. This, too, is democratic because it ensures that representation reflects the geographic distribution of the population and, thereby, the changing relative weights of the states. The original 13 states were awarded no asymmetrical representation privileges. By contrast, except for admitting 45 new members from Scotland in 1707,

126 J. Kincaid Britain's Parliament 'did not reapportion itself at any time in the eighteenth century despite tumultuous demographic changes' (Amar 2005, p. 84). In the United States, only the New York and Pennsylvania constitutions required legislative reapportionment based solely on population as determined by periodic censuses. Thus, in their reapportionment decision, as in some other constitutional choices, the framers followed the more democratic rather than less democratic state models. An infamous provision of the Constitution (Art. I, Sec. 2) was the mandate to count slaves as three-fifths persons for purposes of House representation, direct federal taxes, and the Electoral College. This mandate inflated the representation of the less popUlated southern states and amplified their voice in presidential elections and congressional deliberations. In the first Congress (1790), for instance, New York and North Carolina each had ten House members because New York had a free population of 319,048 (plus 10,266 slaves), while North Carolina had a free population of 294,222 (plus 100,783 slaves). Senators were chosen by the state legislatures. The Federalists did not regard this as undemocratic because these legislatures are elected by the people, and the Senate was intended to protect the interests of the states as 'states' (i.e. small republics), although the two senators from each .state need not vote as a bloc. The voting independence of senators was partly a concession to democracy because each senator can represent different interests in a state. This is important because many states are larger than many independent nation-states, most states are demographically diverse, and immigration changes each state's political complexion. Thus, over the years, many states have had a Democrat and a Republican serving in the Senate simultaneously. A very important democratic provision is Article 1, Section 2, which stipulates that the qualifications needed by citizens to vote in federal elections are to be the same as the qualifications needed to vote for members 'of the most mllnerous Branch of the State Legislature'. Given pre-existing state sovereignty, the framers could not abrogate a bedrock attribute of sovereignty, namely, authority to determine who can vote in the polity. Thus, voter qualifications were left to the states. In 1787, most states had property and/or taxpaying qualifications that limited the franchise. The 'most numerous Branch of the State Legislature', namely, the state house of representatives, had the lowest property qualifications and, thus, the broadest franchise in each state. Importantly, too, the framers did not authorize states to establish separate voter qualifications for federal elections, perhaps out of fear that some states would narrow the federal government's democratic base by limiting the franchise for federal elections. Hence, by tying voter qualifications for federal elections to each state's voter qualifications for its house of representatives, the framers of the federal Constitution picked the most democratic voter-qualification rule politically available to them in 1787, and the rule most likely to become more democratic over time. Another important democratic provision is that U.S. House members need to be citizens of the United States for only seven years before their first election to the House, while U.S. senators must be citizens for nine years. Anticipating that

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immigration would be vital to national growth, this provision is inclusive, allowing immigrants from any country to enter the national political process fairly quickly (although Hamilton, Madison, and some others regarded this waiting period as 'degrading discrimination'). By contrast, England's 1701 Act of Settlement excluded naturalized subjects from Parliament. Only the president must be 'a natural born Citizen', thus, today, barring California Governor Arnold Schwarzenegger (Austrian) and Michigan Governor Jennifer Granholm (Canadian) from the presidency. The age qualifications of 25 for the House, 30 for the Senate, and 35 for the presidency suggest a democratic invitation to new generations to enter national politics. At least one contemporary critic, though, argues that these age requirements make 18-to-25 year-olds second-class citizens and that the citizenship waiting period 'stigmatizes naturalized citizens by telling them that they are deemed unfit ... to take part in governance for several years' (Levinson 2006, p. 146). However, many framers saw the age requirements as barriers to 'haughty heirs of distinguished names' gaining political positions at a young age like William Pitt the younger who entered Parliament in 1781 at age 21 (Amar 2005, p. 70). Also democratically significant is that the Constitution prohibits any religious test for any federal office. (Even so, only Protestants held the presidency from 1789 to 1961, and no self-proclaimed atheist would win voter approval.) At the same time, the Constitution reserves to the states the authority to prescribe the times, places, and manner of allowing their citizens to elect their members of Congress, although Congress can regulate the times and manner of such elections - a power it rarely exercised until the 1960s. Although the structure and operation of Congress are similar to those of most state legislatures, state constitutions, which are ratified by the people, place more limits on state legislatures. Unlike Congress, many state legislatures must muster a majority of their membership to pass bills, must approve only single-subject bills having titles that clearly identify their content, and must balance the state's operating budget every year. To ensure the integrity of the legislative process and protect members of Congress from the president and state executives, members of Congress cannot be arrested (except for treason, felony, or breach of peace) while attending sessions of Congress or traveling to and from Congress. Likewise, they cannot be held liable for anything they say in Congress.

The presidellcy Many Anti-Federalists feared the presidential powers set forth in Article II. Later generations, however, took aim at the Electoral College, labeling it undemocratic. Under this mechanism, a presidential candidate must win a majority of the states' Electoral College votes (270 of 538 today). The number of electoral votes cast by a state equals the number of its U.S. House Representatives plus its two senators. Thus, the smallest states (e.g. Wyoming) have three electoral votes

128 J. Kincaid each; California, the largest state, had 55 electoral votes in 2008. Additionally, residents of Washington, D.C., were given three electoral votes by the TwentyThird Amendment (1961) to the Constitution. In 48 states, all of the state's electoral votes are awarded to the candidate supported by the majority or plurality of the state's voters. (Maine and Nebraska apportion their electoral votes among their congressional districts, with the two Senate electoral votes being awarded to the candidate who wins the statewide popular vote.) In 26 states, however, the individuals elected to cast Electoral College votes are free to throw their votes to candidates not supported by the state's voters. There have been 158 'faithless electors' in U.S. history, though none changed the outcome of a presidential election. Critics argue that the Electoral College is undemocratic because every American's vote does not count equally, and a candidate can lose the popular vote and win the presidency as happened in 1888 and 2000. In 2000, fonner vicepresident Al Gore (Democrat) received 543,895 more popular votes than George W. Bush (Republican), but Bush won the presidency with 271 electoral votes because he won Florida's 25 electoral votes by a 537 popular-vote margin in Florida. Since 1789, more than 1,000 bills have been introduced in Congress to amend the Constitution to abolish the Electoral C.ollege, but it survives because of historical inertia, the high vote thresholds needed to amend the Constitution and the unwillingness of Americans since 1789 to dismantle any institution established by the Constitution. Furthermore, change is resisted by small states whose electoral power is magnified by the system, by large states that hope to be kingmakers in close elections, and by some minorities (e.g. blacks and Hispanics) whose votes could be decisive in throwing all of a state's electoral votes to the candidate of their choice in a close election. Some framers advocated direct national election of the president, like the elections of governors in New York and New England, but George Mason of Virginia warned: 'The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates' (Farrand 1966, II, p. 31). Some framers wanted Congress to select the president, just as governors in some states were chosen by the legislature. This was deemed undemocratic and likely to make the president subservient to Congress. As a compromise, each state can choose its electors in its own way, but the Constitution bars members of Congress and all other federal officers from serving as electors. Otherwise, it requires no property, age, citizenship, or other qualifications for electors. The weighting of state votes in line with the size of their congressional delegations was intended to make the system more democratic than one in which all states had an equal number of electoral votes. However, this weighted arrangement benefited the slave-holding states and ensured that no one could become president without receiving some southern support. Despite strong pressure from South Carolina and some other southern states, the framers refused to saddle the presidency with property qualifications or to create a multi-headed, especially North-South, executive.

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Tile judiciary

The judiciary (Article III) provoked loud protests from the Anti-Federalists, who believed that it would promote unitary consolidation. The judiciary also is the least democratic branch because federal judges never face the voters. However, the judiciary is still republican, argued Madison, because appointments to all federal constitutional courts are initiated by the indirectly elected president and confirmed or rejected by the Senate, whose members were chosen by elected state legislatures (until 1913). This process was more democratic than traditional eighteenth-century practices of judicial appointment by the Crown and by governors. Confirmation by the Senate (the states' chamber) was an important concession to those who feared that an independent federal judiciary combined with a strong president would destroy states' powers. The Constitution stipulates no qualifications for federal judges; presidents and the Senate can appoint whomever they deem fit, including immigrants, young people, non-lawyers, and low-income individuals. The Constitution also does not apportion Supreme Court seats among regions or states, although nineteenthcentury appointments to the Court favored the South slightly, and mid-twentiethcentury appointments accommodated Catholic, Jewish, black, and female seats on the Court. By allowing all federal judges to 'hold their Offices during good Behaviour' and prohibiting Congress from reducing judges' salaries, the Constitution established an 'excellent barrier to the ... oppressions of the representative body' (Federalist 78). Thus, the framers anticipated an anti-majoritarian role for the Court, but they did not expect it to be as politically potent as it became a century later. The Court, said Hamilton, 'will always be the least dangerous' branch of the federal government (Federalist 78). By the late nineteenth century, however, liberal critics viewed the Court as an undemocratic, anti-majoritarian monster that shielded men of wealth and powerful corporations from the people's fiscal and regulatOlY grasp. This criticism was blunted in 1937 when the Court bowed to political pressure and allowed Congress and presidents to vastly expand economic regulation and social welfare. In the 1950s, liberals began to praise the Court as a vital anti-majoritarian protector of minority rights - a role exemplified in 1954 when the Court flouted public opinion by outlawing race segregation in public schools (Brown). Several subsequent rulings, especially Roe v. Wade (1973), which struck down anti-abortion laws in 49 states, triggered massive conservative criticism of imperialistic judicial anti-majoritarianism. In turn, liberals by the 1990s again accused the Court of being undemocratically antimajoritarian as Republican-appointed justices began to restrain rights expansions, federal power, and economic regulation. The irony of the Court's mid-twentieth-centUlY anti-majoritarianism is that it nationalized cultural wedge issues such as abortion, thereby infecting and polarizing national politics with issues the framers assumed would remain in state hands. Article III, however, contains two important democratic provisions. First, it requires that trials for all federal crimes be decided by juries and that trials be

130 J. Kincaid held in the state where the defendant committed the offense. Juries, an English heritage, were seen as indispensable citizen checks on abusive executive and judicial behavior. The prohibition of out-of-state trials was intended to prevent federal prosecutors from shopping for a conviction-friendly venue and to ensure that defendants were tried before local juries likely to know the effects and circumstances of the alleged crime. Second, the crime of treason, the only crime delineated in the Constitution, is defined narrowly so as to prevent government from using treason charges to suppress freedoms of speech, press, and assembly. (Five people have been convicted of treason in U.S. history.) In contrast to English practice at the time, the provision prohibits government from seizing a convicted traitor's estate. The treason provision also bolsters the indestructibility of the federal union because the framers rejected proposed definitions that would have exempted from treason prosecution citizens of a state that engaged in a civil war against the United States. Illterplays betweell cOllstitutiollal rules ami democracy

The Constitution's provisions for an intergovernmental military system (Alt. I, Sec. 8), with its maintenance of state militias under gubernatorial command, are democracy-enhancing because many founders feared that a large standing (i.e. professional) army would be an 'engine of despotism'. This military arrangement is rather unique because, ovelwhelmingly, militaty affairs are exclusive national competences in federal countries, and constituent polities cannot maintain their own army and air force as in the United States. In addition, given that the Constitution reserves the police power to the states, independent state and local police forces are more numerous and powerful than in most federal countries. Many of the Constitution's framers opposed slavery, and they kept such words as 'slave' and 'slavelY' out of the document. However, most recognized that union was not possible without accommodating the South's 'peculiar institution'. In return, though, opponents of slavelY obtained congressional authority to (a) discourage the slave trade by taxing it and (b) abolish the slave trade by 1 January 1808. Some of the framers believed that these provisions would gradually eradicate slavery; however, invention of the cotton gin in 1793 increased the South's demand for slaves, which, after the prohibition on importation, was satisfied by smuggling and breeding slaves. A now antique democratic guarantee is the Constitution's prohibition of titles of nobility being granted by the United States and by the states (a provision also present in the Articles of Confederation). The mandates in Alticle I, Section 10 that states not 'make any Thing but gold and silver Coin a Tender in Payment of Debts' or enact any 'Law impairing the Obligation of Contracts' were seized upon by some Anti-Federalists and later critics as proof that the Constitution's framers were anti-democratic defenders of moneyed interests. Some state legislatures had demonstrated a penchant for paper money preferred by debtors. The Federalists viewed these provisions as

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essential for national economic development that would redound to evetyone's benefit. The full-faith-and-credit and privileges-and-immunities clauses in Article IV were intended to foster commerce and democracy by creating a common market and allowing non-discriminatory mobility across the union. These clauses were also present in the Articles of Confederation, but the Articles excluded 'paupers' and 'vagabonds' from the privileges-and-immunities clause. Significantly, the U.S. Constitution excludes no citizen (including free blacks) from these protections (except for accused felons who flee to another state). Slaves, who were regarded as non-citizens, were the infamous exception. Free states were required to return escaped slaves to the slave states - a provision widely violated by the northern states, thus convincing the South that the North was only selectively loyal to the federal Constitution and that, therefore, the South, in light of the North's unconstitutional behavior, was entitled to secede from the union. Interestingly, however, the fugitive-slave clause gave Congress no explicit authority to enforce the clause in free states, nor did it authorize slave owners to enter free states to capture escaped slaves. Nevertheless, under southern pressure, Congress and the Supreme Court found such federal authority. Article IV also guarantees the territorial integrity of each state and 'a Republican Form of Government' in each state. These provisions were seen as bulwarles for the survival of the union's small repUblics. Arguably, however, Virginia's territorial integrity was violated when West Virginia seceded from Virginia during the Civil War and entered the union as a separate state in 1863. Congress relied partly on the republican-guarantee clause to 'reconstruct' southern state polities after the Civil War, but otherwise, the clause has been dormant. The Constitution's amendment process is undemocratic insofar as it provides for no national referenda. Instead, amendments are proposed by a two-thirds vote of each house of Congress and then ratified by the state legislatures or elected conventions in three-fourths of the states. (Congress chooses the ratification method.) Elected conventions have been used only once - to ratify Amendment XXI (1933), which repealed Amendment XVm{f919) that prohibited the sale and manufacture of alcoholic beverages nationwide. Anti-Prohibition forces in Congress specified ratification by conventions because 'dry' rural native-born Protestants dominated most state legislatures. Most states held statewide at-large elections for their ratifying convention, thus enabling the larger numbers of 'wet' urban Catholics, Jews, and immigrants to win the majority of convention seats. The Constitution also allows two-thirds of the states to propose amendments to Congress, but Congress must then call a constitutional convention to propose amendments, which must then be ratified by the legislatures or elected conventions of three-fourths of the states. This provision recognizes the people's sovereignty over the federal government, along with the presumably indestructible existence of the states. This method has never been used because Congress has always found technical reasons to ignore state petitions because there is widespread fear that another constitutional convention could be highly divisive and destructive.

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Tile state republics Because of the variability of the 18 state constitutions that preceded the U.S. Constitution, it is not possible to explicate them in detail. Generally, the trend in the states during the founding era was to make government more democratic by lowering property qualifications for voting and office-holding, requiring frequent rotation in elected offices, holding annual elections for most government offices, linking legislative representation to population, allowing voter instruction of legislators, concentrating power in the legislature, adopting declarations of rights, disestablishing religion, and, in Massachusetts in 1780, pioneering the drafting of a constitution by an elected convention and then having the document ratified by the people (see, e.g. Lutz 1980; Tarr 1998). Approximately 50-75 percent of the adult male population could vote by 1776 (Williamson 1968), and by the end of 'the Revolutionary era, most adult white males and even a few others had obtained the elective franchise. Property qualifications had been reduced, religious requirements practically abandoned, and racial restrictions removed in some cases' (Dinkin 1982, p. 43). The radical Pennsylvania Constitution of 1776 required only that a male voter be a taxpayer. In New Hampshire, New Jersey, and New York,.the percentage of 'wealthy' and 'well-to-do' legislators declined from 83 percent before 1776 to 38 percent by 1783, and merchants and lawyers dropped from 43 percent to 18 percent, while fanners increased from 23 percent to 55 percent. In Maryland, South Carolina, and Virginia, the 'wealthy' and 'well-to-do' proportions declined from 88 percent to 70 percent during the Revolutionary War, while farmers increased from 12 percent to 26 percent (Main 1966). In 1791, Vermont extended the franchise to all adult white men. There also were extensions of the franchise beyond white males. White women could vote in New Jersey until 1807, and free blacks could vote in Maryland until 1802. Indeed, it was the sometimes raucous process of state democratization that led many Federalists to criticize 'the vicissitudes and uncertainties which characterize the State administrations' (Federalist 37) and to seek 'a Republican remedy for the diseases most incident to Republican Govermnent' (Federalist 10). Hence, in this respect, the states were not models for the Federalists for framing the U.S. Constitution, and the Federalists were accused by AntiFederalists and many later democratic reformers of having placed too great a distance between the federal Constitution and democracy (e.g. Borowiak 2007).

Democratic development The first ten amendments to the U.S. Constitution, ratified in 1791, were the first post-Constitution expansion of democracy insofar as they protected, against federal action, individual rights not explicitly protected by the original document. The presidential election of 1800, won by Jefferson when the U.S. House decided the outcome, was a crucial achievement because it was the first peaceful transfer of national power from one party to another. Jefferson defeated the

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incumbent Federalist, John Adams, and Jefferson's party reduced the Federalists to minority status in Congress. The emergence of a nascent, confederated party system in 1800 created a powerful institution for mass mobilization and democratization as well as preservation of the federal system. Modem political parties became institutionalized in 1828 with the establishment of the Democratic Party, the oldest continuing party in the world. This party, organized by Andrew Jackson - a man associated with the western frontier and an heir of Jeffersonian democracy - to capture the presidency, accepted slavery, persecuted Indians, supported states' rights, and advocated mass whitemale democracy. An opposition Whig Party arose in 1833 and lasted until the Republican Party displaced it in 1856. The emergence of modem party competition during the Jacksonian era (1820-40) stimulated states to eliminate virtually all property qualifications and to reduce taxpaying and residency requirements for white-male voting. Most states also removed property qualifications for office-holding; many states made voting more convenient; many localities ended viva voce voting; and most states made presidential electors, governors, judges, and county officers subject to popular election rather than indirect selection. After 1828, only South Carolina did not permit popular election of presidential electors. The voting electorate more than doubled between 1820 and 1840. John Quincy Adams was the first president elected by a significant mass of voters in 1824. Jackson was the first presidential candidate to be nominated by a national party convention consisting of delegates from the states, thereby replacing the congressional caucus method of selecting presidential candidates. President Jackson (1829-37) wanted all federal officials, including judges, to be elected by the people. In vetoing renewal of the Second Bank of the United States in 1832 in the name of the people against the plutocrats, Jackson initiated efforts to extend democracy into the social sphere. In 1841, for instance, Congress enacted a bankruptcy law that protected everyone, not just merchants and brokers. States did likewise. For example, most states abolished imprisonment for debt. This egalitarian orientation also created the popular expectation that politicians must 'press the flesh'. In contrast to the attitudes of most European elites about 'the delicacy of the hand' (Smith 2008), Abraham Lincoln, for example, would shake the hands of thousands of people in one day. The Jacksonian era did not produce a marked increase in federal power relative to the states, but it did solidify federal power when Jackson threatened to use military force against South Carolina when that state sought to nullify federal tariff laws in 1832. Although Jackson supported states' rights, he vigorously asserted clearly constitutional federal powers, and tariff policy is unequivocally federal. An increase in federal constitutional power did result from the Civil War. Three democratizing amendments to the Constitution ended slavery (Amendment XIII) in 1865, stipulated that no state could violate the fundamental rights of citizens or persons (Amendment XIV) in 1868, and extended the right to vote to black men and prohibited states from abridging that right (Amendment XV) in

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1870. These amendments were ratified when southern states were occupied by federal troops and operating under Reconstruction governments imposed by the federal government. Importantly, the battle over slavery legitimized the idea that the majority will of the nation has a right to override state powers. Before the Civil War, Congress and presidents regarded slavery as a subject of state law, but abolitionists argued that a majority of Americans abhorred slavery and that on a matter of such moral magnitude, a righteous majority should prevail over an unrighteous minority regardless of traditional tenets of federalism. Lincoln agreed, but tried to assure voters that his opposition to slavery was not a slippery slope that would lead to federal interference 'with the cranberry laws of Indiana, the oyster laws of Virginia, or the liquor laws of Maine' (Lincoln 1858, pp. 460-461). The nationalizing force of the union's Civil War victory was considerably blunted, however, by the U.S. Supreme Court, which acted with sympathy toward the South, and by the Republican Party (the party of Lincoln), which, after the end of Reconstruction in 1877, aligned itself with the ~ew urbanindustrial elites and abandoned blacks. White supremacists regained control of the South by the 1890s, suppressing black voting and imposing regimes of race segregation and black penury that were upheld by the U.S. Supreme Court in 1896. In Minor v. Happerselt (1875), the Court 'also had ruled that neither the new Fourteenth Amendment nor the republican guarantee clause prohibited the states from denying women's suffrage. Consequently, the post-Civil War constitutional amendments did not fulfill their democratic, egalitarian promises. The rise of powerful corporations substantially protected by the Court and by Republicans in Congress and the White House provoked the Populist and Progressive revolts of the late nineteenth century that sought to take power from the oligarchs and restore it to the people. Millions of immigrants from southern, central, and eastern Europe poured into the United States, and many of them aligned with powerful Democratic Party organizations in the North. Heightened party competition produced unprecedented voter turnouts ranging from 72.8 percent to 87.3 percent between 1865 and 1900 (Morone 1998, p. 101). Progressives believed that only the federal government could regulate the large corporations operating across state lines and, thereby, restore popular democracy. To that end, they conceptualized the American people as a single national people who needed to be empowered democratically to legitimize expanded federal power, and they ended the historic practice of calling the country 'these' United States. The Progressives secured two democratizing constitutional amendments in 1913. Amendment XVI authorized the federal government to tax corporate and personal income. This amendment vastly increased the federal government's revenue and allowed it to redistribute wealth to the poor and regulate behavior nationwide through tax laws. Amendment XVII mandated the direct election of U.S. senators by the people of each state, thereby disconnecting senators from 'corrupt' state governments. These amendments laid the foundations for vast expansions of federal power in the twentieth century.

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However, democratizing the federal government required state reforms in voting rules and procedures. Progressives introduced the Australian (or secret) ballot in 1888 (adopted by all states by 1906), as well as voter registration rules to reduce corruption. They promoted the short ballot on the premise that long ballots with many elected offices confuse voters. (The long ballot was a legacy of the Jacksonian era when states began to multiply the number of state and local offices subject to popular election.) The Progressives also advocated primary elections wherein rank-and-file party voters choose their party's nominees to run for government offices. They introduced the initiative, referendum, and recall, too. The direct initiative allows voters to initiate amendments to their state constitution or to enact state statutes by petitioning to have measures placed on the general ballot for a statewide popular vote. Referendllln rules require the state andlor local >legislatures to refer certain measures to the voters before they can become law. Recall laws let voters remove state andlor local officials from office before the expiration of their term. Sixteen states now have the direct constitutional initiative, and 16 have the direct statutory initiative. Through the initiative, for instance, voters in Oregon and Washington legalized physician-assisted suicide (which has withstood federal judicial challenges), and voters in 13 states legalized medical marijuana (which has not withstood federal judicial challenges, but President Barack Obama ended federal law-enforcement raids on medical-marijuana clinics). Most states have referenda of various types, and 49 states require state constitutional amendments to be ratified by referenda. Eight states permit the recall of all officials, six allow recall of all but judicial officials, two allow recall for all officials except members of Congress, and Rhode Island pennits recall of only state officials. The most publicized recent recall occurred in California in 2003 when voters recalled the sitting governor and elected Arnold Schwarzenegger governor. Progressivism fostered a paradox, however: democracy was to be restored to the people while government was to be 'placed beyond them, in the hands of experts' (Morone 1998, p. 98). Federal civilian employment climbed from 51,020 in 1871 to 100,020 in 1881,157,442 in 1891, and 396,494 in 1913 as the federal government assumed more regulatory and social-welfare duties. While Progressives overtly championed scientific public administration managed by nonpartisan experts, they actually promoted white Anglo-Saxon Protestant governance. Many of their reforms (e.g. voter registration rules, short ballots, and at-large local elections) aimed to thwart 'King Demos' whose legions of immigrant voters threatened enlightened democracy. In part, to domesticate King Demos, most Progressives supported women's suffrage, which was achieved nationwide in 1920 by Amendment XIX to the federal Constitution. The New Deal vastly increased federal power over the economy and social welfare, and the U.S. Supreme Court ceased defending state powers in these areas, relegating the Tenth Amendment to the U.S. Constitution to the status ofa mere 'truism' (United States v. Darby 1941, p. 124). Most state and local government officials supported these assertions of federal authority because they

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benefited their constituents without intruding unduly on state and local powers. The New Deal era of Democratic President Franklin D. Roosevelt (1933-45) enthroned King Demos, at least with respect to federal regulation of the economy and federal social-welfare legislation, although Roosevelt's four presidential election victories rested on southern white voters and corrupt Democratic Party 'machines' in the North that produced thousands of fraudulent votes. Federal civilian employment jumped from 603,587 in 1933 to 1,042,420 in 1940 (a 72.7 percent increase), while state and local government non-schoolteacher employment increased from 1,144,000 in 1933 to 1,327,000 (a 15.9 percent increase). The U.S. entry into World War II pushed federal civilian employment up to 3,816,310 in 1945. The New Deal did not erode state powers substantially because the confederated party system, which was deeply embedded in state and local governments and controlled by powerful white ethnic 'machines' in the North and white 'courthouse gangs' in the South, foiled most attempted federal encroachments upon state and local prerogatives through their members of Congress, who owed their electoral fortunes to the state and local officials and party bosses. This is why the New Deal was able to expand social democracy but not electoral democracy. Roosevelt refused to enforce black voting ~ights in the South and to attack corrupt party machines in the NOlth. A great transformation of democracy and federalism did occur during the 1950s and 1960s when social movements revolted against states' rights and attacked long-standing undemocratic evils left untouched by the New Deal. Federal civilian employment increased from 1,960,708 in 1950 to 2,398,704 in 1960 and 3,076,414 in 1969 (a 56.9 percent rise). State and local government non-teacher employment increased as well, from 2,418,000 in 1950 to 3,267,000 in 1960 and 4,528,000 in 1969 (an 87.3 percent increase), largely in response to a proliferation of (a) federal grants-in-aid intended to entice state pmticipation in the transformation and (b) federal regulations intended to compel state participation. First, the black Civil Rights Movement obtained massive federal interventions, including U.S. military and law-enforcement interventions, into the southern states to end race segregation and restore black voting rights after some 75 years of suppression. Like the antebellum abolitionists, civil-rights advocates argued that the moral enormity of these matters justified imposition of the will of the nation's majority on reactionary states. This movement produced Amendment XXIII (1961) to the federal Constihltion, which allows residents of Washington, D.C. (which has a sizable black population) to vote in presidential elections; Amendment XXIV (1964), which prohibits states from levying 'any poll tax or other tax' on voting (a common southern device to disenfranchise blacks and poor whites); the U.S. civil rights acts of 1957, 1960, and 1964, which remain the foundation of modern federal rights-protection; and the Voting Rights Act of 1965, which banned states' 'literacy tests' for voting and established extensive federal oversight of elections administration in states (mostly southern) that had a history of voter discrimination and where less than 50 percent of the population was registered to vote in 1964.

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Second, reformers challenged state methods of drawing the boundaries of election districts for the state legislatures and U.S. House. Those methods, dating back to the colonial era, generally aligned districts with county and municipal boundaries, thereby producing districts with different - sometimes very different - population sizes. Those methods also over-represented rural areas and under-represented urban areas. In 1964, the U.S. Supreme Court ruled that such districting violated the equal-protection-of-the-Iaws clause of the Fourteenth Amendment (1868). The Court mandated a 'one person, one vote' rule requiring all districts within a state to be equal in population size. This mandate was widely seen as a major victory for democracy, but it also undermined the party system because districts no longer corresponded to local government boundaries. Counties, especially, had been the organizational loci of the parties. As a result, members of state legislatures and Congress became (a) increasingly disconnected from local and state government officials and parties and (b) increasingly less willing to defend state and local government prerogatives in the federal system. Third, student protesters and others assaulted the traditional party system, seeking to dethrone the party bosses and empower the rank-and-file. The riots surrounding the 1968 Democratic national presidential nominating convention in Chicago represented the apogee of this movement, which dismantled the structural organization of the party system that had endured since 1828. Reformers defeated the party bosses, mandated that state delegations to national conventions proportionately represent women, youth, and minorities rather than local communities, and insisted that presidential candidates be selected by primary elections in the states. These reforms, which also affected the Republican Party - coupled with the Supreme Court's 'one person, one vote" rulings four years earlier and the rise of television that focused public attention on the federal government - destroyed the party system's ability to safeguard federalism. The student movement, reacting to conscription during the Vietnam War, also produced the last democratizing amendment to the federal Constitution, Amendment XXVI extending the vote to 18-year-olds in 1971.-Thus, by the 1970s, the two principal political bulwarks of federalism - the traditional states' rights South and the traditional confederated party system had been consigned to history by the drive to complete the inclusiveness of the electorate and nationalize democracy. The power of the federal government has grown accordingly, shifting the system from cooperative to coercive federalism (Kincaid 1990). This change was reflected in two subsequent statutory expansions of democracy that further reduced state powers. The National Voter Registration Act of 1993, also known as Motor Voter, requires states to make voter registration easier by offering registration opportunities at drivers' license centers, unemployment and welfare offices, disability centers, schools, libraries, and through mail-in procedures. The Help America Vote Act of 2002 entails substantial federal intervention into state voter-registration and election processes, including establishment of an Election Assistance Commission to help states administer federal elections.

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Despite this nationalization, voter turnout still varies across the states, with turnout generally being higher in the moralistic (mostly northern) states than in the traditionalistic (mostly southern) states (see Elazar 1984 on these political subcultures). In the 2008 presidential election, turnout ranged from 50.7 percent in Hawaii and 51.9 percent in West Virginia to 72.2 percent in Maine and 78.5 percent in Minnesota. The national average was 62.3 percent. Furthermore, voter turnout tends to be lower than that in comparable democracies. However, states have much less authority over voting and elections today, and there appear to be no constitutional barriers to more federal intrusions into remaining realms of state autonomy. Generally, the minority Republican Party, currently confined mostly to the South, advocates federal policies to ensure the integrity of election processes (e.g. rigorous registration standards and procedures, photo identification for voting, and felon exclusion), while Democrats advocate federal policies to enhance voter turnout (e.g. opposing photo identification for voting, allowing felons to vote, permitting election-day voter registration, and removing language from state constitutions that prohibits 'idiots' and 'the insane' from voting). Given the Democrats' huge victories in the 2008 presidential and congressional elections, there might be more federal legislation aimed at increasing voter turnout. In addition, Qemocrats want to legalize the approximately 12 million illegal immigrants residing in the United States. These immigrants are mostly Hispanic and most likely to vote Democratic; hence, securing voting rights for this population could ensure the electoral dominance of the Democratic Party for many decades.

Conclusion Paradoxically, the democratization of the United States has substantially nationalized the political system and weakened federalism without dismantling any of the constitutional institutions of federalism. Even the Electoral College has not been altered since the Twelfth Amendment to the federal Constitution in 1804. The paradox can be explained, in part, by the institutional conservatism of Americans, a conservatism reinforced by the requirement that three-fourths of the states rati1)r amendments to the federal Constitution, and by the political liberalism of Americans that motivated democratic reformers to work through the institutions established by the federal Constitution to achieve their objectives. The Civil War was the singular exception to this pattern, but the war had a conservative outcome. There was no alteration of institutions, but rather three constitutional amendments extending rights and authorizing existing federal institutions to enforce those rights against states. Thus, at least three-quarters of the states have been willing to support amendments extending rights but not altering federal institutions. Indeed, 21 of the 27 amendments to the federal Constitution expand rights or democracy and provide for federal enforcement of those provisions. The paradox also can be explained by the use of extra-constitutional political mechanisms, namely, political parties and social movements, to work through and

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further democratize the institutions established by the federal Constitution in order to achieve democratizing objectives. This has been possible in large part because parties and movements in the United States have been nationally inclusive, not regionally or culturally exclusive. The political party system, established precisely to capture federal institutions, especially the presidency, became a powerful vehicle for establishing universal white-male suffrage through state electoral reforms, which also made the Congress, the president, and the Electoral College more responsive to voters. The party system, however, also sustained federalism by shielding state powers from excessive federal intrusion. By contrast, social movements, which were often hostile to the parties, effected the constitutional and statutory changes that extended democracy beyond white males. Except for the Seventeenth Amendment requiring the direct election of U.S. senators, these movements expanded the power of the institutions established by the federal Constitution. Rather than dismantling those institutions, they ultimately dismantled the party system that had safeguarded federalism and replaced it with a more nationalized party system, one that disconnected federal officials from state and local governments and reconnected them to nationwide interest groups and social movements. As more issues became nationalized, moreover, more interest groups competed for the attention of federal officials in the national political arena. The paradox can be explained, as well, by the decline of the democratically deficient South, which had been the principal beneficiary of federalism for some 175 years. The states-rights South died in the 1960s as a result of enormous social-movement pressure, massive federal interventions, technological changes (e.g. air conditioning), and migrations of large numbers of northerners into the South after World War II. Initially, the Republican Party, through its southern electoral strategy, sought to fill the federalism vacuum by advocating the appointment of states-right's advocates to the Supreme Court and by nominating Richard M. Nixon in 1968 and Ronald Reagan in 1980 to run for the presidency on New Federalism platforms, but those strategies failed. No subsequent presidential candidate has championed a New Federalism, and the currently conservative Supreme Court has little interest in protecting·state powers. Finally, few state and local government officials champion the old-time federalism; instead, they have accommodated themselves to a coercive federalism driven by national forces because accommodation is a safe political harbor. One of the last holdouts is the current Republican governor of South Carolina who was widely criticized locally and nationally in early 2009 for trying to refuse to accept federal stimulus money for his state. Even the state legislature threatened to override the governor to accept the money - a procedure authorized by the federal stimulus law precisely because several governors had threatened to refuse the money. However, national democratization has produced other paradoxes. While the United States is now more democratic than ever, voter participation is comparatively low; public trust and confidence in governments, especially the federal government, is low; Congress, the Supreme Court, and national politics generally are polarized; and policy-making has gravitated away from the reach of citizens in state and local arenas.

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Refet'ences Amar, Akhil Reed (2005). America's Constitution: A Biography. New York: Random House. Arendt, Hannah (1963). On Revolution. New York: Viking. Bailyn, Bernard (1968). The Origins ofAmerican Politics. New York: Alfred A. Knopf. Beard, Charles A. (1913). An Economic lilte/pretation of the Constitution. New York: Macmillan. Borowiak, Craig T. (2007). 'Accountability Debates: The Federalists, The Anti-Federalists, and Democratic Deficits', Journal ofPolitics 69 (November), pp. 998-1014. Brown v. Board of Education of Topeka (1954),347 U.S. 483. Bryce, James (1907). The American Commonwealth. 3d edn. New York: Macmillan. Coleman v. Thompson (1991).501 U.S. 722. Dinkin, Robert 1. (1982). Voting in Revolutionary America: A Study of Elections in the Original Thirteen States. Westport, CT: Greenwood Press. Elazar, Daniel 1. (1984). American Federalism: A View from the States. New York: Harper & Row. Elazar, Daniel 1. (1987). Exploring Federalism. Tuscaloosa: University of Alabama Press. Ellis, Richard (2008). Presidential Travel: The Journey ji-om George Washington to George W. Bush. Lawrence: University Press ofKans.as. Farrand, Max, ed. (1966). The Records of the Federal Convention of 1787. New Haven: Yale University Press. Gaines, James R. (2007). 'Washington & Lafayette', Smithsonian 38 (September), pp.82-92. Greene, Jack and 1. R. Pole, eds (1984). Colonial British America: Essays in the New HistOlY of the Early Modern Era. Baltimore: Johns Hopkins University Press. Holton, Woody (2007). Unruly Americans and the Origins of the Constitution. New York: Hill and Wang. Hyneman, Charles S. (1968). Popular Government in America: Foundations and Principles. New York: Atherton. Kincaid, John (1990). 'From Cooperative to Coercive Federalism', Annals of the American Academy of Political and Social Science 509 (May), pp. 139-152. Levinson, Sanford (2006). Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How we the People Can Correct It). Oxford: Oxford University Press. Lincoln, Abraham (1858). 'Speech at Chicago', in Benjamin Fletcher Wright, Jr., (ed.), A Source Book ofAmerican Political TheOlY. New York: Macmillan. Lutz, Donald S. (1980). Popular Consent and Popular Control: Whig Political TheOlY in the Early State Constitutions. Baton Rouge: Louisiana State University Press. Main, Jackson Turner (1966). 'Government by the People: The American Revolution and the Democratization of the Legislatures', William and Mmy Quarterly, 3d ser. 23, pp.391-407. Minor v. Happersett (1875).21 Wall. (88 U.S,) 162. Morone, James A. (1998). The Democratic Wish: Popular Participation and the Limits of American Govel'11ment. New Haven: Yale University Press. Paine, Thomas (1995). 'Common Sense', in Thomas Paine: Collected Writings. New Yorlc The Library of America. Patterson, Orlando (2008). 'An Eternal Revolution', New York Times, 7 November. Roe v. Wade (1973). 410 U.S. 113.

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Roosevelt, Theodore (\929). 'The New Nationalism', in Benjamin Fletcher Wright, Jr., (ed.), A Source Book ofAmerican Political TheOlY. New York: Macmillan. Sandoval-Strausz, A. K. (2007). Hotel: An American HistOlY. New Haven: Yale University Press. Smith, Mark M. (2008). Sensing the Past: Seeing, Hearing, Smelling, Tasting, and Touching in HistOlY. Berkeley: University of California Press. Tarr, G. Alan (1998). Understanding State Constitutions. Princeton: Princeton University Press. Tocqueville, Alexis de (1969). Democracy in America, ed. 1. P. Mayer, trans. George Lawrence. New York: Doubleday Anchor. United States v. Darby Lumber Co. (1941). 312 U.S. 100. Webster, Daniel (1929). 'Second Reply to Hayne', in Benjamin Fletcher Wright, Jr., (ed.), A Source Book ofAmerican Political Theory. New York: Macmillan. Williamson, Chilton (1968). American SujJi-age ji-OIIl Property to Democracy, 17601860. Princeton: Princeton University Press. Winik, Jay (2007). The Great Upheaval: America and the Birth of the Modern World, 1788-1800. New York: HarperCollins. Wood, Gordon (1969). The Creation of the American Republic 1776-1787. Chapel Hill: University of North Carolina Press. Wood, Gordon (1986). 'Democratization of Mind in the American Revolution', in Robert H. Horowitz (ed.), The Moral Foundations of the American Republic, 3d edn. Charlottesville: University Press of America, pp. 109-135.

Federal democracy in Switzerland

7

Federal democracy in Switzerland Paolo Dardanelli

Introduction Federalism and democracy are among the core concepts of political science. The respective ideas have informed institutional design and political practice in a great many countries around the world. Over the la~t few decades, ~hey .ha~e been increasingly debated within and beyond academia. At the same time, mstltutional reforms inspired by federal ideas have been carried out or are underway in several prominent political systems. The theol'etical question of the connections between the two is thus most topical and deserves renewed scholarly investigation of the kind conducted in this volume. That there are many linkages between federalism and democracy is beyond doubt. Indeed, it is often argued that they reinforce each other. Certainly, if democracy can exist without federalism the latter cannot really flourish without the former, as the historical experienc~ofthe communist federations amply demonstrated. The intimate connection between federalism and democracy can probably be observed nowhere better than in Switzerland, a political system in which the two elements have evolved in intimate fusion over a very long period of time. This chapter thus intends to explore the Swiss experience of federal democracy with the aim ?f drawing some general lessons on the connections between these two elements m the early twenty-first century. It proceeds as follows. . Section 1 outlines the historical evolution of federalism and democracy m Switzerland. The following section 2 describes the key properties of federal democracy in contemporary Switzerland and emphasizes the interlocking effect of institutions and patterns of political culture. Section 3 gazes into the future by identifying some key challenges Swiss federal democracy is currently facing and how they are likely to evolve in the future. The fourth section then draws some lessons from the Swiss experience for the wider debate on the relationship between federalism and democracy, both in terms of dynamics that reinforce each other and of tensions between them. The concluding section argues that despite Switzerland's peculiarities, these lessons help illuminate key aspects of federal democracy in other systems and can thus be widely applied.

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Federalism and democracy in Swiss history Although Switzerland has been a federal state only since 1848, it previously had a long confederal history stretching back to the late Middle Ages and can be thus seen as the country that, more than any other, embodies the spirit of the federal idea. The origins of the Swiss political system are usually traced back to 1291 when an oath of mutual support and defence between representatives of three mountain communities, nominally subject to the Habsburg empire but de facto largely independent, was sworn at RUtli, on Lake Lucerne. This first alliance later attracted other members, including powerful cities such as Berne and Zurich, and slowly acquired a more permanent character. By the end of the sixteenth century, 'Switzerland' was a network of alliances between so-called Orte - or localities bound together for mutual defence purposes on the basis ofa series of treaties and oaths. The following centuries saw 'Switzerland' ravaged by internal conflicts mostly as a consequence of the Protestant/Catholic divide that emerged in the aftermath of the Reformation - but it was also increasingly seen by outsiders as a distinctive political system. With the treaty of Westphalia, the Orte's independence from the Habsburgs as well as their policy of neutrality received formal recognition. The institutional structure of the system slowly coalesced into a complex form of confederation based on 13 Orte - among which the oldest eight had some privileges - nine allied states and some subject telTitories ruled individually or jointly by the Orte. This old confederation was governed by a Diet, meeting to no fixed timetable and location, made up of representatives of each Ort as well as their allies. I Among the 13 Orte, seven had an oligarchic form of government while six could be described as having a form of rudimentary democracy. The oligarchic cantons, of which Berne was the most prominent, were governed by a small executive council and a larger assembly, both of them dominated by wealthy and often aristocratic families who perpetuated their power largely by co-optation. In some of them, notably Zurich and Basle, the social basis of members of the ruling institutions was wider - especially due to the power of guilds - but government was still fundamentally oligarcliic. In contrast, the mountain cantons of central and south-eastern Switzerland, notably the three original Waldstatte and what is now the GraubUnden, were governed through forms of democratic participation by free and equal citizens. Symbolic of that form of democracy was the Landsgemeinde, or popular assembly of all citizens, in which key decisions were taken and the main offices filled by election and which in some cases has survived to the present day. This slow, progressive tightening of the old Swiss confederation was dramatically transformed between 1798 and 1815 when the country was invaded and ruled by revolutionary France, which imposed first a unitary state under the name of the Helvetic Republic and later accepted a partial return to a confederal order while retaining ultimate authority. Although this period is often overlooked in accounts of Swiss political history and generally interpreted as an alien imposition that was immediately rejected by the Swiss, it had a lasting effect on Switzerland's political system. The origins of two peculiar features of Swiss federal

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democracy, the constitutional referendum and the collegial form of the executive, can be traced back to this period. 2 After the fall of Napoleon, the Swiss communities - now commonly referred to as cantons (Germann and KlOti 2004, p. 318) - regained their sovereignty and re-established a confederation among themselves under the terms of the Federal Treaty signed in 1815. Though this 'new' confederation constituted an explicit attempt to re-create the pre-1798 institutional order, it did retain a number of principles and features introduced under French hegemony, notably with regard to equality among the cantons. It is from this date too that Switzerland acquired its multi-language and multi-cultural character, as a result of previously subject and allied territories formally joining the confederation as full cantons, among others Geneva, Vaud and Ticino. It was not long, though, before the rising liberal movement put pressure on the system, in two separate, but linked, ways. On the one hand, the movementbased on its demands for more equality, greater citizen participation and clearer limits on government led to the so-called 'regeneration' in a number of 'progressive' cantons which adopted new constitutions, submitted to popular approval in a referendum (Aubert 1974, p. 20). On the other hand, these 'regenerated' cantons became increasingly vocal in pushing for more competences to be exercised at the central level and a stronger institutional infrastructure to carry them out. The process of democratisation at the cantonal level went thus hand in hand with the building up of demands for a transition from confederation to a federation. These culminated in the 1847-8 showdown when, following a brief civil war, the last confederation was replaced by the modern federal state based on the 1848 constitution. Despite full constitutional revisions in 1874 and 1999, the institutional structure set up in 1848 has remained largely unaltered though the distribution of competences, as discussed below, has changed very significantly. The 1848 constitution represented a compromise between the vision of the victorious radical forces in the civil war and the need to keep the defeated conservative cantons on board. It set up a federal state in which the cantons retained ample autonomy in many areas of policy-making under the so-called 'residual powers' principle, i.e. that all areas not explicitly delegated to the federation would remain the responsibility of the cantons. The granting of new policy-making competences to the federal level would only be possible on the basis of a constitutional amendment, and the latter was made dependent on endorsement in a referendum by a majority of the people and of the cantons. As will be seen later, direct democracy thus became intimately linked to federalism to produce the distinctive form offederal democracy now seen in Switzerland. The historical evolution of the Swiss political system has thus been marked by a slow but progressive deepening and tightening of the bonds between the Ortelcantons. This meant a move from a looser to a tighter confederation, then from a confederation of states to a federal state and thereafter from a more decentralised to a less decentralised federal state. In other words, a slow but robust trend towards centralisation runs throughout Swiss political history, though, in the modern period, centralisation has essentially been confined to leg-

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islation while implementation has been left to the cantons and the communes. This has also been mirrored in the size of the public sector payroll and in tax raising capacities, both of which still remain more important at the cantonal than the federal level. The side effect of this disjunction between legislation and implementation has been a growing blurring of the division of competences between the three levels of government in the context of a deepening of so-called 'co-operative federalism' - whereby competences are mainly divided by policy function rather than policy area.

Fede."al democracy in contemporary Switze"'and 3 At heart, Swiss federal democracy is concerned with giving as much autonomy as possible to local communities and letting the differences between them coexist peacefully and harmoniously. This principle is operationalised through three levels of government and a set of mechanisms and patterns of behaviour linking each other and regulating their interactions. While those mechanisms are largely governed by law, the whole institutional set up of Swiss federalism is buttressed by a sympathetic political culture centred on the quintessentially Swiss belief that 'local' is, in principle, always preferable to 'distant'. It is thus clear that the theoretical underpinnings of Swiss federal democracy contrast sharply with those of the US. Whereas the latter is - or was - based on the Madisonian principle that an 'extended republic' would limit the excesses of democracy within each of the states and would thus be more likely to prevent tyranny, Swiss federal democracy is primarily concerned with preserving democracy on the smallest scale possible. Put differently, whereas in the US democracy was seen as potentially a threat to liberty - hence the need for a system of vertical and horizontal separation of powers - in Switzerland democracy was, and still is, seen as the springboard of liberty.4 Because of its historical roots, its centrality to both the fabric of the polity and its political culture, federalism has become a key cO!l1ponent of Swiss national identity, which is based on a form of 'civic nationaiism' rather than, of course, on shared ethnicity or culture as traditionally understood. s This 'mythical' role probably also accounts for a certain anachronism in the official terminology applied to Swiss federalism, with the state still officially called a confederation and many cantons still describing themselves as independent, sovereign states. 6 Incidentally, it is worth pointing out that, contrary to what is often asserted and in spite of its linguistic and ethnic diversity, Switzerland is not a multi-national state. For a variety of reasons, both the cantons and the language groups have not developed into national communities and identification with them is subordinate to identification with Switzerland as a whole.?

Levels of governmellt The three levels of government are the federation, or central level, the cantons, or regional level, and the communes, the local level. Although their status has

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146 P. Dardanelli been significantly eroded over time, the cantons can still be regarded as the main level of government. Not only are they historically the building blocks of the state, they are also the only actors free to determine their own policy-making role and their revenue raising, subject only to limits set by the federal constitution. Although this freedom has, de facto, progressively been reduced by the already mentioned process of centralisation, it remains of far more than symbolic importance. Moreover, because policy implementation is still largely in their hands, the cantons employ over half of all civil servants and are thus the principal 'face' of the political system vis-a-vis the citizens. The 26 cantons and half-cantons vary greatly in size, both geographically and demographically, in their political influence and in the length of time they have been in the Swiss con/federation but all have the same rights under the federal constitution. 8 Although Swiss cantons are now far from being the independent and sovereign states some of them still claim to be, they do retain vestigial elements of statehood including a concept of a cantonal people and citizenship, full taxation power and a 'residual powers' competence. In short, they are more 'organic' and more 'self-conscious' than most regions in other federal systems, save for those perceiving themselves as 'stateless nations' such as Quebec or Catalonia, and this is a crucial element in giving Swiss federalism its 'mythical' and 'identitarian' character. The federation, or central level, is of course a key level of government. Although it is constrained to a larger extent than central governments in other federal states by the provisions of the federal constitution - direct democracy in particular - and relies on cantons and communes for implementation, its power and influence are very significant. As mentioned above, federal legislative competences have greatly expanded over time and now extend to the bulk of public policy. Its financial capacities as well, though still fonnally dependent on popular consent, have become crucial to the overall functioning of the Swiss political system and all cantons rely to a greater or lesser extent on federal transfers to make their financial ends meet. Last but not least, the fading of cantonal specificities and population movements have brought about a degree of homogenisation of the country and reinforced citizen identification with Switzerland as a whole above specific cantonal identities and have thus strengthened the identificational underpinnings of the federation (Kriesi 1998, p. 14). The local, or. communal, level of government is often neglected in studies of federal systems. That would be a serious mistake when it comes to Switzerland for communes are very important actors in the system and command fierce loyalty among its citizens. There are now around 2,600 'political' communes, down from over 3,000 20 years ago as a result of a movement to increase their size through mergers. 9 Communes carry out a great deal of policy implementation, directly raise a significant amount of taxation to finance it and, importantly, are the agencies granting citizenship. Uniquely among federal states, Swiss citizenship depends on cantonal citizenship which, in turn, depends on obtaining citizenship of a commune.

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Tile divisioll of respollsibilities alUl resources As already mentioned, the division of competences and the relationship between the three levels is primarily regulated through constitutional law, both federal and cantonal, meaning that each of the three levels operates within legal constraints and has to respect the autonomy and prerogatives of the other levels and to co-operate with them. In particular, constitutional rules govern the division of legislative competences between the federation and the cantons. Although as a result of the blurring occurring over time, it is difficult to give a clear-cut picture of the resulting division, it could be said that, in most policy areas, legislative powers are held concurrently by the federation and the cantons with the bulk in the hands of the former while culture, education - but see below - and policing are the main areas still under mainly cantonal control (Church and Dardanelli 2005, p. 185; Schenkel and SerdUlt 2004, pp. 395-7). Under the residual powers clause of alt. 3 of the federal constitution, all competences not explicitly conferred to the federation rest with the cantons and the latter, together with the communes, carry out·policy implementation. By and large, this pattem is mirrored in the fiscal sphere. All three levels have revenue-raising powers and, broadly speaking, aim to be self-financing, although there is a considerable degree of revenue sharing. Reflecting the distribution of policy implementation, cantons and communes spend more than the federation but also rely on significant transfers from the federal level to make their financial ends meet. Significant discrepancies in the so-called 'fiscal capacity' of cantons remain despite the presence of an equalisation fund. The whole system is now being comprehensively overhauled following the recent approval of a new system of competence allocation and revenue sharing. 10

Vertical relatiolls Three key mechanisms regulate the vertical relationship between cantons and the federation. First and foremost, any amendment to ·the constitution must be approved in a mandatory referendum by a majority of the people and of the cantons. Cantons thus retain a very impOltant - albeit collective - right of veto on any shift of power to the centre. Moreover, since all full cantons have equal weight in the calculation of this cantonal majority, the rules give a remarkable power to the small ones. As discussed in the next section, this raises impOltant issues from the perspective of democratic theory. A 'softer' veto power is provided by art. 141 of the federal constitution, whereby eight cantons can mount a referendum challenge to any piece of federal law thus triggering a popular vote in which, however, the cantonal majority rule would not apply. This power was first used in 2004. Second, cantons enjoy full representation at the federal level through an equal number of seats in the upper house, the Council of States, and the latter's parity with the lower house, the National Council, in the legislative field. I I Furthermore, cantonal representation at the federal level extends to the

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pre-parliamentary consultations - a crucial phase of federal policy-making in Switzerland - where cantons take full part alongside interest groups, professional associations and committees of experts. The role of representation of the cantons is to a certain extent performed by the inter-governmental conferences of cantonal ministers and cantonal presidents, which are the collective voice of the cantons and often meet together with federal representatives. Cantons are thus formally involved in the three key phases of federal law-making: preparliamentary, parliamentary and post-parliamentary, though the extent to which they exercise real influence - as discussed below - can be highly variable (Vatter 2004, pp. 124-5). Lastly, three constitutional provisions subject cantons to a degree of control by the federal level: art. 49 states that federal law 'breaks' cantonal level in case of conflict between the two; cantonal constitutions have to be 'guaranteed' (i.e. vetted) by the Federal Parliament and cantonal law - unlike federal law - is subject to judicial review by the Federal Tribunal. The veltical relationship between cantons and communes is almost as intimate as that between the federation and the cantons. However, the latter are not themselves 'federal' so do not accord communes the status the federation accords to them, notably in terms of formal representation and involvement in policy-making, and generally speaking maintain a more hierarchical control over communes, though significant differences between cantons exist (Germann and Kloti 2004, p. 338; Geser 2004, pp. 354-8).

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ference of Cantonal Governments which, as discussed at greater length below, has become an important actor in Swiss federalism. Horizontal co-operation at the communal level is also highly developed, even more so than at the cantonal level (Geser 2004, pp. 384-7). Especially in metropolitan areas, there is intense co-operation between communes in such areas as public transport, waste management and culture. This is usually carried out through a network of functional bodies overlapping each other territorially. Communes are also linked to each other by cantonal systems of financial equalisation on similar lines to the system existing at the federal level (Schenkel and SerdiiIt 2004, pp. 403-4). The last point worth emphasising is that through federalism, democracy - and especially direct democracy - can flourish at all levels of the Swiss political system. Referendums and initiatives were historically introduced in the cantons before being adopted by the federation and they are still more widely used and more powerful at cantonal and communal level than at the federal level. Thus, the greater part of citizen pmticipation in decision-making in Switzerland through direct democracy - takes place at the cantonal and communal levels rather than at the federal level. It should also be mentioned that direct democracy through the constitutional referendum and the constitutional initiative - is the key 'regulatory' instrument of Swiss federalism, replacing the role performed in other systems - e.g. Gennany or the USA - by judicial authorities.

Prospects for fedel'al democracy in Switzerland Horizolltal relatiolls

Though less important than the vertical relationship between cantons and the federation, the horizontal dimension of inter-cantonal co-operation is also very significant and increasingly so. Horizontal co-operation takes two main forms. First, cantons co-operate with each other through inter-cantonal treaties - known as concordats - in a wide range of policy areas within their competences. Most of these treaties are regional in scope, i.e. are signed by neighbouring cantons in a given geographical areas with only about three per cent of them having a statewide coverage. Concordats are negotiated and signed by cantonal executives but are subject to 'assent' by cantonal parliaments and, in most cantons, to a mandatory or optional referendum. 12 Despite some recent efforts to increase, parliamentary scrutiny, concordats do marginalise cantonal legislatures and are widely perceived as 'technocratic' in character and lacking democratic legitimacy (Germann and Kloti 2004, pp. 343-4; Rhinow 2006). Nonetheless, horizontal co-operation is increasingly seen as the only way for cantons to resist the pressures of centralisation and the recent refonn of fiscal federalism - see below puts greater emphasis on it, even providing for mechanisms to make inter-cantonal co-operation compulsory. Second, cantons take part in so-called 'conferences' bringing together members of their executives and providing a collective voice for the cantons. There are sectoral conferences grouping all cantonal ministers of a given sector - say education or finance - and a general Con-

While federal democracy is, of course, still very much at the heart of the Swiss political system, it nonetheless faces several challenges which could profoundly affect its nature in the near future. The following are those that appear to me to be most prominent.

Size ami capacities Most of the cantons, and especially the half-cantons, are very small by the standards of European regions, and in many cases have irregular borders including numerous exclaves and enclaves. Moreover, cantonal boundaries have lost almost all relevance to the pattern of economic activity so that they are increasingly challenged as 'functional' units of regional administration. Cantonal mergers, however, remain an extremely sensitive matter and several attempts have failed after lengthy negotiations and amid public hostility. A recent report (Blochliger 2005) by A venir Suisse - a think-tank close to business circles advocating the creation of large functional regions, each centred on a major urban centre, rekindled debate and aroused fierce passions. This is the fundamental problem Swiss federalism faces for it goes to the heart of Switzerland's political system. 13 There is a real risk that the centripetal forces pushing for the federation to take over more and more responsibilities threaten to turn the cantons into mere federal implementation agencies. Emblematic of these

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difficulties is the changing division of labour in the field of education, among popular pressures for it to become entirely a federal responsibility and predictable cantons' resistance. Though the idea is not new, it found new life in the aftermath of Switzerland's mediocre performance in the PISA study 2001, with education experts widely calling for it. In line with its traditional stance, the Radical party - still the establishment's party - came out openly in favour in October 2004 and was suspected by some to be planning an initiative. 14 A spring 2005 opinion poll found 52 per cent of respondents in favour of transferring responsibility for primary and secondary education to the federal level. ls In this context, it is not entirely surprising that a constitutional amendment intended to create a unified 'Swiss educational space' managed jointly by the federal and cantonal governments, was approved by a large majority in parliament and subsequently strongly endorsed in a referendum in May 2006 by 86 per cent of the population and all cantons on a 27 per cent turnout. Under the new provisions, although the cantons formally retain legislative competence over education, the federal government acquires the right to impose a degree of harmonisation on some key issues. The size of the referendum majority, the low turnout and the absence of a real debate before the popular vote, all indicate the strength of popular support for more harmonisation and greater federal involvement in education. Ratification of the intercantonal concordat intended to implement these new constitutional provisions - dubbed HarmoS - has however failed in four cantons as of April 2009 and its entry into force is still in doubt. Given that education is arguably the most important policy area still largely in the hands of the cantons, these developments show the contrasting pressures facing Swiss federalism today.

greater politicisation of the language cleavage. The latter was put into sharper relief over the last couple of decades by the different attitude to 'Europe' on the two sides of the so-called rostigraben and by heightened conflict in the field of language education. Europeanisation has exposed the divide between an outward-looking Suisse romande, with a positive attitude to such issues as European integration and UN membership, and the more inward-looking Germanand Italian-speaking areas, hostile to any political 'entanglement' with the outside world. Language education has become more controversial due to the decision by some German-speaking cantons to teach English, rather than French, as a second language at primary school, thus potentially deepening the divide between the language communities and eroding understanding and solidarity between them. These are all potentially divisive and centrifugal trends for Swiss federalism but their impact should not be exaggerated. While there is some justification for concern, it should be emphasised that the legitimacy of the current institutional architecture of Swiss federalism is still very high, not least when observed from a comparative perspective. Elite and mass resistance to mergers between cantons remain formidable, largely to be attributed to the enduring strength of people's identification with their canton. Also, the divergence between the linguistic communities in their attitudes towards European integration has declined since the early 1990s and is cross-cut by an equally powerful urban-rural divide. likewise, the teaching of French at the primary level in the German-speaking cantons has by no means disappeared and proposals to teach only one 'foreign' language have been rejected in a series of recent cantonal referendums.

Calltollal vs lillguistic idelltities

Federatioll-calltoll relatiolls

Federalism is also under pressure from a degree of weakening of traditional cantonal identities and the reSUlting emergence of more homogenous language communities. It has been brought about by population movements, especially from rural areas to urban agglomerations, and by the transformation of the media. The latter phenomenon is two-fold. First, there is the ongoing process of concentration in the printed media with the consequence that newspapers with a strong cantonal identity are either taken over by stronger rivals or marginalised by the emergence of new players. The establishment of Le Temps as the 'newspaper of record' for the entire Suisse romande has been symptomatic in this regard. Second, the position of the printed media as a whole has - like in most other countries - been eroded by television and the new media such as the internet. State-owned television, in particular, is organised in three linguistic channels aimed at the three main language communities. The combined effect has thus been to weaken the role of the cantons and strengthen that of the language communities as spaces for public debate. As the language communities do not coincide with cantonal borders and do not possess a political structure of their own, these trends exercise pressure on the institutional architecture of Swiss federalism and could potentially lead to

The traditional institutions of Swiss federalism have also increasingly come under pressure in recent decades. The mechanisms of the cantonal majority exacerbated over time by a growing imbalance in popUlation between cantons give a veto power to an extraordinarily small minority of the Swiss people, ranging from an average of 20-25 per cent to a theoretical extreme of 9 per cent (Vatter 2004, p. 80). Coupled with the fact that votes requiring a double majority are increasingly frequent and so are instances of a mis-match between popular majorities and cantonal majorities, these features of Swiss federalism sit uneasily with democratic principles (Vatter 2004, pp. 80-1). The Council of States itself, perhaps the most important institution devised in 1848 to link the federal level and the cantons, is also increasingly under pressure. Since the transition to direct election of the councillors of state, partisanship has replaced the representation of cantonal interests as the dominant force in the upper house (Vatter 2004, pp. 78-9). This is further exacerbated by the powerful bias inherent in the characteristics of the electoral system, which produces a significant overrepresentation of the centrist parties at the expense of the more radical ones (Dardanelli 2005, pp. 126-7). As a result, the Council of States is increasingly unable to perform its traditional role of being the 'voice of the cantons' at the

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federal level (Vatter 2004, pp. 78-80; Schenkel and SerdUlt 2004, p. 415). Moreover, cantonal involvement in the pre-parliamentary consultations has fallen short of expectations since each canton's effective influence as opposed to formal rights is highly asymmetrical and heavily dependent on size and resources. By and large, powerful cantons such as Zurich or Berne have the resources and the ability to be influential while small and rural cantons have not. 16 This has fuelled the cantons' desire to strengthen collective co-operation, notably through a growing role for the Conference of Cantonal Governments, and has led to a greater assertiveness of the cantons in dealing with the federation, with some spectacular results. In 2004, for the first time in the history of the modern Swiss state, eight cantons made use of a dormant constitutional provision to challenge the federal government on a package of financial reforms that was perceived to be detrimental to their interests and scored a resounding victory in the subsequent referendum. Paradoxically, the most controversial aspects of the reform, and the one that triggered the cantons' fury, had been inserted in the bill at the behest of the Council of States! In essence, this episode threw light on the fundamental conflict existing in the institutional set-up of Swiss federalism between members of the upper house of the federal parli~ment and members of the cantonal executives as 'true representatives' of cantonal interests. At least on this occasion, the people seemed to have come down in favour of the latter. If, at first sight, this renewed cantonal assertiveness could be seen as a sign of strength, it is probably best interpreted as its opposite for it betrays the growing pressure weighing on the cantons and their feeling unable to make their voice effectively heard at the federal level. 17

Fiscal jederalism A bright spot in this otherwise fairly sombre picture is the successful adoption of a new system of financial equalisation and division of competences between the federation and the cantons to replace the old scheme in place since 1959. Over the last four decades and a half, legislative powers have further shifted up to the federal level, inter-locking and blurring of responsibilities between the two levels has correspondingly grown at the same time as economic and fiscal disparities have deepened. Under negotiation since 1994, the package involving no less than 27 constitutional amendments was finally endorsed by the people and the cantons in a referendum in November 2004. Implementing legislation was subsequently enacted and the new system has been in operation since 2008. Its stated objectives are to stem centralisation, clarify the division of competences and reduce disparities while the undeclared intention was also to avoid the spectre of fiscal harmonisation supported by the left. Three key elements characterise the new regime. First, there is more territorial redistribution, albeit mainly financed through horizontal transfers between cantons, with a reduced role for the federation, and a shift away from earmarked grants towards untied transfers. Second, a tidier division of responsibilities is

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brought in whereby 11 policy areas will become exclusively cantonal, seven will go entirely up to the federal level and others will be managed by the cantons but on a collective basis in the context of more institutionalised horizontal cooperation, which could also include elements of compulsion. ls Horizontal cooperation between cantons, third, will acquire a much higher profile and may even grow into a 'fourth level' of Swiss federalism (Rhinow 2006). While many welcome the growth of inter-cantonal co-operation as the only practical way in which the relentless tide of centralisation can be contained (e.g. Sciarini 2005), it is worth pointing out the downsides to this trend, notably in terms of transparency and accountability of the policy-making process, as they imply a rejection of democratically decided federal laws in favour of 'treaties' between cantonal governments subject to little democratic oversight by cantonal parliaments (Rhinow 2006, pp. 76-8). Coupled with the greater role ofthe Conference of Cantonal Governments as the 'voice of the cantons in Berne' mentioned above, these trends describe the emergence of 'executive federalism' as an increasingly important feature of Swiss federalism, with some interesting similarities as well as differences with the Canadian experience, as discussed below. They also outline an acute dilemma facing contemporary Swiss federalism. The people face a choice between shifting an ever greater range of competences to the federal level, thus making the country more centralised but also subjecting it to the federal democratic process, and keeping responsibilities at the cantonal level but subjecting them to the generally less democratic process of intercantonal executive co-operation. The latter option seems to be attracting more favour at the moment, but it may indeed be a case of federalism undermining democracy. Lastly, but importantly, the adoption of the new equalisation system has not prevented a deepening of inter-cantonal fiscal competition, which led some cantons as far as adopting regressive fiscal systems in an attempt to lure highrate taxpayers. While these were subsequently ruled unconstitutional by the Federal Tribunal, competition is increasingly fierce; In the eyes of critics, this trend undermines redistribution within cantons and threatens federal cohesion between them, two pillars of federal democracy in the country. Moreover, unfettered fiscal competition flies in the face of the renewed emphasis on intercantonal co-operation, as embodied by the new equalisation system as well as the unified 'Swiss educational space' .19 An initiative introducing a minimum tax rate on high incomes, sponsored by the Socialist Party, will likely be put to the vote by the end of 2009.

Illtemai ami extemal migratioll Last, but certainly not least, increasing migration within the country as well as from the outside has already diluted the original ethnic and religious homogeneity of the cantons and is likely to continue doing so in the future. It also means that the populations of the small, rural, Catholic cantons are no longer the only,

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let alone the most significant, minorities in the country. Since many features of Swiss federalism, as seen above, were explicitly designed to protect the interests of those cantons, it follows that the institutional framework of Swiss federal democracy is increasingly ill-adapted to the realities of Swiss society. Moreover, given that the new minorities are not geographically concentrated as the old ones were, one could go even further and argue that federalism is not an appropriate institutional mechanism to ensure them effective democratic representation. In other words, the rising heterogeneity of the cantonal populations and the concomitant erosion of differences between cantons pit the institutional design of Swiss federalism increasingly at odds with democratic principles.

What can we learn from the Swiss experience? Switzerland is clearly a country where federalism and democracy are intertwined most intimately. But it is also a very peculiar and idiosyncratic political system, which makes drawing lessons of wide applicability somewhat problematic. In particular, given the pervasive influence of direct democracy, it is difficult to evaluate the connections between federalism and representative democracy on the basis of the Swiss experience. Nonetheless, tl;tere are a number of important aspects which can fruitfully be illuminated by exploring the practice of federal democracy in Switzerland. These are discussed briefly below. First, and most fundamentally, federalism and democracy are closely linked but there is an asymmetrical interdependence between them. Although, as Watts (Chapter 15 of this volume) argues, it is possible to have an oligarchic federal system provided it is a constitutional one, true federalism does necessitate democracy to stay alive and prosper. Formally federal constitutional structures lose almost all of their meaning in systems in which democracy is suppressed. The historical experiences of the Soviet Union and, to a lesser extent, of Yugoslavia illustrate the point. On the other hand, democracy does not require federalism for it to prosper. The fact that some of the most democratic states in the world, such as the Scandinavian countries, are unitary states is well known. Moreover, as shown by the Swiss case, there are multiple tensions between federalism and democracy and the benign or otherwise nature of the relationship between them depends to a large extent on the specific design offederal institutions. While it is possible to conceive in theory - and to find empirical evidence - that federalism can enhance democracy, this is not always the case and it is equally possible to identify instances in which federalism undermines democracy. Moreover, it is problematic to discuss the connection between federalism and democracy in abstract terms, removed from their links with actual political communities with their societal patterns and political culture. While federalism may enhance democracy in one political system, it may undermine it in another. Another fundamental source of tension arises from the role of federalism in preserving historically rooted regional units within a broader political system and the role of these as functional units of regional government. On the one hand, historical rootedness is often needed to create a sense of political commun-

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ity, hence giving the regional unit meaning and ensuring its preservation. It is a frequent charge made against recently created regional units of government that they are 'artificial' and that citizens do not identify with them. On the other hand, historically rooted regions may lose their capacity to be effective functional units of regional government over time, with the consequence of eroding the so-called 'output legitimacy' of the system and, in the long run, even undermine public support for the country's federal order itself. A related trade-off which is at the root of many debates around federalism and democracy is that between freedom and equality. These two principles are at the heart of democratic theory and the balance or trade-off between them is paIticularly exposed in federal systems. More equality between citizens across the federation almost necessarily implies less freedom - notably fiscal freedom for the component units, while a high degree of regional freedom almost inevitably generates and perpetuates inequalities. Different systems strike a different balance between the two elements but, generally speaking, vibrant federalism by its very nature requires more emphasis to be put on regional autonomy, i.e. freedom, than on state-wide uniformity, i.e. equality. This means that in communities whose political culture attaches great value to equality, federalism would be seen as undermining democracy. Even without going that far, it is probably true that while too much equality emasculates federalism, too much inequality between citizens of different federated units threatens the federal bond between them. For these reasons, among others, most federal systems, Switzerland included, have an equalisation system or some other form of fiscal solidarity between regions (Dafflon and Vaillancourt 2003). Remaining within the fiscal field, Switzerland provides a good empirical test for one core tenet of the theory of fiscal federalism. This argues that taxing income at the regional level creates perverse incentives for the regions to engage in 'race-to-the-bottom' fiscal competition to attract high earners with negative externalities for the revenue-raising capacities of the system as a whole. Hence, income taxes should be assigned to the federal level. As discussed above, Switzerland seems to provide empirical evidence to support such theoretical predictions. If this is indeed the case, then it is arguably another source of tension between federalism and democracy. Why would that be so? Because the mismatch created by 'big-ticket' policy areas - such as education, health and policing - being run by the regions while the largest source of income is controlled by the federal government generates accountability problems with regard to the principle that those responsible for expenditure should also be responsible for taxation. In this sense, it could thus be argued that one aspect which is often deemed essential to vibrant federalism - fiscal autonomy for the regions - undermines a fundamental aspect of democracy: the degree to which elected decisionmakers can be held accountable for their decisions. Also linked to the fiscal field and the interdependence between levels of government is the emergence of so-called 'executive federalism'. Here the similarities and the differences between the Swiss experience and that of other systems - chiefly Canada and Germany - are fascinating. 20 Four points in particular are

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worth emphasising. First, executive federalism is not a product of an elitist political culture, as some Canadian observers seem to think. There is hardly a less elitist political culture in the world than that of the Swiss yet a degree of executive federalism has emerged notwithstanding. This shows that the hypothesised causal connection between elitist political culture and executive federalism is a spurious one. An elitist political culture may support and reinforce executive federalism but does not cause it. On the contrary, second, executive federalism emerges out of the interdependence between the federal and the regional level of government and, more specifically, of the pressures on the autonomy of the latter brought about by such interdependence. As a reaction, regional units of government engage in executive federalism both to make their voice effectively heard at the federal level, Canada being the prime example here, and achieve coordination and economy-of-scale benefits by co-operating among themselves more closely rather than seeing competences drift away to the federal level, as is increasingly the case in Switzerland. Third, the presence of an upper house supposedly representing the regional units does not make much of a difference, unless it is made up, as in Germany's Federal Council, by representatives of the regional governments. 21 The contrast between the Canadian Senate and the Swiss CQlll1cil of States could not be greater and yet executive federalism is increasingly prominent in Switzerland despite, as seen above, the centrality of the Council of States in the system. In other words, it seems increasingly clear that this model of regional representation at the federal level is simply not effective in the circumstances of contemporary political systems and that executive federalism to some extent is probably inevitable. One could go even further and say that in the context of interdependence between the federal and the regional level of government brought about either by a legislation/implementation split, as in Switzerland, or a resources/competences split, as in Canada - there is no real alternative to a degree of executive federalism and the only variables are, arguably, the degree of parliamentary scrutiny, the degree of judicial involvement and the degree of citizen involvement through direct democracy. Fourth, though the form of executive federalism is clearly determined by the institutional design of the system and, in pmticular, by the nature of the relation between the executive and the legislature - at both the federal and the regional level - the degree to which the latter are affected does not appear to vary dramatically across states. In spite of the significant differences between the 'Westminster' system in operation in Canada, the more consensual parliamentary one employed in Germany and the 'semi-presidential' and 'presidential' to be found - at the federal and cantonal level, respectively - in Switzerland, executive federalism does indeed marginalise parliaments in all three countries. Lastly, Swiss experience shows how federalism can be challenged by the changing social make-up of contemporary societies. As a constitutional order based on the notion of territoriality, it naturally finds it difficult to adapt to societies in which identities are increasingly divorced from territory.22 In that respect, increasing mobility across regions and states, leading to ever greater heterogene-

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ity of populations, may be seen as undermining the raison d'elre of federalism as a device to allow minorities autonomy and representation within the democratic process. If this view seems to paint a dark horizon for the future of federal democracy, it is also conceivable that high mobility will make possible in future a federal system centred on the Tiebout effect, i.e. in which citizens 'sort' themselves into different regions, each providing a distinctive package of public policies. In that scenario, the federal order would be justified on the basis of different preferences for public policy rather than distinctive regional identities. 23

Conclusions This chapter has analysed Switzerland's experience of federalism and democracy throughout the evolution of the Swiss political system and into its foreseeable future. The analysis has shown that both federalism and democracy have very deep roots in Switzerland and are intimately linked to each other in the country's federal democracy. Indeed, Switzerland's raison d'elre as a Willensnalion - or nation by will - is entirely based on its political institutions and political culture, centred on the peculiarly Swiss forms of federalism and democracy. It is thus probably fair to say that the country can only exist as a federal democracy and that federalism and democracy have reinforced each other in Switzerland. However, the chapter has also shown that there are multiple sources of tensions between the two elements in Switzerland and significant challenges on the horizon. Some of these tensions and challenges touch upon core issues of federal democracy and have therefore significance much beyond Switzerland's borders. In spite of the peculiarities and the idiosyncrasies of Switzerland's political system, then, the Swiss experience of federal democracy is worth scholarly investigation as many important lessons can be drawn from it. I hope this chapter will provide some inspiration for further comparative analysis.

Notes I Some allied territories, such as St Gallen, had right of representation in the Diet while others, such as Geneva, had not. Subject territories such as Ticino were also not represented. 2 The first country-wide constitutional referendum took place in 1802 in the context of the adoption of the second constitution of the Helvetic Republic, see Kobach (1994, p. 100). On the Swiss executive being modelled to that of the Directorial regime in France between 1795-8, see Kriesi (1998, pp. 218-19). 3 This section draws heavily on Church and DardanelIi (2005, pp. 171-4). 4 For a 'deconstruction' of Madison's constitutional thought and the relationship between federalism and the separation of powers in particular, see, among others, Kernell (2003). 5 Although, as pointed out by Church (2004), it could be argued that such belief in the political values of Switzerland and pride in its institutions constitute a cultural element shared by all Swiss. 6 It should be pointed out, however, that Swiss or Helvetic Confederation is the official

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15 16 17 18 19 20 21 22

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name of the country in Latin, French, Italian and Romansch but not in German, in which it is called the Schweizerische Eidgenossenchaft or 'Swiss oath fellowship'. See Dardanelli (forthcoming) for a more extensive discussion. So called half-cantons, the result of splits of whole cantons at critical historical junctures, are almost de facto fuB cantons and have the same rights save for having just one seat in the Council of States and half the weight in calculating the cantonal majority in constitutional referendums. There are other territorial units also called communes which perform different functions, see Geser (2004) for details. See Frey et al. (2006) on the new system and wnlti (2003) on the old one. The only real imbalance between the two chambers is created in occasion of the elections for the executive, the Federal Council. Federal councillors are elected by a special joint session of parliament in which the 200 national councillors have, of course, much greater weight than the 46 councillors of state, see LUthi (2004, pp.124-5). I use the term 'assent' in deliberate reference to the EU procedure of the same name, i.e. cantonal parliaments can only accept or reject concordats, not amend them; see Vatter (2004, p. 89) for more details. See also Germann and Kloti (2004, pp. 323, 327) on this point. The Radicals' support for harmonisation of education goes back to the 1870s but proposals to that effect were massively rejected by the people in a referendum in November 1882, see Meuwly (2004). See Le Temps, 10 June 2005. See Vatter (2005), who writes of a historical shift of emphasis from 'veto points' to 'access points' in Swiss federalism. A growing number of cantons employ professional lobbyists in Berne to defend their interests at the federal level, see Le Temps, 16 November 2004. The new article 48a of the federal constitution states that, under certain circumstances, cantons can be forced to join horizontal co-operation programmes. See for example Le Temps of II May 2006 for a discussion of these tensions and contradictions. See Gagnon (Chapter 11 of this volume) for a discussion of executive federalism in Canada and Watts (Chapter 15 of this volume) for a comparative perspective. See Watts (Chapter 15 of this volume) for a general discussion of federal upper chambers. While there are examples, both historical and contemporary, of forms of nonterritorial 'federalism' - see, for instance, Burgess (2006, pp. 115-17; 141-2) - it would be difficult to deny that the notion of territory is at the very heart offederalism. See Tiebout (1956) for the original formulation of the theory.

References Aubert, Jean-Franc;:ois (1974). Petite histob'e constitutionelle de la Suisse. Berne: Francke. Blochliger, Hansjorg (2005). Baustelle Foderalismus. Zurich: Neue ZUrcher Zeitung Verlag. Burgess, Michael (2006). Comparative Federalism - TheO/y and Practice. London: Routledge. Church, Clive (2004). The Politics and Government ofSwitzerland. Basingstoke: Palgrave. Church, Clive and Paolo Dardanelli (2005). 'The Dynamics of Confederalism and Federalism: Comparing Switzerland and the EU'. Regional and Federal Studies 15.2: 163-85. Daffion, Bernard and Franc;:ois Vaillancourt (2003). 'Problems of Equalisation in Federal

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Systems' in Raoul Blindenbacher and Arnold KoBer (eds), Federalism in a Changing World - Learning from Each Other. Montreal, Qc, Canada: McGill-Queen's University Press, pp. 395-411. Dardanelli, Paolo (forthcoming). 'Multi-lingual but Mono-national - Exploring and Explaining Switzerland's Exceptionalism' in Miquel Caminal and Ferran Requejo (eds), Democratic Federalism and Multinational Federations. Barcelona: Institut d'Estudis Autonomics. Dardanelli, Paolo (2005). 'The Parliamentary and Executive Elections in Switzerland, 2003'. Electoral Studies 24.1: 123-9. Frey, Rene et al. (eds) (2006). Lefederalisme suisse - La reforme engagee: Ce qui reste a fail·e. Lausanne: Presses polytechniques et universitaires romandes. Germann, Raimund and Ulrich KIOti (2004). 'The Swiss Cantons: Equality and Difference' in Ulrich KlOti et al. (eds), Handbook of Swiss Politics. Zurich: Neue ZUrcher Zeitung Publishing, pp. 317-48. Geser, Hans (2004). 'The Communes in Switzerland' in Ulrich Kloti et al. (eds), Handbook ofSwiss Politics. Zurich: Neue ZUrcher Zeitung Publishing, pp. 349-91. Kernell, Samuel (2003). '''The True Principles of Republican Government": Reassessing James Madison's Political Science'in Samuel Kernell (ed.), James Madison - The TheO/y and Practice of Republican Government. Stanford, Ca, USA: Stanford University Press, pp. 92-125. Kobach, Kris (1994). 'Switzerland' in David Butler and Austin Ranney (eds), Referendums Around the World. Basingstoke: Macmillan, pp. 98-153. Kriesi, Hanspeter (1998). Le systeme politique suisse. Paris: Economica. LUthi, Ruth (2004). 'The Parliament' in Ulrich Kloti et al. (eds), Handbook ofSwiss Politics. Zurich: Neue ZUrcher Zeitung Publishing, pp. 121-45. Meuwly, Olivier (2004). Federalisme et ecole: un dilemme typiquement radical. Le Temps. 30 November. Rhinow, Rene (2006). 'Le federalisme suisse: I'approche juridique' in Rene Frey et al. (eds), Le federalisme suisse - La reforme engagee. Ce qui reste afab·e. Lausanne: Presses poly techniques et universitaires roman des. Schenkel, Walter and Uwe SerdUlt (2004). 'Intergovernmental Relations' in UlrichKloti et at. (eds), Handbook of Swiss Politics. Zurich: Neue ZUrcher Zeitung Publishing, _. pp. 393-427. Sciarini, Pascal (2005). Les cantons, tirailles entre la volonte de cooperation intercantonale et la tentation de faire cavalier seul. Le Temps. 16 February. Tiebout, Charles (1956). 'A Pure Theory of Local Expenditures'. Journal of Political Economy 64.5: 416-24. Vatter, Adrian (2005). 'The Transformation of Access and Veto Points in Swiss Federalism'. Regional and Federal Studies 15.1: 1-17. Vatter, Adrian (2004). 'Federalism' in Ulrich Kloti et al. (eds), Handbook of Swiss Politics. Zurich: Neue ZUrcher Zeitung Publishing, pp. 71-99. Wulti, Sonja (2003). 'L'effet des rapports financiers sur la dynamique federale: la qualite mediative du federalisme suisse'. Revue suisse de science politique 9.1: 91-10.

Federal democracy in plural Spain

8

Federal democracy in plural Spain Luis Moreno

Introduction Spain is a country of countries, or a nation of nations. Despite being the oldest state in modern Europe, I it only developed centralizing pol icies of nationbuilding in contemporary times. In the late eighteenth century, the writer Jose Cadalso (1741-1782) described vividly the 'mosaic' of Spain's peoples:

a

An Andalusian has nothing in common with Biscayan [Basque], a Catalan is totally different from a Galician; much the same happens between the inhabitants of Valencia and Cantabria. This Peninsula, divided during so many centuries into various kingdoms, has always displayed a variety of costumes, laws, languages and currencies. (Cadalso 1978: 85) Despite its secular ethnoterritorial diversity, Spain is an entity clearly identifiable as a historical unity. This unity goes beyond the simple aggregation of territories and peoples with no other affinity than their coexistence under the rule of one common monarch or political power. Political unity was first achieved during the Roman presence in Hispania for nearly five and a half centuries until AD 404. The barbarian invasions opened up a new process of political unification, strengthened by the occupying Visigoths from AD 540 onwards. Since the early eighth century, the crusading spirit against the Muslim invaders, and, fundamentally, the unity of the Christian faith, ensured a high degree of mutual understanding of all peoples and territories in Spain prior the discovelY of the 'New World' in 1492. In modern and contemporary times Spain saw the rise and fall of the first world-wide Empire in human history. Economy, traditions, idiosyncrasies, arts and cultures, and a common ancestry ought to be regarded as factors conforming Spanishness in a long-term process of historical sedimentation. The economic, cultural, political and social specificities that make up Spain's unity does not, however, obliterate internal oppositions. As has happened in the past, territorial rivalries among Spanish nationalities and regions have brought about an extra cultural incentive for creativity and civilization, but they have also provoked confrontation. From an historical point of view, it can be said that

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Spanish central actors, institutions and political forces have often been both weak through inefficacy and strong through violence, something which has resulted in damage to the unity of Spain's diversity. Since its formation as a modern state, centrifugal tendencies and lack of internal accommodation have found expression in a number of civil clashes: e.g. the Revolt of the Reapers (\640-52); the War of Spanish Succession (1701-14); the Cm·list wars (183340, 1846-48 and 1872-75); or the Civil War (1936-39). In these conflicts ethnoterritorial cleavages played an impOltant role. Language is a crucial identity and political marker fuelling· national and regional sentiments in Spain. Castilian, or Spanish as is usually referred to elsewhere, is the official language state-wide. But approximately a fourth of the Spanish population of 42 million is bilingual. Their minority languages 2 are also official in their respective regions 3: Catalan (Calala) in Catalonia, Valencian (officially known as valenciano) in Valencia;4 the Balearic Islands, and in some boundary areas in Aragon; Basque (Euskera) in the Basque Country and Navarre; and Galician (Galego) in Galicia. 5 Asturian (BableIAslurianu), though not official, is a 'protected' language in Asturias. There are also some other surviving Romance minority languages or dialects such as Astur-Leonese, Leonese, Cantabrian or Aragonese (these do not have any official status because of their velY small number of speakers).6 Unlike the situation in Switzerland, Canada or Belgium, in those Spanish regions with vernacular languages other than Spanish, most people with vernacular languages as mother tongues are perfectly bilingual. Bilingualism of those living in those regions and with Spanish as a mother tongue is not as extended. For this reason, it could be said that Spanish is spoken throughout Spain, serving as a lingua franca, virtually including all Catalans, Basques and Galicians. Other than being a multilingual state, Spain's internal relations are crucially shaped by the historical trajectories of its territorial constituents. Indeed, histOlY is the main source out of which regional elites and political actors take stock for the claiming of sub-state home rule and the decentralization of political power in contemporalY Spain. On analysing the internal proces-ses of conflict and cooperation in Spain, the interpretations made on past events often carry more weight as political claims for home rule than 'differential' or 'distinct origin' factors, such as language, law or economic development. Most minority nationalisms and regional movements find in the fertile and complex Spanish history reasons for legitimizing their quests for autonomy, self-government or self-determination. Such historical references are dated as early as pre-Roman times. For instance, the influential Catalan nationalist thinker, Enric Prat de la Riba (1870-1917), described how in the sixth centUlY Be, Phoenician explorers found the Iberian elnos covering from Murcia (in the south-east of the Iberian Peninsula) to the river Rhone in France: This was: The first link ... in the chain of generations that have forged the Catalan soul. (Prat de la Riba 1917, pp. 99-102)

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Spanish majority nationalism has also found in history plenty of reasons for implementing nation-building policies. During the nineteenth century, attempts for institutional homogenisation were carried out mainly by Spanish Liberals who, in turn, were highly influenced by Enlightenment and post-Revolution developments in Jacobin France. For many Spanish liberals the task was to articulate an 'aggregate monarchy' into an institutionalised nation-state (AlvarezJunco, 2001). The outcomes of such reforms and policies were nevertheless ambivalent. For the reactionary authoritarians and the supporters of the 'Old Regime' the Spanish unitary nation was also to prevail upon regional diversities. Except for the short-lived First Federal Republic (1873), federalist ideas were always fought by both centralist Liberals and Conservatives. The struggle against centralism can be considered as the single most constant factor in Spain's politics during the nineteenth century (Linz, 1973). Frustration mounted in the relatively prosperous periphery (Basque Country and Catalonia) after defeat in the Spanish-American War (1898), and the subsequent loss of Spain's status as a world colonial power. Not surprisingly, the incomplete territorial integration and lack of internal accommodation would continue to be an unresolved problem for most of the twentieth century (Giner, 1984). The Second Republic (1931-39) advanced den:lOcratization in Spain and also made a significant effort to the resolution of ethnoterritorial conflicts. But a military coup led by General Franco provoked the Civil War, on the eve of the Second World War. As a consequence, there was a last failed attempt to impose forced uniformity during the long hyper-centralist Franco's dictatorship (1939-75). In recent times, Spain has achieved a peaceful transition to democracy (1975-79), and has developed an active European involvement following its accession to the EECfEU (1986). Economic prosperity has taken place and Spain has been the European country with higher sustained growth rates in recent decades. 7 Following the first national elections held in 1977 after the death of General Franco (1975), a wide inter-party consensus made possible the peaceful transition to democracy in Spain. Conservatives, Centrists, Socialists, Communists and sub-state Nationalists, were involved in brokering a wide political agreement. The resulting text of the democratic 1978 Constitution reflected many of the tensions and political shunbling blocks that existed at the time of the inter-party discussion on the territorial organization of the state. This issue was regarded to be one of the most contentious to agree upon in the general consociational climate of agreement for democratization. Finally, a constitutional 'open model' for political decentralization gained support from all major political parties and the citizenship at large.s The subsequent process of home-rule-all-round has aimed at providing internal territorial accommodation by combining both federal principles of self-rule and, to a lesser degree, shared rule (Elazar, 1987). At present, the Kingdom of Spain can be considered as a compound national state that incorporates various degrees of internal ethnoterritorial plurality, including minority nations and regions. Some of the former claim reaccommodation within Spain as 'fully fledged' nations in their own right, while some of the regions aspire to achieve a degree of home rule similar to that of the

Federal democracy in plural Spain

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so-called 'historical nationalities' (Basque Country, Catalonia and Galicia). All things considered, it can be said that no federal-like arrangements would have been worked out in the process of transition to democracy had it not been for the political need to accommodate both Spanish national and minority nationalisms, alongside other regional claims for territorial home rule. Spain validates, in this respect, the claim that federal systems can make compatible internal national oppositions (Linz, 1997). In this chapter, the following section focuses on the importance of identity politics as an embedding factor in the advancement of federal democracy in a country characterized by dual allegiances regarding state and sub-state political communities. A succinct analysis of the dynamics of democratization and federalization in the last 25 years serves the purpose of discussing the nature of the Spanish 'federation in disguise'. It is followed by a discussion on whether or not Spain's territorial model of organization is leaning towards confederal-Iike arrangements. Concluding remarks are made on how federal democracy in Spain is in tune with the two guiding principles shaping the supra-state process of Europeanization: territorial subsidiarity and democratic accountability.

Identity politics and dual allegiances State national identities have been increasingly questioned and have become rather problematic in plural polities. While being corroded by the forces of globalization, national identities are also subject to internal fragmentation and overlapping elements of a multiple and diverse nature (Epstein, 1978; Melucci, 1989; Caste lIs, 1997). Particularly in plural societies, individuals are often tied to several cultural reference groups. This interaction results in a multiplicity of socio-political identities, dynamic and often shared, which is not always expressed explicitly. In countries like Spain, Belgium or Canada that incorporate more than one demoi within their boundaries (see Chapter 13 by Requejo in this volume), citizens may share a regional identity which distinguishes them from their co-nationals. There is nothing inherently incompatIble about dual identities in federations or federal-like countries like Spain. In fact, a sense of congruence and complementarity is regarded as being ideal in providing a sound basis for democratic federations (Linz, 1997; Stepan, 1999; Moreno, 2001). As in other union-state countries, such as the United Kingdom or India, the lack of one single and all-embracing national state identity is also a feature of Spain (Rokkan and Urwin, 1983; Moreno and McEwen, 2005).9 Citizens may feel simultaneously Basque and Spanish, Welsh and British, or Tamil and Indian, without any sense of contradiction. Sub-state identities are often culturally or historically rooted, and may survive alongside a sense of identification with and belonging to the nation-state. The markers of such identities are not set in stone. They are malleable and the intensity of their manifestation greatly depends upon contingent circumstances (Barth, 1969; Hobsbawm and Ranger, 1983; Brass, 1991). The degree of internal consent and dissent in plural modern states has in the concept of dual identity a useful methodological tool for socio-political

Federal democracy in plural Spain

164 L. Moreno interpretations. The institutional manifestation of such a compound nationality has induced the establishment of sub-state or regional legislatures and mesogovernments. These are to be regarded as institutions of reference for ethnoterritorial identities and as yardsticks in the aspirations of sub-state political communities. On analysing processes of identity formation not only structural contexts have to be taken into account, but also the agency of govermnents, public administrations and publicly owned media, and the representation of political and social historical events. In federal-like countries as Spain institutional structures and agencies of the various tiers of government concur with each other in order to attract citizens' diffuse, long-term suppOli for their respective political communities. In such a context, identity politics can be considered of the highest salience in Spanish political life. Actors, ideas and institutions engage in shaping state and sub-state national identities to strengthen identification with and belonging to the communities in whose name their claims are made (Martinez-Herrera, 2002). Spain's dual identities expressed in the 17 Comunidades Autanomas illustrate how nationalism and federalism can 'work' together. Such dual identity or compound nationality concerns the way in which citizens identify themselves. It incorporates in variable proportions the regional (ethnoterritorial) identity and the national (state) identity. As a result of this, citizens share their institutional loyalties at both levels of political legitimacy without any apparent fracture between them. More than three out of four Spaniards manifest a degree of duality and complementarity in their self-identification. Percentages and figures reproduced in Table 8.1 are illustrative in this respect. Spaniards' allegiances to national and regional institutions of government are in accordance with the variable manifestation of citizens' self-identification: the more the primordial regional (ethnoterritorial) identity prevails upon modern state identity, the higher the demands for political autonomy. Conversely, the more developed the national (state) identity is, the less likely it would be for internal conflicts to arise. At a hypothetical extreme, complete absence of one of the two elements of dual identity would lead to a socio-political fracture in plural Spain, and ongoing demands for self-government would probably take the form of secessionist claims for outright independence. In other words, were citizens in a sub-state community to identify themselves in an exclusive manner the institutional outcome would also tend to be exclusive. The task of measuring and interpreting dual identities and institutional allegiances is far from simple. The changing nature implicit in such a duality complicates matters. Thus, positive perceptions on the action of the Spanish state by members of the Comunidades Autanomas can result in a loosening of their selfascribed regional identity and a corresponding reinforcement of their sense of membership within the Spanish state, and vice versa. Obviously, the dual identity concept modifies its constituent elements according to subjective perceptions and evaluations. In fact the reinforcement of one identity upon the other may well result in the gradual disappearance of Spaniards' 'compound nationality' .

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Table 8.1 Spaniards' self-identification (1990-2005) (%)

'In general, would you say that you feel ... ' A. Vertical percentages

Only * More * than Spanish As * as Spanish More Spanish than * Only Spanish 'Don't knows'

1990

1996

2002

2005

9 16 39 12 21 3

5 16 50 11 15 3

6 14 54

5 14 57

8

IO

14 4

10 4

21 79

16 84

Notes * = Andalusian, Basque, Catalan, Galician, Valencian, etc ... B. Aggregated vertical percentages Single identity Dual identity

31 69

21 79

Source: Author's elaboration ofCIRES data and CIS (Studies nos. 2455 and 2610). Notes Single identity includes 'Only *, and 'Only Spanish'. Dual identity includes 'more * than Spanish', 'as * as Spanish' and 'more Spanish than *'.

Dual identity helps greatly to explain Spain's constitutional accommodation between minority and majority nationalisms in the process of democratization and federalization after the death of General Franco. Spain certainly falls into the category of 'hold-together' democratic federations,lo such as Belgium or India, which have implemented devolutionary federalism 'top down' in order to avoid institutional deadlocks between political actors and stakeholders in the process of achieving democracy since 1975. Such a duality and compatibility has been questioned by both exclusive majority and minority nationalisms. I I But the existence of powerful state-wide parties committed to democratic decentralization has been paramount for the consolidation of a democratic 'federation in disguise', as Spain can be labelled (Moreno, 2007).

Democratization and fede.-alization after Franco's dictatorship Paradoxically the foundations for democratic decentralisation were laid down by Franco's dictatorship. A unitary concept of Spain taken from the totalitarian ideas and values of some of those who had 'won' the Civil War (1936-39) had been imposed through a defence of Spanish despotic nationalism. In the eyes of those who had 'lost' the war, however, all things 'Spanish' came to be tainted with Franco's cultural genocide, repression and re-invention of history. As a

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Federal democracy in plural Spain

consequence, many of the democratic forces were suspicious of the 'Spanish'. They articulated a strategy of political action which amalgamated both the struggle for the recovery of democratic liberties and the quest for the decentralization of power. Democracy and federalization thus went hand in hand. Particularly, in the so-called 'historical nationalities' (the Basque Country, Catalonia and Galicia) the struggle against dictatorship was a reaction against Francoist attempts to destroy their ethnoterritorial markers (e.g. language or cultural traditions). In fact, the ideology of home rule and political decentralization spread all over Spain and became a key element in the inter-party political negotiation during the transition to democracy (1975-79). The rise of demands for regional self-government during the 1970s and 1980s was due largely to a desire to establish democratic institutions, which brought decision-making closer to the people. Since then, the existence of democracy and freedom in Spain have been inexorably linked to the continued protection and survival of power in a decentralized form, the autonomy of the nationalities and regions, and the challenge of federalization. The Spanish 1978 Constitution qoes not include the word 'federal' in any of its provisions, nor does it appear in any subsequently related legislation. However, since the beginning of the 1980s the dynamics of the Estado de las Autonomfas (,State of Autonomies') are characterized by democratic federalization. The main features of the Spanish covenantal process conform to the federative criterion that legitimacy of each autonomous layer of government is constitutionally guaranteed. Accordingly, the Spanish federal system makes it possible for sub-state units to be responsible for powers and competences that are beyond the scope of the central government, and vice-versa (Dahl 1986; Burgess, 1993; Linz, 1997). At the beginning of the process of democratic federalization, three of the 17 Comunidades Autonomas (Autonomous Communities) were regarded as 'historical nationalities' (the Basque Country, Catalonia and Galicia). They took the lead in claiming further decentralization of powers from the centre and set the pace for other regions to follow suit. But, as pointed out earlier, most Spanish regions made use later on of history for expedient reasons and they subsequently self-defined themselves as either 'historical' or 'nationality' along the lines as the Basque Country, Catalonia or Galicia. 12 Table 8.2 Territorial distribution of public employees in Spain (%)

Central Regional Local

1999

2008

41

21

34 25

55 24

Source: MAP (Spanish Ministry of Public Administrations) (www.map.es/documentacion.html). Note Public employees are under the responsibility of each layer of government: central Government, Comunidades Aulonomas and Local Authorities.

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In policy terms the process of decentralization has allowed for considerable regional autonomy and home rule. Transferring of powers and services from the Spanish central state to the Comunidades Autonomas, together with fiscal federalism arrangements, have allowed regional public budgets and administrations to grow considerably. Already a majority of the 2.5 million public employees are ascribed to the meso layer of government (see Table 8.2). Furthermore, percentages conceming the territorial distribution of public expenditure are also very illustrative. The share of the overall state-wide public spending that has been yearly administered by the regional institutions is a good proxy indicator of the resources of regional institutions, which thus expresses their power, their saliency in citizens' perception, and a good deal of their potential for political socialisation. Figures speak for themselves: the regional level increased their share from 3 percent of the total Spanish expenditure in 1981 to as much as 35.5 percent in 2002 (MAP, 1997,2002). Ifpublic spending is also to be identified as a good indicator of the level of regional autonomy (Watts, 2001), then it should be concluded that the Spanish Comunidades Autonomas enjoy a much higher degree of self-government as compared to federated units in other formally established federations in the world (e.g. Latin America). During 1999-2002, strong regional increases in public expenditure corresponded to the decentralization of education, public health and social services to all 17 Comunidades Autonomas. Some variations in the per head public spending among the regions is due to the different systems of financing. On the basis of their historical rights, the Comunidades Autonomas of the Basque Country and Navarre have a distinctive special regime of fiscal 'independence', which enables them to collect their own taxes. Subsequently, they transfer a previously agreed quota to the central treasury as compensation for Spanish common expenditure, and to cover the costs of running those state administrative bodies located in the Basque Country and Navarre. This is an important element of asymmetry if we compare it with the other 'common regime' system of financing the rest of the Comunidades Autonomas (except for the Canary Islands, which enjoys some fiscal prerogatives within Spain and the European Union). The 'common regime' regional revenue is composed mainly of: (1) shares of the national revenue collected by major taxes (since 2002 regional percentages correspond to 33 percent of income tax, 35 percent of VAT and 40 percent of special taxes on petrol, tobacco and spirits); (2) smus accmed by the concession and management of certain taxes Gudicial acts and municipal taxes, luxury and heritage taxes, inheritance tax and transfers, or gambling taxes); (3) moneys from the European funds; and (4) public borrowing. The funds transferred from the central treasury are non-categorical or 'earmarked' for any service provision. The Comunidades Autonomas have freedom of choice about which services and policies under their jurisdiction are to be better funded. Federalization in Spain has developed in an inductive manner, step by step, rather than resulting from a well defined constitutional separation of competencies and powers. Actions by Jacobin centralists encroached in sections of the public administration and in some influential Spanish parliamentary parties,

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together with those of their 'adversaries' in the minority nationalisms and regional governments (principally, Basque and Catalan) have favoured bilateral and ad hoc centre-periphery relationships. For quite different reasons both influential political and administrative elites at both central and regional spheres have shown reluctance to encourage horizontal and multilateral processes of decision-making. As a result, the Estado de las Autonomias has not unfolded explicitly into a formal federation because of a less developed shared rule in the general governance of the country. Likewise, the persistence of political terrorism in the Basque Country has highly conditioned inter-party negotiations for an eventual constitutional reform to formally federalize the,Estado de las Autonomias. However, the internal logic of the political system corresponds with the federal texture of Spanish society. Some important rulings of the Constitutional Court have also reinforced the federalizing nature of Spain's federalized democratic system (Agranoff and Ramos Gallarin 1997, Moreno 1997). One of the main shortcomings of Spain's characterization as a federal system is the malfunctioning of the Senate. Despite its constitutional definition as a territorial chamber, the Spanish Upper House mainly performs duplicating functions with regard to the fully fledged Chamber. of Deputies, or Lower House. Since 1978 the Senate has merely doubled the legislative functions of the Congress of Deputies. Its value has been basically instrumental, offering the parties of government and opposition a second chance to agree on legislative projects or to introduce amendments where legislative readings in the Lower House were hurried or superficial. The Spanish Senate can be placed at the lowest end of the demosconstraining scale of territorial chambers. This has contributed to its poor political reputation and to its low estimation among the citizenship with respect to its place and function. If the institutional involvement ofthe Comunidades Autol1omas in state-wide decision-making via the Senate has been very limited, intergovernmental relations by means of the so-called 'sectoral conferences' (conferencias sectoriales) have contributed to horizontal consultation despite that they are not, sensu strictu, institutions for joint decision-making. Intergovernmental relations are still very dependent on the party political colouring in the different levels of governments. Consequently, most of the conflicts are political-contingent rather than policy-oriented or institution-structured. That is why 'bilateralism' is still the preferred manner to reach political agreements rather than the multilateral institutionalization of 'shared rule' in a genuine federal Senate. In general, and taking into account the demos-constraining and demosenabling continuum of federations (Stepan, 1999), the case of Spain can be regarded as asymmetrical with regard to the degree to which policy-making is constitutionally allocated to the Comunidades Autonomas. However, the observed trend put into motion by all sub-state units is one of convergence with the 'high-speed' and more credit-claiming regions. Evolution of the federal system is highly dependent on contingent electoral factors as the SUppOit needed by state-wide parties from regional parties often becomes crucial to achieve

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L. Moreno

stable parliamentary majorities in the central Spanish Parliament. Sub-state nationalist parties in the so-called 'historical nationalities' do aim at maintaining a differential distance in competencies and powers with the rest of the regions. But other regional parties or federated branches of state-wide parties seek not to 'lose ground and pace' with the 'historical nationalities'. Accordingly, they are ready to claim the same amount of policies and responsibilities and to denounce any 'privileges' the Basque Country, Catalonia and Galicia would be granted by the central government or central state institutions. Such a 'back-and-forth' process of perpetuum mobile is under pressure by a seemingly political exhaustion of these electoral issues and because of the absence of clear-cut institutional alternatives for the future of Spain's internal accommodation. All things considered, the socialization and internalization of values related to the territorial federalization of Spain's Estado de las Autonomias has deepened. Since the transition to democracy, the process of decentralization of powers has achieved not only a high degree of popular support (Table 8.3), largely transcending past patterns of internal confrontation, it has also stimulated regional aspirations to claim more political powers and competencies for the exercise of autonomy (Table 8.4). Table 8.3 Public assessment of the setting-up of the Spanish Comunidades Autonomas (%)

Rather positive Rather negative Neither positive nor negative 'Don't knows'

1994

1996

2002

2005

51 19

67 13 8 12

67 13

68 15 9 8

II

19

10 10

Source: Spanish Centro de Investigaciones Socio!ogicas (CIS, 1996,2002,2005).

Table 8.4 Public preferences for the territorial organisation of Spain (%)

A (national) state without Comunidades Autonomas Comunidades Autonomas as at present Comunidades Autonomas with more home rule Comunidades Autonomas with possibility of secession 'Don't knows'

1984

1990

1996

2002

2005

29

17

13

9

9

31

41

47

48

51

20

19

22

27

26

10

7

7

6

7

10

16

11

10

7

Source: Spanish Centro de Investigaciones SociolOgicas (CIS, 1996, 1998,2002, 2005).

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Ongoing reforms: towards confederal arrangements? Some 30 years after the approval of the first regional constitutional laws, initiatives have been taken by regional parliaments to reform their own Statutes of Autonomy in order to gain more autonomy (Andalusia, Aragon, Balearic Islands, Basque Country, Catalonia and Valencia) (Colino, 2009). From the viewpoint of the Basque, Catalan and Galician minority nationalisms, Spain ought to be constitutionally composed according to linguistic lines. Such sub-state nationalisms are generally more favourable to the establishment of confederal options for territorial accommodation in Spain than working out federal arrangements tout court. They are suspicious of versions of 'one-nation' federalism as in the cases of Australia, Germany or the USA (Forsyth, 1981). Along these confederallines, the nationalist Jordi Pujol declared himself a 'federalist' prior to his election as President of the Generalitat (Catalan institution of self-government) in 1980: In the specific case of Spain I could conceivably be a federalist, if the federation was based on genuine and authentic nationalities of the state, viz. Euskadi [Basque Country], Galicia, the whole of Castille, and the Catalan Countries (or just Catalonia, if Valencia and the Islands ... rejected being associated with the Principate [Catalonia]). . (Pujol 1980, p. 26) During the early process of federalization the case of the southern - and comparatively poorer - region of Andalusia is of particular relevance. In 1982, political leaders and the population at large in Andalusia opted for the same 'fast route' procedure and degree of home rule previously pursued by the three so-called 'historical nationalities': Catalonia, the Basque Country and Galicia. The result of the popular referendum 13 held in Andalusia ratified these wishes and the 'demonstration effect' sparked off a sense of imitation for other regions in pursuit of equal access to home rule. This development brought about a crucial element of heterogeneity that modified the model, implicitly accepted by some Catalan and Basque nationalists, of implementing only home rule in the Spanish 'historical nationalities' while the rest of the regions would merely be granted administrative decentralization (de-concentration). Since then, nationalists in the Basque Country, Catalonia and Galicia have tried to establish a 'political differential' with respect to the rest of the Comunidades Autonomas. This attitude is reflected in the so-called 'Declaration of Barcelona'. On 16 July 1998, the Basque Partido Nacionalista Vasco (PNV-EAJ), the Catalan Convergencia i Unio (CiU), and the Galician Bloque Nacionalista Galego (BNG) claimed the establishment of a con federal model of political accommodation in Spain and put forward the idea of 'shared sovereignty' of their nationalities within the Spanish state. 14 In the same vein, the Lehendakari (President) of the Basque Government made a statement in.September 2002 before the Basque Parliament, which galvanised public debate about the feasibility of a new Pact for Cohabitation (Pacto

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para la Convivencia) to be based on the free association and co-sovereignty between the Basque Country and Spain. According to the Lehendakari Juan Jose Ibarretxe, the citizens of the Basque Country are entitled to self-determination and to decide in a popular referendum the future of its political status and the sharing of its sovereignty within a plurinational and confederal Spain. This proposal was to be put to the Basque electorate on October, 25, 2008, in a climate of renewed violence by ETA, which was not the one that Ibarretxe had pledged to avoid in a solemn manner at the time of putting forward his initiative. Finally a ruling by the Constitutional Court, following the challenges of the Spanish central Government (PSOE) and the main opposition party (PP), suspended the public consultation. ETA aml/lItlire scenarios

The persistence of Basque political terrorism has highly conditioned both processes of democratization and federalization in Spain. IS Let us remember that consociational practices between nationalists and non-nationalist parties to accommodate the various Spanish idiosyncrasies and identities were also the pattern for political agreement for most of the period of Basque home-rule since 1978. But a great deal of uncertainty remains after the Basque Elections held in March, 1,2009, when a majority of non-nationalist parliamentarians was elected for the first time since the beginning of the process of decentralization after Franco's death. Let us remember that during the period 1988-98, all major democratic parties operating in the Basque Country set up the Pacto de Ajuria Enea with the aim of co-ordinating their policies against terrorism. This platform came to an end when the Pacto de Lizarra was signed in 1998 among nationalists parties and organisations. The main claim of the Lizarra Pact was to articulate a political negotiation with the Span ish central state on issues of political sovereignty, territoriality and self-determination. The Pact was signed a few days prior to the declaration of a unilateral truce by ETA, a fact which clearly correlated both events. After the Lizarra Pact, political dialogue and negotiation among the Basque political forces themselves, and these with the central government, proved to be difficult. The ceasefire declared by the Basque terrorists in September 1998 was unilaterally revoked 14 months later. Such an announcement opened up a new situation of political instability and tension for both political sections of the Basque electorate (nationalists and non-nationalist) and the citizenship at large. Shortly after, there was an increase in ETA terrorism with outright sectarian killings of representatives of the non-nationalist parties. Following the Madrid bombings in 2004,16 the declaration of a 'permanent truce' by ETA paved the way in 2006 to the beginning of a dialogue with the central government and to the formalization of eventual negotiations with the terrorist group. After the 2001 and 2005 Basque Elections the political representatives of the two blocs (nationalist and non-nationalist) were trying to overcome political stalemate. The declaration by ETA of a 'permanent truce' in 2006

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was interpreted as promoting an alternative ala irlandesa ('Irish via'). But, at the end of 2006, ETA finished this process of political dialogue by resuming terrorist actions and sectarian killing against non-nationalist politicians. The 2009 electoral results seemed to indicate a rejection by the Basque electorate of political violence and nationalist maximalist demands. It remains to be seen whether such electoral results were a signal to attempt new consociational agreements between democratic nationalist and non-nationalist parties or was just an impasse in the political confrontation ofa deeply divided society.

Concluding rema.·I{s It looks as if the process of federalization in Spain would be tested by the increasing pressures put forward by sub-state nationalisms to impose a confederal agenda. It is unclear, however, whether those proposals advanced by Basque, Catalan and Galicia nationalisms for establishing a confederation in Spain composed by four 'nations' based on linguistic considerations could be realized. The main question confronting such an hypothetical scenario would concern the feasibility that all monolingual Castilian-speaking regions in Spain could group together into one political communi~ congruent with their ethnolingual commonality. Such possibility appears rather unlikely, precisely because the effects produced by federalization in the last decades have fortified the institutional and political contours of each and every one of the 17 Comunidades Autanomas. Indeed, processes of socialisation in the consolidation of the Estado de las Autonomias have reinforced regional boundary-building and ethnoterritorial diversities, particularly within Castilian-speaking Spain. Citizens in, say, Aragon or Andalusia regard themselves ethnically much less as Castilian speakers than as active members of their own regional communities. The capacity of the regional elites and the meso-governments for institution-building and for the production and re-production of regional identities in Spain has been very important (Martinez-Herrera, 2005). The plurinational nature of Spain could well be re-adjusted with new policy proposals of a symbolic, institutional and economic nature (Requejo, 2003). However, such a task is not easy to achieve because of the different institutional meanings that political actors give to the self-defined idea of 'nation'. The 'imitational' logic which characterises Spain's federalization would most likely induce a multiplication all-round of sub-state claims from Comunidades Autanomas reluctant to legitimize a confederation engineered on ethno-lingual bases. Powerful nationalist parties, particularly in the Basque Country and Catalonia, may face in the not too distant future the 'final' dilemma of accepting the federal tenets inaugurated with the 1978 Spanish Constitution or attempting to exercise the 'exit' option providing other institutional alternatives in the context of further Europeanization (Colino, 2005). The case of Spain's Comunidades Autanomas illustrates the potentialities for accommodating different identities and aspirations for self-government within the framework of a plural polity. Democratization and federalization are two

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sides of the same coin in present-day Spain. As in other formal multi-national federations or union-states, Spain can provide some useful contrasts on how macro communities of trust can be built beyond single sentiments and attachments. One of the most pressing challenges facing these countries is how to reconcile democracy and nationalism. As shown in the Spanish case a manner to achieve such a dichotomy could be by institutionalizing the federal principle of consolidating unity and diversity by means of political pacts. Of particular relevance for the process of Europeanization is Spain's federalizing experience in articulating the two principles of territorial subsidiarity and democratic accountability. Subsidiarity in Spain favours the participation of substate layers of government in the running of public affairs. It validates the general democratic claim of bringing the loci of decision-making closer to the citizen. At the same time, it facilitates intergovernmental governance on the assumption that the model of the 'command-and-control' central state is something of the past and out of tune with Spaniards' preferences for territorial autonomy. Spatial identities are intertwined in a manner that expresses the degrees of citizens' loyalties towards the various sources of political legitimisation without incompatibility between them. Both maximalist majority and minority nationalism seek to polarize not only identities but the values for compromise and consent which made the transition to democracy in Spain possible. In the case of Spain, the process of home-rule-all-round has considerably allowed the extension of cosmopolitan localism. This is reflected in both societal interests aimed at developing a sense of community, and at pmticipating actively in international spheres. There is an observable growing congruence between the particular and the general. All Spanish mesogovernments have made explicit their European vocation. They all share the desire of a majority of Spaniards for an EU that would be not only the main economic institutional locus in the medium-term future, but which would also provide the legitimizing bases for an embryonic European citizenship. Much like future developments in the EU, plural Spain faces a variety of challenges on how to integrate - rather than to assimilate - existing collective identities forged at tIle-various levels of political legitimacy. If this is achieved by means of shared rule and self-rule it would avoid being seen as an exogenous process, which is coerced 'from below' or superimposed 'from above' upon the democratic interaction of communities and polities with long-standing historical trajectories. 17

Notes A union state which was achieved by means of the dynastic marriage between Ferdinand of Aragon and Isabella of Castille in 1469. The conquest of Granada (last remaining Muslim Kingdom on Spain's soil) was completed by the Catholic Kings in 1492. In 1515, King Ferdinand, who beyond the Iberian Peninsula was known as 'the King of Spain', added the Kingdom of Navarre to the Spanish crown. 2 This denomination is controversial as well as that of 'regional languages'. Some sociolinguistics have put forward the category of 'Constitutional, regional and smallerstate' (CRSS), which include Basque, Catalan and Galician languages (see www.npld.

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I1

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eu:80/Pages/default.aspx, website of the Network to Promote Linguistic Diversity established at the end of2007). In this chapter 'regional' or 'regions' are generally used in reference to the 'autonomical' - or 'meso'- layer of government and to the Comunidades Autonomas (Spanish Autonomous Communities). Indeed, some of the latter are also nations (stateless or minority) as defined in their constitutional laws; see Colino (2009), for the implications of Catalonia's 2006 Statute of Autonomy for the whole of Spain's constitutional arrangements. Similarly some of the Spanish self-defined regions are now in the process of claiming 'national' (minority or stateless) status as such of the Basque Country, Catalonia and Galicia. Valenciano is a dialect of the Catalan language. It was defined as a 'proper language' by Valencia's main political forces in the new Statute of Autonomy, or regional constitutionallaw, approved in 2006. In Catalonia, 95 percent of the population declare they understand Catalan and 75 percent declare they speak the language. In the Balearic Islands 93 percent understand Catalan and 75 percent speak it on a daily basis. In Valencia, 29 percent understand valenciano and 14 percent can speak and read it. In the Basque Country, Basque language is spoken by around a third of the population, but half of the population is unable to understand it. Basque is also spoken in mainly northern Navarre, but 83 percent of all Navarrans do not understand it. In Galicia 98 percent understand galego and 89 percent speak it (Moreno and Coli no, 20 I0). There are also a number of dialects of the aforementioned languages widely spoken in other regions (Andalusia, Canary Islands, Extremadura and Murcia). Membership in the EEC/EU has also brought increasing incentives for Spain to achieve economic 'real' convergence with Europe. Figures of economic growth are significant in this respect: in 1959 the Spanish GDP per head was 58.3 percent of the European average; in 1985, it grew to 70.6 percent; and, in 2000, it reached 86.6 percent. At the time of writing, Spain had already reached the 100.0 percent of the EU-25 average, but it was confronting a severe crisis in the midst of the global financial crash initiated in 2008. In the popular referendum held on 6 December 1978, the Spanish Carta Magna received 87.9 percent 'yes' votes, 7.8 percent 'no' votes, and 4.3 percent null or blank votes. Abstention reached 32.9 percent of the registered electorate. For the application ofthe so-called 'Moreno question' in Scotland/United Kingdom in the context of the mid- I980s, see Moreno (2005). Alfred Stepan (\999) distinguishes between federations whose initial purpose is to 'come together' versus those whose purpose is to 'hold together'. India in late 1948, Belgium in 1969 and Spain in 1975, are representatives of the latter, whereas the former is based upon the US model. Joaquim Triadu i Vila-Abadal, member in 1996 of the Executive Committee of the Catalan nationalist party, Convergencia Democratica de Catalunya, expressed vividly such a viewpoint from the perspective of the minority nationalism: 'Patriotic bigamy is not a good solution for the problems of survival of the stateless nations' (Moreno 2001:149). Prior to the modification of the regional constitutional laws (Estatutos de Autonomia) initiated in 2006, Comunidades Autonomas such as Andalusia, Valencia and the Canary Islands were self-defined as 'nationalities'. The label of historical regional entities was self-adopted by the Balearic Islands, Cantabria, Extremadura, La Rioja and Murcia. A historic filero community was Navarre. There was also a categorization of historical entity (Aragon) or references to a historical and cultural origin of the provinces constituting a region (Castille and Leon). Other regions avoided similar attributes (Asturias, Castille-La Mancha, Madrid) (Moreno, 200 I). The referendum was held on 28 February 1980, after 97 percent of Andalusian towns and eight provincial councils had decided to pursue autonomy according to the provi-

14

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sions of Article 151 of the 1978 Constitution. The 64 percent turnout rate was considered high. But the important requirement was that more than 50 percent of the votes in each Andalusian province were 'Yes' votes. The results were somewhat controversial because, in spite ofthe considerable support for autonomy in Andalusia as a whole, in the province of Almeria the percentage of 'Yes' votes (47 percent) fell short of the required majority. Finally, the political situation that had arisen made it impossible to turn back on the 'fast route' of Article 151. In November 1999, however, CiU signed a document prior to the re-election of Jordi Pujol as President of the Generalitat in order to secure the support of the Popular Party (PP) members in the Catalan Parliament. CiU re-affirmed its commitment to comply with the Spanish constitutional order. In this context, the Barcelona Declaration appeared to be rather symbolic. Regional political terrorism in Spain was present in the two other 'historical' nationalities. Terrorist groups seeking to achieve independence by violent means were active in Galicia (Exercito Guerrilleiro do Pobo Galego Ceibe) and Catalo~ia (Terra Lliure). Both organizations tried to follow the strategies and methods of ETA but never achieved the support and results of the Basque terrorists and, finally, they renounced violence. The terrorist attack perpetrated on March I 1,2004 in Madrid received a great deal of attention in the international media. Among other impacts, it dramatically brought people's memories back to the events of September 11,2001 in New York City. This time nearly 200 people were killed as a consequence of the railway bombings. Immediately after the bombings, the governmental party the Popular Party under the leadership of Jose Maria Aznar - blamed ETA, a position it maintained even as information soon began confirming that the attack was instead the work of Islamic fundamentalists. Not surprisingly, and before the end of 2004, Arnaldo Otegi the leader of Batasuna - political arm of ETA declared that 'ETA has a total disposition to keep weapons quiet' (El Pais, 10 November 2004). I am grateful to remarks and suggestions made at the International Workshop 'Federalism and Democracy', organized by the Centre for Federal Studies of the University of Kent at Canterbury with the support of the James Madison Trust on 2-6 April, 2006. Thanks are also due to Cesar Colino and Enric Martinez-Herrera for comments on an earlier version of this chapter. Responsibility for interpretations and views remain solely with the author.

References Agranoff, R. and Ramos Gallarin, J. A. (1997). 'Toward Federal Democracy in Spain: An Examination of Intergovernmental Relations', Publius. The Journal of Federalism 27: 1-38. Alvarez-Junco, J. (2001). Mater dolorosa. La idea de Espana en el siglo XIX. Madrid: Taurus. Barth, F. (ed.) (1969). Ethnic Groups and Boundaries. The Social Organization of Culture Difference. Boston: Little, Brown. Brass, P. (1991). Ethnicity and Nationalism: TheO/y and Comparison. London: Sage. Burgess, M. (1993). 'Federalism and Federation: A Reappraisal', in Burgess, M. and Gagnon, A-G. (eds), Comparative Federalism and Federation: Competing Traditions and Future Directions. New York: Harvester Wheatsheaf, pp. 3-13. Cadalso, J. (1978). Cartas marruecas. Noches lzigubres (2nd edition) (Texts originally completed in 1774). Madrid: Catedra. Caste lis, M. (1997). The Information Age: Economy, Society and Culture. Volume II: The Power of Identity. Cambridge (MA): Blackwell.

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CIRES (Centro de Estudios de la Realidad Social) (various dates). Data archive (www. asep-sa.com/). CIS (1996). Opinion Data No.5. Madrid: Centro de Investigaciones Sociol6gicas. - - (1998). Estudio 2286. Madrid: Centro de Investigaciones Sociol6gicas. - - (2002). Estudio 2455. Madrid: Centro de Investigaciones Sociol6gicas. - - (2005). Estudio 2610. Madrid: Centro de Investigaciones Sociol6gicas. Colino, C. (2005). TeorEa y realidad del cambio institucional de las federaciones: Espai1a y Alemania en perspectiva comparada (1987-2003). PhD thesis, Madrid: Universidad Nacional de Educaci6n a Distancia. - - (2009). Constitutional Change Without Constitutional Reform: Spanish Federalism and the Revision of Catalonia's Statute of Autonomy, Publius. The Joumal ofFederalism 39(2): 262-288. Dahl, R. A. (1986). 'Federalism and the Democratic Process', in Democracy, Identity and Equality. Oslo: Norwegian University Press, pp. 114-126. Elazar, D. (1987). Exploring Federalism. Tuscaloosa, AL: University of Alabama Press. Epstein, A. (1978). Ethos and Identity. Three Studies in Etlmicity. London: Tavistock Press. Forsyth, M. (1981). Union ofStates: the TheO/y and Practice of Confederation. Leicester: Leicester University Press. Giner, S. (1984). 'Ethnic Nationalism, Centre and Periphery in Spain', in Abel, C. and Torrents, N. (eds), Spain: Conditional Democracy. London: Croom Helm, pp. 78-99. Hobsbawm, E. and Ranger, T. (eds) (1983). The Invention of Tradition. Cambridge: Cambridge University Press. Linz, J. J. (1973). 'Early State-Building and the Late Peripheral Nationalisms against the State: the Case of Spain', in Shmuel Eisenstadt and Stein Rokkan (eds), Building States and Nations. Models, Analyses and Data across Three Worlds, 2 vols. Beverly I-Iills, CA: Sage, pp. 32-116. - - (1997). 'Democracy, multi-nationalism and federalism'. Working Paper 19971103. Madrid: CEACS-Institute Juan March. MAP (1997). Estudio sobre reparto del gasto pliblico en 1997 entre los distintos niveles de administracion. Madrid: Ministerio de Administraciones Publicas. - - (2002). Estimacion del reparto del gasto pliblico entre los subsectores de administraciones pliblicas (1982-2002). Madrid: Ministerio de Administraciones Publicas. Martinez-Herrera, E. (2002). 'From nation-building to building identification with political communities: consequences of political decentralization in Spain, the Basque Country, Catalonia and Galicia, 1978-200 I', European Joumal of Political Research 41: 421-453. - - (2005). The effects of political decentralisation on support for political communities. A multivariate longitudinal and cross-sectional comparison on the Basque CountlY, Catalonia, Galicia, Quebec and Scotland. PhD dissertation, Florence: European University Institute. Melucci, A. (1989). Nomads of the Present. London: Hutchinson Radius. Moreno, L. (1997). 'Federalization and Ethnoterritorial Concurrence in Spain', Publius. The Journal of Federalism 27: 65-84. - - (2001). The Federalization ofSpain. London: Frank Casso - - (2005). 'Scotland, Catalonia and the "Moreno question" " Scottish Affairs 54: 1-21. - - (2007). 'Federalisation in multinational Spain', in Burgess, M. and Pinder, J. (eds), Multinational Federations. London: Routledge, pp. 86-107. - - and Colino, C. (eds) (2010). Diversity and Unity in Federal Systems (Vol. VII,

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'A Global Dialogue on Federalism'), Montreal and Kingston/London/Ithaca: McGillQueen's University Press (in preparation). - - and McEwen, N. (2005). 'Exploring the territorial politics of welfare' in McEwen, N. and Moreno, L. (eds), The Territorial Politics of Welfare. New York: Routledge, pp.I-40. Prat de la Riba, E. (1917). La Nacionalidad Catalana. Valladolid: Imprenta Castellana. (Original edition in Catalan: Barcelona, L' Anuari de la Exportaci6, 1906). Pujol, J. (1980). Constmir Catalunya. Barcelona: Portico Requejo, F. (2003). Federalism plurinacional i Estat de les Autonomies. Aspectes teorics i aplicats. Barcelona: Proa. Rokkan, S. and Urwin, D. (1983). Economy, Te/'l·itolY, Identity. Politics of West European Peripheries. Beverly I-Iills (CA): Sage. Stepan, A. (1999). 'Toward a New Comparative Analysis of Democracy and Federalism: Demos Constraining and Demos Enabling Federations', Paper presented at the conference on Federalism, Democracy and Public Policy, Centro de Investigaci6n y Docencia Econ6micas, Mexico City (June 14-15). Watts, R. (200 I). 'Models of federal power-sharing', Intemational Social Science Joumal 167: 23-32.

Federalism and democracy in the FRG

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Federalism and democracy in the Federal Republic of Germany Franz Gress

To use bold strokes and simple colours: Germany is an old federation and a young democracy. The German case proves that federalism does not necessarily accompany democracy. Federal structures and federalism have been the basic principles of recent German history.l Their institutional design, however, was moulded in an environment of non-democratic regimes with a strong bureaucratic bias, and the subsequent merger with democratic politics did little to change their fundamental character. German federalism up to contemporary developments is marked by a path dependence which is rooted in a unitary executive federalism, with a strong desire of the political elites and the important social forces for national unity, uniformity of the legal order (Rechtsstaat) and an embedded political culture of output orientation towards social transfers (Sozialstaat).2 But during the last decade or so, a reform of the German federal system has taken place which has modified this picture. This chapter therefore will first give a short account of the constitutional development of the federal order and then it will look into the thesis of German federalism being only a "unitarianism in disguise", concluding with a short report and brief assessment of the most recent reforms which took effect in autumn 2006.

The historical setting The Holy Roman Empire of the German nation was a strange animal among the great powers of Europe which forced their way into modern statehood. As a mixture of hierarchical and federal structures, it remained a political pattern 'monstro simile' (like a monster; Pufendort) but also included modern features like the 'amicabilis compositio' (amicable agreements) as an instrument of balance. 3 After the Napoleonic wars in 1815, a German Confederation (Deutscher Bund) was formed. The organization of the Confederation was cumbersome and became dependent on the cooperation of the two great powers, Austria and Prussia. In the decades of European revolutionary developments (1830s-40s), the liberal elites in economics and politics and the national cultural movement pressed for a constitutional nation-state, aimed at German nationhood and citizens' freedoms in a united Germany with a representative constitution.

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The revolution of 1848-49 culminated in the work of the National Assembly which met in Frankfurt am Main to draw up a pan-German constitution as a lasting foundation for the unity and freedom of Germany. The members came overwhelmingly from the educated middle class and many had experience with parliamentary proceedings based on their participation in the Land assemblies of southern German monarchies and princedoms, the locus of liberal constitutionalism. The constitution provided, among other features, for a federal state with a bicameral system, one chamber representing the German people (Volkshaus) and the other representing the states (Staatenhaus), consisting of representatives half of whom were appointed by the governments of the German states and by the parliaments of the states respectively. However, it became a futile effort. The revolution failed because of the opposition of the old forces, the armies and the bureaucracies loyal to the old regime and the growing antagonisms among the liberal forces confronted with radicalization within their ranks along the lines of economic and political interests. In the 1860s the tensions between the leading powers of the German Confederation, the monarchies of Prussia and Austria, became more intense. Prussia developed under its Prime Minister, Bismarck, a policy directed towards unifYing Germany into a nation state from above and excluding Austria. In 1866 the dualism between the two leading powers escalated into a military conflict between Austria and the members of the Confederation that supported her and Prussia with her allies. The Confederation Treaty was declared void by Prussia and formally dissolved in late summer the same year when the short war had ended with the victory of Prussia. Together with 22 North German states, Prussia in 1867 established the N0l1h German Bund (Norddeutscher Bund), a federation which guaranteed a dominant position to Prussia and contained constitutional features which became centre-pieces of the imperial federation of 1871. In 1871 the N0l1h German Bund and the states of southern Germany, were consolidated into a federation - the German Empire (Deutsches Reich) - as the result of the victorious war against France under the leadership of Prussia. The German Empire, the imperial federal state, was compo'sed of 25 members of very different size and legal structure - among them constitutional monarchies, principalities and three city republics - and was dominated by Prussia by the simple facts of its size and population (two-thirds of the Reich's population and size), its military and economic strength and its constitutional hegemony (chairmanship of the federation, with 17 out of 58 votes in the Bundesrat and the right to appoint the Reichskanzler). Formally the sovereignty of the Reich rested jointly with the 'verbUndeten Regierungen' (allied governments) and it ranked first among the institutions listed in the constitution of 1871. The Bundesrat was the instrument through which the constituent units took part in the federal decision-making and legislation, but it was chaired by the Chancellor of the Empire (Reichskanzler) who was appointed by the Emperor and was also regularly the Pruss ian Prime Minister. The chairmanship of the federation was with the King of Prussia whose title was 'German Emperor'. The Reichstag represented the German people in this

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monarchical federation - which was the weaker part in the legislature - but its consent was needed for federal legislation and it successfully fought for a parliamentarization of the constitutional monarchy. The adm inistration of the legislation of the Reich accrued to the constituent member states. The democracy of the federal Weimar Republic emerged fi'om the defeat of the German Reich in World War I in 1919, but it was a democracy under siege. When the social base of the 'Vernunft-Republikaner' (republicans by reason) eroded in the Great Depression in the early 1930s, the Weimar Constitution was open to autocratic interpretations that allowed its president to function as an 'Ersatzkaiser' ('emperor substitute'). The political system's weak federal structure was no impediment at all against the anti-democratic forces. The Hitler government after 1933 suppressed democracy and dissolved the federal structure, and the murderous totalitarian behemoth became the successor to the authoritarian leviathan of the late days of the Weimar Republic when the Chancellor and President tried to govern without parliamentary majorities. In 1945 democracy and federalism were reintroduced into the German polity by a defeat that meant liberation for the territory occupied by the Western Allies and the beginning of a new dictatorship in the zone of Soviet occupation. These facts are familiar, but they remind us of the· 'tragedy of civil society'4 in Germany as we now examine in more detail the development of federalism and democracy after 1945.

Constitutional provisions and trends, the Bonn Republic In the late 1940s federalism was regarded as an antidote to unitarianism and centralism. Looking back, federalism was then seen as the best guarantee for democracy; federalism and the totalitarian state were understood to be basically incompatible: 'Del' FOderalismus ist die beste Gewahr fUr Demokratie, Foderalismus und totaler Staat stehen in unvereinbaren Widerspruch, wahrend Einheitsstaat und totaler Staat leicht ineinander Ubergehen konnen.'5 In combination with the idea of subsidiarity and in close connection with political Catholicism, federalism was merged with the territorial and regional traditions of republican and democratic movements in south-western and western Germany.6 The United States of America (USA), the United Kingdom (UK), France and the Soviet Union reorganized political life in their occupation zones, and began in 1945 to (re)create the Lander (,states') which was an important territorial decision that shaped the new Germany. Bavaria, Hesse, and WUrttemberg-Baden in the US zone of occupation were the first three Lander created with the other zones of occupation following, the French being the most reluctant. On July 1, 1948, the three western military governors delivered three documents, known as the 'Frankfurt documents', to the Minister-Presidents of the 11 Lander. The first document ordered the convening of an assembly to develop a democratic constitution which would provide for the Lander to take part in 'a government of the federal type'. The preparations of the Parliamentary Council (the constitutional convention) were organized by the

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Minister-Presidents. Put in a nutshell, when the ParliamentaIY Council, composed of representatives of the Lander parliaments, started its deliberations in September 1948 in Bonn it was confronted with expert blue-prints which reflected a bureaucratic and goverrunental approach to federalism, which could be amended but not put aside in the Basic Law (Grundgesetz) of23 May 1949. The rejection of the proposal to organize the second chamber as a Senate, directly or indirectly elected, and the creation instead of a 'Bundesrat', representing the Lander governments with votes based on binding mandates, reflected traditions that reached far back into the nineteenth century. It invoked a constitutional practice that was intended to be a counterforce to the democratic principle. The decision to install a body of commissioners of the Lander governments which were deeply involved in the legislation of the federation and even had certain veto powers - parallel to the expression of the sovereignty of the, people in a representative parliament opened a very specific way for the decisionmaking process of West German politics. The majoritarian system of party competition would be tempered and balanced by the administrative-bureaucratic experience of the Lander. 7 In 1945 in East Germany, the Soviet zone ofoccupation, Lander had also been reinstalled, with the purpose inter alia to dismantle Prussia. However, in 1952 the Lander were broken up and substituted by administrative districts. Germany's federal system accounts for most of the changes in the Basic Law (BL). There are three decisive stages of reform. The first stage refers to the period between 1949 and the early 1960s when the federal government was strengthened by regaining sovereignty and by the need to be active in new policy areas such as the regulation of nuclear energy. During 1955-56, the taxing powers of the Lander and the federation were also consolidated into a joint income and corporate taxation system that was supplemented by vertical and horizontal equalization measures. The second stage is marked by the policies of the first Grand Coalition of CDUlCSU and SPD (1966-69). Driven by a Keynesian interventionist approach, the decision-making structure of the federal system became streamlined. The buzz-word was 'global steering' (Globalsteuerung). The steering capacity of the federation was to become more efficient by integrating the competences of the Lander into a system of joint Bund-Lander-planning to cope with economic and social changes by centralized national economic management (Economic Stability and Growth Act, June 1967).8 The result was the creation of the 'GroBer Steuerverbund' (tax compound system; Art. 106, Paragraph 3 BL), the 'Gemeinschaftsaufgaben' Goint tasks; Art. 91a and 91b BL), the grants-in-aid by the federation (Art. 104a BL) and the expansion of the framework legislation of the federation (Art. 75 BL). The outcome was cooperative federalism with 'an enmeshment of the two levels of government,.9 This system was strongly underpinned by administrative cooperation in a growing number of so-called 'third level' agencies of the Lander and the federation that adopted consensual decision-making rules. The structural conservatism of such procedures favoured the status quo, and the

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conduct of politics was heavily tilted towards an executive federalism. The result was a loss of transparency for the voters, a loss of Lander autonomy and a cooperative federalism, which in reality was an executive federalism based on solid economic growth that offered pieces of cake for everybody at the table of the executive bargaining processes. In the end the Lander had bartered away a 'federalism of powers' (Substanzfoderalismus) for a 'federalism of codetermination' (Beteil igungsfoderalismus). The BL played a decisive role in this development. Art. 84, Paragraph 1 BL states that the Lander, when they 'execute federal laws in their own right, they shall regulate the establishment of the authorities and their administrative procedure insofar as federal laws enacted with the consent of the Bundesrat do not otherwise provide'. The number of bills which had to have the consent of the Bundesrat to become a law already in the second legislative term of the Bundestag had reached 49.8 percent and then fluctuated between 50 and 60 percent. The other road to a highly cooperative system was the provision of Art. 72, Paragraph 2 BL which contained the criteria for the adoption of concurrent legislation by the federation and offered a wide room for manoeuvre to meet the 'need' (Bedilrfnis) for uniform regulations by federal law. This had the consequence that the weight of the Bundesrat, that is, the Lander governments, in federal politics grew and the Uinder parliaments suffered fi'om an erosion of their legislative competences. In summary, the division of authority between the Federation and the Lander had been adapted to a reality which had altered the preferences written down by the architects of the Basic Law: 'Except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the Lander' (Art. 30 BL).

Constitutional provisions and trends in the Berlin Republic The third stage of development in German federalism was determined largely by the new quality of European integration, starting with the 'Single European Act' in 1986 and the process of German unification during 1989-90. 10 The unification happened within the institutional framework of the Basic Law. The newly reconstructed Lander in the GDR (German Democratic Republic) became Lander of the FRG (Federal Republic of Germany) by 3 October 1990. To balance the impact of the five new Lander, the four large (Western) Lander each received one additional vote in the Bundesrat to lessen the asymmetry of representation. According to the regulations in Art. 51 BL, the new Lander received a total of 19 votes, even though their entire population was easily surpassed by the population of North Rhine-Westphalia that had only five votes. In order to meet the obligation of Art. 5 of the Treaty of Unification, and to deal with the consequences of German unification and European integration, the Bundesrat created a 'Commission on Constitutional Refonn' in March 1991. This then became part of a Joint Constitutional Commission of the Bundestag and Bundesrat that was established in November 1991 and presented in November 1993 the results of their work to the Legislature. This commission was

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especially helpful in securing the position of the Lander in the process of European integration. It proposed, among other regulations, a new Art. 23 BL, which due to the forthcoming ratification of the Treaty of Maastricht by Germany took effect in December 1992. The transfer of sovereign powers to the European Union (EU), which had been the weak point of Germany's federalism, needed now to be based on a 'law with the consent of the Bundesrat' (Art. 23, Paragraph 1 BL). Furthermore, the development of the EU, when its treaties amended or supplemented the Basic Law, also needed to be subject to Paragraphs 2 and 3 of Art.79 BL. The Lander in Art. 23 BL obtained a confinnation of the 'eternity clause' of Gennan federalism, the acceptance of the principle of subsidiarity and an extremely complex set of rules granting them a voice in European affairs, including the delegation of rights belonging to the Federal Republic of Germany as a member state of the EU to 'a representative of the Lander designated by the Bundesrat' (Art. 23, Paragraph 6 BL) when powers exclusive to the Lander are primarily affected. The ratification of the Maastricht Treaty in 1993, which needed a two-thirds majority of the Bundesrat, was used by the Lander to protect themselves from the unwelcome effects of European integration by helping them become institutionalized partners in the fonnulation of European policies. In all other fields the distribution of institutionalized powers between the Lander and the federation remained as the status quo. The year 1994 became a year of federalism reform. Based on the proposals of the Joint Constitutional Commission of the Bundestag and Bundesrat, important steps were taken to stop the entanglement process by amending the Basic Law. The most important feature was to restrict the requirements for using the concurrent and the framework legislation by the Federation. The concept of 'uniformity' of living conditions was replaced by the term 'equivalent living conditions' (gleichwertige Lebensverhaltnisse) and an explicit right of action before the Constitutional Court to test whether a law met the requirements of Art. 93(1), Paragraph 2a BL was given to the Bundesrat or the government or legislature of a Land. The addition of a repatriation clause in Art. 72;-Paragraph 3 BL, which allowed 'that in cases where federal legislation is no longer required pursuant to Paragraph 3 of this article it may be replaced by Land legislation' opened a new perspective for the Lander as well as the amending of Art. 75 BL, restricting the use of 'detailed or directly applicable provisions' in federal framework legislation. The chance to introduce sweeping reforms to the German federal order in the context of German unification was never an option for German politics. Rather the burden sharing ofthe costs of unification increased the' centralization of policymaking', but it was not followed by a shift of institutionalized power between Lander and the Federation." One may argue that a 'mega-constitutional change' would probably have disrupted a unification process that had already strained the capacity of the political system to its limits. Once again German federalism had underlined its continuity and reluctance to change. Unification did not create a 'big bang' reform, but in a certain way it

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has been a turning-point in the way that federalism was conceived. The broad discourse on the Constitution within the Joint Constitutional Commission of the Bundestag and Bundesrat and the accompanying public debate with its multitude of articles, expert papers and books was a valuable starting point for future work as roughly half of the articles of the Basic Law became subject of close inspection, scrutinizing their strengths and their shortcomings in the light of the changed political environment. 12 The discussions and negotiations took place in an atmosphere which was significantly more friendly towards the Lander and the need for a reform ofthe German federation was widely accepted. This upgrading of federalism as an important and useful political concept set it free from the negative image of being a mere expression of Kleinstaaterei (particularism) which needed to be forged into a cooperative-executive unitarian system to promote the public welfare. At the same time this change was also an expression of general trends. Looking back from the standpoint of today, during the last 15 years German politicians and politics had to face the truth that business as usual was no longer a reasonable option. The decline of economic growth, the decreasing importance of the nation state as the locus of governance and the growing disparities in social and economic conditions in Germany chal.lenged the politics and policies of cooperative federalism, as the consensus concerning the welfare state dwindled and the diversification of politics with new regional players and new parties made the necessary htm-around more difficult. 13 These structural changes, focused on the crisis of public finances, threw a glaring spotlight on the political costs of the performance of the German polity. In this context the practice of interlocking federalism was singled out as the fundamental impediment to reform, and the fabric of the densely knitted entanglement of the federal system was no longer seen as a convincing model of governance. This gradual reappraisal was also informed by new paradigms of governance that loomed large in the Western world. The revival of neoliberalism in the Anglo-American parts of the world and scepticism about the reasonableness and efficiency of governmental activities in general proceeded as pressure increased to reinvent government along the lines of competitiveness and managerial structures borrowed from capitalist economics. The tendency to modernise government in this way and to implement new steering models obviously was not compatible with the cooperative mode of bargaining and decision making. The basic question of reform was - to put it simply - to free the central government of the federation and the parliamentary majority fi'om the co-legislation of the Bundesrat whose consent was needed in practically all major legislative areas in a deal which swapped more competences of the Lander for the diminished influence of the Bundesrat in Berlin. This deal also comprised the strategic question whether the vested interests of the 'joint decision trap'14 could be overcome. That such a reform would also have the implied consequence of strengthening the democratic quality of federalism as a system of diversification and a bottom-up-approach in politics was only of marginal interest.

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Here I will step back to take a closer look at the vignettes developed here. Is it the whole truth that German federalism in the 1990s and the first half of the decade of the new millennium is a 'unitary state in disguise'?IS And is German federalism only an executive, cooperative federalism or does it have a specific democratic quality?

German federalism and democratic options Federations are marked by 'the combination of self-rule and shared rule' within one sovereign state and as a 'root term of massive scope'16 federalism stands in its own right beside such terms as rule of law or democracy. But such basic concepts may conflict. What, for example, is the relation of federal representation and democratic representation? Representation, as we understand it, is 'the making present in some sense of something which is nevertheless not present literally or in fact' and it is 'a certain characteristic activity, defined by certain behavioural norms or certain things a representative is expected to do. 17 Modern democracy is representative democracy, acting through clusters of interests which are organized in political parties. The ultimate 'principals' are the voters and parliamentarians are the 'agents', acting in institutional arrangements which first of all follow the principle: One person, one vote, based on equality of votes; that is the cornerstone of modern citizenship. The central locus of representative democracy is the parliament, representing responsible voters but acting on the foundation of a free mandate. The Basic Law puts it this way: 'Members of the Bundestag shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience' (Art. 38, Paragraph 1 BL). We all know that this is true only 'cum grano salis', but the principle informs even a strong party state like the Federal Republic of Germany. The question 'who is represented' is much more complex when we look at the Bundesrat. The Basic Law does not mention the word 'representation'. It simply states: 'the Lander participate through the Bundesrat in the legislation and administration of the Federation and in matters concerning the European Union' (Art. 50 BL). And it continues 'the Bundesrat shall consist of members of the Land governments, which appoint and recall them' (Art. 51 BL). While the Bundestag represents the people, the demos, 'Dem deutschen Volke' is written in large letters above the entrance of the seat of the Bundestag, (the old Reichstag building in Berlin). But what do the Lander represent? Is there a subnational polity as demos?18 The Basic Law assigns votes in the Bundesrat according to the number of inhabitants of the Lander (Art. 51 BL), including minors and legal resident foreigners. Not only is citizenship as a criterion diluted, but the value of the votes in the Bundesrat also differs from that in the Bundestag. In the Bundesrat 10 percent of the population with the best ratio of representation commands nearly 25 percent of the votes, and the 50 percent with the best represented population possesses about 73.5 percent of the votes. The corresponding figures for

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the Bundestag are 10.9 percent and 51.6 percent respectively.19 Of course, the Lander governments are based on the representative parliamentary systems in their respective Lander, but as members of the Bundesrat only the governments are entitled to formulate and decide the interests of each Land. Lander parliaments are not allowed legally to bind their governments with regard to the votes cast in Berlin. Political pressure is possible, but the reality of executive federalism means that the Lander governments are seldom accessible to pressures from their parliaments. This is an example of how the basic function of federalism 'to safeguard democracy and to ensure the responsiveness to the citizens' concerns'20 is weakened by the special institutional setting of the German . federation. The members of the Bundesrat, as we have seen, are not elected; they are designated delegates, not independent in their vote. They deliver votes determined in cabinet meetings back home or in intergovernmental bureaucratic processes. The only case of a free mandate is assigned to participation in the Mediation Committee, composed of members of the Bundestag and Bundesrat (Art. 77, Paragraph 2 BL) whose proceedings are not open to the public. Futthermore the members of the Bundesrat have the privilege to attend all sessions of the Bundestag and of its committees, and they have the. right to be heard at any time (Art. 43, Paragraph 2 BL), a provision which has been criticised as a way to use the membership in the Bundesrat 'as a subsidiary mandate of the Bundestag' .21 Statistics show a steep increase in the use of this privilege in the seventh parliamentarian term (1972-76), as well as after unification in the twelfth parliamentarian term (1990-94), both times of heightened party competition. The criticism of this democratic deficit has accompanied the federation since 1949, and complaints about the abuse of the Bundesrat are numerous. Especially after the clashes between the social-liberal government and the CDU/CSU opposition in the 1970s, the Bundesrat was widely conceived as 'an efficient 'second opposition'.22 Some observers combined both criticisms underlining the contradiction that the representation of the people is 'elected on criteria judged optimally democratic' but it is handicapped by another institution 'which differs in the way that it is made not complying with those criteria' .23 But the popular image of the Bundesrat as an instrument of gridlock should be invoked with caution. Statistically the blockade of federal legislation is marginal. These are the numbers of bills passed by the Bundestag which did not survive the mediation process: In the eleventh legislative term (1987-90) 0.5 percent out of 369 bills; in the twelfth legislative term (1990-94) 2.6 percent out of 507 bills; in the thirteenth legislative term (1994-98) 1.8 percent out of 565 bills; in the fourteenth legislative term (1998-2002) 2. I 5 percent out of 558 bills.24 Nevertheless, it would be naive to underestimate the veto power of a 'fleet in being' in case the opposition parties in the federal parliament have a majority of the votes in the Bundesrat. In the German federal system there is a latent, sometimes open, conflict between the consensual approach of a highly interlaced system of decision making (Verhandlungsdemokratie) and the competitive

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democracy based on party competition (Konkurrenzdemokratie). Both paradigms contain contradictory rules of decision making. Majority rules allow exclusive regulations while the institutional setting of government by negotiation-democracy necessarily seeks inclusive solutions. 25 The picture of the democratic features of the German federation looks different when we take into account the democratic structure within the Lander. The national party system in reality is a de centralised system with strong roots in the Lander completed by functional regional parties like the CSU (Christian Social Union) in Bavaria or The LeftlPDS (Party of Democratic Socialism, now renamed The Left) which has its electorate and membership mainly in the socalled new Lander in East Germany.26 Furthermore, in some Lander representatives of marginal parties of the extreme right have been elected into the parliaments, but never into the Bundestag. Scholars offederalism agree that after unification in 1990 a shift towards the regionalisation of politics was evident, which at the same time underlined traits of a de facto asymmetry.27 There are distinctive territorial cleavages in Land elections so that parties with a territorially limited range have performed well and as a consequence the traditional impact of federal politics on Land elections has been weakened. This trend towards a new territorial dynamic is underlined by the fact that since the 1990s the pattern of coalition building in the federation and in the Lander deviated significantly from each other with the consequence that the federal government in the Bundesrat became more dependent on incongruously composed Land governments. 28 This sends a very mixed message concerning transparency and responsible politics under the conditions of the new importance of territoriality. There is a paradox at the heart of federal systems that the constituent units are both enlarging and extending the citizens' input as voters, lobbyists, and party activists, but in a federation like Germany with strong constitutional cooperative structures, democracy obviously is not a feature which can be strengthened solely by a new input of the sub-national demoi. In addition to being a fertile breeding ground for changes in the party system, the Lander also provide a platform for direct democracy with both the initiative and the referendum. Since the mid-1990s all Lander have amended their constitutions to guarantee these instruments to their citizens. 29 Decisions however concerning personnel, their salaries, the budget and the regulation of fees are exempted and thus reduce the impact of plebiscites. 30 Nevertheless the instrument has been used widely in recent years. Ninety percent of all petitions for a referendum (Volksbegehren) were filed between 1990 and 2005, and 51 referenda actually took place. Of these referenda 57 percent dealt with cultural affairs, issues of education, and local affairs. 31 Here is obviously a seed which may, using a term coined by Benjamin Barber, grow into a 'strong democracy' on the Lander level, especially as the Lander may (re)gain legislative competences judging by the recent reform of the federal order.

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The Lander as political laboratories Among Lander politicians, as well as scholars of federalism, there is a broad consensus that the Lander parliaments are the losers in interlocking federalism, based on the power-shift favouring the Lander governments. Consequently scholarly research concentrated primarily on the Bundesrat and the federal system. The Lander with only a few exclusive competences, and only limited fiscal resources at their exclusive command, have not usually been of interest at all. There has been an overall dismissal of Lander policies and politics. It is only recently that political science in Germany has begun to pay more attention to the analysis of the federation with a bottom-up approach and started to see the Lander as laboratories in various areas of politics (e.g. party development) and policy (in relation to the competences of their own as well as in the broad areas of the execution of federal laws). The result is a partial correction of the picture of uniform politics throughout the federation. The 'transfer of power' hypothesis is in need of modification. 32 In contrast to the sceptical judgement of the capability of cooperative federalism which is seen to suffer fi'om interlocking politics and blockades of decision-making, a fresh look into policies reveals a great variety of arrangements. 33 From analyses of US federalism we are all familiar with the term' laboratory' in relation to federalism: There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs .... Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens, choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.34 The methodological setting is based on the following well known premises: a

b

c

If the experiment fails, the impact is regionally restricted. If the experiment is successful, it may serve as a benchmark, and that can be adapted to the needs of another regional actor (reinvention). The number of test-laboratories is potentially higher than in a centralized system and the chances of learning from each other are higher than in a monolithic situation. On the operational level, diffusion (policy-transfer, policy-adoption, emulation) is a soft instrument to compensate for central shortcomings. 35

The most obvious differences among the Lander lie in their competences in cultural affairs. Experiments with different school systems (e.g. comprehensive schools, length of secondary training, contents of curricula) have been and are still among the most controversial subjects at the Lander level. The Land of

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Hesse, for example, stmted with comprehensive schools in the 1950s and has implemented large-scale experiments since the late 1960s. In the 1970s new guidelines for teaching the curriculum excited a veritable 'clash of cultures' between the SPD and the CDU in the Land, which was echoed by a controversy among some of the other Lander. The state of Hesse and its parliament also served as a laboratory in 1970, based on the first law worldwide on data protection; a commissioner for data protection was installed as a parliamentary SUppOlt service. And there is a quality of political innovation directly linked to the parliamentmy system of the Lander. Lander legislatures are the prime field for the access of new parties to the federal pmty state and at the same time laboratories for new coalitions that differ from the federal pattern. In 1985 in Hesse the first coalition in the Federal Republic between the Greens and the SPD was sealed, an experiment which afterwards diffused into the rest of the republic. 36 Often such coalitions were experiments for a potential change of coalition at the federal level. Furthermore among the constitutional provisions of the Lander there is a multitude of clauses which in some cases could even be taken into account at the federal level. Examples of these may be the length of terms, the dissolution of parliament (which is an awkward procedure at the federal level) or specific features such as the balancing of representation when dealing with overhang mandates (constituency seats which a party obtains over and above the seats to which it is entitled on the basis of the second votes cast for it).37 Looking at both the legislative functions as well as the full catalogue of parliamentmy responsibilities, such as controlling government and informing the public, detailed case studies underline the fact that the innovative function of the Lander parliaments is beyond doubt,38 Even in cases where the Lander parliaments have limited competences, their activities have increased. Examples in the 1990s are drug politics and the labour market programmes of the 16 German Lander. 39 These cases reveal a definite readiness for policy innovation, and a comparison among the Lander underlines the fact that they respond quite differently to the challenges, e.g. the labour market to overcome the 'social welfare trap' by using the welfare payments as a subsidy -for low income earnings (earned income tax credit). Blancke's and Kalke's research suggests that in both cases Germany presents itself 'as an 'experimental state' .40 A more sceptical conclusion is drawn from the case studies on construction and housing policy, where the Lander were offered some flexibility by the federal government in the form of the so-called Lander 'opening clause' (Lander-Offnungsklausel) appended to the Basic Law in 1994. The case study reveals that 'such free spaces are realised less than expected, amongst other things also because a specific translation of authority clauses by the Lander governments could cUltail uniform federal regulations that are pro-communal. Such opening clauses should be principally surrendered to the legislator of the Lander in order to correct at least partially the deprivation of power the Lander parliaments have undergone, which has been widely criticized' .41 The overall picture is a mixed one; some of the studies also show that the Lander are reluctant to use their legislative leeway to avoid binding themselves

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by laws which might offer the chance of legal action.42 In this case these studies only prove the efficiency of the executive-legislative bargain between the Lander and the Federation which has strengthened the Bundesrat and the executive branch of the Lander and weakened the Lander legislatures as they swapped a 'federalism of powers' for a 'federalism of codetermination'. One might speak of a joint-decision trap with a mouse-hole in it, opening access to compensatory politics in niches. Against the backdrop of such detailed information of the Lander activities in the 1990s, the debate among experts in political science and constitutional law turned away from the one-eyed view of Germany necessarily moving down the road to a 'unitarian State in disguise' (Abromeit). This new look at German federalism also drew benefit from a growing number of comparative studies, the devolution revolution in the United States and the dynamics of region ali sat ion in the EU. Moreover advanced theoretical approaches like rational-choice and multi-level governance helped to reformulate the debate and to focus on the competitive edge of flexible and decentralised arrangementsY The new interest in strengthening the Lander as political actors also became critical about the democratic deficit in the mature structure of federalism. More responsibilities on the regional level would als,! increase the importance and input of the representative institutions at the Land level and in this way strengthen the democratic legitimacy of politics as well as the transparency of decision-making. 44 A clear allocation of responsibility, transparency of political structures, improving opportunities for participation, strengthening the decisionmaking capacity and maintaining the sense of community was the list of criteria published by an influential think tank in 2000 and accurately confirmed the mood at the turn of the millennium. 45

The contemporary reform of the federal order - success at last? In the 1990s the discussion about a more competitive federalism had gained momentum and it was put on the political agenda by the liberal and the Christian Democratic parties and by initiatives of the 'strong' Lander: Bavaria, BadenWUrttemberg, North Rhine-Westphalia and Hesse, across party Iines.46 In 1998 the Conference of the Minister-Presidents decided to focus on an extensive examination of the federal order and to scrutinize critically the allotment of duties, expenditures and revenues in the federal order. In October 2001 the Minister-Presidents began negotiations with the federal government concerning the modernization of federalism while, in the following December, the federal government and the Minister-Presidents agreed to give this project the green light In October 2003 the Bundestag and the Bundesrat installed a joint 'Commission on Modernisation of the Order of the Federation,.47 Beyond any specifics, this new start for a refonn of the constitutional framework of the federation has to be seen in the light of the frequent experiences of divergent majorities in the Bundestag and the Bundesrat - again between 1991

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and 1998 - and the realisation by the Lander that the continuation of the above described executive-legislative bargain of the federalism of codetermination in the long run would endanger the very nature of the Lander themselves as distinct political entities rather than decentralized administrators. Focused on the idea of a more transparent and responsible system of political decision-making, as well as the streamlining of functions, the job of the Commission was to review the delineation of competences in the federation. This included especially the rules and procedures of federal legislation, the handling of European affairs and aspects of mixed financing by the federation and the Lander. However, neither the complex, sensitive field of fiscal equalization nor the question of territorial reform as an instrument to create viable Lander were within the scope of the Commission's brief. The decision was carried by all four parliamentary parties in the Bundestag and supported by a network of the party foundations which served as a think tank as well as a public promoter of the reform idea. The Commission consisted of 16 members of the Bundesrat (Minister-Presidents of the Lander) and of 16 members of the Bundestag, allocated according to the parliamentary party strength, plus 32 deputies, and it was chaired by the head of the SPD parliamentary party in the German Bundestag, Franz MUntefering, and the MinisterPresident of Bavaria, Edmund Stoiber (CSU). Adjunct members, without voting rights, but the right to table motions and debate, were four members of the Federal Government, six members representing the Lander parliaments, and three permanent guests, representing the local authority peak associations. The work of the Commission was supported by 12 academic experts, selected by the commission. After 13 months of deliberation, 11 sessions of the full Commission and 50 sessions of working-groups and thematic sub-groups, the Commission's chairmen agreed to disagree. 48 On December 13, 2004, both chairmen announced that a successful agreement was at hand, but three days later the failure became obvious: 'Der Bereich Bildung/Hochschule hingegen erwies sich unvereinbar zwischen uns' .49 The failure of the Commission's first attemptcallbe attributed to several problems, the most imp0I1ant - as quoted in the above statement - being the differences between the Lander and the representatives of the SPD-Green governing coalition. The Lander demanded a disentanglement of legislation in the field of education from kindergarten to university. To establish the exclusive responsibility of the Lander, the joint task provisions of Art. 91a BL (extension and construction of institutions of higher learning) and Art. 91b BL (cooperation in educational planning) and the competences of the federation for framework legislation in this area had to be abolished. The common aim of the Lander was to reduce the 'golden bridle' in this area and as well as in others - which is conceived by the Lander as their essential field of politics (Kulturhoheit). The federal government only offered a modification of mixed financing and insisted on its original position to have the 'right to form contents' .50 The position of the Lander was strongly supported by the Constitutional Court when on July 27, 2004 it declared unconstitutional a federal law which regulated the qualification

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for professorships based on a Federal framework law (Hochschulrahmengesetz).51 In this case, as in earlier decisions, the 'necessity clause' of Art. 72, Paragraph 2 BL was a successful provision for the protection of the Lander against improper centralization. Furthermore, no compromise was found in other areas such as environmental politics and the streamlining of the strong position of the Bundesrat in European affairs according to Art. 23. BL, especially Paragraph 6. And last but not least the overarching crucial question of how to reduce the high number of federal laws which needed the consent of the Bundesrat due to the fact that the Lander execute federal legislation (e.g. by an opting out clause) did not reach a satisfactory stage in the Commission's work. Of course there has been an approximation of views on many details, but in the end the open questions remained unresolved. The political forces represented in the Commission were not able to transform their divergent interests into a complex compromise. For example, the Federal Government did not give the impression that it was very keen on the reform. The Minister of the Interior, responsible for constitutional affairs, was not even a member and the head of the Federal Chancellery took patt rarely or kept silent. 52 And remarks made by Chancellor, Gerhard Schroder, (SPD), who believed that the work of the Commission was pressure towards a more confederal f~ture for Germany, which he strongly criticized, did not help to bridge the existing controversies.53 Observers saw the failure to deliver as not the last word and they were right. But the reason was quite different from what expelts had imagined for the improvement through a possible second round of reform endeavours. The new political constellation after the unexpected 2005 federal election opened a much greater window of opportunity. On May 22, 2005 in NOlth Rhine-Westphalia the last red-green government on the Lander level was defeated in the Land elections. As a consequence Chancellor Gerhard Schroder decided to bring forward a federal election. The election of September 18,2005 resulted in a 'Grand Coalition' of CDU/CSU and SPD, with Angela Merkel (CDU) as the new Chancellor. The negotiations and consultations to form a coalition government brought the subject of 'federalism reform' back on to the public agenda. The Coalition's agreement stated that it would continue the modernization of the federal order based on the preparatory work of the MUntefering-Stoiber Commission. The Grand Coalition was serious about this and a 30-page appendix of an expert working group on the federalism reform became part of the formal coalition agreement. It also offered the Lander to review federal-land fiscal relations in this legislative tenn. On December 14, 2005 the Conference of the Minister Presidents agreed to this proposal and established a working-group of four Lander (Bavaria, Berlin, Bremen, North Rhine-Westphalia) to coordinate the preparation of the bills among the Lander and to maintain contact with the Federal Government. On March 10, 2006 the new reform package was introduced simultaneously into the Bundestag and the Bundesrat. The explanatory part of the bill 'Entwmf eines Gesetzes zur Anderung des Grundgesetzes' confinns that the federal order of the FRG has proved successful but that it is marked by 'lengthy and protracted as well as complex decision-making

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processes and it suffers from an excessive institutional entanglement of the federation and the Lander' .54 The extensive requirement of the consent of the Bundesrat has delayed or even prevented important legislation or has resulted in crooked compromises, blurring political responsibilities. At the same time, the legislative competences of the Lander have been pushed back, especially by the use of the concurrent legislation of the federation and by the federal framework legislation which sometimes has been abused for individual regulations. The intention of the reform is therefore the dismantling of the entanglement of the federation and the Lander which 'impedes democracy and efficiency'.55 The changes to the Basic Law are intended to rebalance the federal cornerstones of solidarity and cooperation with competition. The result will be a sustainable strengthening of both the scope for action and latitude together with the ability for decision making of the Lander as well as the federation as a whole. This is certainly a challenging programme. The Federal Government and the Minister-Presidents this time had already provided for a well prepared compromise. To smooth the dissenting potential in the parliamentary parties of the Grand Coalition, mostly in the SPD, joint hearings of Bundestag and Bundesrat were held in May 2006. A simulation by the Reference and Research Service of the German Bundestag of the impact of the proposed changes to the Basic Law on the legislation since 1998 established suppOltive data. In the fourteenth legislative term the consent bills would have dropped from 55.2 percent to 25.8 percent and in the fifteenth legislative tenn from 51 percent to 24 percent. 56 Without any major changes, on June 30, 2006 the bill passed the Bundestag with the required two-thirds majority of votes and on July 7 it was approved in the Bundesrat with 62 of 69 votes. On September 1, 2006 the federal reform became law.

What is new? In this biggest revision of the Basic Law since I 949,25"articles of the Basic Law have been the object of either amendment or deletion. The topics of reform can be roughly put together in three categories: Art. 91a BL was deleted. But in a new Art. 143c BL the Lander are entitled to new grants. Most revisions concern the disentanglement of legislative procedures and competences, a special aspect being the adjustment of the involvement of the Lander in EU affairs and some fiscal provisions. 57 The provision of Art. 84 Paragraph 1 BL which lies at the heart of the iron triangle of federal legislation, its adminstration by the Lander and the resulting veto-power in around 55 percent of the federal legislation by the Bundesrat, has been opened by an opting out clause for the Lander. When the Lander implement federal laws, they may deviate from federal rules and organize the administration according to their own regulations. Only as an exception and with the consent of the Bundesrat is uniform federal regulation possible.

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2

3

The same provision was included in Art. 72 BL which defines the prerequisites under which the federation may pre-empt Lander legislation; in six areas, among those the admission and graduations of institutes of higher learning, the Lander may in future deviate from federal legislation, except in cases when uniform provisions have been passed with the consent of the Bundesrat. The federal framework legislation, Art. 75 BL has been abolished and the subjects were either transferred to the exclusive legislative power of the federation or to the concurrent federal legislation. Most important is that the competence of the Lander to regulate the status and duties of their public servants was incorporated into the concurrent legislation. The salaries and benefits of public servants became the sole responsibility of the Lander. In the field of fiscal relations a source of cooperative entanglement was reduced. The mixed financing of the extension and construction of institutions of higher learning, including university clinics in Art-in-aid to compensate them in this area and in other infrastructure investments. The two other joint tasks - the improvement of regional economic structures and the improvement of the agrarian structure and of coastal preservation survived untouched. A new Art. 104a BL .puts time limits and routine checks on federal grants-in-aid. Art. 104b BL introduces a new right of consent for the Bundesrat in case federal laws oblige the Lander to provide for cash benefits or services to third parties. And last but not least, the Lander are now obliged to pay their share of fines resulting from violations of international law or supranational obligations, especially those related to EU sanctions. On the other hand, the participation of the Lander in the EU has been clarified, primary education, culture and broadcasting systems are confirmed as subjects which are their exclusive jurisdiction and therefore when those subjects are primarily affected, the exercise of the rights belonging to the Federal Republic of Germany as a member state of the EU shall be delegated to a representative of the Lander designated by the Bundesrat (Art. 23, Paragraph 6 BL). Altogether the reform transferred sixteen subjects to the competence of the Lander. Among them, the already mentioned regulation of salaries and benefits of their public servants, the regulation of conditions of imprisonment and a number of specialized competences like the right to regulate store closing hours, to regulate restaurants, pubs and gambling halls (e.g. to ban smoking).

The Grand Coalition had succeeded at last in striking the necessary compromises. This time no obstruction was possible as it had declared federalism reform as its first step in improving the functioning of the state (Handlungsfahigkeit des Staates).

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Federalism reform 2006, a preliminary assessment Looking at the reform from the perspective of federalism and democracy, a tentative first assessment can underline the following four observations:

2

3

4

Clearly the institutional provisions for a substantive reduction of the executive federalist entanglement are now in place. In the sensitive area of educational politics the Lander clearly defied the slouching towards federal centralization while in another 16 fields specialized competences were handed over to them. Concerning the concurrent legislation, for ten policy areas the federation now has to prove 'necessity', a condition which has been very restrictively interpreted by the Constitutional Court. In six areas, including environmental protection and admission and graduation concerning institutions of higher learning, the Lander now have the right to deviate from federal legislation. Some critics see this as a poor outcome which is the result of a wrong approach by the Lander. These academics complain that the Lander ~ave been 'fixated' on the disentanglement of competences and therefore mIssed the chance of 'getting more' by negotiating for a more flexible status quo. By ignoring the need for functional entanglement in the German system and instead pressing for a dual system (Trennsystem) they have lost a chance f~r sweeping modernization. Here a strong reference to path dependency ~s made, including the unitarian traditions of the elites 'since the Napo.leol1lc wars'. For these critics, federalism in Germany is not an expressIOn of regional democracy, referring to the public perception which conceives federalism as in impediment to mobility and a rejection of the right to have equal living conditions. 58 Another critical view stresses that the work of the Commission was not based upon theoretical reflections of any importance. Rather it was piecemeal engineering in a very decisive way. Basic value concepts like 'democracy' were referred to only in a very general waY,-the step from rhetoric to specifics was not taken. 59 The former President of the ~ederal ~:pub~ic ~f Germany and an expert in public law, Roman Herzog, IS less cntlCalm hIS first assessment. Part one of the federalism reform has removed some of the harmful developments in German federalism and has, at least partially, dis•• entangled the 'wild growing jungle of competences'. 60 The moderate gains for the subsidiarity principle go hand in hand WIth gams for democratic politics. The disentanglement of competences and the reduction in half of consent laws is a step in the direction of a more transparent decision-making and towards a more responsible politics. The laboratory function of the Lander will be strengthened by the changes towards a federal system with more competitive traits.

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Conclusion Looking back at the long history of efforts to reform German federalism, the results of the recent endeavour are a convincing step in the right direction: less unitarianism and more diversity are now 'part and parcel' ofthe Basic Law. This reform is certainly not tantamount to 'layer cake' federalism; the 'marble cake', to use Grodzins' picture, remains and can only become less mixed. The use of the new provisions for a genuine political profile of the Lander will be strongly influenced by two factors, namely the political will of the Lander governments to apply the new tools at their disposal and the fiscal resources to diversify politics effectively. Politics is not all about constitutional and legal provisions; the spirit of federalism or, to put it in a more scholarly fashion, the political culture of federalism must give 'life' to the institutional design. So in conclusion I would like to make two sceptical remarks

2

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One should not forget that new subjects for consent laws (Art. I04a BL) have been created and that the positive effect on the Lander parliaments of these new legislative competences has to be seen in the light of the experience that the need for self-coordination in specific areas resulting from this new diversification has always been the 'privilege' of the executive and so more legislative competences may actually result in a strengthening of the Lander governments. However, in the end the democratic input of elections and other votes in the Lander and the federation - together with its institutionalized transformation in political decisions by legislation - will decide whether the development now started will be continued. This raises yet again the question about federalism and democracy. The l37 letters to the Commission, written by interest groups and citizens, reveal a preference for the status quo and a tendency towards a more centralised legislation. 61 These findings are certainly consistent with earlier statistics. Opinion polls in the 1990s showed that only a minority preferred more competences for the Lander and asked whether the federation or the Land should regulate certain subjects. The list referred to was made up of subjects that were already in the competence of the Lander and in all cases a federal jurisdiction was preferred. 62 Obviously unitary federalism looms large in the public mind in Germany and diversity is not (yet) valued very much.

A federal democracy needs not only institutional provisions, but it also needs a political culhrre with specific values shared by the citizens. For a federation these questions are more important than for unitary democracy: is diversity cherished and accepted, is competition something seen as a basic feature of freedom, is self-responsibility understood as an important element of subsidiarity? If this is not the case or exists only among a small segment of the public of the Lander, the institutional structure of federalism has tOTely much more on providing concrete material outputs for the Lander and their citizens. If that does not happen,

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probably the temptation will be to fall back into a unitarian-centralising pattern that will seek to close the gap between winners and losers among the Lander by stressing solidarity, including federal transfers, rather than more diversity. For the moment the bottom line is that the reform is an incremental change within the setting of the traditional constitutional guidelines, but this incremental reform with very moderate competitive elements is nonetheless an important change of direction, an expression of a modified mentality which may evenhlally be accommodated in the German path of federalism. Second only to the political will of the Land and its demos, the fiscal resources are crucial for the continuation of the reconstruction of German federalism. This complex resource question will be the subject of federalism reform II. On 15 December 2006 the Bundestag and Bundesrat decided to establish a joint commission for the modernization of the federal-Lander-financial relations which was constituted on 8 March 2007. It is composed of 16 members of the Bundestag, four of them members of the Federal Government, and 16 of the Bundesrat and four members of the Lander parliaments, without voting rights, but the right to table motions and to take part in the discussions. The local peak organisations will also be adjunct members and there will be a hearing of experts during the proceedings. Chaired by GUnther Oetinger (CDU) Minister-President of Baden-WUtttemberg and Peter Struck, chairman of the parliamentary party of the SPD, the assignment of the commission is to compile proposals to modernize the federal-Lander fiscal relations with the aim of adapting them to the changed national and international environment of economic growth and employment policy. The result of the proposals should strengthen the self-responsibility of the territorial units by providing them with the much needed fiscal means. The list of topics to be reviewed includes, among others, balanced budgets, possibilities of improved cooperation of the Lander together with a lightening of territorial reform and de-bureaucratization, including disentanglement of public administration. G3 At this stage no one can predict how the commission will perform their job, but it is obvious that federalism reform II will have to complement and strengthen federalism reform I, a delicate task-which is planned to be finished by spring 2009.

Notes

2 3 4 5

Thomas Nipperdey: Der Foderalismus in der deutschen Geschichte; in: Thomas Nipperdey: Nachdenken Uber die deutsche Geschichte. MUnchen, C.H. Beck Vig. 1986, pp. 60-109; Murray Forsyth: Unions of States. New York, Leicester University Press, 1981, pp. 41-104. Gerhard Lehmbruch: Der unitarische Bundesstaat in Deutschland: Pfadabh!!ngigkeit und Wandel; in: Politische Vierteljahresschrift, vol. 42, Sonderheft 32, 2001, pp.53-110. Karl Otmar v. Aretin: Das alte Reich 1648-1806. Bd.!: Foderalistische oder hierarchische Ordnung (1648-1684). Stuttgart, Klett-Cotta Vlg., 1993. Karl Buchheim: Leidensgeschichte des zivilen Geistes oder die Demokratie in Deutschland. MUnchen, Kosel Vig. 1951. Friedrich Lent: Deutscher Foderalismus. MUnchen, Max Hueber Vlg., 1948, p. 27:

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6 7

8 9 10 II

12 13

14 15 16 17 18 19

20

21

22

23

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'Federalism is the best guarantee of democracy, federalism and totalitarianism are in an irreconcilable contradiction, while unitary state and total state easily can merge.' Walter Ferber: Der Hlderalismus. Augsburg, J. W. Naumann, 1946 (1st edition); Karl Buchheim: op. cit. I-Ieiderose Kilper and Roland Lhotta: Fllderalismus in der Bundesrepublik Deutschland. Opladen, Leske & Budrich 1996, p. 95. For an overview of the instututional setting of German federalism cf. Uwe Leonardy: The institutional Structures of German federalism, in: Charlie Jeffery (ed.): Recasting German Federalism: The Legacies of Unification. LondonlNew York, Pinter, 1999, pp. 3-22. Roland Sturm: Arbeit und Wirtschaft, in: Oscar W. Gabriel and Everhard Holtmann (eds): Handbuch Politisches System der Bundesrepublik Deutschland. MOnchen/ Wien, R. Oldenbourg Vig. I 997, p. 669. Hartmut Klatt: Centralizing Trends in Western German Federalism, 1949-89, p. 45, in: Charlie Jeffery (ed.): Recasting German Federalism: The Legacies of Unification. LondonlNew York, Pinter, 1999, pp. 40-57. Michael Burgess: Federalism and European Union. The Building of Europe, 1950-2000. LondonlNew York, Routledge, 2000. Arthur Benz: From Unitary to Asymmetric Federalism in Germany: Taking Stock after 50 Years, in: Publius: The Journal of Federalism, vol. 29, no. 4 (Fall 1999), p.68. Deutscher Bundestag (ed.): Materialien zur Verfassungsdiskussion und zur GrundgesetzUnderung in der Foige der deutschen Einigung; Bonn 1996. Arthur Benz: From Cooperation to Competition? The Modernization of the German Federal System, in: Franz GreG and Jackson Janes (eds): Reforming Governance: Lessons from the United States of America and the Federal Republic of Germany. FrankfurtlNew York, Campus/Palgrave, 2001, p. 135ff. Fritz W. Scharpf: The Joint Decision Trap. Lessons from German Federalism and European Integration, in: Public Administration, 1988, vol. 66, pp. 239-278. Heidrun Abromeit: Der verkappte Einheitsstaat. Opladen, Leske & Budrich, 1992. Daniel Elazar: Exploring Federalism, Tuscaloosa, Univ. of Alabama Press, 1987, p. 5 and p. 29. I-Ianna F. Pitkin: The Concept of Representation. Berkeley and Los Angeles, Univ. of California Press, 1967, pp. 8£ and 112. Michael Burgess: Comparative Federalism: Theory and Practice. LondonlNew York, Routledge, 2006, chap. 7. Stefan Marschall: Transnationale ReprUsentation in Parlamentarischen Versammlungen: Demokratie und Parlamentarismus jenseits des Nationalstaates, Baden-Baden, Nomos VIg., 2005, p. 67 and p. 91. Ursula MUnnle: The Revival of German Federalism: Two Examples; in: Franz GreG and Jackson Janes (eds): Reforming Governance. Lessons from the United States of America and the Federal Republic of Germany. FrankfurtlNew York, Campus/ Palgrave, 2001, p. 166. Dieter Wilke/Bernd Schulte: Der Bundestag als Forum des Bundesrates. Bemerkungen zum Rederecht nach Art. 43. Abs. 2 GG; in: Dieter Wilke and Bernd Schulte (eds): Der Bundesrat. Die staatsrechtliche Entwicklung des fllderalen Verfassungsorgans. Darmstadt, Wissenschaftliche Buchgesellschaft, 1990, p. 450. Werner J. Patzelt: The Very Federal House: The German Bundesrat. in: Samuel C. Patterson/Anthony Mughan (eds): Senates: Bicameralism in the Contemporary World. Columbus, Ohio State Univ. Press, 1999, p. 61. Klaus Lange: Die Legitimationskrise des Bundesrates, in: Dieter Wilke/Bernd Schulte (eds): Der Bundesrat. Die staatsrechtliche Entwicklung des fllderalen Verfassungsorgans, Darmstadt, Wissenschaftliche Buchgesellschaft, 1990, p. 245. Peter Schindler: Datenhandbuch zur Geschichte des Deutschen Bundestages 1949 bis 1999, Vol. 2, Bonn 1999, p. 2450f; and Michael F. Feldkamp: Datenhandbuch zur

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26

27 28

29

30

31 32

33

34 35 36 37 38

39

40 41

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Geschichte des Deutschen Bundestages 1994-2003, Deutscher Bundestag. Berlin, 2005, p. 584. Gerhard Lehmbruch: Parteienwettbewerb im Bundesstaat: Regelsysteme und Spannungen im InstitutionengefUge der Bundesrepublik Deutschland. Wiesbaden, Westdeutscher VIg., 2000, pp. 14-30. Michael Burgess and Franz Gress: The Representation of Distinctiveness: Regional Parties in Canada and Germany; in: RudolfHrbek (ed.): Political Parties and Federalism. Baden-Baden, Nomos Verlagsgesellschaft, 2004, pp. 131-146. Roland Sturm: The Constitution under Pressure: Emerging Asymmetrical Federalism in Germany?; in: Robert Agranoff (ed.): Accommodating Diversity: Asymmetry in Federal States. Baden-Baden, Nomos Verlagsgesellschaft, 1999, pp. 137-148. Sven Leunig: 'AB(C)' oder 'ROM'? Zur Operationalisierung von MehrheitsverhUltnissen im Bundesrat; Zeitschrift fUr Parlamentsfragen, 2006, vol. 37, no. 2, p. 420. Sabine Kropp: Regieren in Koalitionen: Handlungsmuster und Entscheidungsbildung in deutschen LUnderregierungen. Wiesbaden, Westdeutscher VIg., 2001. Otmar Jung: Direkte Demokratie - Forschungsstand und Perspektiven, in: Theo Schiller and Volker Mittendorf (eds): Direkte Demokratie. Forschung und Perspektiven, Wiesbaden, Westdeutscher VIg., 2002, pp. 22-63. Ralph Kampwirth: Der ernOchterte SouverUn. Bilanz und Perspektiven der direkten Demokratie in den 16 BundeslUndern und auf Kommunalebene; Zeitschrift fUr Parlamentsfragen, 2003, vol. 34, No.4, 657-671; and Andreas Kost (ed.): Direkte Demokratie in den deutschen LUndern. Eine EinfUhrung, Wiesbaden, VS Verlag fUr Sozialwissenschaften, 2005. BUrbel Martina Weixner: Direkte Demokratie in den BundeslUndern; in: Aus Politik und Zeitgeschichte, 2006, no. 10, pp. 18-24. Werner Reutter: The Transfer of Power Hypothesis and the German Lander: In Need of Modification, in: Publius: The Journal of Federalism, vol. 36, no. 2 (Spring 2006), pp. 277-301. Herbert Schneider and Hans-Georg Wehling (eds): Landespolitik in Deutschland: Grundlagen - Strukturen - Arbeitsfelder. Wiesbaden, VS Verlag fUr Sozialwissenschaften, 2006. Supreme Court Justice Louis Brandeis; New State Ice Co. v. Liebmann, Dissenting Opinion, 1932. Susanne Blancke: Politikinnovationen im Schatten des Bundes: Policy-Innovationen und- Diffusionen im Fllderalismus und die Arbeitsmarktpolitik der BundeslUnder; Wiesbaden, Verlag fUr Sozialwissenschaften, 2004, p. 31 f. Franz GreG/Richard Lehne: Lander Governance in a Global Era: The Case of Hesse, Publius: The Journal of Federalism, vol. 29, no 4, (Fall 1999), pp. 79-97. Here I refer to the example of North Rhine-Westphalia, for an overview see Siegfried Mielke and Werner Reutter (eds): LUnderpariamentarismus in Deutschland. Wiesbaden, Verlag fUr Sozialwissenschaften, 2004. Siegfried Mielke and Werner Reutter (eds): LUnderparlamentarismus in Deutschland: Geschichte - Struktur - Funktionen. Wiesbaden, VS Verlag fUr Sozialwissenschaften, 2004; Franz GreG/Roland 1-Iuth: Die Landesparlamente: Gesetzgebungsorgane in den deutschen LUndern. Heidelberg, HOthig Vig. 1998. Jens Kalke: Bedeutungsverlust der Landtage? Ein empirischer Test an hand der Drogenpolitik, in: Zeitschrift fUr Parlamentsfragen, 2001, vol. 32, no. 2, pp. 309-325, and Susanne Blancke: op. cit. Susanne Blancke: op. cit., p. 189. Everhard Holtmann: Institutionelle Entwicklungspfade und reale AusprUgungen einer dezentralen Erledigung bundesstaatlicher Aufgaben im Sektor Bau- und Wohnungspolitik; in: Gisela FUrber (ed.): Das f6derative System in Deutschland: Bestandsaufnahme, Reformbedarf und Handlungsempfehlungen aus raumwissenschaftlicher Sicht. Hannover, Akademie fUr Raumforschung und Landesplanung, 2005, pp. 282-313, p. 350.

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42 Susanne Blancke: op. cit., p. 66; see also Everhard Holtmann: op. cit., p. 310. 43 Roland Sturm: Aktuelle Entwicklungen und Schwerpunkte in der internationalen F5deralismus- und Regionalismusforschung, in: Europaisches Zentrum fUr F5deralismus-Forschung Tilbingen (eds): Jahrbuch des F5deralismus 2000, Bd. I. BadenBaden, Nomos Verlagsgesellschaft; 2000, pp. 29-41; Reinhard C. Meier-Walser and Gerhard Hirscher (eds): Krise und Reform des FMeralismus: Analysen zu Theorie und Praxis bundesstaatlicher Ordnungen. Milnchen, Olzog Vlg., 1999; Franz Gref31 Detlef Fechtner/Matthias Hannes (eds): The American Federal System: Federal Balance in Comparative Perspective. FrankfurtlM, Lang VIg., 1994. 44 Franz Gref3 (ed.): Landesparlamente und F5deralismus: Hat das parlamentarische System in den Bundeslandern eine Zukunft? Wiesbaden, Hessischer Landtag, 1990; Ursula MannIe: op. cit. 45 Bertelsmann Commission 'Governance and Constitutional Policy: Disentanglement 2005: Ten Reform Proposals for Better Governance in the German Federal System. Giltersloh, Bertelsmann Foundation Publishers, 2000. 46 Udo Margedant: Die FMeralismusdiskussion in Deutschland, in: Aus Politik und Zeitgeschichte. 2003, no. 29-30, pp. 8-13. 47 For the details of the proceedings see the documentation Deutscher Bundestag and Bundesrat (eds): Dokumentation der Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung, Berlin 2005 and the volume edited by Rainer Holtschneider and Walter Sch5n (eds): Die Reform des Bundesstaates: Beitrage zur Arbeit der Kommission zur Modernisierung der bundesstaatlichenOrdnung 2003/2004 und bis zum Abschluss des Gesetzgebungsverfahrens. Baden-Baden, Nomos Verlagsgesellschaft 2007. In this volume the leading members of the commission give their controversial assessments of the work and the final results. See also Rainer-Olaf Schultze: Federal Reform in Germany - another failed attempt, Federations, vol. 4, no. 3/March 2005, pp. 11-13. 48 Deutscher Bundestag and Bundesrat (eds): op. cit., p. 343. 49 Deutscher Bundestag and Bundesrat (eds): op. cit, p. 343: 'The sUQject educationl higher education however proved to be incompatible between us.' 50 Position of the Federal Government, published 9 April 2003. 51 Entscheidungen des Bundesverfassungsgerichts, 2 BvF 2/02 v. 27.7.2004. 52 Edzard Schmidt-Jortzig: Verfahrensfragen der F5deralismusreform. Lehren aus dem vorlaufigen Scheitern; in: Zeitschrift filr Parlamentsfragen, vol. 36, no. 4 (December 2005) pp. 731-740; similarly Rudolf B5hmler: Bildung und Kultur; in: Rainer Holtschneider and Walter Sch5n (eds): op. cit., p. 151. 53 Rudolf Hrbek: Ein neuer Anlauf zur F5deralismus-Reform: Das Kompromisspaket der Grof3en Koalition; in: Europaisches Zentrum fUr F5deralismus-Forschung Tilbingen (eds): Jahrbuch des F5deralismus. Baden-Baden, Nomos Verlagsgesellschaft, 2006, p. 143f. 54 Deutscher Bundestag, Drucksache 16/813,07.03.2006, p. 15. 55 Ibid., p. 16. 56 Deutscher Bundestag. Wissenschaftliche Dienste: Zustimmungsgesetze nach der F5deralismusreform: Wie hatte sich der Anteil der Zustimmungsgesetze verandert, wenn die vorgeschlagene Reform bereits 1998 in Kraft gewesen ware? Berlin, Mai 2006, p. 3. 57 For an overview see Arthur Gunlicks: German Federalism Reform: Part One; in: German Law Journal. Vol. 8, no. 1 (January 2007), pp. 112-131. 58 Fritz W. Scharpf: FMeralismusreform: Weshalb wurde so wenig erreicht?; in: Aus Politik und Zeitgeschichte, 2006, no. 50, p. II. 59 Roland Sturm: Bilrgergesellschaft und Bundesstaat: Demokratietheoretische Begrilndung des FMeralismus und der FMeralismuskultur. Giltersloh/Berlin, 2004. 60 Roman Herzog: Kooperation und Wettbewerb; in: Aus Politik und Zeitgeschichte, 2006, no. 50, p. 5.

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61 Stefan Bent: Rege Beteiligung, konfligierende Interessen. Eine Analyse der Zuschriften an die Kommission zur Modernisierung der bundesstaatlichen Ordnung, in: Zeitschrift fUr Parlamentsfragen, 2005, vol. 36, no. 4, pp. 741-747. 62 Franz Gref3/Ronald Huth: op. cit., p. 137. 63 Bundesrat Drucksache 913/06, Einsetzung einer gemeinsamen Kommission zur Modernisierung der Bund-Uinder-Finanzbeziehungen.

Federalism and democracy in Russia 203

10 Federalism and democracy in the Russian Federation Richard Sakwa

Soviet and Russian federalism in practice The spatial element in Russian politics is a political fact, but the scope and nature of regional autonomy and its role in the development of a democratic polity is less clear. While federalism has been used as a way of managing internal diversity, it has not been a guarantee of democracy. In the 1990s the old hyper-centralised Soviet state gave way to the fragmentation of political authority and contesting definitions of sovereignty, but whether a viable federal system was established remains a matter of considerable debate. Under President Boris Yeltsin in the 1990s a complex and unstable balance was drawn between the claimed prerogatives of the centre and the normative and de facto powers of the regions. The tension between central and regional claims concerned not only practical issues of governance and finances, but also focused on fundamental competing sovereignty claims. In that context the evolving practice of 'asymmetrical federalism' affected the very definition of the state. A distinctive type of 'segmented regionalism' emerged, whereby Russia in effect had 90 governments - the 89 so-called 'subjects of the federation' and the central federal authorities. The federal government entered into asymmetrical bargaining relations with the other 89 federation subjects, one of which (Chechnya) claimed outright independence. This was the situation facing the incoming president, Vladimir Putin, on coming to office in early 2000. His response was to appeal to the principle of 'the dictatorship of law', and in particular the unimpeded flow of constitutional and juridical authority throughout the territory of the Russian Federation. In practice, despite the appeal to the normative validation of constitut-ional authority, a 'power vertical' was established based on political rather than constitutional authority. The reassertion of the constitutional prerogatives of the central state rendered sub-national sovereignty claims illegitimate, but the scope of the federal constitutional rights of the regions remained undefined. Russian federalism no longer practised shared sovereignty, but the proper powers to be exercised by the regions remained contested. Fundamental issues were raised by Putin's attempt to reconstitute the state, above all the question of the form of state sovereignty. Would Russia become a genuine federation, in which law

would be defined in accordance with the nonnative spatial division of sovereignty; or would it take the form of de facto regionalism, where an effectively unitary state grants rights to devolved units, in which case a very different definition of sovereignty would operate? Russia continues to find itself in a period involving, in Robert Jackson's words, the 'reshuffling of the title to sovereignty, even major redistributIon'. I The disintegration of the USSR represented a major shift of sovereignty away from the former 'sixteenth republic', the federal Soviet centre, to the 15 union republics to the point that the Soviet Union disappeared in its entirety. The shadow of Soviet disintegration was the nightmare that hung over Putin and his government, and it is clear that he would do anything to prevent the Russian Federation being cast into the dustbin of history along with the USSR and so many other federations. Russia is one of the 25 federations in the world today (including eight of the largest countries), covering half the world's territory and encompassing 40 per cent of the world's population. 2 Although there is a tendency towards federalisation (Spain, Italy, United Kingdom), the salutary lesson of the experience of federations has not been lost on Russia: 27 of the 44 federations created in the last two centuries have disintegrated or become centralised, unitary states. 3 However, while this concern is a legitimate one, the danger was that the government would over-react by imposing excessive centralisation, and in so doing ultimately provoke the outcome that it sought to avert. Under Putin a 'new federalism' emerged, characterised by the rolling back of regional privileges and a type of closed but repeated negotiating process dubbed 'co-operative federalism', while at the same time the resurgent state weakened pluralism in its entirety. The nature of Russian federalism and the role of the regions in the constitution of the state is at the same time a question of the type of state that Russia will become. The extent to which power, if not sovereignty, will be shared with the subjects of the federation will determine whether Russia develops as a democratic polity.

Federalism ill tsarist Russia Federalism was the subject of considerable discussion from the time of Alexander I (1801-25). There were various projects for the federalisation of Rilssia, including a project to create a 'federation of Slavic peoples'.4 The relative autonomy granted Poland until the uprising of 1830 has been taken as a form of protofederalism, as was the extensive autonomy granted to Finland and the Central Asian khanates of Khiva, Kokand and Samarkand.

Federalism ill Soviet practice Lenin favoured the self-determination of peoples to the extent that it would facilitate the break-up of empires, and in particular the Russian empire. He was criticised by Rosa Luxemburg, who argued that larger units should be kept as a way of ensuring the economic coherence of a larger region and to dilute ethnicity in a

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broader political entity. This was in effect the policy pursued by Stalin. In keeping with the classic Marxist bias against federal principles or decentralisation, none of the founders of the Soviet polity favoured federalism as a principle, but were forced to apply some of its practices, in form at least, to preserve the reconstituted state that covered much the same area as the Russian empire. The creation of the Union of Soviet Socialist Republics (USSR) in 1922 was a concession to the peoples for instrumental purposes, and not a conscious attempt to design a genuinely federal polity. This was a federation without federalism, and the degree to which the USSR was federal is still debated accompanied by discussion over what federalism means in a non-democratic polity. While the state structure was federal, the Communist Party was strictly unitary, and this was where real power lay. The fact that the largest republic, the RSFSR, did not have its own republican Communist Party, was intended to emphasise that the Party ruled the whole country on centralised principles, and the asymmetry in form reinforced the power of the unitary Party in practice over the federal state. Are federalism and democracy synonyms? In other words, is a federal system by definition democratic or does the Soviet experience suggest that a country can be federal but not democratic? Is federal government possible in a nondemocratic regime? On the basis of the USSR, ~iker famously, if not notoriously, asserted a positive answer.s In a recent major study of Soviet and Russian federalism, Jeffrey Kahn takes the contrary view. He argues that federalism is not possible in an authoritarian environment, insisting that although '''federal'' can describe a wide continuum of federal arrangements; nevettheless, the minimum requirements of democracy and the rule of law must adhere to the term if it is not to be rendered meaningless'.6 As far as he is concerned, in the Soviet Union a federal far;ade masked one of the most centralised states in modern history. His fundamental argument is that path dependency has also rendered post-communist Russian federalism a 'federal far;ade', although very different from what had come earlier.

Segmellted regiollalism The dem ise of the USSR in December 1991 brought the issue of the territorial arrangements for Russia into sharp focus. The signing of three federal treaties on 31 March 1992, known collectively as the Federation Treaty, allowed a significant degree of decentralisation, providing for joint jurisdiction over education, environmental protection and conservation, health care and natural resources, while recognising certain areas as the sole prerogative of the SUbjects. The Federation Treaty failed to reconcile the positions of the centre and the regions, but in adopting at times mutually contradictory positions the differences in viewpoints were made clear. The treaties were excluded from the 12 December 1993 constitution, although the basic principles of decentralisation, joint and sole jurisdictions, remained. The new constitution, which took precedence over the Federation Treaty, enshrined a more restrictive view of these rights. The definition of republics as 'sovereign states' was struck out of the new text, but the

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federation structure continued to apply different criteria to various units despite the formal claim that all federal components are equal (Art. 5.1). The new constitution struck out the Soviet declaration about the right of union republics to secede. Russia is considered a constitutional-federation rather than a treatyfederation; that is, based on the belief that Russia as a country predates its formation as a federation. Under Yeltsin regional regimes came to exett considerable autonomous authority over their 'fiefdoms'. As Donna Bahry argues, when a transition includes changes to the economic as well as to the political system, 'federal arrangements add another set of stakeholders to the bargaining over the disposition of state assets'. As she notes, 'federations that survive the transition intact often face additional problems, including significant pockets of traditional rule, corruption, and provincial resistance to centrally imposed market reform'. 7 All this was richly in evidence in Russia. In the 1990s the federal separation of authority was undermined by spontaneous processes of segmented regionalism. 8 The development of asymmetrical federalism may well have provided a framework for the flexible negotiation of individual tailor-made solutions to Russia's diverse ethnic and political composition,9 but it failed to do this within the framework of universal norms of citizenship. Instead, segmented regionalism fragmented the country juridically and economically. In terms of sovereignty regional authority remained limited, in the sense that they were unable independently to devise and implement policy in significant areas. However, while regional sovereignty may have been limited, segmentation became ever more extensive, in patt as the result not only of a (vertical) bilateral bargaining process between the centre and individual regions, but also an outbidding (horizontal) process where a concession to one region was claimed by another. By the end of Yeltsin's term in office Russia was beginning to become not only a multinational state, but also a multi-state state.1O Numerous proto-state formations were making sovereignty claims vis-a-vis MoSCOW. 11 The country was increasingly divided into segments, not only spatially but also in terms of the fragmentation of political authority. Like the European Union, where the pooling of sovereignty began to create a single political community, Russia was developing on a parallel track towards what some called the 'medievalisation' of politics where overlapping jurisdictions fragmented administrative and legal practices. The development of a national patty system was undermined by the proto-state claims made by regional executives, their ability to control patronage resources and to influence electoral outcomes. The emergence of a single national community was impeded by the segmented regionalisation of political authority.

Features ofsegmented regionalism Segmented regionalism was underpinned by competing sovereignty claims, with some republics interpreting the constitution in strictly con federal terms. On 5 August 1990, on a visit to Kazan, Yeltsin had urged the federation subjects to 'take as much sovereignty as you can swallow', an injunction that he repeated on

206 . R. Sakwa numerous occasions later, and in particular when he needed the support of regional leaders, as on the eve of his impeachment vote in the Duma in May 1999. The continuing crisis of the state and the economy allowed some of the republics to expand their de facto sovereignty by adopting laws that created a legal space that became increasingly distinct from that established by Moscow. In the vanguard of this process, dubbed 'disassociation by default', were Tatarstan, Bashkortostan and Yakutia. The unifying role of the military was lost, and indeed, the army became increasingly dependent on the regional authorities. The federal authorities were unable to guarantee basic civil rights in the regions, and even lost control over regional branches of state agencies. The local agencies of the procuracy, the MVD (internal ministry) and other ministries fell into the hands of governors and local presidents. Only the KGB's successor, the Federal Security Service (FSB), appeared able to withstand 'capture' by regional authorities. It appeared at this time that 'federalism' was little more than a discourse in which the struggle for pre-eminence between the centre and the regions was conducted. The spirit of federalism, what Michael Burgess calls 'federality' and which in Germany is known as Bundestreue (federal state loyalty), was notably lacking. Yeltsin-style authoritarianism never quite developed into full-blown dictatorship but equally never quite submitted itself to popular accountability or constitutional and legal restraints. The phenomenon was replicated at the regional level. An extremely heterogeneous pattern of regime types emerged, ranging from the relatively democratic in Novgorod,12 Arkhangelsk, Samara and St. Petersburg, to the outright authoritarian in Kalmykiya under president Kirsan IIyumzhinov. Peter Kirkow identified the emergence of a type of local corporatism in the regions, on evidence drawn largely from Primorskii krai under Yevgenii Nazdratenko, marked by 'the institutional entanglement of politics and economics' .13 There was also diversity in types of state-political structure. Udmurtiya was a parliamentary republic (until a referendum in early 2000), Samara was a fully fledged presidential republic, Dagestan was governed by a form of consociational democracy in which a State Council sought to balance and represent the ethnic diversity of the republic, while Moscow city replicated the 'super-presidentialism' of the central government itself. The multiethnic republics of the North Caucasus tended towards bicameralism, with this type of parliament being found in Adygeya, Dagestan and Kabardino-Balkaria. This diversity in part reflected local traditions, the dynamic of elite relations, and the ethnic and social composition of a particular republic, and in turn affected policy outcomes. 14 Diversity in regime type and institutional framework compensated for the stunted development of genuine federalism, while the concept of 'asymmetrical federalism' did little more than legitimate this heterogeneity. While the autonomy of sub-national government may well be the hall-mark of federation, the rich profusion of regimes and institutions in Yeltsin's Russia cannot automatically be considered hallmarks of federation. Segmented regionalism was generated by historical, material and social factors and not simply by the strategic choices of post-communist central and

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regional elites. However, while federal asymmetry reflected the diversity of the country, it did not explain the precise legal and juridical disparities between the country's regions. In the 1990s federal relations developed largely as a function of the immediate political needs of the national presidency and the concerns of regional leaders. The lack of genuine reciprocal and transparent relations between the centre and the localities was one of the most significant failures of Yeltsin's presidency. By the late 1990s in at least six key areas federalism gave way to segmented regionalism: At least 50 of the 89 local constitutions and charters contradicted the federal one, while a third of local legislation violated in one way or another federal legislation. ii The fragmentation of legal space, according to the Justice Ministry, meant that at least 44,000 regional legal acts, including laws, gubernatorial orders and similar documents, did not conform with the constitution or federal legislation. IS iii During Yeltsin's presidency 46 power-sharing treaties were signed between the leaders (not, it should be noted, by the subjects as a whole) of 42 individual regions and the federal authorities. The treaties formalised the emergence of asymmetrical federalism where the rights of separate regions were negotiated on an ad hoc and often conjunctural basis. The terms of many of these treaties, especially various annexes and annual supplements, were not made public, but their net result was to accentuate the asymmetries in federal relations. The bilateral treaties allowed customised deals between the centre and the subjects, and to that degree Yeltsin had a case in arguing that they strengthened Russian statehood, yet they could not but undermine basic principles of constitutional equality and political transparency. The formal bilateral treaties, moreover, were supplemented by numerous treaties dealing with sectoral issues. Most were not published in the press, and although the federal authorities insisted that these were not international treaties, their precise juridical status was not specified. The relativehierarchy of laws in Russia appeared to be in question. Did these various treaties take priority over federal laws, supplement them, or trump them? The fundamental principle of post-communist Russian state building is that it is constitution-based - that is, the constitution only gives form to a pre-existing community, whereas these bilateral agreements eroded that principle in favour of a treaty-based federation. iv The asymmetry in federal relations was reflected in budgetary matters, although fiscal matters can never be fully symmetrical. There is a long way to go before the procedure for distributing transfers among regions becomes both transparent and accurate, with the clear enunciation of the formulae whereby budget revenues are collected and distributed. Continuing uncertainties over the allocation of tax revenues is one of the defining indicators of Russia's failure to establish itselfas a genuine federation. The fundamental fact of fiscal dependency for most remained. Regions dependent on the

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centre for subsidies, whatever their political complexion, are forced to establish good relations with the Kremlin to ensure the continued flow of funds. v The fragmentation of the national market undermined federalism. Growing economic divergence between regions provided an economic basis to federal asymmetries. Some regions have access to world markets through the sale of energy, raw materials or basic finished industrial goods, giving them an independent resource in the federal bargaining game. In this context, it is difficult to talk of 'the regions' as a single unified actor, since that would suggest unified and purposive collective action that would be far from reality. Non-governmental actors are an increasingly important element framing Russia's political and economic space. Above all, the large energy producers and primary materials exporters negotiated directly with subjectlevelleaderships, and indeed appeared to conduct their own foreign policies. The sectoral fragmentation of Russia, with powerful lobbies enjoying direct access to government at all levels, was reminiscent of the old Soviet economic ministries. 16 vi Regions began to emerge as international actors in their own right. Between 1991 and 1995 alone, Russian regions signed over 300 agreements on trade, economic and humanitarian co-operation witl~ foreign countries, undermining Moscow's monopoly on foreign relations and shifting attention away from high diplomacy to the pressing needs of Russia's regions. Some regions inhibited problem-solving, particularly those in the Far East that opposed the border settlement with China or the transfer of the Kurile Islands to Japan. Over half of Russia's regions are borderlands, and need the support of the federal authorities in dealing with their neighbours. The preferences of Russia's regional leaders became part of the complex tapestry of Russia's foreign relations. To co-ordinate regional and federal foreign policy, in October 1997 the Duma adopted a law ensuring that regional authorities liaised with the Foreign Ministry over any negotiations with a foreign government. 17 A special department was established by the ministry dealing with inter-regional affairs with branch offices in regions and republics that were particularly active in foreign affairs. The principle that only the federal government had the right to sign international treaties (dogovDIY), however was jealously guarded, and upheld by numerous judgements of the Constitutional Court. IS The points above indicate some aspects of the formal power asymmetry enshrined in the differing prerogatives granted republics and regions and further codified in power-sharing agreements. There were, in addition, informal asymmetries, focused above all on personal networks and ties between regional leaders and the central government. Under Yeltsin, regional governors sought to establish good relations with the Kremlin and these asymmetries focused on personal relations with the president. Segmented regionalism expressed specific bureaucratic and social interests that became increasingly deeply entrenched, deploying political resources against the centre and other federal subjects to

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ensure freedom of action to attract investment (above all foreign) and to exploit regional resources, and to ensure relative autonomy from popular accountability (by diminishing the authority of local legislatures, manipUlating electoral contests and by establishing regional 'parties of power'). Although the regional institutions of the USSR created powerful patronage and political networks, their persistence was determined by specific regional coalitions able to exploit the new political and economic conditions. Segmentation and federal asymmetries derived not only from Yeltsin's distinctive leadership style but reflected objective differences in historical traditions, economic resources and elite representations of regional interests.

Factors promoting segmented regionalism Segmented regionalism in Russia appealed to the language of federalism but in practice undermined the capacity ofthe state and the legal-nonnative prerogatives of the federal authorities. Undoubtedly elements of federalism emerged, but in a highly ambiguous way. Federalism became bound up with elements of state fragmentation, and thus when Putin sought to reasselt the prerogatives of the state, federalism was threatened. The ambiguous status of federalism in part derives from the historical and social legacy. These factors continue to define the tension between segmented regionalism and the emergence of genuine federalism. The Soviet institution of ethno-federalism provided Russia with two very different constituent elements: the republics based on a titular nationality (or group of nationalities in the case of Dagestan, Kabardino-Balkaria and others) on a specific territory; and regions, based on territory alone. At the same time, a peculiar type of matlyoshka federalism was established, with some units contained within others, although fonnally according to the 1993 Constitution, accorded equal status and rights. Federalism in the Soviet and now the Russian case is about more than multi-level governance but was also designed as a way of managing ethnicdivetsity in a multi-national state. The attempt to combine these two very different tasks created a distinctive type of dual federalism, and in the event proved not very successful in resolving either of its tasks. In the Soviet period the federal fa<;ade covered what was in effect a unitary political system, reflected in the fact that the Communist Party was a unitary body; while problems of ethnic selfaffirmation took all sorts of unequal and divisive forms. Ethno-federalism provides a powerful impetus to the segmentation of regionalism along the lines of this division. Indeed, dual federalism, based on a stable and recognised separation of powers, has given way to what is sometimes called 'cooperative federalism', reflecting a more flexible and less-rule-based form of permanent federal bargaining. ii Russian federalism is superimposed upon a rich ethnic mosaic, but it is also complementary to a complex tradition of meso-regionalism. Siberian regionalism (oblastnichestvo), for example, dates from the pattern of settlement

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210 R.Sakwa from the sixteenth century, fostering a rugged spirit of independence. A recent study stresses the rich theoretical foundations of Siberian regionalism, drawing in particular on nineteenth-century thinkers who developed an early version of the 'internal colonialism' thesis, stressing the uniqueness of Siberia. In contemporalY politics exponents of regionalism argue that the fundamental divide in Russian politics is no longer between the left and the right, but between the centre and the regions. The question is no longer one of sovereignty, as it was in the early 1990s when a 'Urals republic' was declared in Ekaterinburg, and when there was much talk of an 'Idel-Ural republic' encompassing Volga republics of Tatarstan, Bashkortostan and some others. While separatism, apart fi'om in the Caucasus, is no longer on the agenda, excessive centralisation in Moscow could provoke an opposite reaction. 19 iii A third feature promoting segmentation is the weakness of autonomous rational bureaucratic administration in the centre and in the regions, a factor stemming from both the Tsarist and Soviet past. This problem remains acute to this day, and is reflected in widespread corruption. The fundamental problem is ensuring accountability of agents, whether administrative officials or elected politicians, to the principals - ultimately the sovereign Russian people. IV A further factor promoting the development of segmented regionalism is the weakness of autonomous pluralism in society. The notion of civil society is embedded in the idea of the self-determining individual joining voluntarily in associational life to pursue material and psychological advantages, but this is very far from the world of dependency networks typical of Russia, rooted in local production and supply communities and regional identities. The attempt to establish a federal system in a context where civil society is weak exaggerated the autonomy of regional leaders, and encouraged them to view themselves as quasi-sovereign actors, a tendency reinforced in the ethno-federal republics by the appeal to the national histories of the titular nationalities. There is no single political community in Russia that could act as the unified base for a federal superstructure. v Another feature is the emergence of regional political-economic blocs. The main components of regional elites are, in various combinations, the managers of fonner state enterprises, the new business class (who in many cases swapped the tyranny of the old state planners for arbitrary exploitation by financial-industrial oligarchs), the agrarian sector and the world of small and medium businesses (SMEs). Regions dependent on heavy industly suffered the most from Russia's economic decline, the agricultural sector suffered from the lack of financing and depressed prices, while entrepreneurialism was choked by heavy taxes and oppressive bureaucracy. Everywhere regional leaderships imposed various types of administrative controls over the local economy, including complicated registration procedures for exports, sanitation inspections, and controls on the pricing and movement of goods. Regional governors, moreover, consolidated their power by taking over partial ownership in enterprises. Banks were offered tax breaks and

contracts to service regional budgets in exchange for transferring a controlling stake to the regional authorities (for example, in Sverdlovsk and St Petersburg). The republics were the most active in this direction, with Bashkortostan, for example, creating a state-run monopoly in the cash-rich energy sector. Under Putin the central state sought to gain access to these regional economic conglomerates, often using gubernatorial elections as a way of exerting leverage on regional leaders. vi One of the factors promoting segmented regionalism was the intense politicisation of the issues associated with the respective powers of the federal and regional authorities. In other words, the constitution was not the cornerstone of federal relations and neither was the Constitutional Court, and instead the various administrative regimes kept a finn grip on federal processes. Instead of a process of juridification (adjudication by the Supreme Court of constitutional norms), comparable to that in the United States, Russian federalism remains politicised (bargaining at the individual level between national and regional bosses). The Yeltsin system threatened the very viability of the state. The ambiguities in the federal system were exploited by actors in the regions to enhance their privileges and powers, while the central leadership under Yeltsin was more concerned with political advantage than the coherence of the state. Segmented regionalism cut across all processes of state building, undennining the emergence of a unified national market, legal space and Russia's coherence as an international actor. There was, moreover, a great variety in regime types, with some taking on increasingly authoritarian forms, something that impeded Russia's development as a democracy. It is this segmentation of political, economic and juridical development against which Putin set his face.

Putin's 'new federalism' A number of European countries have an asymmetrical state structure, with the autonomous regions in Italy, for example, enjoying celtain extra competencies, and in Spain between the normal provinces and the so-called nationalities, above all Catalonia. However, there is no example of asymmetrical federalism in the rest of Europe, and indeed it is often argued that the success of Swiss and German federalism lies in their symmetry. As Lane and Ersson note, 'Asymmetrical federalism may lead to dual federalism, where one state or region is entirely distinct from the others',2° Dual federalism has an implicit state building dynamic and can lead to the break-up of federations, as was the case with Czechoslovakia earlier. Asymmetry establishes a competitive dynamic where federal relations are in a state of constant flux. In Russia under Yeltsin a concession granted to one region was immediately demanded by others, while the republics insisted on preserving their differentials vis-a.-vis the regions. While no federation can be completely symmetrical (for example, in terms of population and area), very few give political form to asymmetries.

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. The Yeltsinite regional bargain basically suggested to the regions and repubhcs that they had a free hand as long as they did not threaten secession. As in the Ottoman and Habsburg empires, local privileges were granted in return for loyalty. The development of civil society was inhibited since these were privileges granted not to individuals but to corporate groups. The free hand extended to the manipulation of elections, allowing the political elites of titular ethnic gr~ups t~ consolidate their dominance and permitted various types of authoritana~ r~g~mes else",:here. In the context of the segmentation of regional politics, th~ m~I.vldual ha~ 1I~1~ recourse. Segmented regionalism threatened the rights of mmontIes and ofmdlvlduals. In response to this the countervailing universalistic agenda r~presented by the national state was assel1ed. In his early period in office Putm used the term 'the dictatorship oflaw' to describe what he meant: In a non-law-governed (i.e. weak) state the individual is defenceless and not free. The .strongel' ~he. state, the freer the individual. In a democracy, your an~ my nghts ~~e hm~ted. only by the same rights enjoyed by other people. It IS on recogl1lsmg thIS sImple truth that the law is based, the law that is to be followed by all - from people in authority to the simple citizen. But democracy is the dictatorship of law - not of, those placed in an official position to defend that law. 21 Putin's dualistic approach to the restoration of state authority is reflected here both vividly and chillingly. The emergence of dual federalism was repudiated in favour of a more dynamic conception of co-operative federalism where the whip-hand was retained by the federal centre but the central auth~rities were forced to engage in repeated negotiations with sub-national units. The so-called '~ower vertic~l' sponsored by Putin did not simply entail the imposition of a sll1gle mode! m every r~gion but opened the system to a permanent bargaining pro~ess, ":'~lCh undermll1~d .the self-declared goal of achieving uniformity and the ImpOSItion ofa monohtluc interpretation of the constitution. Putin'S reassertion of central authority in defence of the writ of the constitution represented the defence of a particular vision of democracy. However, this attempt to strengthen the state was torn between at least two forms. The constituti.on of 1993 is c.ap~ble of :,arying interpretations, above all between a permisSIve ~nd a constnctIve readll1g of federal relations. The permissive interpretation s~stall1s. what can be called pluralistic statism; while a more constrictive reading gives rIse to compacted statism. At the heart of compacted statism is the ~trengthening of the administrative regime rather than the constitutional state. It IS compacted not so much because of any notional agreement between the parties, ~lthough thi~ element. does play a pali, but above all because through compactIOn the relative pluralIsm, media freedom and regional diversity of the count:Y that had emerged under Yeltsin was threatened. The resurgence of the state IS thus torn between two forms: compacted statism, using the rhetoric of the defence of constitutional norms and the uniform application of law throughout the country but threatening the development of a genuine federal separation

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of powers; while pluralistic statism defends the unimpeded flow oflaw and individual rights while respecting the diversity of civil society and federalist norms. Pluralistic statism would achieve the literal reconstitution of the state, to place the constitution at the centre of political processes in regional relations; whereas compacted statism leads to the reconcentration of the state. These are two very different types of state development. The latter is no more than a new form of Russia's traditional tendency towards centralisation, while the former, although a type of statism, offers an opportunity to move away from asymmetrical federalism and segmented regionalism towards a more balanced form. Yeltsin's traditional style of managing the regions, where relative independence and selective privileges had been granted in return for support for the Kremlin at the federal level, now gave way to a period of federal activism. Segmented regionalism had emerged as one of the greatest threats to the political integrity of the country, but under Putin two processes were in uneasy tension: the asse11ion of state management of the socio-economic and political life of the country; and the demands for a genuine devolution of authority to the regions. Was there a way of making the two processes - state reconstitution and federal decentralisation - not only compatible, but actually mutually supportive? Alan James had long asserted that one of the central features of sovereignty 'is that it is an absolute condition' .22 He had in mind external relations, but the advocates of compacted statism sought to apply the principle of sovereign absolutism to internal affairs as well. Is there, indeed, a zero-sum game involved, in which state reconstitution in the centre must necessarily undermine federalism in the regions? We shall return to this question later, but for now let us examine the features of the struggle against segmented regionalism. 1 FEDERAL DISTRICTS

The centrepiece of the new 'state gathering' policy was Putin's decree of 13 May 2000 dividing Russia's 89 regions into seven larger administrative districts. The establishment of an administrative layer between the federal centre and the regions reduced the significance of the latter. The new regions were headed by presidential appointees and were directly subordinate to the president. Instead of restoring the 'executive vertical' as intended, the reform appeared to have established a 'triangle' with the new federal district (FD) capitals added to relations between the regions and Moscow. The seven new representatives (polpreds) were responsible for organising the work offederal agencies in the regions (with particular attention to the law enforcement bodies), monitoring the implementation of federal policy, providing the federal authorities with information on what was going on in the regions, and advising and making recommendations on federal appointments in the region. The old system of presidential representatives to the regions was abolished, but the polpreds sent their envoys to each of the regions within their jurisdiction. The measure ensured regional conformity to national laws, but in addition the reform had a straightforward administrative rationale: to stop the 'capture' of federal agencies by regional executives, who

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had often supplied the fonner with offices, transport and other facilities. The aim was clearly to reassert central control over its own agencies. 2 THE FEDERATION COUNCIL

Federalism and democracy in Russia 215 5 THE END OF BILATERAL TREATIES

The new federalism was characterised by the end of the bilateral treaty process. This had already been indicated at the end of Yeltsin' s leadership, with no new treaties having been signed from August 1998, during Primakov's premiership and beyond. Not only were no new bilateral treaties signed, but existing ones were not renewed or were repudiated by the regions themselves. The only exception was the long-drawn out discussion about a bilateral treaty with Chechnya that would have formalised its exceptional status in the Russian Federation.

The way that the Federation Council, the upper chamber of the bicameral Federal Assembly, is formed was changed by a law of 5 August 2000. The first convocation between 1993 and 1997 had been directly elected from the regions, but from 1995 this gave way to a system whereby the heads of the executive and legislative branches in the regions became senators ex officio. In the new system regional executive and legislative branches each nominated a permanent representative. The new 'senators' would be delegates of the regional authorities rather than popular representatives. There was a 'soft turnover' of Federation Council members, with governors leaving the Federation Council as their terms expired or by I January 2002 at the latest. Although Putin made some concessions, the overall package was in line with his aspiration to create a full-time working upper chamber. The new representatives were to be dismissed in the same way as they were selected. The net effect was to reduce the influence of regional leaders on federal policy and to undermine . the separation of powers.

The question of local self government lies beyond the scope of this chapter, but it is clearly an important element in establishing genuinely devolved governance. The establishment of a commission headed by Putin's close colleague, Dmitrii Kozak, in smmner 2001 was intended to resolve two issues: delimiting the functions of federal, regional and municipal levels of government; and to reform the local government system. The two-year legislative process came to an end with the adoption of a new law on local self-government on 6 October 2003, with implementation to begin on 1 January 2006. 23

3 FEDERAL INTERFERENCE

7 APPOINTMENT OF GOVERNORS

A new mechanism was established whereby the heads of regions could be removed and regional legislatures dissolved if they adopted laws that contradicted federal legislation. Although in principle the courts already enjoyed the power to dismiss governors, two court decisions were required stating that the governor had violated federal law. The attempt to strengthen this right by Putin proved difficult, especially since it had to be approved by the Federation Council, the very body whose membership was under threat. The new law gave the president the right to dismiss governors who had violated federal laws on more than one occasion. A court ruling that the official had broken the law and a letter from the Prosecutor-General that a case had been opened against a regional leader regarding a serious crime was required to confirm that a regional leader was facing criminal charges. To dissolve a regional legislature, the president had to submit a bill to the State Duma.

Although enjoying an autonomous political legitimacy derived from popular election, according to the constitution (Articles 5.3 and 77.2) regional governors are part of a single vertically integrated executive structure. In recognition of this, some regional governors called for the abolition of direct elections and the formal re-subordination of regional executives to the federal authorities. In the wake of the Beslan hostage crisis of early September 2004, in the extended meeting of the government on 13 September Putin announced the intention to re-establish the direct appointment of governors. For .Eutin, the most important factor in strengthening the state was 'a unified system of executive power in the country', a unity that in his view came from Article 77 of the constitution. The war on terrorism, he insisted, was a national task, and hence the 'unity of actions of the entire executive power vertical' had to be unconditionally assured. He proposed that the regional executives were to be elected by the legislative assemblies of the territories 'at the representation of the head of state'. The federal law of II December 2004 established a system replicating the manner in which the Russian government is formed. Regional legislatures have two opportunities either to reject or approve a candidate, who must be over 30 years of age, for the post of regional governor nominated by the president for a five-year term. If a regional legislature twice fails to approve the presidential nominee, the president is entitled to appoint an acting regional head for up to six months and to dissolve the legislature by decree, with new elections to be held within 120 days of the decree entering into force.

4 LEGAL CONFORMITY

At the same time, the reassertion of federal law sought to ensure that Russia became a single legal space, with the principles of legality and individual rights enshrined in the constitution enforced throughout the country. This legal offensive ~gai.nst segmented regionalism sought to bring regional charters, republican constitutIOns and all other normative acts into conformity with the constitution and federal law.

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8 INSTITUTIONAL UNIFORMITY

We have noted above the rich diversity in institutional forms that had developed in the 1990s. This was now reversed and a single model for all regions imposed. This meant, for example, that the bicameral assemblies in Adygeya, Dagestan and Kabardino-Balkaria were abolished, while in Dagestan consociational elements were dropped in favour ofthe standard model of an appointed governor nominated by Moscow. However, the single design was not imposed evelywhere, with Chechnya being granted the exceptional right to create a bicameral assembly. 9 MERGING OF REGIONS

There has been a long discussion about the necessity of merging Russia's 89 regions into a smaller number of larger units. India has only 28 federal subjects, Germany 16, Canada 10, while tiny Switzerland has 26. On this basis the argument was often made that Russian govemment would be more effective if the number of units involved in the federal bargaining process were reduced. In addition, Russia had by far the largest disproportion between the population in the largest unit (Moscow, at 5.8 per cent of the federation) and the Evenk autonomous okrug, coming in at only 0.01 per cent. a ratio of 443, compared to India's 342.6 and Switzerland's 84.2, down to Austria's 5.6. 24 Stavrakis notes one aspect of this, namely 'the fundamental economic disparity between Moscow and the provinces is emerging as the defining characteristic of post-Soviet society'.25 Moscow city alone generates over a third of Russia's GDP, absorbing a large proportion of the revenues generated from the primary materials industries. At various points there had been discussion for a grand reorganisation of Russia's territOlY, including talk during Evgenii Primakov'S premiership of a drastic reduction of units to the eight inter-regional economic associations. As far as Vladimir Zhirinovskii, the leader of the Liberal Democratic Party of Russia, was concemed, Russia should have no more than two dozen gubernii, modelled on the German Liinder, as purely territorial units. Zhirinovskii, it should be noted, is one of the most consistent opponents of the federal idea in Russia, favouring the restoration of a unitary state on the tsarist model. Putin's establishment of the seven federal districts in 2000 was a quasi-constitutional attempt to finesse the problem without changing the constitution itself. The federal districts changed the terms of regional bargaining with the centre by interposing a new layer in between the centre and the regions separatist sentiments were blunted and regional leaders constrained by the agents of the 'power vertical'. The aim of merging regions was to create more manageable units. In December 2001 a federal constitutional law was adopted that permitted regions to merge, laying out detailed procedures that were amended in November 2005 to allow govemors, in consultation with the president, to initiate referendums. Under Putin regional unification was of two sorts. The first involved the merger of two ordinary regions, with the idea, for example, of unitying Pskov and Novgorod, and St Petersburg with its surrounding Leningrad region. None of these discussions came to anything. The second form was the attempt to end

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the matlyoshka doll element of Russian regionalism by merging national autonomies in a compound region with the nominal outer layer of the doll. A number of compound regions were transformed, led by the merger of Perm region and the Komi-Permyak autonomous okrug to create Perm krai in December 2005. Referendums approving merger also took place in the Evenk and Taimyr autonomous okrugs in Krasnoyarsk region and the Koryak AO in Kamchatka region, and a referendum was scheduled on 16 April 2006 in the Ust-Ordynskii Buryat AO and Irkutsk region. The process has been thoroughly democratic, with referendums in the two regions concemed and the approval of the Federal Assembly, although the Buryats in their small AO feared the loss of an independent identity. In Arkhangel region merger attempts were opposed by the oil-rich Nenets AO, fearing the loss of economic privileges if it merged with the poorer region. Plans to reconstitute the old Chechen-Ingush republic were opposed, by the Ingush, while the Republic of Adygeya was equivocal about merging with Krasno dar Ia·ai, with the local elites fearing the loss of their status. 10 FEDERALISM AS YOU PAY

Very few of Russia's regions have achieved economic self-sufficiency, with a dozen of the most successful regions accounting for over 50 per cent of Russia's GDP. The intractable problems in the North Caucasus, with a spreading insurgency in the region combined with grave social tensions and ethnic conflicts, provoked Dmitrii Kozak, the presidential envoy to the Southem federal district, to suggest that the degree of federal devolution should be in inverse proportion to the level of subsidy that they received from the centre: 'The more money the centre provides, the less regional power' .26 This is federal intervention on a drastic scale, and in effect undermines the federal division of powers. The processes described above suggest that the struggle against segmented regionalism took the form of reconcentration rather than reconstitution. However, in practice, the process was a far more negotiated one than would appear at first sight. For example, the attempts by Putin-to strengthen his powers to remove govemors was resisted in the State Council, and the law when finally adopted on 4 July 2003 incorporated the reservations of a Constitutional Court judgement on the issue, and hedged in the application of dismissal with numerous reservations. 27 The next year, however, Putin changed the system entirely to the appointment of governors. Even then, as Chebankova notes, 'the initial gubernatorial appointments demonstrate that the Kremlin emphasised political stability and loyalty at the expense of effective govemance'. Of the 32 govemors appointed in the first nine months of 2005, only nine were new. 28 Putin's reform of federal relations, moreover, was accompanied by compromises as initial declarations were modified by political realities, giving rise to the system of cooperative federalism. The federal centre was simply too weak to impose its preferences in an unmediated manner on the regions, and thus elements of segmented federalism persisted into the post-Putin era. Nevertheless, the terms of the federal bargaining process had fundamentally changed. Regional authorities

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had long been condemned for transforming their territories into separate fiefdoms where they ruled like the boyars of old, apparently insulated from the writ of federal laws and the constitution. This period now came to an end.

Federalism versus cOllcelltrated statism (etatism)? Putin's response to segmented regionalism was to strengthen the central state. Asymmetrical federalism not only granted differential rights to regional leaderships, but effectively established different gradations of democratic citizenship to those living in different parts of the country. This had fostered segmented regionalism, which diverged from the integrative functions of federalism. The attempt to recreate a national market became one of the central planks of Putin's regional policy. The general weakening of the power of individual regions during his presidency had important economic consequences, in particular in the struggle against Russia's 'vhtual economy' (the network of barter and nonpayments) that was very much regionally based. The end of barter and other trade restrictions for the first time allowed a genuinely national market to emerge. At the same time, the federal government began to revoke many of the tax concessions that it had granted under Yeltsjn. In the political sphere, the attempt to achieve a universal and homogeneous type of citizenship lay at the hemt of Putin's attempt to reconstitute the state. Putin's attempts to rein in the regions were not only about the reassertion of federal authority but about the defence of the rights of citizens. The country now was to live according to one constitution and one set of laws regardless of the region where one lived. The era of special privileges for territorial entities was over. The stick, which had bent so strongly towards the republics in the period of the 'parade of sovereignties' in 1990-91, now pushed back the other way. On coming to power Putin committed himself to the strengthening of the state. As we have seen, this could take two forms: compacted statism, where the pluralism of civil society and the federal elements in territorial arrangements were threatened; or a more pluralistic statism guaranteeing the unimpeded writ of the constitution, individual rights and the legal division of sovereignty between the centre and the regions. The main challenge, therefore, is not so much one between federalism and statism, but between federalism and two very different forms of statism. Pluralistic statism is fully compatible with the federal separation of powers, whereas compacted statism has a tendency towards the creation of a unitary state. Under Putin the defence of centralisation to ensure the uniformity of law and legal standards throughout the federation ran perilously close to becoming defederalisation. At times it appeared that the baby of federalism was being thrown out with the bathwater of segmented regionalism. Stanislav Belkovsky, the head of the National Strategy Institute and considered one of the strategists behind the war against selected oligarchs, argued that the appointment of governors represented an 'anti-federation coup', and insisted that it was 'the biggest mistake of Putin's presidency'.29 Earlier the presidential representative to the Constitutional Court, Mikhail Mityukov, noted that Putin's federal

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reforms 'drew a line as it were under the so-called ideology of the sovereignisation of the subjects of the federation. Their sovereignty is not unlimited'. However, in stressing that their sovereignty 'has limits, strictly defined in the country's Basic Law',30 he implicitly accepted the concept of shared sovereignty. Putin himself conceded, in a brief visit to Kazan on 23-24 June 2000, that the normative reconstitution of the state was not all a one-way street, and that while regional laws had to be brought into conformity with federal legislation, in some cases regional laws might be superior to federal norms, in which case the latter should be brought into line with regional practices.31 Regions like Bashkortostan insisted that its republican laws corresponded more closely to the standards of European law than did the Russian constitution, and condemned Russia's development as a 'unitary enclave state'.32 In later years there was not much evidence of learning from the positive experience of federal diversity, and instead the reconstitution of the state took a highly centralised form, tempered only by informal concessions to regional leaderships, in particular in the nm-up to the 2003-04 electoral cycle. The federal process was unable to gain constitutional autonomy and remained politicised.· Contemporary Russian politics is thus tom between two forms of state integration, 'federalism' and 'compacted statism'. Federalists argue that the process of 'reshuffling of sovereignty', begun in the late 1980s, is far from complete. The 'parade of sovereignties', stmting with Russia's declaration of state sovereignty on 12 June 1990, spread to Russia's sub-national units. Ultimately the aspirations for shared powers had been reflected in the adoption of a federal constitution for Russia on 12 December 1993. However, shared powers are one thing, but shared sovereignty is another. By sovereignty in this context we mean the classical belief that a federal system is based on the constitutionally entrenched horizontal separation of powers, with sub-national territories enjoying certain rights that are not susceptible to major change other than through the amendment ofthe constitution itself. Statists in Putin's regime, however, respond by arguing that instead of federalism emerging in Russia, a type of segmented regionalism had become established that threatened the very integrity of the state. Not only was the territorial unity of the country-at stake, but governance had become fragmented, with the state by the late Yeltsin years losing control over its own agencies in the regions. As far as Putin was concerned, federalism was less about the separation of powers than the integration of power. A further charge against the practice of federalism in the 1990s was the ethnicis at ion of government in the 21 ethno-territorial republics of Russia. This was a process that undermined the universal application of the principles of citizenship by privileging titular nationalities and some other groups at the expense of other citizens of the Russian republic. The final charge against the existing system was that central executive authority was truncated once it reached the regional level, and rather than regional leaders acting in the national interest (the spirit ofBundestreue noted above), many regional executives usurped powers that did not properly belong to them, acted in the interests of local oligarchs, undermined the free flow of constitutional authority, and in some cases even established petty medieval potentates. For this reason Putin was intent on re-establishing what was

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called the 'power vertical'. Thus segmented regionalism, fragmented governance, ethnicisation and truncated central executive leadership all conspired to provoke statists to seek a fundamental rearrangement of the way that Russia was governed. The absence of constitutional federalism had given rise to bilateral treaties and provoked a zero sum game, so rather than integrative federalism the country moved towards segmented regionalism. Power resources were entrenched at the regional level, but not within a juridically established framework. Russian federalism was at best mechanical rather than a marble-like pattern of mutually reinforcing dependencies. The state at the national and regional levels was something to be captured rather than shared. Under Putin, however, the state clawed back powers, and regional powers were devolved rather than constitutionally entrenched, and politicised (personal) rather than part of a broader federal bargain. Caught between segmented regionalism and the Putinite restructuring of the state, federalism itself, as the legal separation of powers in the spatial context, came under threat. According to Preston King, the defining feature of federalism is that 'central government incorporates regional units in its decision procedure on some constitutionally entrenched basis' .33 Although Smith is correct to stress that the defining feature of federal policy making is the 'politics of accommodation' ,34 the problem everywhere, but particularly. acute in Russia, is that the resources available to the various actors in the bargaining process are far from equal, and it is these power asymmetries that shape Russia's distinctive type of federalism and encourage the development of segmented regionalism on the one hand, and state reconcentration on the other. Attempts in the 1990s to build federalism from the top down were countered by the regions, which managed, de facto if not yet de jure, to ensure a significant bottom up devolution of power. 35 All federations are designed to constrain central political power, but not all do so with equal effect. In Russia, whatever the nature of the local regimes themselves, regions acted as a check on the central authorities; a type of spatial separation of powers emerged that to a degree compensated for the inadequacy of the vertical separation of power in the constitutional order established in December 1993. In this context, the weakening of this 'fourth pivot' in Russian government (in addition to the classical trinity of the executive, legislative and judiciary), undermined the overall level of democracy in the Russian constitutional order. Russian regionalism emerged as a more effective check, if not democratic balance, on executive authority than the relatively weak legislature and judicimy, but the forms of that regionalism ultimately proved unsustainable. The status of Russia's regions is not clearly defined in the constitution, and there are numerous ambiguities concerning the delineation of competencies between the centre and the regions and over the definition of the sphere of joint authority. There may well be a need now for a constitutional amendment that would clarify the rights and the status of the regions in a genuinely federal system. As Putin argued, the 'management reforms' (upravlencheskie re!orIl1Y, as he called them), are 'not to limit the rights of the regions. Our historical experience proves that super centralisation and the attempt to manage "all and evelything" from Moscow is ineffective ... I am convinced that the real self-dependency

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(samostoyatel'nost ') of the regions is one of the most important achievements of the last decade'.36 However, the net effect of his refOl1TIS was to shift power away from regional authorities. The appointment of regional governors does increase the scope of regional legislatures, but with the threat of dissolution hanging over them they will undoubtedly be careful not to challenge the president. The aim of Put in's reforms of the federal system was to increase the accountability of regional authorities, but the question was: accountability to whom? If to the constitution and the separation of powers, then the reforms can be seen as placing federal relations on a fil1TIer footing; but if to the national executive authorities, then this would be subordination, and that is definitely not within the federal spirit. State strengthening largely took the form of compacted statism, the reassertion of federal authority, which undermined the pluralism enshrined in the principles of federalism. A presidential 'vertical' may well be necessary, but recentralisation tended to become defederalisation. In his book First Person Putin noted: 'From the very beginning, Russia was created as a super centralised state. That's practically laid down in its genetic code, its traditions, and the mentality of its people' .37 Were these policies vis-a-vis the regions now a concrete manifestation of these traditions? The fundamental question is why Putin was able to reassert the prerogatives of the central state so easily, and why the regions did not fight back harder. Putin enjoyed popular support for his reforms, and even regional leaders swiftly acquiesced. In part the answer lies in the realm oflegitimacy. For the republics and some regions, sovereignty came to be equated with federal non-interference in their internal affairs and a degree of economic autonomy. This was less the federal separation of powers than a manifestation of various degrees of regional separatism. As we have seen above, however, instead of developing a sustained legal framework for federalism, under Yeltsin a segmented regionalism emerged reflecting not so much the spatial separation of powers but the fragmentation of political authority. This was a type of situational or instrumental devolution rather than a sustained attempt to work out the federal principles of a federal state. Sovereignty claims by regional leaders, aboveaIrin the republics, gained little support among the non-titular peoples, and even titular groups were divided. The segmentation practised by regional leaders often took authoritarian forms, undermining the rights of citizens and undermining the development of a market economy. The fragmentation of citizenship was particularly resented. Hence, when Putin proclaimed the reassertion of the normative values of the national constitution, the centre was able to ground the reassertion of its authority on constitutional nonns, and thus assumed the cloak of legitimacy. The legitimacy argument was reinforced by Putin's ability to impose a new regime of enforcement' ,38 what we could call the administrative argument. We have discussed above the whole battery of measures imposed by the administration, including the ability to remove and appoint governors, the ability to challenge regional laws, and the use of economic levers. From the first Putin was intent on putting an end to regional separatism, arguing that instead of representing the federal principle of self-management it entailed little more than the

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self-interest of corrupt elites. In asselting that governors are now directly answerable to the president, Putin sought to halt the manipulation of regional elections and politics that had served those elites rather than the interests of the country as a whole. The drift towards the confederalisation of the country was reversed. This was done, however, on the basis of lex rather than jus, the rule by law rather than rule oflaw. 39 Putin's dictatorship of law began to look like dictatorship by law. There were also a whole range of political factors that strengthened the hand of the centre. Above all, with the emergence of United Russia and a national pmty organisation, Putin and his successor were no longer absolutely reliant on regional leaders to deliver the vote in elections. It was now the federal centre that could more effectively manipulate regional elections, and thus regional executives lost their centrality in the political process. There are valid concerns whether the attempt to undermine the powers of regional leaders actually represented an increase in the democratic rights of citizens. The regional authorities had acted as an important 'check and balance' against the overweening power of the centre; now this federal element in the separation of powers was undermined. This was accompanied by the weakening of another aspect of the separation of powers, the independence of the judiciary. Putin's state strengthening was conducted in the llotable absence of a discourse of federalism; and the spirit of federality, accompanied by subsidiarity and the like, was once again lacking. As Kahn notes, 'The federal compact uniquely protects jurisdictional authority over certain issues against reclamation by the central government' .40 The central authorities appear now able to take back and dispose of jurisdictions at will. Devolution is celtainly not the same thing as federalism. The fundamental challenge today is to find a way of reconciling statism and federalism so that the effective governance of the country can be combined with pluralism and local self-management.

Conceptual problems of Russian federalism It is too easy to ascribe the travails of Russian federalism to the political

instrumentalism of national and regional leaders. The country is faced by a number of genuine dilemmas. The segmented regionalism of the 1990s has given way to attempts to assert the 'power vertical' in the 2000s. Both appeared to sacrifice the spirit of federalism to maintain the form of the federation. While American federalism is essential to the system of governance in that country, in Russia it appeared contingent. As Svyatoslav Kaspe puts it, 'In some countries, in some political communities, federalism is their essence, it is the form of politics that structures all political relations. This type of federalism exists in the United States and, it should be added, very rarely elsewhere. In other countries federal practices are purely instrumental, and are seen as little more than a key which opens some necessary locks. Russian federalism is of this kind' .41 This critical distinction between essential and contingent federalism, however, should not obscure some embedded elements of essentialism even in the Russian case.

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Federalism ami state developmellt: Madisoll verslIs AltllllSills One of the main reasons for British scepticism about federalism, in particular when applied to the European Union, it may be argued, is that it approaches the issue through the prism of the American state-building experience. Madisonian federalism was designed to create a system that combined territorial coherence and effective governance, and thus repudiated the fragmentation of the confederal period of 1781-89. The mainstream continental perspective is a very different one, drawing on the Althusian tradition of multiple autonomies ('consociatio consociationum') combining and pooling sovereignty to achieve enhanced security in a broader community. The tension between Madisonian and Althusian federal visions is being played out in the starkest terms in contemporary Russia. For Putin, the aim was to use federalism as an integrative force, as part of a state-building strategy that in many ways was reminiscent of the Jacobins. French experience tells us that that the Jacobin state-building tradition is fundamentally incompatible with federalism. Even the minor degree of autonomy that was granted to Corsica in 2000 provoked the resignation of Jean-Pierre Chevenement from Lionel Jospin's socialist government. Russia's regional leaders took a very different view of things, looking at the question of federal development from an Althusian perspective. The fundamental issue is contrasting understandings of the stmting point of state development. America's essential federalism derives from the attempt to find an effective political fonn to unify a number of pre-existing political units into a new single political community, whereas post-communist Russia began from the opposite starting point - an effectively unitary polity (although the state had all the formal indicators of federalism) that already existed seeking to find an adequate political form to combine three elements: regional autonomy, ethnic diversity and democracy. Both tsarism and the Soviet era were extreme forms of centralised states, although both conceded elements of a federal bargain - in the tsarist case in forms of autonomy to Finland and others; and in the Soviet Union in the formal adoption of the nomenclature of federalism. The Russian Federation is to a degree federal by default, and reflects the global trend towards federal forms of state administration, although the deeper meaning of federalism as a type of political process may well be lacking. Madison and Althusius are locked in struggle for the soul of Russian federalism.

Federalism ami (Iemocracy ill RlIssia Contrary to the view of some of Russia's regional leaders, federalism is not so much opposed to effective state power as the attempt to balance that power with an equally legitimate sphere of regional competency. Thus it would appear that the federal principle is opposed to the concentration of state power, and thus should act as a bulwark against authoritarianism at the national level. Ivo Duchacek stresses that federalism 'can never accommodate fascism or communism and vice versa. Federalism is simply a territorial expression of the core creed of

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demQcracy, that is respect fQr and management QfpQlitical pluralism bQth within and amQng the territQrial cQmpQnents Qf a natiQn-state' .42 The problem in the Russian case is the sQcial nature Qf pluralism itself, which tends to. take axio.lQgical fo.rms (that is, mutually exclusive and nQt susceptible to. bargaining nQrms). Thus Alain Gagno.n's view that federalism do.es no.t eliminate co.nflict but 'allo.ws fo.r co.nflicts to. emerge and be Po.liticized'43 needs to. be mo.dified. It is no.t so. much Po.liticisatio.n that makes co.nflicts susceptible to. reso.lutio.n, but fo.r the cQnflicts to. be channelled into. co.nstitutio.nal fo.rms. Federalism is a theo.ry o.f co.nstitutio.nalism 0.1' it is no.thing. Putin's struggle against segmented regiQnalism SQught to. mQbilise federalism to. reasselt the prerQgatives Qf the central state; but fo.r numero.us co.mmentatQrs that velY reassertio.n undermined the fundamental principles o.f federalism. As a recent study o.f Canadian federalism has stressed, the link between demQcracy and federalism enco.mpasses the co.ncepts Qf inclusiveness, participatio.n and resPo.nsiveness;44 but Qne Wo.uld be hard-pressed to. apply these terms with any substance to. Russia. As far as Putin was co.ncerned, regio.nal leaders were in danger o.f beco.ming veto. players, and this he Wo.uld no.t tQlerate. Their proper sCQpe o.f participatiQn in state management as a co.llective enterprise, ho.wever, remained undefined. . Federal institutiQns played a critical rQle in the early periQd o.f Russia's transitio.n frQm authQritarianism, abQve all in ensuring the fragmentatio.n Qf the o.ld system, but then failed to. sustain the demo.cratic impulse. Instead Qf demQcratisatiQn, autho.rity in Russia became segmented, and in tum Putin's reassertio.n Qf state prerogatives lack a sustained federalising co.mpQnent. Gibso.n no.tes a similar dynamic in the Latin American co.ntext: '[F]ederalism can playa supPo.rtive ro.le in the transitiQn to. demo.cracy and an o.bstructive ro.le in the demo.cratic co.nso.lidatio.n perio.d' .45 Para-collstitutiollalism versus federalism?

The refo.nns to. Russia's go.vernance in the early 2000s added a number o.fbo.dies and institutio.ns that are nQt prescribed in the co.nstitutio.n. These include the seven federal districts, gro.uping Russia's 89 regiQns into. larger units under the tutelage Qf a presidential envo.y; the State Co.uncil, established in September 2000, as a fo.rum fo.r Russia's go.verno.rs, who. were no. Io.nger ex officio members o.f the Federatio.n Co.uncil; and the Public Chamber, established in 2005 to. co.mplement the wo.rk Qf the State Duma. The new dispensatiQn was established as pmt o.fthe attempt to. resto.re what Putin called the 'PQwer vertical'. As Alexa~­ del' Belo.usev no.tes, the co.ncept is neither a juridical term no.r an academiC cQncept, but instead acted as a PQwerful 'Po.liticalmetaphQr' that helped reshape Russian PQlitical space. 46 Fo.r Putin the term was bQth restQrative, as pmt o.f the attempt to. Qverco.me segmented regio.nalism, but it also. cQntained a programmatic element, the assertio.n o.f a particular visiQn Qf the prQper scale Qf state actiQn. When applied to. federal relatio.ns the co.ncept revealed Putin's fundamental lack Qf discriminatiQn in discussing this issue, typically using the terms

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'federal' and 'federatiQn' inter-changeably. As BelQusev no.tes, Putin has introduced the term 'federal functiQn' in discussing the PQwer veltical, but this is also. a term nQt to. be fo.und in the cQnstitutio.n. Paul Go.ble CQmments Qn this as fQllQws: 'Putin's use Qfthis term shQWS that he is no.t interested in prQmQting the develQpment Qf federalism. In the Russian president's mind, the subjects Qf the Russian Federatio.n sho.uld no.t have a specific area o.f resPo.nsibility in which they can make independent decisiQns but rather must serve as executQrs Qf 'federal functiQns', that is, the decisio.ns Qf MQSCo.w' .47 The declining rQle Qf the regio.ns was reflected in their decreased sco.pe fo.r legislative inno.vatio.n, with the State Duma having cQnsidered Qnly seven to. nine per cent o.f the o.f the pro.Po.sals made by the federal subjects between 2002-05, and o.f their 451 pro.Po.sals made in 2004, the Duma ado.pted o.nly two.. Belo.usev no.tes the 'semantic break' that has o.ccurred as a result, with the term 'federal' no.w denQting the' central autho.rities, while the no.tio.n Qf 'federalism' remains vague and lacking substance. 48 A federatioll witltout federalism

Is Russia really a federatio.n in anything but wQrds? Russian federalism is characterised by the paradQx Qf a develo.ped structure Qf federal institutio.ns aCCQmpanied by their deactivisatio.n. DQes this deactivisatio.n mean that federalism as a Po.litical fQrm in the Russian co.ntext has exhausted itself? If SQviet federalism maintained the fictio.n o.f a federal state when the reality was o.f a unitary system, has sQmething similar emerged tQday? Perhaps it is mistaken to. talk abo.ut the end o.f federalism, and instead what is happening is the change in federal fo.rms, away from the 'layer cake' approach to. a rather mo.re mo.ttled, cQmplex and marbled versiQn! At the same time, the co.nstant nego.tiatio.n and renego.tiatio.n o.f the terms o.f the federal co.ntract undermines the sustainability o.f federal institutio.ns. A recent majo.r study argues that o.ne o.fthe basic cQnditio~ fo.r the stability, ifno.t the survival o.f a federatiQn, is the co.nstraining Qf bargaining amo.ng elites, and the failure to. create limits Qn such discussio.ns prQvQked the disso.lutio.n Qf the Czecho.sIo.vak and So.viet federal systems. 49 An effective federal system must align the interests Qf parties and Po.liticians to. align their o.wn interests with the preservatio.n o.f the federatio.n. The key to. the stability o.f a federal system fo.r them is the creatio.n o.f natio.nal Po.litical parties that fight to. influence regio.nal and IQcal Po.litics, and nQt vice versa. This fQrmula, in their view, has wQrked successfully in the United States, Canada, Australia, India and Germany, and we may add, this is precisely what Putin tried to. do. with his reQrganisatiQn Qf the party system from 2001. The incentive structure o.f Russian Po.litics was changed in a way that regio.nal PQlitics was 'federalised', and the earlier dynamic to.wards the regiQnalisatio.n Qf PQlitics was reversed. Russia is beginning to. meet the co.nditiQns set by OrdeshQQk and his co.lleagues fo.r the sustainability o.f a federatio.n. They argue that the natio.nal cQnstitutio.n sho.uld nQt co.ntain a clause permitting secessiQn, and this was Qne Qf the few Po.ints that

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the drafters of Russia's constitution in the early 1990s agreed on. The development of national parties, although tenuous, is beginning to shift regional bargaining away from a permanent confrontation on the constitutional terrain of rights and responsibilities towards an incentive structure revalidating the federal centre as the guarantor Of regional achievements (economic development, ethnic peace, external security, as well as elite perpetuation). Putin's assault on segmented regionalism cannot be taken as a straightforward assault against the federal idea, although the spirit of federalism was indeed undermined as part of the rebalancing of powers between the centre and the regions. Not only were some functions recentralised, but the manner in which these powers were brought back to central government undermined the constitutionalism that is at the heart of federalism. Recentralisation is not necessarily the same as defederalisation. At the same time, Putin's recentralisation was of a distinctive sort. While refusing to allow regional leaders collectively to set themselves up as veto players, Putin's style was consensual, and he brought them on board to support his reforms by allowing them to consolidate power in their own regions. At first this meant the weakening of local self-government and political pluralism. 50 Instead of a federal bargain. Putin's leadership was accompanied by the development of a 'regional bargain', whereby. political support and personal loyalty was obtained at the price of allowing the consolidation of a regional monocentrism of power. In his second term, however, the framework of this regional bargain was reshaped by the shift to the appointment of governors and an enhanced role for regional legislatures. This enhanced role took two forms in particular: a role in the appointment of governors; and the strengthening role of political parties in regional legislatures as a result of changes to the party law (the need for parties to become genuinely national organisations) and electoral legislation (a minimum of half of regional legislators had to be elected on a proportional representation basis). The regional bargain took diverse forms, and the experience for example with the deals made with the leaders in Tatarstan, Bashkortostan and Kalmykia demonstrates that Putin's reform of the federal system cannot simply be described as recentralisation. The terms of the regional bargain changed, with the elimination of regional veto players, but as long as they acknowledged Moscow's authority and demonstrated personal loyalty to Putin, then they were allowed a large degree of autonomy in regional affairs. This was clearly a relativist rather than an absolutist centralism. It should also be noted that Putin deployed the combined forces of various financial-industrial conglomerates (FICs), above all in the energy, natural resources and strategic manufacturing sectors, to undermine the autonomy and insularity of regional leaders and the monopoly position of regional economic actors. Thus, although Putin stressed the 'power vertical' and talked of the establishment ofa single set of rules for the whole country, elements of the old segmented regionalism remained. The political expediency that characterised Yeltsin's dealings with regional elites remained characteristic of Putin's system. This was not constitutional federalism but at best a politicised form of federal relations.

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The early Soviet leaders forged a link between ethnicity and territory, with the latter represented by a hierarchy of republics, ob/asts and krais. Today the Russian Federation is comprised of six different types of unit, three of which are ethnically based - republics, autonomous okrugs and an autonomous ob/ast with a total of 32 of Russia's original 89 units based on some sort of titular nationality or group of nationalities. Since the 2002 census identified 146 nationalities, it is clear that only a minority of ethnic groups were given some institutional identity. The 21 republics, at the apex of the hierarchy of representation, institutionalised ethnicity, in Rogers Brubaker's words, to provide 'a ready-made template for claims to sovereignty'. 51 This was certainly the case for the 15 union republics that became independent in 1991, and a number of Russia's republics sought to extend the 'Grotian moment' to accommodate their aspirations. The fundamental asymmetry enshrined in the fact that ethno-federalism represented only a select few ethnic groups introduces a permanent source of tension into Russia's federal system. It is for this reason that a number of leading politicians seek to break the link between ethnicity and territory. The Eurasianist Alexander Dugin, for example, called for a federation of peoples rather than territories. He argued that the quasistatehood of the national republics posed a threat of disintegration, but at the same time he warned against the creation of a unitary state. From the Eurasianist perspective, Russia's grandeur derived from its rich diversity of ethnic groups (ethnoses in their parlance). The Russian state in his view should be transformed from what he suggested was its current territorial federalism into a new kind of ethno-federalism, based not on territory but on peoples. These should be granted considerable autonomy and legal rights, but there would be no danger of this spiralling into separatism because of their lack of a territorial base. The Tatars served as a good example for him, since two-thirds of this ethnos in Russia lives outside their nominal republic, Tatarstan. He opposed all fonns of nationalism, including that of the Russians, and above all he opposed-the attempt to transform Russia into a nation-state. 52 His arguments at this point echo those of Vladislav Surkov, the deputy head of the presidential administration, who warned that one of the greatest dangers facing Russia (together with 'oligarchical revenge') was nationalism, including that of the great Russian sort.53 Dugin's arguments, of course, are reminiscent of Otto Bauer's idea published in·1905 that the principle of nationality should take priority over territory in a system that became known as 'extraterritorial cultural autonomy'. The idea was repudiated by Lenin and Stalin, and only briefly implemented in Estonia in the 1920s before being taken up in new forms by the Council of Europe in the 1990s, not as an alternative to territoriality but as its complement. Russia adopted a law to this effect in 1996, granting a degree of non-territorial autonomy to its many peoples. 54 These issues came to a head over discussion of the draft version of a new Concept of State Nationality Policy. The new document was initially intended to be an updating of the document adopted in 1996, but in the event turned out to

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be a completely new conceptualisation of the role of nationality in the development of the Russian state. 55 While one of the main aims of the 1996 document was 'to create a federation appropriate for contemporary socio-economic conditions', the new document does not even mention federalism. 56 In conditions of the 'power vertical' the old section on 'Improving Federal Relations' had become redundant, much to the alarm of national elites in Russia's repUblics. The emphasis in the 1996 version on bilateral treaties demarcating functions between the federal centre and the regions was replaced by a new emphasis on the development of civil society and the unification of the Russian (rossiiskii) people as a single nation. The key idea was 'the creation of a single multinational society' accompanied by the 'consolidating role of the Russian people'. The document sought to reduce the role of ethnicity by stressing the creation of a 'civil society' and the formation of a Russian (rossiiskii) people (narod) as a single nation (natsiya), and it referred to non-Russian peoples as 'ethnic groups'. Early versions stressed the integrative role of the (ethnic) Russian nation, but this was moderated after protests across the country and academic criticism. The document talked of the creation of a 'single civic nation', while ensuring 'the unity of the country and the strengthening of the power vertical on the basis of the constitutional order and legality'. Early versions of the Concept contributed to the deactivisation of federalism in Russia, but the debate itself revealed the vitality of the federal principle. Even though discussion of federalism as such had gone, the debate was a good example of a 'marbled' federal process, rather than the layer cake approach of the bilateral treaty process. The debate focused on one of the constituent aspects of Russian federalism, the role of its many national groups, and not the antithesis of federality. In the end, the Concept was referred to the new Public Chamber for discussion. While the aspiration to develop a single civic nation may well be considered laudable, that is only the beginning of the process, and not the end, as implied by the Concept. The Russian (rossiiskii) civic nation is made up of distinctive peoples, and the problem is how to ensure that the development of each is compatible with the harmonious development of all. Multiculturalism as a social project still needs to find a civic counterpart to be institutionalised as a political form. While the Concept raised fears of assimilation through the development of Russia as a nation-state, with ethnic Russians considered a Soviet-type 'elder brother', the alternative view, the promotion of Russia as a state-nation based on federalised etlmicity and regionalism, was undercut by the language of the 'power vertical'. Putin's Jacobinism, although tempered by a regional bargaining process, threatened the development of a federal basis to the problem of national integration. Federalism is a way of achieving what Graham Smith has called the 'politics of accommodation'.57 The problem, however, as we have seen, is that the postcommunist Russian experience of federalism has been less about accommodation than its exploitation to achieve unilateral advantage. The spirit of federalism has been notably lacking, and thus debate over the respective prerogatives of the centre and the regions has been more of a tussle than a bargain. At the same

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time, the relative ease with which Putin was able to roll back not only segmented regionalism but also the more extensive claims for autonomy by some of the more significant nationalities raises fundamental questions about state development. Contrary to those who make the 'slippery slope' argument, that one concession to an ethno-territorial groups leads to demands for more and ultimately to secession,58 we need perhaps more attention on the factors that help keep a state together. Centrifugal forces are still running strong in Russia, in particular in the North Caucasus, but they have on the whole been constrained.

Conclusion Segmented regionalism was characterised by the erosion of constitutional principles of a single legal and economic space. Regional authorities took advantage of the weakness of the Russian state under Yeltsin to develop a highly variegated set of policies and political regimes. The concept of asymmetrical federalism disguised the way that national norms guaranteeing individual rights, legal standards and the development of a national market were undermined by strong regional executives, often little constrained by their own representative assemblies. It was this segmented regionalism that Putin sought to reverse, but his attempt to reconstitute the state has been tom between compacted and more pluralistic forms of statism. The struggle against segmented regionalism could easily undermine the development of federalism, and in taking the form of traditional centralism would threaten the development of Russian democracy.

Notes 1 Robert Jackson, 'Sovereignty in World Politics: a Glance at the Conceptual and Historical Landscape', Political Studies, Special Issue, Vol. 47, No.3, 1999, p. 434. 2 S. M. Henkin, 'Federalizm: opyt rossiiskii i zarubezhnii', Polis, No.2, 2005, p. 179. 3 M. Kh. Farukshin, Federalizm: teoreticheskie i prikladnye aspekty (Moscow, Yurist, 2004), p. 130. 4 Yu. L. Shul'zhenko, Iz istorii Jederatsii v Rossii: monarkhicheskii period (Moscow, Institute of State and Law, RAN, 2005). 5 He argued that it was wrong to argue 'that federal forms are adopted as a device to guarantee freedom. Numerous writers on federalism, so many that it would be invidious to pick out an example, have committed this ideological fallacy'. William H. Riker, Federalism: Origin, Operation, Significance (Boston, Little, Brown, 1964), p. 13. In his opinion, 'The federalism of the Soviet Union ... is as clearly the product of the two conditions [of the federal bargain] as are the United States and German federalisms', p. 38. 6 Jeffrey Kahn, Federalism, Democratization, and the Rule of Law in Russia (Oxford, Oxford University Press, 2002), pp. 2-3. 7 Donna Bahry, 'The New Federalism and the Paradoxes of Regional Sovereignty in Russia', Comparative Politics, Vol. 37, Part 2, January 2005, pp. 127-46, at p. 127. 8 For a useful discussion, see S. D. Valentei, Federalizm: rossiiskaya istoriya i rossiiskaya real'nost' (Moscow, Institute of the Economy, Centre for the Socio-Economic Problems of Federalism, RAS, 1998). 9 This is argued, for example, by James Hughes, 'Moscow's Bilateral Treaties Add to Confusion', Transition, 20 September (1996), pp. 39-43.

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10 The 1993 constitution gives some basis for this, with Article 5.2 proclaiming 'A republic (state) has its own constitution and legislation. A krai, oblast, city of federal significance, autonomous oblast or autonomous okrug has its own charter and legislation' . 11 Richard Sakwa, 'The Republicanisation of Russia: Federalism and Democratisation in Transition 1', in Chris Pierson and Simon Tormey (eds), Politics at the Edge, The PSA Yearbook 1999 (Basingstoke, Macmillan, 1999), Chapter 16, pp. 215-26. 12 In his positive evaluation of democratisation in the region, Petro stresses the need to take into account the cultural and symbolic dimension of politics, Nicolai Petro, Crafting Democracy: How Novgorod has Coped with Rapid Social Change (Ithaca, NY, Cornell University Press, 2004). 13 Peter Kirkow, Russia's Provinces: Authoritarian Transformation versus Local Autonomy? (Basingstoke, Macmillan, 1998), p. 125. 14 A theme explored by Kathryn Stoner-Weiss, Local Heroes: The Political Economy of Russian Regional Governance (princeton, NJ, Princeton University Press, 1997). 15 izvestiya, 4 November 1997. 16 See Neil Robinson, 'The Global Economy, Reform and Crisis in Russia', Review of international Political Economy, Vol. 6, No.4 (Winter 1999), pp. 531-64. 17 Kommersant daily, 31 October 1997. 18 For example, in the case of Gorno-Altai, Rossiiskaya gazeta, 21 June 2000, pp. 5-6. 19 Vitaly Kamyshev, 'Siberian Separatism Today: A Real Danger or an Imaginary One', www.kreml.orgfopinonsfI12135734?mode=print. 20 Jan-Erik Lane and Svante O. Ersson, European Folitics: An introduction (London, Sage, 1996), p. 100. 21 Vladimir Putin, 'Otkrytoe pis'mo Vladimira Putina k rossiiskim izbiratelyam', izvestiya, 25 February 2000, p. 5; www.putin2000.ruf07f05.html. Italics in original. 22 Alan James, 'The Practice of Sovereign Statehood in Contemporary International Society', Political Studies, Vol. 47, No.3 (1999), Special Issue, p. 463. 23 For details, see Tomila Lankina, Governing the Locals: Local Self-Government and Ethnic Mobilization in Russia (Lanham, MD, Rowman & Littlefield, 2004); Tomita Lankina, 'President Putin's Local Government Reforms', in Peter Reddaway and Robert W. Orrtung (eds), The Dynamics of Russian Politics: Putin's Reform of Federal-Regional Relations, Vol. 2 (Lanham, MD, Rowman & Littlefield, 2005). 24 Cameron Ross, Federalism and Democratisation in Russia (Manchester, Manchester University Press, 2002), p. 9. 25 Peter J. Stavrakis, 'Introduction', in Peter J. Stavrakis, Joan DeBardeleben and Larry Blank (eds), Beyond the Monolith: The Emergence of Regionalism in Post-Soviet Russia (Baltimore, Johns Hopkins Univestity Press, 1977), p. 4. 26 izvestiya, 20 July 2005. 27 Elena A. Chebankova, 'The Limitations of Central Authority in the Regions and the Implications for the Evolution of Russia's Federal System', Europe-Asia Studies, Vol. 57, No.7, November 2005, pp. 933-49, at p. 938. 28 Chebankova, 'The Limitations of Central Authority in the Regions', p. 946. 29 Nezavisimaya gazeta, 14 September 2004. 30 Aleksandr Ship kin, 'Altai perebral suvereniteta', Rossiiskaya gazeta, 10 June 2000, p.3. 31 East-West Institute, Russian Regional Report, 5:25, 28 June 2000. 32 This at least was the view of Zufar Yenikeev, a deputy to the Bashkortostan State Assembly and Russia's representative to the European Chamber of the Regions, EWI, Russian Regional Report, Vol. 5, No. 25, 28 June 2000. 33 Preston King, Federalism and Federation (London, Croom Helm, 1982), p. 77. 34 Graham Smith, 'Mapping the Federal Condition', in Graham Smith (ed.), Federalism: The Multiethnic Challenge (London and New York, Longman, 1995), p. 7. 35 Kathryn Stoner-Weiss, 'Central Weakness and Provincial Autonomy: Observations

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36 37

38 39 40 41 42 43

44 45 46 47 48 49

50

51 52 53

54

55 56 57 58

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on the Devolution Process in Russia', Post-Soviet Affairs, Vol. 15, No. I (1999), pp.87-I06. Interview with Welt am Sontag, June 2000; www.president.kremlin.rufeventsf38.html. Vladimir Putin, First Person, with Nataliya Gevorkyan, Natalya Timakova and Andrei Kolesnikov, translated by Catherine A. Fitzpatrick (London, Hutchinson, 2000), p. 186. The term is Bahry's, 'The New Federalism', p. 138. Kahn, Federalism, Democratization, and the Rule ofLaw in Russia, p. 54. Ibid. p. 41. Radio Svoboda (Liberty) interview, II October 2005. Ivo D. Duchacek, The Territorial Dimension of Politics: Within, Among and Across Nations (Boulder, CO, Westview Press, 1986), p. 96. Alain Gagnon, 'The Political Uses of Federalism', in Michael Burgess and Alain-G. Gagnon (eds), Comparative Federalism and Federation: Competing Traditions and Future Directions (London, Harvester Wheatsheaf, 1993), p. 18. Jennifer Smith, Federalism (Vancouver, BC, UBC Press, 2004). Edward L. Gibson (ed.), Federalism and Democracy in Latin America (Baltimore, MD, Johns Hopkins University Press, 2004), p. 23. Aleksandr Belousov, 'Vertikal", www.russ.ru/comments/l03251448?mode=print. Paul Goble, 'Window on Eurasia: Putin's "Power Vertical" Taking Federalism out of the Federation', Johnson's Russia List, 9304/17, 26 November 2005. Belousov, 'Vertikal". Mikhail Filippov, Peter C. Ordeshook and Olga Shvetsova, Designing Federalism: A TheOlY of Self-Sustaining Federal institutions (Cambridge, Cambridge University Press, 2004). This is analysed in Kimitaka Matsuzato (ed.), Fenomenon Vladimira Pulina i rossiiskie regiony: pobeda neozhidannaya ili zakonomernaya?, Slavic-Eurasian Studies, Vol. I (Sapporo, Slavic Research Center, Hokkaido University, 2004). Rogers Brubaker, Nationalism Reji-amed: Nationhood and the National Question in the New Europe (Cambridge, Cambridge University Press, 1996), p. 23. Alexander Dugin, 'Unitarnoe gosudarstvo', Rossiya, No.4 (956), 2-8 February 2006. Vladislav Surkov, addressing students of the United Russia education centre on 7 February 2006, 'Suverenitet - eto politicheskii sinonim nashei konkurentosposobnosti', Komsomol'skaya pravda, 7 March 2006. Bill Bowring, 'Austro-Marxism's Last Laugh?: the Struggle for Recognition of National-Cultural Autonomy for Rossians and Russians', Europe-Asia Studies, Vol. 54, No.2, 2002, pp. 229-50. A summary of the revised version of the document was published in Kommersant daily, II October 2005. Nataliya Gorodetskaya, 'Natsional'naya politika: narodu napisano', Kommersant daily, II October 2005. Graham Smith, 'Mapping the Federal Condition', in Graham Smith (ed.), Federalism: The Multiethnic Challenge (London, Longman, 1995), p. 7. The question is examined by Viva Ona Bartkus, The Dynamics of Secession (Cambridge, Cambridge University Press, 1999).

Executivefederalism in Canada

11 Executive federalism and the exercise of democracy in Canada I Alain-G. Gagnon

Executive federalism is an institution that has had equal numbers of supporters and detractors in Canada. The way its merits are weighed varies considerably between English-speaking and French-speaking specialists, but also within the two linguistic groups. Executive federalism is associated 2 with many achievements, including greater mobility for people among Canadian provinces, improvements to the health care system, the establishment of two pension plans (one in Quebec and the other applying to the rest of Canada), improved federalprovincial relations and the fight against regionai disparities. From a Quebecois point of view, executive federalism has helped to reduce tensions between Quebec City and Ottawa, for example, under Prime Minister Lester B. Pearson, it was made possible to withdraw from certain federal programs and receive financial compensation. Executive federalism also made it possible for Quebec to play a major role in immigration under the governments of Pierre Elliott Trudeau and Brian Mulroney. Note that the latter demonstrated greater openness than his predecessor by according Quebec the status of a participating government in the Francophonie. Over the years, executive federalism in the decision-making process has also led to considerable tension between the two orders of government, each of which being eager to maintain its entire jurisdiction.3 Each pmty seeks credit for its actions and tries to depreciate the real participation of the other order of government in implementation of various measures. Over time, two visions of power sharing have taken form in Canada: one favours central government domination of the federation's member states, while the other encourages the provinces' leadership.4 This chapter is structured around three points. First, we review the notion of executive federalism and its utility in managing political conflicts. Second, we assess the greatest challenges facing executive federalism at a time when states are gradually coming to terms with globalization. s Third, we examine the counter-hegemonic potential of executive federalism for minority nations. This is relevant as many contemporary states seek to adopt increasingly centralized institutions on the grounds that they are needed to meet the challenge of globalization, but at the same time silently edify monist national projects and depreciate the worth of national diversity as a public good that provides people with diverse, authentic contexts in which they can make choices.

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Although executive federalism could certainly undergo significant democratic refinements, I do not feel that it constitutes a serious threat to democracy. On the contrary, I make the argument in this chapter that it deepens our understanding of democracy. More significantly and disturbingly, it is the emergence ofmonistic identity policies in a number of contemporary states, particularly Canada, that confirms that in some cases political leaders have a flagrant disregard for the social and cultural foundations of the polity. This requires immediate, sustained attention because it undermines political actors' trust in their own institutions and shakes the foundations that are meant to unite the polity and give it relevance.

Conceptual considerations and historical developments Students of federalism have employed an impressive number of definitions to describe its Canadian application. Many adjectives have been utilized to portray the types of interactions that take place between executive bodies in the intergovernmental realm. Whether Canadian federalism is described as colonial, imperial, classical, administrative, cooperative, collaborative, constitutional or competitive,6 it remains that the major players in the management of the federation have virtually always come fi'om the executive branches of the various governments. The epithets all reflect distinct types of federalism from different periods. For example, Richard Simeon and Ian Robinson show that executive federalism gradually replaced administrative federalism in the 1950s and 1960s as public servants were pressed to find relevant answers to growing western provincialism, Quebec nationalism, and regional and class inequalities. As a result, Canada experienced a burst of state expansion in that generally affluent period. The challenges politicized intergovernmental relations and led to wrangling between the member states of the federation and the central government, suggesting that the BNA Act was showing its age. Simeon and Robinson write that, in the 1960s, the perceived need for constitutional change meant that federal-provincial relations became an intensely political, as opposed to a largely technical and bureaucratic, process. Federalism had to adapt to these new demands and, in so doing, the era of executive federalism was born.7 I agree with Simeon and Robinson that Canadian federalism has evolved considerably over the years, but feel that it is a mistake to oppose administrative and executive federalism as they do. Administrative federalism is simply another form of executive federalism, and the same can be said about the categories of colonial, imperial, classical, administrative, cooperative, constitutional, collaborative and competitive federalism that have been employed to depict federalprovincial relations. These are simply variants of executive federalism, not institutionally distinct models that embody shifts in the fundamental features of Canadian federalism. In other words, executive federalism is a permanent feature

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of Canadian politics. Governance of the Canadian federation has always been through the executive institutions of federalism. The establishment of the Canadian federation in 1867 was achieved with no popular involvement; it was the result of elite accommodation rather than of a desire to overthrow a political regime. Reg Whitaker has remarked that in sharp contrast to the drafting of the American, French and German constitutions, the BNA Act of 1867, Canada's founding document, is "almost entirely innocent of any recognition of the people as the object of the constitutional exercise" and constitutes "an arrangement between elites, particularly between political elites."8 This demarcates the Canadian version of federalism from the Americanstyle people's constitution, as Peter Russell has noted. 9 This elite-driven vision of federalism has clearly influenced the way Canadians have imagined the relationships at the origin of the pact and how they have tried to pursue them since. Until World War II, the two orders of government operated in relative isolation. Aside from during the Great Depression of the 1930s, there was little need to consult and establish joint priorities. A classical version of federalism based on a watertight approach to jurisdictions had taken hold in the country. However, when cooperation was necessary, such as in areas of shared jurisdiction like immigration and agriculture, executive branches. met to address potential conflicts. An example ofthis is the first intergovernmental conference in 1868.10 During the first decades of Confederation, the central government tended to pursue a nation-building strategy best illustrated by implementation of the National Policy of 1879, of which the three pillars were immigration, the construction of a railroad and a tariff policy that guaranteed merchants a captive market. This was compounded by the inherited imperial statute and a colonial political culture. Throughout the twentieth century, Britain's powers (for example, the power to appoint lieutenant governors and the Governor General, to resolve disputes between members of the federation and to determine foreign policy) were devolved to the central government. II This made provinces secondclass partners. Formal powers of disallowance and reservation also bolstered the weight of the central government. 12 Only nine First Ministers' Conferences were held before the Depression in the 1930's and "almost all of those held before World War I were interprovincial conferences with no significant federal participation."13 Although this period saw little in the way of federal-provincial relations, the central government's nonparticipation was a conscious decision by the Executive, and strengthened interprovincial relations. The "watertight compartments" model of federalism began to be questioned more frequently during the first two decades of the twentieth century, and the model was said to be incapable of dealing with the crisis triggered by the Great Depression of the 1930's.14 From then on, contact between the central government and the provinces became more frequent and formalized. ls Executive federalism was becoming more apparent. With the development of the welfare state, the situation started to evolve more quickly as public servants began exchanging more and more information. The ensuing period witnessed the rise of modem bureaucracy in Canada and the

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expansion of governments' regulatory functions. The focus turned to areas of policy such as telecommunications, transportation, energy, natural resources development, and consumer and environmental protection, which generally cut across provincial and federal jurisdictions. 16 Governments were becoming interdependent. Moreover, development of the welfare state required greater involvement from the provinces since health, education and transportation, all of which are under exclusive provincial jurisdiction, are crucial to economic development strategy. There was a need to better define the roles and responsibilities of every order of government as the bureaucracy expanded. By the early 1970s, the machinery of executive federalism was well in place, and specialized departments for managing intergovernmental relations had been set up to attend to the needs of the central government and the member states of the federation. First Ministers' Conferences were becoming a major tool in the management of federal-provincial relations. Donald Smiley was one of the first political scientists to make use of the concept of executive federalism. According to Smiley, it refers to "the relations between elected and appointed officials of the two orders of government in federal-provincial interactions and among the executives of the provinces in interprovincial interactions."I? The decision-making process primarily involves cabinet members and senior bureaucrats in program and public policy establishment. In the course of related discussions, key issues of governance are raised since the executives are accountable to their electorates through their legislatures. Stephan Dupre later refined this definition by removing interprovincialism from the definition. According to Dupre, these relations should be depicted as expressions of "executive interprovincialism" because they are more often than not responses to executive federalism. Thus, executive federalism refers to intergovernmental relations that involve the two orders of government with a view to enabling federal and provincial executives (first ministers, cabinet ministers and appointed officials) to control their respective political arenas. Today, executive federalism is an institution that is-familiar to all observers of Canadian politics. It has also been a key feature in the elaboration of a series of constitutional proposals and economic arrangements, including the patriation of the Canadian Constitution from Britain in 1982, the Meech Lake Accord (1987-1990), the Charlottetown Accord (1992), and the Agreement on Internal Trade (1994). In addition to providing a framework for negotiations between federal and provincial government officials, executive federalism has played a leading role in many other circumstances. Ronald Watts has described the process very aptly: The importance of this pattern of executive federalism has stemmed not only from the frequency with which first ministers, ministers and senior officials have interacted, but also from the critical role that this interaction has played: first, in the range of programs and services provided by Canadian governments to their citizens, second, in the discussion of economic policy

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A.-G. Gagnon including trade relations with the United States, and third, in the revision of the Constitution itself, most notably in the period leading up to the Constitution Act, 1982, and again in producing the Constitutional Accord of 1987. 18

More recently, we have seen executive federalism at work in Canada with the implementation of the Social Union Framework Agreement (1999), the Health Accord (2004) and the Accord on Equalization (2004). First ministers, cabinet ministers, and senior officials of the two orders of government meet frequently to iron out differences. According to Marc-Antoine Adam, in 2003 as many as 117 meetings involving these different authorities took place,19 confirming that executive federalism continues to be a key institution in management of the Canadian federation.

The main challenges facing executive federalism Thirty years ago, Donald Smiley, a renowned specialist of Canadian federalism, delivered a strong attack against executive federalism, and his criticism is still echoed today. Smiley identified six primary defects of executive federalism: it (a) leads to undue secrecy in management ofpubli~ affairs, (b) produces a very low level of citizen involvement in the decision-making process, (c) renders public servants relatively unaccountable to legislatures and the general public, (d) creates obstacles to public examination of government policies, (e) augmented governments' interventions, and (t) creates conflicts between orders of government that concern only the interests of politicians and bureaucrats. 2o Smiley's criticism came at a time when executive federalism was generally defended by other Canadian specialists in the field. Smiley added his voice to that of left-leaning intellectuals, who considered that executive federalism did not do enough for workers and people in general. John Potter's work, which was done in the 1960s but brought back into the limelight in the 1970s and 1980s by a number of Canadian specialists of political economy, was highly critical of executive federalism. He inspired the most progressive segments of Canadian society to oppose it, and claimed "federalism ... has meaning only for politicians and senior civil servants who work with the complex machinery that they have set up, as well as for the scholars who provide a continuing commentary on it, but that it has very little meaning for the bulk of the population.,,21 Porter went so far as to suggest that in Canada provincial autonomy was equivalent to "federal usurpation,'>22 thus providing ammunition for adversaries of classical federalism. This strengthened the opposition of those who believe that discussions concerning the division of powers are a waste of time and energy.

Emergellce of II system What accounts for Canada's strong tradition of executive federalism? In a 2004 book entitled Federalism, Jennifer Smith provides four reasons that are worth highlighting. First, for Smith, "the provinces are much stronger players in the

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system than those who framed the Constitution ever anticipated.,,23 Their strength derives from the fact that the prominence of t,he jurisdictions for which they are accountable, namely, health care, education and transportation, has grown significantly over the years. Their responsibilities in these fields lead the provinces to negotiate with the central government for more tax dollars since Ottawa has ampler access to tax revenues. Second, even though there is a second house that could play a central role in representing the provinces in Ottawa, the Senate's function has been limited to one of "sober second thought about legislative proposals sent to it by the House of Commons."24 As a result, according to Smith, "nobody within the federal government is designed to represent the provinces or speak for them in federal councils, which leaves the provincial governments as the singular agents of provincial concerns, not just in the provincial capitals but at the federal level as well."25 In other words, intra-state federalism in the Canadian context has never been very successful, and this in turn has favoured interstate federalism. The third reason identified by Smith suggests that the Canadian parliamentary system contains the seeds of interstate federalism. It is well-known that in parliamentaty systems the executive branch is dominant. "The engine of the system is the political executive, meaning the prime minister (or premier) and the cabinet, who together almost always dominate the legislature.,,26 The nature of the Canadian party system, stressing party discipline, contributes to buffer the governing patty from serious challenges emanating from the legislature as its leader knows that s/he can count on its members' support when there is a majority government. As such, interstate federalism cannot be considered the most democratic feature of the system, considering that it allows the executive to escape its obligation to be accountable to the legislature. To these institutional factors, Smith adds a cultural explanation for the strength of executive federalism in Canada. In essence, established rules, conventions and traditions have always resulted from "the dominance of governmental elites in decision making, and public deference to the results.'>27 Admittedly, there have been some direct appeals to Canadians over the years, for example, with regards to Conscription in World Wars--land II, and the Meech Lake and Charlottetown Accords (since the provincial elections in New Brunswick and Manitoba put the issues to the voters), but Canadians seem still inclined to delegate authority. Smith's assessment of the strength and persistence of executive federalism in Canada is compelling. However, it can account neither for the highs and lows experienced by executive federalism over the years, nor for its rebound following World War II. A fifth aspect, namely that of government requirements, has to be taken into account to explain why executive federalism has been strengthened. The emergence and consolidation of the welfare state in Canada has meant that governments can no longer work in isolation from one another. Government policies, at one level or another, have come to affect the objectives of other orders of government. As the central government has expanded its activities in various policy fields, clashes have become more frequent, especially between the governments in Ottawa and Quebec City.

238 A.-G. Gagnon The Government of Quebec has always assumed special responsibility toward the francophone population in Canada, and has demanded financial assistance and powers to provide its citizens with opportunities equal to those of Canadians outside Quebec. Over the years, the Quebec government has sought new funding and additional powers and staunchly opposed federal encroachments as it has built a modern welfare state of its own. The last half-century in Canadian politics has seen politicization of the division of powers, which has led to several conflicts between prime ministers and premiers, with the fonner seeking to build an integrated and at times homogeneous Canada, and the latter believing in a diverse country in which each province provides a distinct context of choice for its inhabitants. Executive federalism emerged long before the era of government interdependence. It was present at the time of Confederation and will be with us for the foreseeable future. Executive federalism has assisted political elites in managing contentious issues. It is indeed hard to imagine that executive federalism might vanish one day, when we consider (1) the presence of strong, autonomous provinces that are in charge of major policy sectors; (2) a Westminster-style parliamentary system; (3) a party system that is essentially confederal in nature and stresses party discipline; (4) a political culture that has tended to welcome a topdown approach to politics; and (5) strong interdependence among governments, which requires interaction.

ExeclItive federalism lIIuler stress Until the 1970s, political stakeholders did not see executive federalism as controversial. In political circles and the population at large, the principles of elite accommodation were widely accepted. 2s The Canadian federal union was considered to be the affair of political elites coming together as brokers without the direct involvement of the people in management of the state. This was viewed as a legitimate process and a practice to be advocated. Following the election of the Patti Quebecois (PQ) in November 1976, this approach to Canadian politics began to be challenged. Inspired by high democratic standards, PQ leader Rene Levesque promised to hold a referendum on sovereignty-association if successful in the 1976 provincial election. Levesque later lived up to his promise by holding a referendum on 20 May 1980. As Alain Noel has pointed out, "for the first time in Canadian history, the people were considered sovereign in constitutional matters."29 We were moving from elite accommodation to a new era in which citizen involvement would be the norm. Immediately following the defeat of the Quebec nationalists in the 1980 referendum, Pierre Elliott Trudeau, Canada's Prime Minister at the time, initiated the process of patriating the Canadian constitution from Britain. The Trudeau Liberals took advantage of the nationalist defeat to go forward with patriation, adding a complex amending formula and entrenching a Charter of Rights and Freedoms. In the process, disagreements among the member-states of the federation as well as between those states and the central government were arising as

Executivefederalism in Canada 239 never before. Initially, a common front of eight provinces opposed the central government's plan to patriate unless an agreement was reached with respect to power-sharing and an amending formula, and limitations were set on federal spending power. Quebec played a key role in the process that led to a coalition of eight provinces, known as the "Gang of Eight," that agreed to hold a finn shared position. In the meantime, the central government launched its own "endeavour to legitimize its proposals after a stalemate with the provinces arose."30 The objective was clear, namely to use the "people" and special interests to give the central government leverage in negotiations with the provinces. This strategy proved popular with Canadians because it gave citizens and special interests more prominence in the political arena at a time when rights consciousness was on the rise. When negotiations between the provinces and the central government reached an impasse on November 4, 1981, Pierre Trudeau suggested to the premiers the possibility of holding a pan-Canadian referendum. This strategy was intended to isolate the Quebec Premier and thus break the common front. When his plan seemed to be in trouble at the negotiating table, Trudeau mused: "How do we resolve this [stalemate]. May be we should agree to keep talking and hold a referendum in two years time? There, that's a new offer.... Surely a great democrat like yourself [Levesque] won't be against a referendum?"31 As expected, Levesque agreed with Trudeau's suggestion. This was interpreted by the other members of the Gang of Eight as a Quebec defection since they were opposed to such a scenario. The provincial coalition collapsed, and the rest is history. The proposed Canadian referendum never took place, all the premiers with the exception of Levesque agreed to the central government's package deal, and patriation occurred shortly thereafter. 32 The fact that negotiations between federal and provincial leaders took place behind closed doors irritated citizens and groups, not least of which Aboriginal leaders, who felt that such a lack of transparency undermined the democratic process. However, this did not prevent Ottawa from proceeding with patriation. The central government undermined executive federalism as a political resource by addressing Canadians directly instead of inviting provincial leaders to act as go-betweens. During this intense period of constitutional negotiation in Canada, political elites played Russian roulette with established federal practices. The conventional rules that fortified executive federalism were bent frequently. This process increased Quebec's isolation in the federal-provincial game of politics. It opened a breach separating Quebec from the other provinces, and this had major repercussions for Quebec during the Meech Lake (1987-90) and Charlottetown (1992) constitutional negotiations. With a view to correcting Quebec's exclusion in 1982 at the time of patriation, Prime Minister Brian Mulroney launched a program to bring Quebec back into the constitutional family with "honour and enthusiasm." This led to the signing of the Meech Lake Accord in 1987 by all of the first ministers of Canada, thereby reconnecting with the convention of executive federalism in intergovernmental matters. Political leaders acted as representatives of the people, as

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they had always done in constitutional matters. However, as is clear from the immediate aftermath of the failed accord, the leaders had underestimated the force of the Charter culture that had taken hold since 1982. 33 What emerged was a growing feeling that citizens' groups and socio-cultural, non-territorial actors had the right to be heard in the process, and that the "people" could no longer be taken for granted when political leaders wanted to reach constitutional arrangements. Alan C. Cairns is surely the one who has best encapsulated the 1982 patriation's implications for constitutional politics in Canada, and its lasting impact on executive federalism: The Chatter brought new groups into the constitutional order or, as in the case of aboriginals, enhanced a pre-existing constitutional status. It bypassed governments and spoke directly to Canadians by defining them as bearers of rights, as well as by according specific constitutional recognition to women, aboriginals, official-language minority populations, ethnic groups through the vehicle of multiculturalism, and to those social categories explicitly listed in the equality rights section of the Charter. The Charter thus
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the obligation to consult "the people" directly.37 As Kathy Brock reminds us with respect to the Charlottetown Accord: Negotiations between governments were preceded by the most extensive round of public consultations on the constitution ever held in Canada.... Although negotiations were conducted in private between elected and appointed government officials, the process appeared more deliberate and open .... The talks were more inclusive and representative, involving representatives from the federal, provincial, and territorial governments and the four major national Aboriginal organizations. Women's organizations were consulted during the talks as well. 38 This new constitutional round was meant to correct some of the undeniocratic, unrepresentative, elitist and secretive features that were said to exist at the time of the negotiations that led to the patriation of the Constitution in 1982 and to the Meech Lake proposals in 1987. The idea that was gaining prominence was that governments required a substantial popular majority before making any changes to the Constitution. If Meech Lake failed due to insufficient popular support, Charlottetown went down due to an excess of consultative process as there was an attempt to pull in both governmental and societal interests. 39 With the introduction of societal interests at large, the difficulty of reaching a decision had increased tenfold. The period stretching from Meech Lake to Charlottetown was particularly difficult for proponents of executive federalism in Canada. Not only were the spokespersons of social groups on the defensive because they felt that any move to reconcile with Quebec was a threat to recently achieved gains, but the federal Liberals had abandoned executive federalism altogether, and were taking advantage of the political goodwill they had won in the eyes of the new recently mobilized groups and further imposing their domineering vision of federal ism. With the election of federal Liberals under Jean Chretien in 1993, constitutional changes by constitutional means were discontinued. Even though their predecessors had failed to bring Quebec back in the constitutional family, the federal Liberals reverted to a phase of "politics as usual" stressing job creation and good government. According to Harvey Lazar, the new strategy was aimed at "dealing with issues, one at a time, employing legislative or administrative solutions, on the basis of the concrete circumstances of each file."40 A certain form of executive federalism, based on an ad hoc strategy, was resurrected, and citizens as well as societal groups were kept at bay for the time being as the central government attempted to impose indivisible political leadership. Constitutional issues were presented from a technical angle rather than as fundamental questions concerning community relations. The Social Union Framework Agreement provides the best illustration of the emerging trend in deploying a centralizing vision through non-constitutional means.41 Following major unexpected cuts in federal transfers to the provinces in

242 A.-G. Gagnon the 1995 federal budget, provincial capacity to intervene was severely undermined. 42 The premiers expressed their frustration in a brief tabled in December 1995 by the Ministerial Council on Social Policy Reform and Renewal, in which they advocated management of the federal union "on a true partnership basis."43 The Quebec government added its voice to make the premiers' statement unanimous. At the end of the exchanges between the orders of government, the federal government completely revamped the premiers' proposal to substitute its own interpretation and impose its own conditions. Yet, in February 1999, all premiers, with the notable exception of Quebec, agreed to the new deal even though their claims had not been respected and the spirit of federalism had been . betrayed. 44 From 1995 until January 2006, that is until the election of the first Harper government, "the role of the provinces seems to have been largely confined to saying 'yes' or 'no' to the amount [of money] and negotiating for enhanced flexibility on how it might be spent."45 Ottawa continued to impose its own conditions on provincial governments and took a "take it or leave it" approach to intergovernmental relations. Such a domineering approach to federal-provincial relations certainly further alienated provinces from the central government, and contributed to the defeat of the federal Liberals pn January 23, 2006 and their replacement by Stephen Harper's Conservatives, known for their more favourable stance with respect to provincial rights. In the meantime, provincial governments, under the leadership of Quebec, launched the Council of the Federation to counteract Ottawa's centralizing thrust under the Liberals. On December 5, 2003, provincial and territorial leaders signed the Founding Agreement with a view to open a new chapter in intergovernmental relations in Canada. It is too early to tell how successful this initiative will be, but we do know that the premiers have identified a series of shortcomings in Canadian federalism. As Marc-Antoine Adam notes, up to this point, the focus has been "on the equal status of Canada's two orders of government, neither subordinate to the other, and on the need to respect the Constitution and the division of powers as well as the diversity within the federation."46 After a full decade of unilateral federalism under Chretien's Liberals (19932004), a generally disappointing period under Paul Martin's Liberals, in which there was a failure to accommodate provincial demands, the federal elections held in January 2006 suggested the beginning of a new era in federal-provincial relationsY

When majority nationalism trumps executive federalism By all accounts, on a theoretical plane, shortcomings associated with executive federalism in Canada have little to do with its perceived democratic deficiencies. The greatest problems of representation linked to a system of executive federalism arise in the special context of a one-nation conception of a country. Criticisms of executive federalism too often veil manifestations of majority nationalism, which is precisely what the institution of federalism is meant to preclude.

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We have already examined some of the challenges to executive federalism during the patriation debates in 1981-82. Most of the process involved federalprovincial actors at a time when executive federalism was considered a defining feature of Canadian federalism. It must be recalled that Trudeau threatened to call a referendum after negotiations between the provincial governments and Ottawa had reached an impasse. Trudeau denounced the institutions of executive federalism at the time, suggesting that they were unrepresentative of the general will of citizens and that there was an urgent need to eliminate a growing democratic deficit in Canada. Once he had his way, Trudeau did not call a referendum to settle the issue. Trudeau was more interested in breaking the provincial governments' common front than in giving a voice to Canadians. Toward the end of the process, his strategy succeeded, and the coalition collapsed. Ironically; Pierre Trudeau, the very person who had challenged the legitimacy of executive federalism, accepted to be the godfather of a constitutional accord reached at night behind closed doors between executive branches, and without any Quebec representation. This inevitably caused unprecedented friction with the Government of Quebec. 48 For Trudeau, only Ottawa could speak on behalf of all Canadians. He believed he was the only political leader who had a pan-Canadian mandate and could act as a true representative of the national interest of Canada. From his point of view, whether the system was federal or not, there could be only one demos and it would have been a grave constitutional error to admit that the provinces could present themselves as the spokespersons of other demoi. 49 This way of seeing things led to clashes between the member states of the federation and the central government because both orders are legitimate representatives and speak, at different levels, on behalf of their respective communities. Andre Burelle, a former speech-writer and long-time advisor to Trudeau, summarized the emerging monistic vision of Canada that grew in popularity under Trudeau's federal Liberals beginning in the 1960s and that has never lost ground: This vision, promoted by Trudeau, Chretien and company, is that of a civic 'one-nation' Canada, subject to a 'national' charter of rights and freedoms, allergic to the collective rights of the country's founding peoples, and served by a federal system that pits thirteen 'junior' governments against one 'senior' government responsible for ensuring that the 'national' interest prevails over the parochialism of the provinces and territories. In this conception of Canada, 'national sovereignty' belongs entirely to the 'Canadian people' who give Ottawa the exclusive responsibility of ensuring the greater good of the nation and guaranteeing equal rights to citizens across the country.50 Trudeau and like-minded Canadian politicians believed that sovereignty cannot be shared and that orders of government amount to nothing more than lower

244 A. -G. Gagnon levels of government over which the central level reigns unchallengeable. Yet, it seems that this kind of interpretation goes against the national interest because it does not take into account the fact that, in a federal democracy, the central government is only one player among many others. The central government simply cannot be viewed as the only and true representative of the country's national interest. In fact, federalism ought to be interpreted as a system of goverrunent that can produce different majorities on different scales with a view to constraining the power ofthe central government and guaranteeing minorities sovereignty in some areas of jurisdiction. As Reginald Whitaker says: Modern federalism is an institutionalization of the formal limitation of the national majority will as the legitimate ground for legislation. Any functioning federal system denies by its very processes that the national majority is the efficient expression of the sovereignty of the people: a federation replaces this majority with a more diffuse definition of sovereignty. It does this not by denying the democratic principle, as such, but by advancing a more complex definition of democratic citizenship. As a result, individuals find political expression and representation in dual (sometimes even multiple) manifestations which may even be contradictory and antagonistic. 51 Trudeau's vision of the country contrasts sharply with that of Whitaker in that the latter advances a democratic theory about the well-being of federal states. In short, Trudeau and his followers fail to appreciate that the Canadian polity is composed of many different majorities and that it can be considered and incarnated just as legitimately on the basis of distinct territories. This brings me to an imp0l1ant point made by Michael Burgess when discussing the links between federalism, nationalism and the national state: "If the principal raison d'etre of a federation is its continuing capacity to protect, promote, and preserve one or more sub-state nationalisms, ... then its primary purpose will be subject to persistent scrutiny. The federal government ... will always be the object of what Acton might have called a 'healthy scepticism,.,,52 The point is that it is essential for minorities to be empowered so as to be able to act as majorities in the policy fields necessary for their own historical continuity. Returning to our discussion of Meech Lake, it should be noted that executive federalism was challenged at that time by the fact that it did not reflect Canada's majority nationalism in a positive manner. Indeed, this phenomenon grew throughout the Trudeau and Chretien years. In fact, executive federalism was challenged not so much with respect to democracy but for the simple reason that it projected a composite image of Canada. In order to shed some light on the changes to Canadian political culture in recent years, let us look at how two highly respected specialists in Canada interpret the Meech Lake failure. On one hand, Alan Cairns concludes that the Meech Lake Accord was perceived by "many citizens and groups outside of Quebec ... as un undesired diminution of their sense of themselves as Canadians.,,53 On the other hand, Peter Russell concludes that Meech Lake's failure "demonstrated the populist appeal

Executive federalism in Canada 245 of the principle of 'provincial equality' outside of Quebec. A policy of providing special arrangements for Quebec entails a political risk which federal leaders will be loathe to assume. We also learned through Meech how unacceptable a purely Quebec round of constitutional change is to the rest-of-Canada."54 The failures of the Meech Lake and Charlottetown constitutional accords in 1990 and 1992 illustrate the extent to which political leaders from Canada outside of Quebec have departed from the very foundations of the federalism at the origin of the founding pact. Guy Laforest's work provides solid confirmation of this.55 More recently, the implementation of the Social Union Framework Agreement (SUFA) in 1999 and the signing of the Agreement on Equalization in fall 2004, with perhaps the exception of the Health Care Accord in September 2004, tend to confirm a vision of the country with a firmly centralist bias. It is ironic that the SUF A negotiations took place behind closed doors and that few condemned this. The repercussions were significant for federalism considering that the federal government's spending power is to be used in areas of exclusive provincial jurisdiction and new rules governing intergovernmental relations concerning social policy were forced on the provinces alone. What is even more disturbing from a Quebec standpoint is that, even though it is not a signatory to the agreement, it must nevertheless comply with the SUFA. In the end, Canadian majority nationalism has simply prevailed over Canada's federal structure. If Meech Lake was drawn up in a secretive manner and is unrepresentative of a wide range of opinions in Canada, what are we to make of SUFA? Despite opposition from all of Quebec's political parties, SUFA was imposed and little effort was made to address Quebec's legitimate concerns. Alain Noel considers that we "cannot avoid noting that this preoccupation for process only emerged when the English-speaking majority overwhelmingly felt dissatisfied with the outcome, and disappeared later on, when more palatable agreements were signed behind closed doors (the 1999 Social Union Framework Agreement is a case in point).,,56 In short, dissatisfaction with executive federalism arose only when it worked against majority nationalism, and was well received went it helped to consolidate the image of Canada sought by the English-Canadian majority. Donald Smiley's critique of executive federalism shows that it does have flaws: a certain lack of transparency, low level of citizen-involvement, loss of some legislative prerogative, less public scrutiny, encouragement of government spending and possibly greater conflict between orders of government. Such criticisms should not be brushed aside. They have to be taken into account in improvements to the operation of a federal system based on executive federalism. However, there are also very valid reasons to supp0l1 true executive federalism. From one Quebec perspective, the main issue at stake in the institution of executive federalism is the frequency with which the central government has bent the rules to satisfy its own thirst for power. It remains that the instihltions of executive federalism could provide a region-state,s7 such as Quebec with a strong voice in the federation. One of the main features of federalism is that it allows member states to maintain their own ways of life while at the same time encouraging joint

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246 A.-G. Gagnon activities. To borrow Samuel LaSelva's expression, federalism suggests a balance between a political desire "to live apart and to live together."s8 Another feature of federalism that we looked at earlier, namely the federal principle,s9 establishes the non-subordination of orders of government. In others words, disputes need to be settled in negotiations between equals. In a federal context, unilateralism is simply ruled out. The non-subordination of powers among orders of government is at the heart of the vision of federalism in Quebec, where there is also strong support for the principles of constitutionalism (consent, continuity, mutual recognition).60 Respect for these principles provides assurances that changes that could directly affect Quebec will not be implemented without its formal approval. As spokespersons for a national minority, Quebec political leaders have always insisted on this feature of federalism since it acts as a countelweight to the will of the Canadian majority. Elite bargaining has been repudiated over the years for excluding the people, but we may have been too swift in our opposition. Although we should aspire to involving the public to the greatest possible extent, it remains that political elites should not be excluded from the most sensitive negotiations on identity and citizenship since they are often the most informed. . With respect to Quebec-Canada dynamics, the public debates surrounding Meech Lake and Charlottetown are taking us down a slippery slope. 61 This leads me to suggest that we not neglect negotiations that can be conducted by political elites at the level of executive federalism. Political elites and their specialized staff can serve as efficient brokers between governments and nations. Since Canada is a multinational federation, Quebec's political elites seem to most stakeholders to be best positioned to speak on behalf of the Quebec nation within the institutions of executive federalism. Executive federalism is a sign of the health of democracy in Canada. If Canadian political leaders really hope to revive Canada's shaken democratic practices, they would be well advised to place electoral reform first, offer voters an approach that is more sensitive to class differences, counter the excessive concentration of powers in the Prime Minister's Office, and find appropriate means of attenuating the inequality of regions' influence in central institutions. Quebec's political institutions have often helped to launch major democratic reforms that have been opposed by other member states of the federation. Current debates in Quebec on electoral reform, a more sensitive approach to the needs of social classes and regionalization of powers provide new avenues to explore. The Quebecois are open to true executive federalism in that it would allow them to discuss the pursuit of their own preferences with respect to the multination and fortify the operation of Canada's democratic practices, which are sometimes seen as faltering. If de jure multinational federalism cannot be achieved in Canada, the "second best choice,,62 will be to adopt executive federalism so that Canada and Quebec will be able to negotiate bilateral political solutions.

Notes I Comments by Michael Burgess, Paolo Dardanelli, Luis Moreno, Ferran Requejo and Ronald Watts are acknowledged. I would also like to acknowledge Charles-Antoine Sevigny's research assistance in the preparation ofthis text. 2 "Collaborative federalism" is also used in the same context. 3 Ronald L. Watts, Executive Federalism. A Comparative Analysis, (Kingston: Institute ofIntergovernmental Relations, Queen's University, 1989), pp. 4-5. 4 See Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship and Quebec. Debating lvIultinationalism, (Toronto: University of Toronto Press, 2007) for a further development on domination by the central government. 5 Linda Weiss, "Is the State Being Transformed by Globalisation?" in Linda Weiss, States in the Global Economy, (Cambridge: Cambridge University Press, 2003), pp. 293-317. 6 See Richard Simeon and Ian Robinson, "The Dynamics of Canadian Federalism" in James Bickerton and Alain-G. Gagnon, eds. Canadian Politics, 4th edition, (Peterborough: Broadview Press, 2004), pp. 101-126. 7 Richard Simeon and Ian Robinson, State, Society, and the Development 0/ Canadian Federalism, (Toronto: University of Toronto Press, 1990), p. 209. 8 Reg Whitaker, A Sovereign Idea: Essays on Canada as a Democratic Community, (Montreal and Kingston: McGill-Queen's University Press, 1992), p. 207, p. 206. 9 See Peter Russell, Constitutional Odyssey Can Canadians Become a Sovereign People, 2nd edition, (Toronto: University of Toronto Press, 1993), p. 5. Russell also makes the point that the Fathers of Confederation emulated Edmund Burke more than John Locke in their approach to the Constitution, p. 11. 10 Kathy Brock, "Executive Federalism: Beggar Thy Neighbour?", in Franyois Rocher and Miriam Smith, eds, New Trends in Canadian Federalism, 2nd edition, (Peterborough: Broadview Press, 2003), pp. 70-71. 11 See Guy Laforest, "Standing in the Shoes of the Other Partner in the Canadian Union" in Roger Gibbins and Guy Laforest, eds, Beyond the Impasse, Toward Reconciliation, Montreal, Institute for Research on Public Policy, 1998), pp. 51-79. See also Alain-G. Gagnon and Laurent-Mehdi Chokri, "Le regime politique canadien: histoire et enjeux," in Rejean Pelletier and Manon Tremblay, eds, Le parlementarisme canadien, 3rd edition, (Quebec: Les Presses de l'Universite Laval, 2005), pp. 27-28. 12 Jean-Franyois Caron, Guy Laforest and Catherine Vallieres-Roland "Canada's Federal Deficit" in Alain-G. Gagnon, ed., ContemporQlY Canadian Federalism: Foundations, Traditions, Institutions, (Toronto: University of Toronto P~ess, 2009), pp. 132-162. 13 Simeon and Robinson, State, Society, and the Development o/Canadian Federalism, p.49. 14 Simeon and Robinson, "The Dynamics of Canadian Federalism," pp. 109-110. In fairness, no other Western economy was capable of meeting the unprecedented challenge. 15 Kathy Brock, "Executive Federalism," p. 71. 16 Donald V. Smiley, Canada in Question: Federalism in the Eighties, 3rd edition (Toronto: McGraw-Hili Ryerson, 1980, p. 102. 17 Donald V. Smiley, Canada in Question, p. 91. 18 Ronald L. Watts, Executive Federalism, p. 4. 19 Marc-Antoine Adam, "The Creation of the Council of the Federation," Working Paper, (Kingston: Institute of Intergovernmental Relations, Queen's University, Democracy Series, no I, 2005), p. 2. 20 Donald V. Smiley, "An Outsider's Observations of Federal-Provincial Relations Among Consenting Adults," in Richard Simeon, ed., Cor!/i·ontation and Collaboration: Intergovernmental Relations in Canada Today, (Toronto: Institute of Public Administration of Canada, 1979), pp. 105-106.

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21 John Porter, The Vertical Mosaic. An Analysis of Social Class and Power in Canada, (Toronto: University of Toronto Press, 1965), p. 384. 22 Porter, The Vertical Mosaic, p. 384. 23 Jennifer Smith, Federalism, (Vancouver: University of British Columbia Press, 2004), p. 101. 24 Jennifer Smith, Federalism, p. 102. 25 Jennifer Smith, Federalism, p. 102. 26 Jennifer Smith, Federalism, pp. 102-103. 27 Jennifer Smith, Federalism, p. 103. 28 See, Robert Presthus, Elite Accommodation in Canadian Politics, (Toronto: Macmillan Canada, 1973). 29 Alain Noel, "Democratic Deliberation in a Multinational Federation, Critical Review ofInternational Social and Political Philosophy 9 (September), p. 424. 30 Kathy Brock, "The Politics of Process," in Douglas Brown, ed., Canada: The State of the Federation, 1991, (Kingston: Institute of Intergovernmental Relations, 1991), p.59. 31 Reprinted in Robert Sheppard and Michael Valpy, The National Debt, (Toronto: Fleet Books, 1982), p. 284. 32 See, among others, Alain-G. Gagnon, "Quebec-Canada's Constitutional Dossier," in Alain-G. Gagnon, ed., Quebec: State and Society, 3rd edition (Peterborough: Broadview Press, 2004), pp. 127-149. 33 For a discussion of Canada's Charter and its centralizing effects on governance and weakening effects on federal traditions, see Chapter. 5. 34 Alan C. Cairns, "Citizens (Outsiders) and Governments (Insiders) in ConstitutionMaking: The Case of Meech Lake," Canadian Public Policy, Vol. 14, Supplement 1, 1988, p. S122. 35 Richard Simeon and David Cameron, "Intergovernmental Relations and Democracy: An Oxymoron if There Ever Was One" in Herman Bakvis and Grace Skogstad, Eds., Canadian Federalism: Pe/formance, Effectiveness, and Legitimacy, (Toronto: Oxford University Press, 2002), pp. 278-279. 36 Leslie A. Pal and Leslie Seidle, "Constitutional Politics 1990-92: The Paradox of Participation," in Susan D. Phillips, ed., How Ottawa Spends: A More Democratic Government ... ? (Ottawa: Carleton University Press, 1993), pp. 143-202. 37 For a similar interpretation, see Jennifer Smith, "The Constitutional Debate and Beyond," in Franyois Rocher and Miriam Smith, eds, New Trends in Canadian Federalism, 2nd edition, p. 59. 38 Kathy Brock, "The End of Executive Federalism," in Franyois Rocher and Miriam Smith, eds, New Trends in Canadian Federalism, 1st edition, (Peterborough: Broadview Press, 1995), p. 101. 39 See, among others, Leslie A. Pal and Leslie Seidle, "Constitutional Politics 1990-92. The Paradox of Participation". 40 Harvey Lazar, "Non-Constitutional Renewal: Towards a New Equilibrium in the Federation," in Harvey Lazar, Ed., The State of the Federation, 1997, (Kingston: Institute of Intergovernmental Relations, 1998), pp. 3-35. See also Jennifer Smith, "Informal Constitutional Development: Change by Other Means," in I-Ierman Bakvis and Grace Skogstad, Eds., Canadian Federalism, pp. 40-58. 41 This agreement is discussed in greater detail in Chapter 5. See also Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship, and Quebec, Debating Muitinationalism, (Toronto: University of Toronto Press, 2007), pp. 70-89. 42 See Alain-G. Gagnon and Hugh Segal,eds, The Canadian Social Union Without Quebec. 8 Critical Analyses, (Montreal: Institute for Research on Public Policy, 1999). 43 Quoted in Andre Burelle, "The Council of the Federation: From a Defensive to a Partnership Approach," (Kingston: Institute ofIntergovernmental Relations, 2003), p. 2.

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44 See Alain-G. Gagnon and Hugh Segal, The Canadian Social Union Without Quebec. All eight analyses concurred in their interpretation and pointed in the direction of a hierarchical collaboration that was imposed by the central government without much concern for the division of powers. 45 Harvey Lazar, "Managing Interdependencies in the Canadian Federation: Lessons from the Social Union Framework Agreement," Working Paper, Institute ofIntergovernmental Relations, Queen's University, 2003, p. 3. 46 Marc-Antoine Adam, "The Creation of the Council of the Federation," p. 1. In this way of understanding federalism, we can see the influence of Kenneth C. Wheare, for whom "The federal principle requires that the general and regional governments of a country shall be independent each of the other within its sphere, shall be not subordinate one to another but co-ordinate with each other." See Federal Government, 4th edition, (Oxford: Oxford University Press, 1967), p. 93. See also Joseph Facal, "Conflicting National Identities and Federalism: A Quebec Perspective on the Change Occurring in Canada's Political System," in Alain-G. Gagnon, ed., Contemporary . Canadian Federalism, p. 2 I 6. 47 A recent assessment of this notion of Open Federalism with respect to Quebec makes it clear that much is needed to reverse a well established trend in Canadian federalism, see Rejean Pelletier, "OU en est Ie federalisme d'ouverture?" Le Devoir, 6 October 2008. 48 To gain a better understanding of the scope of the tension, see Andree Lajoie, "Federalism in Canada: Provinces and Minorities - Same Fight" and Michel Seymour, "On Not Finding Our Way: The Ilusory Reform of the Canadian Federation," in Alain-G. Gagnon, ed., Contempora/Y Canadian Federalism, pp. 163-186 and pp. 187-212, respectively. 49 Ferran Requejo discusses at some length this issue in Federalisme, per a que? L 'acomodacio de la diversitat en democracies plurinationals, (Barcelona: L 'Hora del present, 1998), pp. 36-40. 50 Andre Burelle, "The Council of the Federation," p. 2 [our translation]. For more on Trudeau's understanding of Canadian federalism, see Pierre Elliott Trudeau, L 'epreuve du droit: Ie debat sur la souverainete canadienne, (Toronto: Harper Collins Publishers, 199 I) and Andre Burelle, Pierre Elliott Trudeau: L 'intellectuel et Ie politique, (Montreal: Fides, 2005). 51 Reginald Whitaker, A Sovereign idea: Essays on Canada as a Democratic Community, p. 167. 52 Michael Burgess, Comparative Federalism. TheOlY and Practice, (London: Routledge, 2006), p. 107. 53 Alan C. Cairns, "Citizens (Outsiders) and Government (Insiders) in ConstitutionMaking," p. 134. 54 Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, 3rd edition, (Toronto: University of Toronto Press, 2004), p. 252. 55 Guy Laforest, Trudeau et lafin d'un reve canadien, (Quebec City: Septentrion, 1992); see especially Chapter 5, "Trudeau et la saga de Meech" and Chapter 7, "Allaire, Belanger, Campeau et les propositions de renouvellement du federalisme." See also Laforest's more recent work, Pour la liberte d'une societe distincte, (Quebec: Les Presses de l'Universite Laval, 2004). 56 Alain Noel, "Democratic Deliberation in Multinational Federation," p. 6. A similar case can be made about weakening the federal tradition in Canada when one examines more closely the Clarity Act enacted by Ottawa in response to Quebec's desire to hold a third referendum on self-determination. 57 See the discussion of the notion of nation-state in Gemma Aubarell, Agusti Nicolau Coil and Adela Ross, immigracio i qz1estio nacional. Minories subestatals i immigracio a Europa, (Barcelona: Editorial Mediternlnia, 2004), pp. 95-105. 58 Samuel LaSelva, The Moral Foundations of Canadian Federalism: Paradoxes,

250 A.-G. Gagnon

59 60 61

62

Achievements, and Tragedies of Nationhood, (Montreal and Kingston: McGillQueen's University Press, 1996), p. 25. See note 46, supra. For a development of those principles, see James Tully, Strange Multiplicity. Constitutionalism and Diversity, (Cambridge: Cambridge University Press, 1995). During the Meech Lake debates, feminists outside of Quebec argued that the distinct society clause in the proposed agreement might lead to the oppression of women in the province by facilitating repressive and discriminatory measures. Quebec feminist leaders were quick to denounce this stance and spoke of ignorance. See Kenneth McRoberts, Misconceiving Canada, (Don Mills: Oxford University Press, 1997), pp. 199-200. This theory seems to have a lot of support among economists, who argue that when it is difficult to achieve an optimal solution, it is best to fall back on the next best choice.

12 Federal democracy in a federal Europe John Pinder

Contemporary European states differ from those that founded the United States of America (USA), in diversity oflanguage, of historical experience and of po litical culture. But as subjects for the creation of a federal democracy, a profound difference is that most of the European states have been independent for a long time, some for around a thousand years, so they have deep-rooted structures of society, culture and governance. An equally relevant similarity, however, is that they face essential needs which their several governments cannot satisfy separately, but which could be properly confronted by common government; and just as the centrifugal political forces in relations among the newly independent American states made intergovernmental cooperation inadequate, so such cooperation among the Europeans neither performs effectively nor respects the principles of liberal democracy. The aim of this chapter is not so much to justify that proposition, as to show how it has led member states of the European Community, now the Union, to adopt many of the features of federal democracy by a series of steps rather than to create a new state by a single act, as the Americans did through the Philadelphia Convention. This could not only contribute to understanding whether and how the Union may continue its own federal development but also help to show more generally how federal democracies could be developed in the wider world among democratic states and also, perhaps, within unitary states moving towards more structured devolution. Much of the academic literature on the Community and Union has avoided the tough question of how democratic member states can be persuaded to transfer a necessary minimum of powers to an emergent federal democracy. The neofunctionalism that has been so influential did little to explain why the first step of creating a sectoral community that would detract from national sovereignty was taken or why it should spill over into further such steps without political leadership to conceive and carry through the reforms required. Yet who would try to explain how the federal democracy of the USA was created without giving their due place to the founding fathers, or how some of their successors secured its federal development? Their influence outlasted them, not just because they were remarkable people but because they embodied ideas and developed methods that responded to fundamental needs.

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So this chapter starts with seminal events that led up to the Messina conference in 1957, paying particular attention to three people who, each drawing in different ways on the American experience, embodied and articulated motives that inspired the development of the Community towards a federal democracy and did much to set it in train: Jean Monnet, Walter Hallstein and Altiero Spinelli.

Monnet, Hallstein and the ECSC The general idea behind the creation of the European Coal and Steel Community (ECSC) had been germinating in Monnet's mind at least since 1941 when he was in Washington, with responsibilities for purchasing war supplies on behalf of the British. Paul-Henri Spaak, the Belgian statesman, was to recall him then sketching the rough outlines of the 'Schuman Plan', which was the starting point for the ECSC (Spaak, 1971: 213). In 1943, Monnetjoined the French Committee for National Liberation in Algiers, for which he wrote in a note that 'European states must, after the war, form a federation or economic entity that will make a single economic unit' (Monnet, 1978: 222); and when asked by Etienne Hirsch, who was later to work closely with him on the fed!lral development of the European Community, why he was intently examining a map, he drew his finger around Alsace and Lorraine which, together with the Ruhr and the Saar, was the hemtland of the coal and steel industries which were then the industrial basis for military power, and said that, in order to prevent another conflict, it was necessary to extract it somehow from the control of the French and German governments (Hirsch, 1988: 78-9). It seemed then to Hirsch a utopian idea. But the decision of the American and British occupying powers in 1950 to relax the limits on coal and steel production imposed by the International Ruhr Authority gave Monnet his chance to achieve just that. Control over the German coal and steel industries was a vital French interest; but neither would unilateral control over industries in parts of Germany occupied by the Americans and British be feasible nor, as experience after 1918 had shown, would it be likely to endure. So it was in the interests of the French, as well as of the Germans who wanted to make a new stmt following 1945, to accept a new common authority with responsibility for governance of the coal and steel sectors in both countries, along with others that might wish to join. Monnet, as head of the Commissariat du Plan, had official responsibilities regarding the organization of the French economy; and while the ending of wars between the French and the Germans was the primary motive, the economic irrationality of barriers to trade in the materials and products of these basic industries was also impOitant. This has been explained in some detail because the combination of powerful security and economic motives goes far to explain the continuing impact of Monnet's original initiative, which was intended, as his Memoirs put it, to 'make a breach in the ramparts of national sovereignty which will be narrow enough to secure consent but deep enough to open the way towards the unity that is essential to peace' (Monnet, 1978: 298): that is, to get nation states with entrenched

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structures and traditions to accept a major initial step towards a federal system. The neofunctionalist explanations of European integration and their derivatives have tended to ignore that combination of security and economic motives which not only made the first community possible but has also driven major subsequent reforms. Spinelli, who was imbued with the American example of constitutional federalism, observed that' Monnet certainly wanted to arrive at a federation', but 'had no idea how to make a constitution', thinking that 'a few scraps of improvised ideas were enough' (Spinelli, 1989: 142-3). But while constitutional matters were not Monnet's field, he was closely familiar with The Federalist, recommending a colleague in 1943 to 'read it from end to end. It is good throughout' (Joxe, 1987: 252-3). Monnet did, moreover, have a very keen sense of what governments might accept and of the weakness of an executive that was controlled at every step by a group of national governments; and this led him to emphasize, in the document he initiated to launch the Schuman Plan, named after the French Foreign Minister who took the political responsibility, the need for an independent 'High Authority' as the central institution for the community that would be a 'first step in the federation of Europe' which was 'indispensable to the preservation of peace' (Schuman, 1950). The project had the firm backing of Chancellor Konrad Adenauer, who already in 1946 had expressed the hope for a United States of Europe 'in the not too distant future' and later emphasized the provision in Germany's constitutional Basic Law for the transfer of sovereignty to inter-state institutions in order to secure peace (Weidenfeld, 1981: 301-2, 313, 315). The establishment of an independent executive may not at first appear to be a key initial step towards a federal democracy. But the federal legislative and judicial institutions, which are essential to control a federal executive, can achieve little without it. Thus in order to understand the creation of a federal democracy, to focus on its representative institutions is not enough. They have to be seen as part of a system of government in which the rule of law is guaranteed by a federal judiciary; the citizens have direct relationships with both the federal and the state institutions; and, so that both the federal and the state institutions have real substance, both have a critical mass of powers on which to base viable polities. All this was clearly understood by the American Founding Fathers, who were not, however, confronted by the problem of developing their federal democracy incrementally, requiring a certain balance between the development of the institutions and powers at each stage of the process of integration. Thus it is dangerous to give powers to institutions too weak to handle them; institutions need powers adequate to justify their existence; and citizens in the democratic member states must be satisfied that the emerging federal democracy is meeting their needs. Monnet's insistence on an executive independent of the member states' governments and with enough powers of governance over the coal and steel industries was derived from his experience as Deputy Secretary of the intergovernmental League of Nations in the 1920s and his responsibility for

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allied purchasing boards in both world wars; and it was crucial for this first step in the direction of a federal democracy. As chairman of the intergovernmental conference that drafted the ECSC Treaty he was, moreover, with his commitment to democracy and familiarity with the thinking behind The Federalist, receptive to proposals about the other elements, so that the Community was established with a fairly complete set of embryonic federal democratic institutions. Thus along with the new Community's powers to ensure free trade in coal and steel products among the member states, enforce a cartel policy, apply emergency controls in the event of crises in the markets and provide help for any necessary redeployment of workers, the Treaty provided not only for the executive High Authority, but also for a Court of Justice, a Common Assembly (as the precursor of the European Parliament was called), and a Council of Ministers of member states. Article 31 of the Treaty stipulated that 'The Court shall ensure that in the interpretation and application of this Treaty ... the law is observed'; and this enabled it to provide, in key judgments, that member states' laws do not override the common legislation and that citizens can secure in the courts the rights which stem therefrom, i.e. that in the event of conflict ~he federal law prevails. The only significant power that the Treaty gave the Common Assembly was to dismiss the executive, which was hardly usable in the absence of other significant powers; but the Treaty also provided for direct elections of its members by the citizens to replace appointment by member states' parliaments when the member states should unanimously so decide; and this eventually led to a radical strengthening of the Parliament's role. The Council of Ministers was also established, initially with very limited functions, which, however, gave it the base from which to become a powerful legislative and executive institution. Hallstein, a distinguished academic jurist whom Adenauer chose to lead the German delegation to the intergovernmental conference and to be StaatssekreUir for European affairs, was an ideal counterpart to Monnet, able to contribute a full understanding of what was needed to complement Monnet's penetrating but limited view of the institutions that this first Community required in order to become a significant step towards a federal democracy. He combined practical ability with a thorough understanding of federal democracy and, assisted by Carl Friedrich Ophills, who led a group of official lawyers and did much to embed European federalist thinking in the German government service (KOsters, 1995: 85), Hallstein brought to the conference carefully thought-out proposals based on German, US and Swiss federal experience. The Treaty's provisions for the Court of Justice and the Common Assembly certainly owed much to him, though the idea of the Assembly also had a French source (Barenbrinker, 1995: 114; Hirsch, 1988: 107). Shortly after agreement on the Treaty was attained in April 1951, Hallstein articulated the character of the Community as an incipient federal democracy. In speeches at the Universities of Frankfurt and of Georgetown, he presented the High Authority ~s a federal executive with governmental powers over the coal

Federal democracy in afederal Europe· 255 and steel sectors, the Council as corresponding to a Bundesrat (federal house of states), the Common Assembly as the forerunner of a European Parliament, and the Court of Justice as having the functions of a constitutional court, an administrative court and a cOUli of appeal in disputes between the High Authority and member states. He also affirmed that the whole 'intentionally' comprised what would become, with the extension of powers to other fields, the institutions of the future complete European federation; and he added that the 'pre-federal' character of this first, sectoral Community could be understood only in this perspective (Lipgens, 1986: 204-6). While it remains to be seen whether the federal democracy will in fact be completed, the Community'S development into the Union of today has shown that he was remarkably prescient. Hallstein went on to be the German representative at the seminal Messina Conference, then a powerful first President of the EEC's Commission until the mid-1960s when he clashed with the intransigently anti-federalist President de Gaulle. But his 15 years at the centre of the Community's affairs contributed much to consolidate the federalist orientation that has characterized so many Gennan politicians and officials up to now, with a major impact on the development of the Union towards federal democracy. He also presented the fruits of his federalist thought and experience in a book, published in German as Del' unvollendete Bundesstaat (The Uncompleted Federal State) and an English version, deferring to the prevailing British antipathy to the of' word, as Europe in the Making (Hallstein, 1969, 1972). Monnet's insistence on the need for an executive with some federal attributes and powers, independent from the governments of member states, was the key to his extraordinary success in securing the establishment of the ECSC. It was also the genesis of his remarkable innovation of the method of moving towards a federal democracy by a series of steps; and it was moreover the first example of the French contribution to that process through initiating key steps by proposing new powers. Thus the complementary contributions of Monnet and Hallstein to the development of federal powers and institutions in the ECSC were reflected during the following half century in the French and GenTIan contributions to the addition of federal elements in the Union's development. More immediately, Monnet became the first President of the High Authority. He was to underline his view of it in a speech in Germany by calling it 'Europe's first government' (Duchene, 1994: 235); and he also emphasized the federal aspiration by asking Spinelli to help with drafting his inaugural speech as President, with its consequent emphasis on federal elements in the Community: that the High Authority was responsible to a European Assembly, not to the member states; that its acts could be challenged in the European Court; and that it had the power to levy taxes within the coal and steel sectors (Spinelli, 1989: 140-45; Monnet, 1955: 55-60).

Spinelli, Monnet, the EDC and EPC North Korea invaded South Korea only a few days after the conference on the ECSC Treaty began; and the USA, obliged to transfer forces from Europe to

256 1. Pinder Korea, demanded a German contribution to European defence. Coming soon after the end of the war, this touched a raw nerve in French politics, which Monnet feared could disrupt the process of establishing the ECSC. His reaction was again to propose a federal instrument: a European army in which the French, German and other armed forces would serve; and this, as Monnet was to put it, 'touched on the core of national sovereignty', so 'the federation of Europe would have to become an immediate objective' (Monnet, 1978: 343). Before long, negotiations for a European Defence Community (EDC), on the lines of the Coal and Steel Community, began. But whereas complete democratic federal institutions were not required for the governance of coal and steel, he did not at first realize that they would be an essential framework for a common army, as the core instrument of state sovereignty. Spinelli, with his thorough grasp of the principles of constitutional federalism, based squarely on the American experience, understood that fundamental point at once. He had acquired this knowledge through reading the rich British federalist literature of the period from the mid-1930s to 1941, much of it by distinguished academics (Pinder, 1998). Four decades later he was to write that 'their analysis of the political and economic perversion which nationalism leads to, and their reasoned presentation of the federal
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could be developed (Friedrich, 1955: xxxii-xxxiii; Griffiths, 2000: 71-94; Spinelli, 1989: 125-33). Meanwhile elections to the Assemblee Nationale had returned a more substantial contingent of Gaullist deputies and circumstances were not favourable for such a radical transfer of sovereignty. Four of the member states, including Germany, had ratified the EDC Treaty but in August 1954 a majority of the French deputies voted to shelve it, and hence also the EPC Treaty: in effect permanently. Monnet resigned from the High Authority in order to prepare the next steps; and, observing that agreement among governments was no longer sufficient, he formed the Action Committee for the United States of Europe, in which the democratic political parties and trade unions were represented, in order to ensure that such steps would have parliamentary backing when ratification was required. Spinelli's reaction was to try to mobilize citizens to demand a constituent assembly. But the inadequate outcome kept him at the margins of Community affairs until the 1970s. Meanwhile his imprint on Italian politics endured in the form of official and public support for its development in a federal direction (Padoa-Schioppa, 2004: ch. 3); and his deep-rooted conviction of the need for a completed federal democracy was to enable him to lead the European Parliament in the early 1980s in the designing of a federalist Draft European Union Treaty (EUT). Monnet, however, had been convinced that the frontal assault on national sovereignty which the EDC/EPC project had involved would have to be replaced by extending the Community method into sectors other than defence. This did not imply that the establishment of permanent peace in Europe had lost its motive power. To the contrary, the transformation of relations between France, Germany and the other states within the ECSC had reinforced the will to strengthen integration along similar lines.

The treaties of Rome Particularly concerned, after the failure of the EDC, about what would be acceptable to the French government and parliament in palticular, Monnet was attracted by the idea of a Community in the field of atomic energy. But he was persuaded that the Germans would not be interested, though they would accept it if combined with a Dutch proposal for a general common market (Duchene, 1994: 269). So at the Messina conference in June 1955, at which Hallstein represented Germany and Spaak Belgium, it was agreed to negotiate on the establishment of both the European Economic Community (EEC) and Euratom. Spaak led the preparations for the drafting of the two Treaties and ensured that the federal elements of the ECSC institutions would be maintained, including the Court of Justice, the parliamentary assembly (increasingly to be called the European Parliament), the ministerial Council and the independent executive, though the European Commission was to become less independent of the Council than the High Authority had been. The Treaties were signed in March 1957.

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That concluded Spaak's five years of promoting the European federalist project. The EEC Treaty was a monumental contribution, greatly enhancing the power of the Community's institutions by applying them to a broad area of the member states' economies and thus laying the basis for the further development of the federal elements that Hallstein had identified. Less dramatically, but in the long run influentially for further steps towards federal democracy, Spaak put an end to Belgium's previously intergovernmentalist tendencies, (Duchene, 1994: 283); and Belgians joined Germans and Italians during the following decades in supporting moves towards federal democracy, at times with considerable effect. The broad economic significance of the EEC also gave the Community the strength to withstand de Gaulle's militant opposition to its federal features throughout the ten years of his Presidency of France, which commenced just after the Rome Treaties entered into force. For while dogmatically resisting the independence of the Commission and the prospect of majority voting in the Council and of powers for the European Parliament, he not only appreciated the contribution of the common agricultural policy to the French national interest but also realized the importance of the COlmnon market for the development of the French economy.

The EEC's first ten years Hallstein was the President of the Commission through the first ten years of the EEC, when he did much to make it an effective executive institution. A primary task was to ensure that the customs union, which was then the central feature of the common market, was established within the 12-15 years stipulated by the Treaty; and he oversaw its completion within ten years. Trade among the member states expanded rapidly, contributing to their general prosperity; and the common external tariff made the Community the equal of the USA in international trade negotiations (Krause, 1968: 224-5). This, along with the continued peaceful relations among the member states, did much to consolidate support for the Community within them: an early example of what has become known as 'output legitimacy' for the integration process, i.e. legitimacy based on the results (Scharpf, 1999: 6). Hallstein also made no secret of his view that the legitimacy of the institutions had to be based on the Community's potential development as a federal democracy. In his inaugural address to the European Parliament in March 1958 he returned to the theme of his speeches in 1951, using the term 'a Community of states with strong federative features', not based on unanimity which would make it 'merely a permanent diplomatic conference' (Lipgens, 1986: 406). But unlike the Community's 'output', this was anathema to de Gaulle. He easily emasculated Euratom, which had anyway never attracted the Germans. But his treatment of the EEC was more circumspect. His first step was to veto, in January 1963, the first British application for membership, which had, ironically enough, been justified in Britain on the grounds that de Gaulle had removed the

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prospect of a federal Community; and the British had to wait for his departure before they could begin to resist moves towards federal democracy from within - which they were to do, with considerable effect, though in a less absolutist way than de Gaulle. It was in 1965 that de Gaulle's intransigence became fully apparent, in a ferocious attack on an attempt to introduce elements of federal democracy. The Treaty stipulated the introduction of some majority voting in the Council on completion of the customs union, which thanks in good part to Hallstein's achievements as Commission President would take place as soon as 1966. De Gaulle was radically opposed to the principle of majority voting; and he insisted that the common financing of the Community'S agricultural policy, particularly advantageous for France, must be in place at the same time as completion of the customs union. But the Dutch, whose tradition of control of public expenditure by citizen representatives had since the sixteenth century been a fundamental political principle (Kossmann, 1999: 24-6), insisted that the substantial Community budget required to finance the common agricultural policy must be subject to the approval of the European Parliament, since democratic approval by the six member states' parliaments would not be practicable (Pinder, 2000: 197-8). The Treaty required a unanimous decision to replace financial contributions from the member states by raising the Community's 'own resources'; and the Netherlands parliament resolved that the government, which was of like mind, must not accept such a decision unless it was accompanied by agreement that the expenditure would be subject to the European Parliament's approval. De Gaulle was utterly opposed to this significant step towards federal democracy. But Hallstein naturally supported it, as did governments of other member states; and he reasoned that the attraction for de Gaulle of locking them into a budgetary arrangement which would guarantee the continuation of finance for the agricultural budget would overcome his resistance. But that seriously underestimated de Gaulle's deep-rooted ideological objection to European federal democracy, both in the idea of parliamentary control of the European"budget and in the elements of majority voting in the Council scheduled by the Treaty for the following year, as well as in the manifestation of the Commission's independence of the governments. He instructed his ministers to absent themselves from Council meetings until further notice, thus impeding the taking of decisions for over six months. Meanwhile enough French voters had, however, indicated their displeasure by reducing the size of his expected majority in presidential elections; and he accepted the resumption of nonnal business when the other five governments agreed in January 1966 to a statement that became known as the Luxembourg compromise, which recognized the French objections while reiterating that the five partner governments remained committed to the provisions of the Treaty (Camps, 1963: 15ff., 40ff.). While this was not a complete victory for de Gaulle, it did in practice delay the use of majority voting for some 20 years and made it quite clear that no federal steps whatsoever would be taken while de Gaulle remained President of France. It also led to Hallstein's departure from the

260 J. Pinder Commission shortly afterwards and to a long-lasting undervaluation of the important part he played in the beginnings offederal democracy.

After de Gaulle: the resumption of fedel'al steps De Gaulle resigned as President of France in April 1969 and was replaced by Georges Pompidou, who had served de Gaulle loyally as Prime Minister and also preferred intergovernmental methods, but much less intransigently. The other five govermnents were still pressing for negotiations on British accession to start and he accepted the 'widening' of the Community on condition that it be 'deepened' by completing the arrangements for common financing of the agricultural budget and by monetary union, which was proposed by the new Chancellor Willy Brandt after consultations with Monnet, who had already, on completing the negotiations for the ECSC Treaty in 1952, written a note, for his own purposes, envisaging the development of the Community towards 'single market, single currency, federation' (Monnet, 1978: 194-5; Rieben, 2004: 97-8). Enlargement was indeed seen, then as subsequently, as a motive for deepening the Community, in ways that in effect enhanced its elements of federal democracy, lest the new members should, whatever their intentions, put at risk the hard-won gains of peace and prosperity. The common financing of the agricultural budget was indeed accompanied by the first transfer of really usable powers to the European Parliament. The Dutch parliament still insisted on this, with strong backing from Germany, Italy and Belgium. The Belgian Presidency, in successive Community Councils in 1971 and 1974, and with backing from the German and Italian as well as Dutch governments, astutely secured agreement to allow codecision of the Parliament with the Council over a small part of the total expenditure, which still excluded the agricultural budget (Pinder, 2000: 199). But this, as has often been the case in the gaining of powers for the European institutions despite resistance from governments defending their national sovereignty, was in fact an initial step towards granting the Parliament power of codecision with the Council over the majority of decisions on the Union's legislation as well as expenditure. It remains questionable whether such a slow pace of introducing elements offederal democracy will outlast the centrifugal forces that work in the opposite direction. But after the suspension of federalist initiatives during the decade of de Gaulle's French Presidency, this was a significant institutional move towards federal democracy. It was accompanied by the parallel move in the monetary field towards giving major powers to the Community, which led 20 years later to the creation of the euro as a single currency. The initial step itself was not successful. The political will existed, with the German desire, strongly shared by Brandt, for steps towards federal democracy together with French support for a European monetary challenge to the dollar, which would also give France some leverage over the dominant Bundesbank. So Prime Minister Werner of Luxembourg was asked to chair a committee which produced a report outlining steps towards creating a single currency by 1980. But this fell foul of a characteristic Franco-German

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stand-off, with French insistence on first permanently fixing the member states' exchange rates, with any institutional implications to follow, against German insistence on the necessity of institutions both strong enough to ensure stable macroeconomic policy, requiring majority voting in the Council, and sufficiently democratic, requiring codecision of the Council with the Parliament (Tsoukalis, 1977: 88-9). The consequence was a weak arrangement for exchange rates which was destroyed by international monetary turbulence in the 1970s. That was, however, followed by an initiative of Roy Jenkins, as President of the Commission, which secured the agreement of Helmut Schmidt and Valery Giscard d'Estaing, as German Chancellor and French President since 1974, and which led to the establishment in 1979 of a European Monetary System (EMS) that was a serious step towards the creation of the single currency in the 1990s. President Giscard, though not generally committed to federal democracy, was also willing to strengthen some federal elements in the Community institutions. Monnet visited him soon after his election as President to discuss proposals for direct elections to the European Parliament and for strengthening the Community's capacity for action by formalising the regular meetings of heads of state (i.e. the French President) and government (Prime Ministers) in what became the European Council- which Monnet, surely unrealistically, saw as a future 'European Government' (Monnet, 1978: 513). Giscard, later giving credit to Monnet's arguments (Duchene, 1994: 336), went ahead and secured the other governments' agreement to both proposals. The direct elections, though delayed by British reluctance until 1979, were an important step towards a federal democracy, demonstrating the significance of action by political leaders who favoured elements offederal democracy without commitment to it as a whole. The elections provided Spinelli with. the directly elected assembly which he had since the 1950s seen as the body required to draft a federal constitution. He had, since his appointment as a member of the Commission in 1970, sought to prepare the ground for this by getting the Commission to agree that such a constituent was among the ways of obtaining radical Community reform (Spinelli, 1991: 810-11). The direct elections of 1979 enabled- him, by then a directly elected MEP, to ensure the establishment of an Institutional Committee with himself as General Rapporteur, which produced a Draft European Union Treaty embodying most of the characteristics of a federal democracy, approved by a large majority in the Parliament in February 1984. President Mitten'and, then President of the European Council, expressed strong support for the project, thus helping to put a number of elements of federal democracy on the political agenda; and Jacques Delors, who beca~e President of the Commission in January 1985, was about to revive Monnet's method of proceeding by major steps towards it, with the Single European Act and the Maastricht Treaty. Delors was, indeed, to give Spinelli and the Draft Treaty credit for exerting an undoubted influence on the Parliament and on himself personally, as well as making it possible for him to succeed in introducing many of what he called the 'factors of progress' into the Single Act (Delors, 2004: 175).

262 J. Pinder

Delors, Kohl, Mitterrand and the single European Act Just as Monnet had launched the ECSC Treaty, and hence the stepwise approach to federal democracy, with Schuman's blessing and finn support from Adenauer and Hallstein, so Jacques De10rs initiated the Single European Act and the Maastricht Treaty with the backing of Chancellor Kohl and President Mitterrand. Delors had been Finance Minister under President Mitterrand. His federalism had origins in personalism (Grant, 1994: 12-15), which is social and philosophical rather than constitutional. But he had been a member of the Assemblee Nationale and of the European Parliament and was more familiar with constitutional matters than Monnet had been. There was 'a great deal of the Monnet method' in his strategy, but he also promoted 'public dramatization of what was at stake' (Ross, 1995: 230). He was to recall that, when faced with a difficulty as President of the Commission, he had resorted to the memoirs of Monnet, Spaak or Hallstein to find out how they would have reacted (Oe1ors, 2004: 262). Kohl had a profound federalist commitment, with origins in the war, in which his brother had been killed, and in the context of the German postwar federalist tradition. Mitten'and was intent on consolidating France's position as a strong European leader, with Germany as its principal partner, but without de Gaulle's antipathy to the European institutions. . Oelors, in preparing for the Presidency of the Commission, chose in 1984 the single market, a common or single currency, a common defence policy and institutional reform as the key initiatives to launch. He wanted, like Monnet, to be as sure as possible that what he proposed was politically feasible; and towards the end of the year he visited the heads of government of the then ten member states to find out which would have the support of all of them (Oe1ors, 2004: 184-5). His list was remarkably similar to what Monnet had, three decades before, identified in his personal note as the key steps towards federation, which in the circumstances of 1952 certainly implied a single defence as well as single market and single currency, though Oelors added institutional refonn. There was deep dissatisfaction throughout the Community about the dismal economic performance since stagflation had begun in the 1970s; and although Mrs Thatcher did not share the determination in most member states to restore momentum in the Community as the framework for peaceful and generally constructive relations among them, she joined in the unanimous approval of the single market, which Delors was able to present as an answer to the stagnation and unemployment of the preceding years. Thus the single market proposal was agreed. Oelors and Lord Cockfield, whom Mrs Thatcher had nominated as a British Commissioner, rapidly drew up the detailed plan for creating it by 1992; and this was accepted, evidently without her realizing what such an immense legislative programme implied for the Community institutions. Just as the common market had expanded the scope of the institutions' responsibilities, however, thus giving them the strength to withstand forthcoming shocks and provide a basis for further development, so the single market strengthened the roles of the Parliament, Council and Commission in the legislative

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process, of the Commission in its executive capacity and of the Court as the ultimate judicial authority. The institutional 'factors of progress' mentioned by Delors included the 'cooperation procedure' that gave the Parliament leverage over the Council's power of decision on legislation, which led through subsequent treaties to codecision over the enactment of most laws. The most important step towards effective democratic institutions was, however, the replacement of unanimity by qualified majority voting for legislative acts affecting 'the establishment or functioning of the common market' (Article 100); and this enabled the Belgian Presidency, by securing a decision on a more effective procedure for deciding that the Council vote on an act, to bring to an end the general practice of unanimous voting even where the treaty specified qualified majority, which had stultified Community decision-taking ever since de Gaulles's demarche in the mid-sixties (Weiler, 1991: 2459-61). Strengthening the policy of assistance for less-developed regions, seen as necessalY to ensure acceptance of single market legislation by new and industrially less-developed member states, was the basis for a 'Delors package' for the Community budget, which was approved by the European Council; and this, together with a second Oe1ors package linked to the introduction of the single currency, was to expand enough to exceed the hithelto dominant cost of the common agricultural policy, thus opening the way to the development of the budget as a potentially important federal fiscal instrument. The Single Act also provided for a common environmental policy, later enabling the Union to lead the world in global policy on climate change. Thus the addition of new powers was again accompanied by new federal elements in the institutions. One remarkable and immediate result was that the apparently technical change in voting practice, by making it possible to enact the formidable programme of single market legislation, provided the impulse which restored economic dynamism during the following ten years, thus laying the ground for the next major step in the development of federal powers and institutions, with the single currency at its heart.

Delors, Kohl, Mitterrand and the Maastricht Treaty The objective of monetary union, which was taken by Mrs Thatcher as mere verbiage in a preamble, was understood by others as a serious commitment, before long with radical consequences. Oe1ors had already identified the single currency as the next step in developing federal powers. This was in line with longstanding French policy and was acceptable to Mitterrand. Kohl, who understood its significance as a means of working towards a federal Europe and cementing the partnership with France, was also in favour. But he knew that powerful motives would be required to shift the Germans from their attachment to the Deutschmark and the Bundesbank. Delors was able to begin preparing detailed arrangements in a committee set up by the European Council at its meeting, under Kohl's Presidency, in June 1988. But since the economic case for ceding the core of economic sovereignty was unattractive to Germans, it was the other

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principal motive for accepting transfers of sovereignty which brought the project to fruition: that of security, which Germans generally accepted would require the continued consolidation of the Community. This arose because of the tectonic shift in the relationships among European states caused by the unification of East and West Germany, consequent on Mikhail Gorbachev's leadership in the Soviet Union, which evoked the traditional French fear of a powerful independent Germany exploiting its position at the heart of Europe to secure domination over its neighbours. The consent of France was required under the postwar settlement and Mitterrand's first reaction was to try to prevent reunification. But he quickly saw that it was better to integrate the Germans yet more firmly within the Community; and making the longstanding French objective of monetary union a condition could be the means. This gave Kohl a clinching argument for the Germans and the result was the Maastricht Treaty, which entered into force in 1993, together with the euro, which replaced the currencies of most ofthe member states in 1999. Like the common market and the single market, the euro as the central feature of the Maastricht Treaty brought with it a number of what Delors had called factors of progress. These included significantly increased provision for codecision and qualified majority voting, together with.the creation of the independent European Central Bank as a powerful institution of what was now to be called the European Union (EU). Two new 'pillars' were created to deal with questions relating to foreign policy and to internal security, though by predominantly intergovernmental methods. A 'Stability and Growth Pact' was negotiated in order to complement the euro with a common macroeconomic policy; but there was powerful criticism of the inadequacy of the arrangements to accompany the monetary integration in order to deal with the economic problems that could be expected to arise (McKay, 1999; Irvin, 2006). The progress towards federal democracy was, moreover, complicated by British insistence on opting out of the euro, though without formal rejection of its adoption as an eventual prospect. There was also a British veto on the use of the word federal in the preamble, thus retaining the more open-ended formula 'ever closer union'. Thus Delors, by initiating the Single Act and the Maastricht Treaty and, with the vital backing of Kohl and Mitterrand, bringing them to a conclusion, restored the prospect that the vision of a European federal democracy would remain a realistic possibility.

From Maastricht to the Convention There was agreement among the founding member states that the Maastricht Treaty was not enough and, with the accession of at least eight Central and East European states in prospect, further treaty amendment was demanded, to strengthen the Union in order to cope with potentially centrifugal consequences. This resulted in the Treaties of Amsterdam and of Nice, in force in 1999 and 2003 with some fairly modest reforms, hardly commensurate with the challenges ahead.

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Much had already been done to satisfy one basic condition of a federal democracy: that the member states must themselves be liberal democracies. This had been settled policy since the European Council in Copenhagen in June 1993 had decided that states joining the Community must satisfy 'the conditions of democracy and market economy' and demonstrate 'adherence to the aims of political, economic and monetaIY union' (Bulletin of the European Community 1993/6: 13). Those seeking accession had, with help from the Commission and the member states, made great and largely successful efforts to satisfy the first condition. But the second condition was directed to the wrong address. For the aim of economic and monetary union was incorporated in the Maastricht Treaty which had already been signed; and it was not at all clear what the condition of political union meant. For example the British were satisfied by an intergovernmental interpretation. The French generally favoured more federal powers though were content with strong intergovernmental elements in the institutions. For the Germans, however, the aim was a federal democracy. By May 2000, when accession negotiations had begun and preparations for the Nice Treaty were in train, Joschka Fischer, the German Foreign Minister, initiated discussion of these questions by a speech at the Humboldt University in Berlin, in which he gave his own answer to the question of how the Union could work with around 30 member states. This was, he said, 'a very simple answer: the transition from a Union of states to full parliamentarization as a European Federation' with a 'European Parliament and a European government which really do exercise legislative and executive power'. He referred to the aim of federation in the Schuman Declaration and suggested that, in order to avoid the danger of erosion following enlargement, a group of member states could conclude a new framework treaty within the Union and thus form an avant-garde or 'centre of gravity' that would 'speak with one voice ... on as many issues as possible' and thus lead the way to eventually transforming the Union into a democratic federation (Fischer, Federal Trust 2000: 16-24). The proposal responded to two influential groups: those, particularly in France, who wanted a major initiative to form an avant-gal"de, unencumbered by British reluctance, to lead the way ahead (e.g. Verhofstadt, 2006); and those, most importantly in Germany, who were looking for the way to create a European federal democracy. Fischer's speech did much to initiate discussion of these questions which led to a Declaration on the Future of the Union, appended to the Nice Treaty, calling for the European Council to 'decide how to continue consideration of the future of the Union', in order to lead up to an Intergovernmental Conference in 2004 to consider treaty amendments. The agenda was to include the need 'to improve the democratic legitimacy and transparency of the Union and its institutions' and 'to bring them closer to the citizens'. The European Council decided to convene a Convention comprising members of the European Parliament and of member states' parliaments, together with representatives of the Commission and of member states' governments, with terms of reference to consider Treaty amendments on matters which included many of the elements of federal democracy.

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A majority of the members of parliaments were open to proposals with federal content; and the MEPs, knowing more about the questions, were particularly influential. The ambition of Giscard d'Estaing, as the Convention's President, was to produce a Union constitution that would be ratified and would endure. So he sought a broad consensus among most members of the Convention followed by unanimous approval by the governments; and his way of securing the consensus was a broadly federal system for the single market and related matters, together with, for the unanimity, a basically intergovernmental system for citadels of sovereignty, mainly macroeconomic management and foreign and security policy. Thus the Convention produced a Treaty establishing a Draft Constitution for Europe containing some substantial steps towards federal democracy (Duff, 2005: passim). There were also numerous amendments to treaty articles that had a more legislative than constitutional character. All the member state governments signed the Treaty. A majority of the parliaments ratified it; and it is quite likely that all would have done so after any exceptions had been dealt with by policy decisions or by Declarations addressed to specific problems. But in May 2005 referendums in France and the Netherlands produced negative results, in which rejection of the constitutional elements in the Treaty did not appear to playa decisive part, with many French voters reacting against what they saw as imposing an Anglo-Saxon version of liberal economic policies, while Dutch discontents included recent use of FrancoGerman power to override the limits to budgetary deficits agreed in the Maastricht Treaty, thus jeopardizing the Union's economic stability. But it does not follow that most of the elements of reform contained in the Constitution will disappear. Much of Spinelli's Draft Treaty, which was considerably more radical, has since been incorporated into the Union; and by December 2007, all the member states had signed, the Lisbon Treaty, containing many of the Constitutional Treaty's main institutional features. Thus the Parliament's powers would be strengthened by making codecision the general rule for legislation and budgetary expenditure. The Council's legislative sessions would be open to the public; qualified majority voting on legislation would be the general rule; and there would be greater stability in the Council's Presidency. The Presidency of the European Council would be made more effective through replacing the rotation of six-monthly turns in office among the heads of state or government of each member state, by requiring it to elect a full-time President for terms of two and a half years, renewable once. The European Council would, following the European elections and taking account of the results, nominate the Commission's President, subject to the approval of the Parliament. The risk of the Commission degenerating towards an intergovernmental conference would be reduced by bringing forward the Nice Treaty's decision to cut the number of Commissioners to two-thirds of the number of member states. The creation of a post of High Representative for Foreign and Security Affairs (whom the Constitutional Treaty had proposed to call European Foreign Minister), to be both Chairman of the Council of Foreign Ministers and a Vice-President of the

Federal democracy in afederal Europe 267 Commission with oversight of the full range of the Commission's external responsibilities, had both federal and intergovernmental potential. The judiciary would, following the precedent of previous amending treaties, be further strengthened. The Commission would have a bigger role in common foreign and security policy. The Treaty also provided more clearly for external action on climate change and energy solidarity, as well as for a group of willing states to establish 'permanent structured cooperation' in the field of defence. The Lisbon Treaty was ratified by almost all member sates, but a referendum in the Republic of Ireland rejected it, on grounds that included the illusory fear that it would expose Irish citizens to conscription into a European army. The Irish government decided to provide the citizens with better information for a second referendum in October 2009, which was positive and has now enabled the Treaty to enter into force.

An incomplete federal democracy Notwithstanding the rejection of the constitutional treaty and the uncertain fate of the Lisbon Treaty, the European Union has travelled quite far towards a federal democracy, with the division of powers between the Union and the member states, both with liberal democratic systems of representative government and the rule of law based on fundamental rights. But the democracies of the states remain deficient in so far as they are unable to deal with many crossfrontier problems except through intergovernmental agreement which is prone to escape parliamentary control of the executive; and the Union has its democratic deficit, inevitable where the states are unable to create a fairly complete federal democracy from the outset as the Americans did in 1789, but proceed by a process of continuous creation through the accumulation of elements of federal institutions and powers. The Court of Justice, along with its relationship with member states' courts, comes close to resembling a federal judiciary (Hartley, 1994: 55), though its relationship with their constitutional courts remains uncleat. The Commission is akin to a federal government in certain functions such as competition policy and external trade. But in most fields the Council and member state governments share with it the executive power. There is little support for a stronger role for the Commission, with governments jealously protecting their prerogatives and scant support among citizens for what the media have tended to call 'unelected bureaucrats'. The European Parliament has come to perform much like a federal house of the people for most legislation, where treaty amendment has given it the power of codecision with the Council. Its members undertake more serious detailed work than those in many of the states' parliaments and generally vote with their European party groups rather than on national lines (Hix et al., 2005: 209-35). But this does not attract much public attention, partly because it tends to concern matters not considered newswOlthy and partly because the media generally see the Parliament itself in a similar light.

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Treaty amendment has shifted the Council from the almost universal practice of unanimous voting to provision for qualified majority for most legislative decisions. But the culture of intergovernmental negotiation remains, even though ministers tend to compromise rather than risk being outvoted in a small minority (Weiler, 1991: 2461). So consensus in the Council has remained the norm, supported by consociational practices of consultation and networking with nongovernmental stakeholder elites, making the Union an example of 'extreme consensus democracy'. This not only impedes necessary decisions but is also a form of accountability that fails to reach the citizens and so does little to engender their support (Lord, 1998: 79, 104-6). This and the low profile of the Parliament's legislative role have been among the causes of the declining interest in European elections, treated by member state governments and political parties and thus seen by citizens as second-order national elections, with turnout by now averaging less than 50 per cent. Since voting in elections is widely regarded mainly as citizen's exercise of power to influence the character of government, various ways have been proposed for giving the Parliament a more explicit role in the appointment of the Commission or for direct election of its President (Bogdanor, 1986: 161-76; Lord, 1998: . 130-2; Hix et al., 2005: 554-6). It has been argued that direct election of the Commission's President would be the more likely to engage the citizens' commitment. But the parliamentary method which is prevalent in Europe has been preferred since the foundation of the Community, when the Common Assembly was given the power to dismiss the ECSC's High Authority. It was not until 2002, however, that treaty amendments began the process of moving the procedure for appointing the President and the Commission as a whole closer to that of a federal legislature, with the European Council deciding its nominations for the appointments under the qualified majority procedure and the Parliament having the power of approval over them, as well as over the political balance among the Commissioners. But the centrifugal force of the member states' democracies, in the form of their governments and national political parties, remains a substantial barrier to the completion of a system of parliamentary democracy for the EU. The strength of the member states' democracies compared with that of the Union's incomplete federal democracy is due also to the strength ofthe states' respective demoi and the relative absence of a Union demos, which weakens the Union's institutions and the Parliament in pariicular. Linguistic diversity is one problem, with which federations such as Switzerland, Canada, India and Belgium have nevertheless managed to cope. The demos in many member state~ is also bolstered by a common perception of histOlY and by political and social customs and institutions. It has been contended, however, that sufficient support for the Union's polity can stem from common commitment to liberal-democratic values (Habermas, 1992: 1-19), or from the practice of democratic party competition within a system of 'institutionalized cooperation' (Follesdal and Hix, 2006: 550). It has also been observed that a common identity, which is a condition of an effective demos, has to depend on a 'community of interests' as well as a 'community of values' (Lord, 1998: 123).

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The experience of European integration since 1950 has shown that major steps towards federal democracy have indeed been motivated by a keenly felt common interest in security as well as in economic benefits. Security within the Union is now largely taken for granted. But there is profound concern, widely shared among citizens, about dangers in the wider world which threaten Europeans as well as others: for example from atomic, biological or chemical weapons, terrorism, failed states, mass migration or climate change. While the Union alone cannot, of course, effectively confront them, it can, as the Kyoto Protocol on climate change has shown, influence others to join it in taking significant steps. Such contributions to the development of a multilateral system to create a safer and more prosperous world are consonant with the values generally shared within the Union; and this could provide grounds for strengthening its powers for external action, accompanied by further substantial steps towards the institutions of federal democracy (see Pinder, 2007). The European Union has already done much to show how a group of modern nation states can build a federal democracy through such a series of steps, thus incrementally applying the principle of combining self-government with shared government that was first applied in the United States Constitution. Whether the process of creating a European federal democracy will be completed through fUliher refonn of the Union's institutions and powers after the recent ratification of the Lisbon Treaty, remains to be seen. But much can be learnt from the experience so far, both about the prospects for the Union's fUliher development towards a federal democracy and about the potential for such a process of incremental federalism within existing states, or in other regions, or more generally in the wider world.

References Barenbrinker, F. (1995) 'Hall stein 's Europakonzeption vor seinem Amtstritt bei der Kommission', in Loth, W. (ed.) Walter Hallstein: Der vergessene Europiier? Bonn: Europa Union Verlag. Bogdanor, V. (1986) 'The Future of the EC: Two Models of Democracy', Government and Opposition 21( 2 ) . Bulletin o/the European Communities (1993) (6). Camps, M. (1963) Britain and the European Community 1955-1963, London: Oxford University Press. Delors, 1. (2004) lvIemoires, Paris: Pion. Duchene, F. (1994) Jean Monnet: First Statesman 0/ Interdependence, London: W.W. Norton. Duff, A. (2005) The Struggle/or Europe's Constitution, London: Federal Trust. Fischer, J. (2000) 'Vom Staatenbund zur Foderation - Gedanken i.\ber die Finalitat der Europaischen Integration', Rede in der Humboldt-Universitat Berlin, 8 May; in English, 'From Confederation to Federation: Thoughts on the Finality of European Integration', European Essay no. 8, London: Federal Trust. Follesdal, A. and Hix, S. (2006) 'Why there is a Democratic Deficit in the EU: a Response to M~ione and Moravcsik', Journal o/Common Market Studies 44: 533-62. Friedrich, C. (1955) 'Federal Constitutional Theory and Emergent Proposals', in Macmahon, A. (ed.) Federalism: Mature and Emergent, New York: Doubleday.

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Grant, C. (1994) De/aI's: Inside the House that Jacques Built, London: Nicholas Brealey. Griffiths, R. (2000) Europe's First Constitution: The European Political Community, 1952-1954, London: Federal Trust. Habermas, J. (1992) 'Citizenship and Identity: Some Reflections on the Future of Europe', Praxis Intel'l1ational, 12(1): 1-19. Hallstein, W. (1969) Del' Unvollendete Bundesstaat, Europaische Elfahrlll1gen und Erkentnisse, Dusseldorf: Econverlag; English version (1972) as Europe in the Making, London: Allen and Unwin. Hartley, T.C. (1999) Constitutional Problems of the European Union, Oxford: Hart. Hirsch, E. (1988) Ainsi va la vie, Lausanne: Fondation Jean Monnet pour l'Europe. Hix, S., Noury A. and Roland R. (2005) 'Power to the Parties: Cohesion and Competition in the European Parliament, 197~2001', British Joul'l1al of Political Science, 35: 209-34.

Irvin, G. (2006) Regaining Europe: An Economic Agendafor the 21st Century, London: Federal Trust. Joxe, L. (1987) 'Contribution', in Rieben, H. (ed.) Des Guerres Europeennes a l'Union de I 'Europe, Lausanne: Fondation Jean Monnet pour l'Europe. Kossmann, E. (1999) 'Republican Freedom against Monarchical Absolutism: The Dutch Experience in the Seventeenth Century', in Pinder, J. (ed.), Foundations of Democracy in the European Union: From the Genesis of ParliamentGlY Democracy to the European Parliament, Basingstoke: Macmillan Press and New York: St Martin's Press. Krause, L. (1968) European Economic Integration and the United States, Washington,

D.C.: The Brookings Institution. Kilsters, H. (1995) 'Walter Hallstein und die Verhandlungen tiber die Romischen Vertrtlge', in Loth, W. et al. (eds), Walter Hallstein: Del' vergessene Europaer? Bonn: Europa Union Verlag. Lipgens, W. (1986) 45 Jahre Ringen um die Europaische Velfassung: Dokumente 19391984: Von del' Schriflen del' Widerstandsbewegung bis zum Vertragsentwlllf des Europaischen Parlaments, Bonn: Europa Union Verlag. Lipgens, W. and Loth, W. (eds) (1985-1991) Documents on the Histo/y of European Integration: Plans for European Integration in Great Britain and in Exile 1939-1945,

Berlin and New York: Walter de Gruyter. Lord, C. (1998) Democracy in the European Union, Sheffield: Sheffield University Press. Loth, W., Wallace, W. and Wessels, W. (eds) (1984) Walter Hallstein: Dervergessene Europaer? Bonn: Europa Union Verlag. Majocchi, L. and RossolilIo, F. (1979) 11 Parlamento europeo, Naples: Guida Editori. McKay, D. (1999) Federalism and European Union: A Political Economy Perspective, Oxford: Oxford University Press. Monnet, J. (1955) Les Etats-Unis d'Europe ant commence: disc ours et allocutions, Paris: Laffont. Monnet, J. (1978) Memoirs, trans. R. Mayne, London: Collins. Padoa-Schioppa, T. (2004) Europe, a Civil Power: Lessonsji'om EU experience, London: Federal Trust. Pinder, J. (ed.) (1998) Altiero Spinelli and the British Federalists: Writings by Beveridge, Rabbi/is and Spinelli, 1937-43, London: Federal Trust. Pinder, J. (2000) 'Steps towards a Parliamentary Democracy for Europe: The Development of the European Parliament from the Seventies to the Nineties', in Fink, Gerhard and Griller, Stefan (eds), Vom Schumanplan zum Vertrag von Amsterdam: Einstehung und ZUklll1jt del' EU, Vienna: Springer-Verlag.

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Pinder, J. (2007) 'Britain, Security and a Federal Europe', in I-lenig, S. (ed.) Federalism and the British, London: Federal Trust. Rieben, H., with Campero-Tixier, C. and Nicaud, F. (2004) A l'Ecoute de Jean Monnet, Lausanne: Fondation Jean Monnet pour l'Europe. Ross, G. (1995) Jacques Delors and European Integration, Cambridge: Polity Press. Scharpf, F. (1999) Goveming in Europe: Effective and Democratic? Oxford: Oxford University Press. Schuman, R. (1950) Statement made by Robert Schuman, French Foreign Minister, on 9 May 1950. Spaak, P.-H. (1971) The Continuing Battle: Memoirs ofa European, London: Weidenfeld and Nicholson. Spinelli, A. (1984) Come ho tentato di diventare saggio: la, Ulisse, Bologna: II Mulino. Spinelli, A. (1989) Diario europeo 1948-1969, Bologna: II Mulino. Spinelli. A. (1991) Diario Europeo 1970-1976, Bologna: II Mulino. Tsoukalis, L. (1977) The Politics and Economics of European Monetary Integration, London: George Allen & Unwin. Verhofstadt, G. (2006) The United States of Europe, London: Federal Trust. Weidenfeld, W. (1981) 'Seine Sorge hiess Europa: Konrad Adenauer', in Jansen, T. and Mahncke, D., Personlichkeiten del' Europaischen Integration: Vierzehn biographische Essays, Bonn: Europa Union Verlag. Weiler, J.H.I-I. (1991) 'The Transformation of Europe', Yale Law Joumall 00(8).

Part III

Comparative perspectives

13 Federalism and democracy The case of minority nations a federalist deficit Ferran Requejo

1 Federalism and democracy: different values, different aims Democracy and federalism are two venerable concepts in the history of political theory and in the history of political systems. On a theoretical level, they are two concepts that refer to different values, organizing principles, languages and intellectual traditions, which can be analyzed separately. Generally speaking, normative theories of democracy usually include three guiding normative principles: 1) a specific notion of the equality of citizenship; 2) a certain degree of political participation by citizens in collective decision-making; and 3) some kind of popular control over political power. These are obviously three very general ideas that can be articulated very differently on an institutional level and which, also in general terms, have given rise to two different normative theories of democracy which are usually associated with "republican" and "liberal" traditions, or approaches, to democracy. On the one hand, normative theories of federalism usually refer to some kind of pact between individuals or collectivities (or both), which is designed to regulate specific functions or interests collectively. This pact is justified in different ways, in accordance with different individual and colJe~tive values, whether in the most classical versions of antiquity and the republican tradition (liberty, interests and collective self-government), or in the different versions of liberal federalism (security, liberty, property, individual rights, rights of selfgovernment, efficiency, etc). In both cases, moreover, federal theories of a nonnative nature justify the desirability of being federated, based on deontological approaches (fairness, liberty, equality, etc), or on consequentialist approaches (better results achieved through a federal pact, above all in the military and economic spheres) (Karmis and Norman 2005). Consequently, the internal logic (values, concepts, language, objectives) which usually prevails in debates about theories of democracy is not necessarily related to the logic that predominates in debates about federalism and federal systems. Moreover, these different forms of legitimization can be applied to two general spheres:

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to the most classic issues of "democratic and social justice" in federations (equality, competitiveness, redistribution, efficiency, etc) to issues of "cultural justice" about phenomena of national and cultural pluralism in federal democracies (plurinational polities, indigenous groups, politics of recognition, rights of secession, etc).

Although these two spheres do sometimes overlap, the normative and institutional analytical "agenda" of these two kinds of discussion are different. Both pose questions which have a bearing on the debate about the quality of democracy in federations. On the other hand, the duo of pluralism/monism is present both in theories of democracy and in normative theories of federalism and is applied to individuals and collectivities. Pluralism is a complex notion which requires some clarification. We can posit the existence of at least three notions of pluralism which are associated with the current debates on democracy and federalism.

2

3

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F. Requejo

Ontic pluralism. This refers to the pluralism of societies in which different ethnic, national, religious, linguistic and socio-economic groups co-exist and interact with each other and share or overlap some values, interests and individual as well as collective identities. Regarding the issue of cultural pluralism (e.g. linguistic and religious), it is convenient to distinguish between the pluralism which is present within the demos of some democracies and the pluralism of different demoi that exists in some democracies (plurinational democracies).1 Normative pluralism. This is related to the myriad values, identities and interests that theories of democracy and federalism are concerned with. It is the opposite of normative monism. Among the different pluralist normative theories, it is possible to distinguish between those that defend the possibility of establishing a permanent hierarchical order for the main legitimizing values (Rawls), and those that defend the impossibility of establishing an order of this kind (Berlin). In order to carry out an analysis of plurinational contexts it is advisable initially to deal with the existence of at least three types of normative pluralism which are relevant in plurinational contexts: a) plurality of values; b) plurality of identities; and c) plurality of interests. There is also the existence of tensions among these three groups and within each one of them. Methodological pluralism. This is the existence of several analytical perspectives both within a discipline and among the different disciplines that study the relationship between democracy and federalism. It combines theoretical and empirical aspects in normative analyses of democracy and federalism: the aim is to avoid approaches which lean towards "moralism" and "statism" and which are common in traditional political conceptions.

In all probability, as the degree of ontic plurality of a society grows, the chances of finding a kind of normative pluralism also increases, as well as the chances of

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encountering greater difficulties in the establishment of simple normative "principles" applicable to a wide variety of cases. The debate that has taken place in recent years concerning cultural and national pluralism in liberal democracies has shown that traditional political theories and traditional constitutionalism display two main shortcomings: a b

a flawed conception of "individualism" and "universalism"; a less than plural, "statist" approach towards minorities, inserted in notions such as the "national demos", "citizenship" or "popular sovereignty".

These are analytical, moral and institutional flaws which are questionable in terms of the basic values defended by democratic liberalism itself (dignity, liberty, equality and pluralism) (Requejo 2005). These values involve individual and collective cultural dimensions which should be added to the more standard individual social and political dimensions of "theories of justice" in liberal democracies. There may be no possibility of reaching a normative agreement which can be considered "fair" by the different actors involved in the process. Theories of federalism and democracy may offer normative and analytical arguments as well as suggesting possible practical solutions, but whether a political system is "just and workable" will depend also on a number of concrete historical and political conditions that need to be analyzed case by case.

2 "Minority nations" in plurinationaI democracies: an empirical charactel'ization The most common characterizations of "minority nations,,2 are usually based on theoretical criteria which combine objective and subjective aspects. The former (objective) focus on historical, linguistic and cultural characteristics, which singularize a collective situated in a more or less defined territory, and which distinguish it from others in the surrounding area (first criterion). The latter (subjective) focus on the desire for a different status and-self-government, which these collectivities have historically expressed, and continue to express in the present (self-government which can be articulated politically in a variety of ways, from demands for their own state to non-secessionist self-government through federal formulas or regional autonomy) (second criterion). My proposal for characterizing minority nations in liberal democracies is to complement these two theoretical (and normally "diffuse") criteria with a third empirical criterion. The aim is to increase the analytical precision of what we understand as "minority nations" and to avoid the usual dilution of clear minority nations in a monist concept of a wider nation-state. So, apart from the two theoretical criteria already mentioned, a national minority also needs to have autonomously functioning political institutions characterized by:

2

a distinct party system from that of its state-level counterpart, and within which at least one secessionist party is present.

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Let us look at the largest minority nations that currently meet these requirements: the Catalans, the Basques, the Quebecois, the Flemish, the Scottish and the Welsh. In addition to a brief outline of their respective party systems, I will mention two indicators which illustrate the differences between these national minorities' domestic party structures and their central counterparts. First, I classify both state and sub-state party systems (according to Sartori's typology). Second, I will calculate the "effective number of parties" (N) using the usual formula:

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2.2 Call ada The Quebecois also clearly constitute a national minority: a powerful secessionist party regularly governs the province, which has a totally different party system from Ottawa (it should be mentioned that the Parti Liberal du Quebec is an independent group, not the Quebecois branch of the Liberal Party of Canada). Both systems are characterized by moderate pluralism and bipartisanism, respectively, while the difference in the effective number of parties is significant, but not enormous (3.1 for Canada, 2.1 for Quebec).

I

N=-",--

2: 1=1

2.3 Belgium

2

PI

where pf is party i's share of the seats within the representative institution in question (Taagepera and Shugart 1989: 79).3 Table 13.1 summarizes the main findings after applying these two empirical criteria to the main Western plurinational democracies. 2.1 Spaill

It is clear that both the Catalans and the Basques can be classified as "minority nations" according to the definition given at the beginning of this section. "Independentist" parties enjoy parliamentary representation in both sub-state entities: in Catalonia, Esquerra Republicana de Catalunya; in the Basque Country, Eusko Alkartasuna and Batasuna/Partido Comunista de la Tierras Vascas (Batasuna was declared illegal in 2003; PCTV has been its electoral substitute). More specifically, while the state-level system can be called "bipartite", Catalonia is marked by "moderate pluralism", and the Basque Country is closest to "polarized pluralism". Furthermore, while Spain's effective number of parties is 2.5 the minority nations score much higher: 3.9 for Catalonia and 4.4 for the Basque Country. Table 13.1 Party systems in Western plurinational democracies

Spain Catalonia Basque Country Canada Quebec Belgium Flanders United Kingdom Scotland Wales

Type a/system

Effective number a/parties

Bipartite Moderate pluralism Polarised pluralism Moderate pluralism Bipartite Polarised pluralism Polarised pluralism Bipartite Moderate pluralism Moderate pluralism

2.5 3.9 4.4 3.1 2.1 7.0 4.8 2.5 4.3 3.1

Belgium'S state-level party system is divided into French-speaking and Dutchspeaking segments, both groups roughly matching the main factions pl'esent in the respective sub-state parliaments. However, the consequent "doubling" of parties means that the effective number of parties in the House of Representatives is much higher than the corresponding number in Flanders: 7 in comparison with 4.8. Both systems should be described as "polarized pluralism" due to the presence of the powerful but controversial Vlaams Belang, which is unanimously shunned by the other political forces. Nonetheless, this party's much greater strength in Flanders (compared to Brussels), means that the regional parliament suffers from substantially more polarization than its federal equivalent. 2.4 United Killgdom

The Welsh and the Scottish both constitute national minorities, although Scotland is somewhat more "distinct" from Westminster than Wales. This is due to the fact that the Scottish party structure includes one secessionist party and several midrange forces with no counterpart in London. The Welsh nationalists, however, are rather more divided about outright independence, while the region's party structure is more similar to Whitehall's. The UK's overall effective number of parties is 2.5, in comparison with 3.1 for Wales and 4.3 for Scotland.

3 The political accommodation of minority nations in plurinational federations: theoretical and comparative approaches 3.1 A theoretical approach

In previous works, I have maintained that there are at least three aims to be achieved by a "fair and workable" plurinational federation (Requejo 2005: 4, 2001a, 1999): An explicit and satisfactory constitutional and political recognition acceptable to the main political actors who are part of the national pluralism of the "federation".

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The establishment of a series of agreements for a high degree of national self-government of the minority nations of the federation (including sufficient economic resources based on a model fiscal federalism). They will be probably of an asymmetrical or confederate nature when there is a larger number of federated units than minority nations The aim of these agreements is the political defence and development of the national collectives, both in relation to the federation and in relation to the international arena. A plurinational regulation of the shared rule of the federation and its reform processes (including in some cases potential clauses of constitutional national secession with clear procedural rules), which is able to accommodate the national ontic and normative pluralism of the polity.

Comparative experience shows, however, that these three conditions are not easily fulfilled even in consolidated democracies. We might ask ourselves why this is so. Two kinds of fundamental reasons have been put forward to explain the difficulties plurinational federal systems encounter when they attempt to fulfil the three conditions mentioned above:

2

plurinational federalism would be inherently difficult to articulate with the main legitimizing values of liberal democracies (liberty, equality, solidarity and pluralism) and with the rights and libelties associated with these values, or plurinational federalism inevitably would retreat to irreconcilable nonnative positions based on the "unity" or the "national union" of the democratic polity.

1) Generally speaking, it can be said that the debate of recent years concerning the relationship between liberal democracy and national pluralism has shown that the first kind of reasons mentioned above are not justified (either from the perspective of liberal-democratic theory or from that of empirical and comparative evidence). On an empirical level, one can observe that the citizens of most minority nations in plurinational democracies defend values and conceptions which are as liberal as those defended by the citizens of majority nations (e.g. Quebec, Catalonia and Scotland). The cases of non-liberal organizations (the extreme right or the extreme left) of some minority nations (Flanders, the Basque Country) are also present in majority nations (France, Austria). Currently, the Jacobin view that minority nationalism promotes policies which are contrary to liberal values is completely obsolete. In fact, it is Jacobinism itself which is emitting non-liberal signals in relation to the treatment of minorities (for the normative arguments, see Kymlicka 1995; for the empirical arguments, see McGarry 2005, 2003). At the normative level, the commitment of democratic liberalism to the rational revision of the "conceptions of good" and the (non-perfectionist) moral neutrality of tlie state (despite the fact tllat there are liberals who accept the first,

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but not the second: Raz 1986), does not prevent liberal states from inevitably opting, on an empirical level, to defend a specific national collectivity and a form of cultural non-neutrality for this collectivity (in linguistic, cultural and symbolic matters; in terms of the reconstruction of their own history, etc). In practice, liberal-democratic institutions always establish processes of nationbuilding which are directly linked with specific national identities and cultures. These processes are at times regarded as conditions to ensure solidarity and a sense of reciprocal obligations of the citizens of the polity (within their own borders) aimed at ensuring the emergence and stability of the polity's liberal values. But, this can be said both of the authorities of majority nations and of those of minority nations. The nation-building processes of national majorities and minorities display similar trends when they articulate with the legitimizing values ofliberal democracies (Requejo 2001a). 2) The second set of reasons refer to an "agonistic" normative framework which is similar to Berlin's "value pluralism", and which makes any single "rational and reasonable" solution regarding the plausibility of federalism in plurinational democracies almost impossible. The reasons for this should be sought in: 2.1) the different implicit political preconceptions; 2.2) the competitive nature of the different nation-building processes which co-exist in a plurinational democracy; and 2.3) the lack of a single epistemological and ethical way to deal with these preconceptions and mutually partial irreconcilable processes. There are at least three questions which exemplify the "agonistic" character of the normative frameworks as well as the values, identities and interests at stake in plurinational contexts: a

The acceptance, or not, that there is only one demos per democracy. It is obvious that state nationalists usually defend a conception of the nationstate which is based on a single demos in terms of the legitimizing concepts frequently used, such as "popular sovereignty" or "equality of citizenship". Generally speaking, both mainstream liberalism and socialism or, in other words, the two main schools of thought which emerged from the Enlightenment, are not very well intellectually prepared to tackle the issue of nationalisms that do not coincide with state nationalism. The problem stems from the implicit "statism" which both traditions accept as a solution for self-governing political collectivities considered to be legitimate. This means that both mainstream traditions adopt a "conservative" position in relation to the status quo of state realities, whatever their historical origins may have been. On the other hand, the nationalists of minority nations usually defend the existence of a group of demoi within the democracy in which they live, described as "national" collectivities which are different for cultural, historical or linguistic reasons. Thus, these two positions contrast a "monist" demos with a number of demoi understood in terms of national pluralism. These two types of actors "live" in different worlds. They will probably give different answers to questions, such as about political equality: "equality of what?"; "equality between whom?". They will

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b

c

F. Requejo insist, moreover, on contrasting conceptual positions: between equality/ inequality or between equality/difference. To attempt to establish common ground between these two (normative and epistemological) political preconceptions is unlikely (apart from any pragmatic agreements that might be established). The same values and concepts mean different things depending on the characterization of the demos-demoi of the polity (this is linked to the normative discussion on democracy and federalism between the so-called liberalism 1 and liberalism 2) (Maiz and Requejo 2005; see also notes 12 and 13 to this chapter) The acceptance, or not, that the establishment of individual rights and liberties enshrined in liberal democracies is always preceded by a previous collective right or liberty: the right to self-determination of the state collectivity (and the "sovereignty" of the demos congruent with it). It has been said many times, but without always extracting the pertinent normative consequences, that in democracies there is always a prior decision regarding the demos (albeit with limitations dictated by organizations such as the EU, Mercosur, etc). This is a decision that in practice usually refers to collectives that have established themselves after long historical processes replete with wars, annexations, exterminations, deportations which are totally unrelated to the legitimizing values of liberal democracies. It should come as no surprise that some members of national minorities put fOIward historical arguments to defend the existence of the right to self-detennination (and secession) for one of the demoi of the state. These agonistic views are reflected in the distinct "political cultures" of the different national collectives and in the way of "translating" liberal-democratic legitimizing values into their specific contexts. The linking of political and constitutional rules to their strictly "moral" nature or their complementary referral to an underlying "ethical" dimension. In addition to "pragmatic" rationality - that which uses the best means to achieve pre-established ends or objectives (linked to values such as efficacy, efficiency and stability), in plurinational contexts it is useful to introduce the classical distinction between ethical rationality and moral rationality. The fonner refers to the empirical interpretation of specific cultural values and identities, by either introducing particular values (e.g. the defence of a specific language) or by establishing a specific interpretation of universal principles (e.g. who is the subject of collective political liberty). This is a rationality characterized by contextual interpretation, which is decisive when one is discussing concrete political questions, such as the use of political symbols of minority nations, the level of their self-government, or their presence in the international sphere. It will also be decisive when one evaluates the greater or lesser degree of political accommodation of the citizens who subjectively associate themselves with the minority nations of a plurinational federal democracy. "Moral" rationality, on the other hand, refers to an impartial resolution of conflicts through principles and rules that aspire to universal validity, regardless of the context in which they act. The-

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ories of democracy have usually concentrated on pragmatic and moral rationalities, marginalizing ethical rationality, which is precisely the one that the citizens of minority nations use in order to demand fair treatment for their specific linguistic, historical and cultural characteristics. Therefore, in the normative sphere, ethical rationality acts as an incentive to introduce a greater degree of pluralism within the political principles and institutions of democracies and federal systems in order to avoid versions biased towards the values, identities and the monist interpretation usually decided by majorities. The agonistic elements of these three issues in plurinational contexts is linked to values which can be integrated into two different liberal-democratic perspectives (majority/minority) both of which can be justified from liberal, democratic and federal premises, but which can easily come into conflict. 4 There will always be a form of normative pluralism which acquires more complexity in plurinational than in uninational contexts, and which includes both individual and collective dimensions. Here, there is a question which has not usually been answered by liberal, democratic and federal theories: what should the polity or polities of justice be? The implicit answer is "the state", regardless of the way it has been created historically. But this answer is rather debatable from the perspective of liberal and democratic values themselves. These are issues that are hardly ever discussed by the classic theories of democracy and federalism. In federal terms, the three issues discussed above link up with the contrast mentioned earlier between the kind of federal theory which situates the normative centre of gravity at the "union" that arises from the pact, and the kind of theory which situates this centre of gravity with the parties to the agreement. It relates, in other words, to the debate between Madison and Althusius. The latter are closer to what one might call the spirit of confederations (or to a form of consociational federalism). The classic notion of sovereignty is understood here in tenns of negotiation and sharing. In this case, one of the objectives of the "federal pact" will be the preservation ofthe plurality of the particular identities of the subjects of the pact. 5 In contrast, the American federalist tradition interprets federalism from a much more federal than confederal standpoint. Here the centre of gravity is situated in the governance of a nation-state and the consequent supremacy of the central power. The Union is more important than the constituent units (Federalist Papers, 10, 37, 51 - Madison, and 9, 35 - Hamilton). Here, the establishment of a federation should not fall back on existing social and territorial divisions, but should try to build a new polity that subsumes the old divisions by establishing new state-building and nation-building processes. (A third type of federal theory is based on Kant; for an approach to Kant's theory and "cosmopolitan justice" in relation to plurinational states, see Requejo 2009) Depending on what federal conception we adopt, we will obtain different conclusions in all the spheres of territorial accommodation. Thus the interpretation of the values of liberty, equality and pluralism is easily split depending on

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whether one is dealing with uninational or plurinational federal democracies, especially in relation to collective or group rights and liberties, the subjects of liberty, and the type of pluralism one seeks to protect and guarantee. The conclusion is that both traditional liberal-democratic theories and traditional federal theories are iII-equipped to solve these questions: they make specific versions of individualism, universalism and "statism" (and its implicit nationalism) the three fundamental points of reference for the legitimization of states regardless of their historical processes of construction and their internal pluralism. This leads towards afederalist deficit in the traditional political theories when they deal with the negative and positive collective liberties of minority nations. The alternative is in liberal-democratic and federal theories of a more pluralist nature in relation to the different normative perspectives of the groups that co-exist in a democracy.6 . Obviously, these contrasting theoretical and normative positions will have consequences for constitutionalism. Thus, in the case of plurinational federal democracies (Canada, Belgium, etc) both the normative debate and politics have shown the characteristics and limitations for plurinational societies of the American model, established as a uninational federation with symmetric features. This is a series of limitations and characteristics whicl"! go beyond the most centralized and decentralized character of that model and which make it advisable to keep in mind for most empirical analyses of comparative politics.

The case ofminority nations 2 3 4

uninational-plurinational axis unitarianism-federalism axis centralization-decentralization axis symmetry-asymmetry axis.

These axes require a diverse battelY of variables and indicators in order to cany out a comparative approach. The universe of the following analysis comprises democratic federations - excluding cases based on archipelagic federations such as Micronesia, the Comoros and St Kitts and Nevis, as well as federations which are a long way fi'om the liberal-democratic logic (the United Arab Emirates, Nigeria, etc). Associated states, federacies and supra-state entities such as the European Union have been also excluded. On the other hand, we include three European Western democratic regional states which display a clear territorial division of powers: the United Kingdom, Spain and Italy.s Altogether, there are 19 federations or regional states in the following analysis (we have finally excluded the case of SerbiaMontenegro after the break of the federal links voted in Montenegro in 2006).

3.2 A comparative approach

Territoriality matters. In contrast to the pretensions of a number of liberal and Marxist theories of modemization, empirical studies have established that in the democratic sphere, territorial conflicts display no tendency to disappear; in fact, the opposite seems to be occurring. It has also been observed that the emergence of a large number of new states in Europe over the last century has come about following the collapse of two empires, the Austro-Hungarian, after the First World War, and the Soviet, in the last decade of the twentieth century. In contrast, few states have achieved independence during the twentieth century in the group of Westem European democracies - Norway (1904); Ireland (1921) and a few islands (Cyprus, Malta, etc.) (McGarry 2003, Saydemann and Ayres 2000, Fearon and Laitin 1999). In plurinational democracies, the majority of territorial disputes are of a peaceful nature.? In conceptual tenns, there is nothing to prevent the issue of where borders should be established from joining the democratic debate. But on an empirical level it is clear that states are jealous of their own territories (and even to recognise usually its plurinational character). The "classic" liberal-democratic solutions to achieve a political accommodation of minority nations are federal systems (in a wide sense), consociationalism, devolution processes and secession (Amoretti and Benneo 2004; Gagnon et al. 2003; Gagnon and Tully 2001). We will focus here on federal systems (federations and some regional states). Comparative analyses of federalism can be structured along four autonomous analytical axes:

the the the the

285

2

3

Regarding the uninational-plurinational axis, the two theoretical criteria and the double empirical criterion explained in section 2 can be applied. Apart from the four examples of plurinational states mentioned above - Belgium, Canada, Spain and the United Kingdom - the following federations should be added: India, Russia, Ethiopia and Bosnia and Herzegovina (which was established with international mediation and displays confederal features and political dynamics that challenge its continuity). All of them include either a formal definition describing themselves as plurinational in their respective constitutional agreements or fulfil, in at least one internal case, the theoretical/empirical criteria established in the previous section. The unitarianism-federalism axis is established using constitutional regulations which are more or less favourable to a federal institutional logic from the perspective of the federated units. 9 We will include as indicators the existence, or not, of: federated polities as constituefit units (1); constitutional guarantee of their self-government (1); agreement for constitutional reform (1); an institutional dualism in relation to the three classic powers: the executive and legislative (2) and the judicial (1); a model of fiscal federalism (2); an upper chamber with representatives appointed by the institutions of the federated entities (1) and with seats distributed along territorial lines (not proportional to the population) (1); powers of the upper chamber within the institutional system (2); the allocation of unallocated powers to the federated units (2); a court to arbitrate in disputes (2), with the sub-state entities having a say regarding who is appointed to it (2); and, finally, the regulation, or not, of a right of secession of (some) the federated units (2). The centralization-decentralization axis refers to the degree of constitutional self-government of the federated units or of the regions with political autonomy.1O This is a key subject for evaluating their political accommodation in federal/regional democratic polities. It is also measured using different

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4

The case of minority nations

F. Requejo indicators: a) the kind of legislative powers enjoyed by these sub-units (8) subdivided in specific areas of government as follows: economy/infrastructures/communication (2), education and culture (2), welfare (2), internal affairs/penal/civil codes and others (2); b) the executive/administrative powers (2); c) whether or not the federated entities have the right to conduct their own foreign policy, taking into account both the scope of the matters and agreements with federal support (2); and d) their economic decentralization (8): it is calculated according to a single average index obtained taking into account the distribution of the public revenues and the public expenditures (GFS/IMF indexes) in each country. Finally, the symmetry-asymmetry axis includes the cases with de jure specific regulations of an institutional nature or competencies for specific territorial sub-units of the federations or of the regional states. We include the usual constitutional approaches for asymmetry: a) asymmetrical distribution of powers; b) regulation of opting in and opting out formulas within formally symmetrical frameworks; c) the territorial overlapping of entities with different functions (e.g. the regions/communities in Belgium) (Watts 2005, 2002: 463-4; Requejo 2001 b, 1999). There is no discrimination, therefore, between their degree of asymmetry, but only. between states which display or fail to display a number of clear constitutional and political asymmetries (we exclude federal capitals from asymmetry criteria; in the following calculations, Quebec, Catalonia, Scotland and Flanders are the reference for the cases of Canada, Spain, the UK and Belgium).

Table 13.2 situates our 19 cases according to the results of their degree of constitutional federalism and their degree of decentralization (I omit the case of Ethiopia in the degree of decentralization due to the lack of reliable economic data). Figure 13.1 relates the degree of constitutional federalism and the degree of decentralization which exist in the cases studied. II It is also worth taking into account, from the perspective of the political evolution offederal systems, elements of the internal dynamics of pi uri national federations'related to institutional characteristics. This is the case, for example, of the number of sub-state entities which are present in federations and regional states, and of the constitutional recognition of potential secessionist processes in plurinational federations. Tables 13.3 and 13.4 deal with these two characteristics. The following are general conclusions based on these results. We will briefly mention the three conditions for the "federal" political accommodation of plurinational polities established earlier: 1) constitutional recognition of plurinationality; 2) a broad and effective level of self-government of minority nations; and 3) the participation and protection of minority nations in the "shared government" of the federation and the regulation, or not, of a right of secession. 1) Political recognition of national pluralism in plurinational federations. Ethiopia and Russia formally recognise their plurinational character. However, all other federations and regional states are reluctant to permit explicit recognition of national pluralism in their constitutional agreements. 12 In fact, this recognition is

287

Table J3.2 Constitutional federalism/decentralization Federation/regional states

Argentina Australia Austria Belgium Bosnia and Herzegovina Brazil Canada Ethiopia Germany India H~

Mexico Russia South-Africa Spain Switzerland United Kingdom United States Venezuela

Degree of constitutional federalism

Degree of decentralization

(20 points scale)

(20 points scale)

13 14 10 11 18 13.5 13 13.5 14 12 5 11 13.5 9 6.5 15 5 15.5 3.5

11 12 8.5 14 16.5 11 16.5 n.d. * 12 11 6 5 11

7 10.5 14 8.5 14.5 3.5

Notes *No reliable economic data. 20Tr=======~--------------------------------~

Countrv with constitutional asvmmetries

18 E 16 en

[pi1:irinati6n-al'ji

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Venezuela 2 O+----.----.----.-----r----r----.----.----.----.---~

o

2

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12 14 8 10 Degree of decentralization

Figure J3. J Constitutional federalism/decentralization.

16

18

20

288

F. Requejo

The case of minority nations

Table J3.3 Symmetry/asymmetry in uninational and plurinational federal/regional states Number offederated! regiol1alul1ities Federatiol1sluninational regional states

Symmetrical

Argentina Australia Austria Brazil Germany Italy Mexico South Africa Switzerland United States Venezuela

23+1 6+2 9

26+1 16 21 31+1 9

20+6 50+1 23+1

Asymmetrical Federatiol1slplurinational regional states

Symmetrical

Asymmetrical

Belgium Bosnia and Herzegovina Canada Ethiopia India Russia Spain United Kingdom

3+3 2 (+1+1) 10+3 9+1 28+7 89 17+2 3

Table J3.4 Secession potential Right ofsecession Plurinational federations

Bosnia and i-ierzegovinia Belgium Canada Ethiopia India Russia (Serbia-Montenegro)* *

No No Yes* Yes

No No Yes**

Plurinational regional states

Spain*** United Kingdom

No No

Notes * Right of Secession according federal (non unilateral) rules. **Fcdcration brokcn by unilatcral rcferendum in Montenegro (2006). *** State with some federal trends.

289

less common in this group of federations than the regulation of medium or high degrees of self-government in some federations. It seems there are two reasons for this. On the one hand, it may be related to monism, which is a feature of the stateist and nationalist conception of the polity into the dominant contemporary federal tradition. Moreover, in some cases (Canada, Spain) the hegemonic nationalisms of the federation often tend to deny their plurinational character in favour of a pluricultural and multilingual conception of a federation that is often considered uninational. 13 Therefore, the "federal union" is normally understood to be a unit rather than a "union" of national entities. An added difficulty is one of a terminological nature: it would be easier to refer to the federal/regional state demos as a "union" if its name does not coincide with the majority demos of the federation. This is the case of the "United Kingdom" (as opposed to England) or "Belgium" (as opposed to Flanders and the Walloon region) in contrast with the absence of a parallel denomination in Canada, Russia and Spain. This issue becomes more important when the popUlation of the minority national demos represents a relatively large portion of the population of the federation: 25 per cent in the case of Quebec, and 16 per cent in that of Catalonia, and the number of federated/regional entities is high. On the other hand, the reluctance to recognise the plurinational character may be based on a very different reason: because of the controversial character of the federal union. The constitutional preamble of Bosnia and Herzegovina mentions "Bosniacs, Croats, and Serbs, as constituent peoples". The text defines that "Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska (art. 3), also avoiding the national question (the adjectival fonn "national" appears in several articles referring to the "National Assembly of the Republika Srpska"). 2) Degree of federalism, decentralization and asymmetries. Broadly speaking, plurinational federations/regional states are more asymmetrical in constitutional terms than uninational federations. The first type of federation displays a greater average level of constitutional decentralization than federations in general, although there are internal differences in these groups of polities. They also have a greater number of asymmetrical constitutional regulations. In fact, there are no cases of clearly symmetrical plurinational federations. In this group, the degree of federalism is more uniform and lower than in the group of uninational federations (except for the special case of Bosnia and Herzegovina, which displays some confederal characteristics, see Figure 13.1). Not surprisingly, the two regional states - Spain and the United Kingdom - receive the lowest score within the plurinational group of states. The lower degree of federalism raises questions about the suitability of federations/regional states for properly managing plurinational polities (and their inherent ontic and normative pluralism): to accommodate politically minority nations is not only a question of decentralization, but also of political recognition of their national status, and of regulation of their constitutional collective negative and positive liberties. That is, it is also a question of the degree of federalism present in the constitutional framework. This empirical federalist deficit in plurinational democratic federations is still a challenge at the beginning of the twenty-first century.

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On the other hand, the number of federated subunits is not a discriminating criterion between uninational and plurinational federations. The elements of asymmetry in pi uri national federations/regional states are sometimes regulated within general guidelines of a symmetrical nature in the territorial division of powers (with the presence of pressure in favour of the symmetry of the system). This mainly occurs when the number of federated units is not small (at least nine) - Canada, India, Russia, Ethiopia and Spain,14 in contrast to the cases of Belgium, the Ul)ited Kingdom and again Bosnia and Herzegovina. It is ctmently an open question whether the federations' reluctance to introduce more asymmetric regulations, especially when the number of subunits is not small, will or will not reinforce territorial tensions and secessionist positions when this reluctance prevents the effective political and constitutional accommodation of minority nations. However, this reluctance seems to imply a potential increase in territorial tensions in the future of plurinational polities, according to the evolution of territorial conflicts in recent years. 3) Federal trust/distrust. In plurinational polities there will always be nationbuilding processes which will, at times, be partially contradictory. The construction of "federal trust" in plurinational federations/regional states requires the existence of at least two factors: a

b

The existence of clear mechanisms to allow the minority nations to participate in the shared government of the federation from their singular character (presence in the upper chamber, bilateral inter-governmental relations between these entities and the federation, consociational institutions, etc.). The aim is to regulate the democratic issue of "participation" in the central power from the point of view of the specificity of the federated or regional entity (and not diluted to just another entity in the federation) There would appear to be more probability of developing federal trust when there are rules which protect national minorities from the actions of the majorities. This is an issue of a more "liberal" than "democratic" nature (related with the collective "tyranny of the majority").ls It favours tlle inclusion of institutional procedures such as powers of veto in the upper chamber, "alann bell" and/or opting-inlopting-out procedures (which do not require constitutional reforms), the appointment of some of tlle judges of the Supreme or Constitutional Courts by the minorities, the distinct participation in the processes of constitutional reform, asymmetrical intergovernmental relations, etc. 16 Most of these procedures are absent or have a low profile in the constitutions of most plurinational democracies. In contrast, Bosnia and Herzegovina has established formulas similar to confederations, while Belgium combines consociational formulas with an increasing centrifugal logic (diminished by its membership of the European Union), and the UK maintains the perspective of an open and asymmetrical process of devolution (above all in the case of Scotland). If these participation and protection mechanisms are absent (Spain), or if they are insufficiently regulated (Russia), the perception of afederalism of distrust by the minorities (and the majorities as

The case of minority nations

291

a reaction) will increase. From a nonnative perspective, this misrepresents the interpretation of collective liberal freedom (negative and positive) in plurinational federal democracies. Moreover, it would seem to be advisable to develop a kind of political culture for the whole of the federation in order to develop a stable federal trust: a "plurinational culture" which makes the plurality ofthe internal demoi a feature of the "political union".

4) The right of secession. More controversial is the introduction, or not, of a right of secession for the minority nations of plurinational federations/regional states. This is a "right" which represents a clear break with the dominant logic of federations, although not with the tradition of federalism. This logic only accepts the right to self-determination for the federation. But it is an interpretation which a munber of federations have recently questioned. This is the case of Canada (tlrrough the "federal pattern" of the 1998 Secession Reference by the Supreme Court) and Ethiopia (or the more specific cases of the fonner Serbia-Montenegro and ofSt Kitts and Nevis) (Table 13.4). In the debate of recent years regarding this issue, arguments of a functional and strategic nature have been used to oppose this regulation, although there does not appear to be any definitive normative argtunent - of a moral or functional nature - against the introduction of this right when clear procedural rules are laid down which avoid strategic uses by the elites of the minority nations. l? It is probable that the twenty-first century will witness political movements in favour of the "right to decide" by the citizens of minority nations,18 movements in favour of treating minority demoi as polities which wish to preserve as much collective negative liberty as possible in an increasingly globalized world. These are movements which democratic federal theory and practice should pay more attention to than they have been doing during the contemporary era.

4 Conclusions In this chapter, after pointing out the different logics that lie behind the familiar ideas of democracy and federalism, I have dealt witlithe case of plurinational federal democracies. Having put forward a double criterion of an empirical nature with which to differentiate between the existence of minority nations within plurinational democracies (section 2), I suggest three theoretical criteria for the political accommodation of these democracies. In the following section, I show the agonistic nature of the normative discussion of the political accommodation of these kind of democracies, which bring monist and pluralist versions of the demos of the polity into conflict (section 3.1), as well as a number of conclusions which are the result of a comparative study of 19 federal and regional democracies using four analytical axes: the uninational/plurinational axis; the unitarianism-federalism axis; the centralization-decentralisation axis; and the symmetry-asymmetry axis (section 3.2). This analysis reveals shortcomings in the constitutional recognition of national pluralism in federal and regional cases with a large number of federated units/regions with political autonomy; a lower degree of constitutional federalism and a greater asymmetry in the federated

292 F. Requejo entities or regions of plurinational democracies. It also reveals difficulties in establishing clear formulas in these democracies in order to encourage a "federalism of trust" based on the participation and protection of national minorities in the shared government of plurinational federations/regional states. Actually, there is afederal deficit in these kinds of polities according to normative liberaldemocratic patterns and to what comparative analysis shows. Finally, this chapter advocates the need for a greater nonnative and institutional refinement in plurinational federal democracies. In order to achieve this, it is necessary to introduce a deeper form of "ethical" pluralism - which displays normative agonistic trends, as well as a more "confederal/asymmetrical" perspective, congruent with the national pluralism of these kind of polities. The "basic structure of a society" (Rawls) does not only include political and economic issues, but also national and cultural ones. To establish "principles" of justice - even supposing that this is possible beyond an agonistic contrast between different values, interests and identities - should include, going further than Rawls, politics of recognition and politics of accommodation of minority nations. To leave these components outside the sphere of justice means turning national and cultural majorities into biased arbiters of the rules of the polity, and biased arbiters can never be "fair". In short, in federal plurinational democracies, the articulation ofthe values of liberty, equality, pluralism and individual dignity require more complex rights, institutions and procedures of recognition and accommodation of collective decision-making than in uninational federal democracies. The rights, institutions and procedures involved in the basic justice of these two kinds of democracy do not coincide. 19 In fact, it is not clear whether any kind of liberal-democratic theoretical conception can be established which is capable of articulating the normative complexity - concepts, values, linguistic reconstruction and different types of rationality - inherent in plurinational po lities. There will always be different interpretations of how to give practical expression, in national terms, to the rights, institutions and regulations of the rule of law, democracy, federalism and the relationships between the majorities and permanent minorities of piuri national polities. When there are epistemological and normative limits in the moral and linguistic arguments of the groups that share liberal and democratic positions, justice demands an equitable negotiation between the parties involved. The hegemonic traditions of democratic and federal political thought have generally been more monist than pluralistic. This has created a series of mental barriers (conceptual, in the interpretation of values) both in the constitutions of federal democracies and in their practical processes. But the liberal-democratic and federal traditions have been successful in implementing political systems capable of including experimentation and reforms among their basic rules. The answers will never be definitive. Following the spread of federalism and democracy, the current century can - and, in my opinion, should - encourage a moral and institutional refinement in plurinational federal democracies. This is one of the main challenges of liberal-democratic federalism waiting to be adequately dealt with in the twenty-first century.

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I prefer the use of the term "plurinational" to the term "multinational" in order to reflect the probable plural ontic and normative perspectives, in national and cultural terms, which exist in this kind of context. 2 I use the notion of "minority nations" as an equivalent to the term "stateless nations" used in analytical literatnre on nationalism. In this chapter, I do not include the case of "national minorities": people who live in a state which is different to the one in which the majority of their nation reside (e.g. the case of the Hungarians in Romania, etc). Minority nations and national minorities differ both from an analytical and a normative perspective. 3 I have used data from the most recent election in each country. For those parliaments which have two chambers, the effective number of parties has been calculated using the data for the lower chamber. The effective number of parties may coincide with criterion 3a despite the fact that they are different parties. This relatively unlikely case is, however, excluded with the application of criterion 3b. I am grateful to Aharon MacClanaghan for his help in preparing Table 13.1. 4 In the case of plurinational federations, I have defended the greater philosophical appropriateness of the form of political liberalism based on I. Berlin's "value pluralism" rather than other normative perspectives of a "monist" national nature (Federalist Papers), or those of a pluralist natnre with a permanent order of values (Rawls), or of a predominantly procedural nature (Habermas). See Requejo 2005, chap 1-2; Karmis and Norman 2005, Introducion; Hueglin 2003. 5 In accordance with the classical juridical formula "quod omnes tangit" of Roman law (that which affects everyone must be approved by everyone), it translates, in federal terms, the introduction of a right of veto for the federated colleptivities (Althusius, Po/itica Methodice Digesta VIII). This is a conception which shares some common ground with the recently rehabilitated republican theory of collective negative liberty (called "neo-Roman" by Skinner, 1998). 6 This federal deficit is sometimes parallel to the lack of consideration of the minority nation internal pluralism by some minority nationalists. This is something that deserves accurate analyses case by case. 7 Northern Ireland and the Basque Country are exceptions. However, in both c,\ses the armed groups (the IRA and ETA) have appeared to be moving towards a negotiated end to violence with their respective central governments at the beginning of this century. 8 Although the Spanish case shares some elements with federations, I have maintained elsewhere that it is more linked to a "regional" logic than to a federal one (Requejo 2005, chaps 5-6). 9 This axis focuses on how federal is a federation (or a regional state). The numbers in brackets refer to the score given to each indicator (between 0 and 2). We use low numbers in order to minimize errors (and 0.5 points for internal adjustments). Altogether, the global scale of each case is sitnated between 0 (absence of a federal logic) and 20 (maximum degree of constitntional federalism). See Annex 13.1. We do not consider "para-institutional" indicators, those which have an effect on federalism as a process (e.g. party-political systems; inter-governmental relations). A similar analysis applied to a group of II federal and regional countries using a number of slightly different indicators, in Baldi 2003 (2nd edn, 2005). See also Watts' Chapter 15 in this volume and Watts 1999, chaps 9-10. 10 Obviously, the quantitative and comparative measurement of decentralization is a complex issue which involves difficulties in relation to the indices used, their aggregation, the way of comparing different countries and even in relation to the concept of decentralization itself. Each of these aspects are related with debatable questions in the field of comparative analysis. However, here we are mainly interested in the

296

II 12

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The case o/minority nations

F. Reqllejo

degree of decentralization that minority nations achieve in a comparative perspective. In this way, the degree of decentralization (or lack of centralization) is here also measured on a global scale which goes from a score of 0 (maximum centralization) to a score of 20 (maximum decentralization). See Annex 13.2. Data from www.worldbank.org/publicsector/decentralization/fiscalindicators.htm; Rodden 2004, Neremberg and Griffiths 2005. See also Filippov et al. 2004, Amoretti and Bermeo 2004, Baldi 2003, Watts 1999, chaps. 3,4 and 8. I am grateful to Andreu Orte, research assistant at Pompeu Fabra University, for his help in preparing Table 13.2, Figure 13.1 and calculations included in Annexes 13.1 and 13.2. The Constitution of Ethiopia states that: "We the Nations, Nationalities and Peoples of Ethiopia ... ratified the Constitution of the Federal Republic of Ethiopia", defining these terms as "a group of people who have or share a large measure of common culture, or similar customs, mutual intelligibility of language, belief in a common or related identity, and who predominantly inhabit an identifiable contiguous territory". Later (Article 39) the constitution establishes the right of secession as part of the right to self-government laid down in the preamble, establishing clear rules regarding parliamentary and voting majorities necessary for a secessionist process to take place. In the case of Russia, the constitution refers (preamble and text) to the "multinational people [in singular] of the Russian Federation, united by a common destiny on our land" and mentions respect to the principle of "self-determination of the peoples" [in plural]. Article 3 says that "The multinational people of the Russian Federation is the vehicle of sovereignty and the only source of power in the Russian Federation"; and Article 5 states "self-determination of the peoples in the Russian Federation" (in plural). The Indian Constitution starts by mentioning "the people of India"; the term "nation" only appears once, in the preamble: "Fraternity assuring the dignity of the individual and the unity and integrity of the Nation". In the rest of the text the adjective "national" is used to refer to the federation. In the Belgian Constitution, the term "national" only refers to the whole country: "All power emanates from the Nation" (Art. 33), and when the text mentions "the members of the two Houses" (Art. 42), the preservation of "national independence" (Art. 91), and the "national flag" (Art. 193). The Spanish Constitution (Art. 2) establishes that there are "nationalities and regions" within a unique Spanish Nation (in capital letters) defined as the "common and indivisible homeland of all the Spanish people" (a definition which is clearly questioned by a significant number of citizens, mainly in the Basque Country and Catalonia, who do not agree that their homeland is Spain). In the current Catalan Statute of Autonomy (2006), the recognition of the national character of Catalonia has finally been placed in the preamble of the law, while in the text Catalonia is defined as a "nationality" according to the Spanish Constitution. However, some articles also mention the "national" flag, anthem and holiday of Catalonia. A general overview of de jure constitutional asymmetries, in Watts 2005. See also Asymmetry Series, lIGR, Queen's University, since 2005), especially Laforest 2005. For an analysis of the phases of development of the Spanish case, see Requejo 2005. See also Moreno's Chapter 8 in this volume. The well known West-Lothian question apparently fails to cause many problems in most countries, due to the fact that the real political level of the symmetries is not very high, and most of the powers are of a concurrent nature. Collective negative liberty is a classic theme of political legitimacy within the "republican" tradition which has been highlighted by historians of the Cambridge school (Skinner 1998). This conception, however, is generally established in monist terms in relation to the state as a single political collectivity. This explains the scant attention usually paid by the republican tradition towards federalism as a possible institutional way to guarantee collective negative liberty within the state.

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16 These procedures appear to be more suitable for increasing the self-government of some federated entities than for promoting the recognition of the plurinationality of the polity. There is usually a confusion between the process of accommodating a plurinational state and the process of decentralizing it. 17 In contrast to what the anti-symmetrical argument of the stepping-stone towards secession suggests, the states which went through secession processes during the twentieth century were not asymmetrical federations but unitarian states (United Kingdom, Ethiopia, Indonesia) or pseudo-federations of a socialist nature (USSR, Yugoslavia, Czechoslovakia). See McGarry 2005 and Norman 2001. 18 In recent years there have been examples of such movements in Quebec, Flanders and, more recently, in the Basque Country and Catalonia. 19 In Rawlsian terms, what should the collectivity of reciprocity and justice be in relation to the requirement of stability? In Rawls, it is the state, but this is debatable according to the premises of the Rawlsian theory itself. The answer given by Rawls in Political Liberalism to the question of stability does not adequately answer the communitarian criticism of the importance of individuals' self-perception. Empirical individuals do not choose a large number of their attributes. Rather they choose because they possess these attributes. This requires a partially agonistic and group anthropology that any liberal-democratic and federal theory must take much more into account than what the dominant perspective in both traditions has developed in the last two centuries.

References Amoretti, U. and Bermeo, N. (eds) 2004, Federalism and Territorial Cleavages, Baltimore, Johns Hopkins University Press. Baldi, B. 2003 (2nd edn 2005), Stato e territorio, Laterza, Roma-Bari. Fearon, J. and Laitin, D. 1999, "Weak States, Rough Terrain and Large-Scale Ethnic Violence since 1945", www.standford.edu/group/ethnic. Filippov, M., Ordeshook, P.C. and Shvetsova, O. 2004, Designing Federalism: A Theory ofSelf-Sustainable Federal Institutions, Cambridge: Cambridge University Press. Gagnon, A., Guibernau, M. and Rocher, F. (eds) 2003, The Conditions of Diversity in Multinational Democracies, IRPP, Montreal. Gagnon, A. and Tully, J. (eds) 2001, Multinational Democracies, Cambridge, Cambridge University Press. Hueglin, T. 2003, "Federalism at the Crossroads: Old Meanings, New Significance", Canadian Journal of Political Science, 36, 2. Karmis, D. and Norman, W. (eds) 2005, Theories of Federalism. A Reader, New York, Houndsmills, Pal grave Macmillan. Kymlicka, W. 1995, Multicultural Citizenship. A Liberal Theory of Minority Rights, Oxford, Clarendon Press. Kymlicka, W. (ed.) 2001, Politics in the Vernacular, Oxford, Oxford University Press. Laforest, G. 2005, "The Historical and Legal Origins of Asymmetrical Federalism in Canada's Founding Debates: A BriefInterpretative Note", Asymmetry Series (8), lIGR, Queen's University. McGarry, J. 2003, "Federal Political Systems and the Accommodation of National Minorities", in K. Neremberg and A. Griffiths (eds) 2002, Handbook of Federal Countries, (new edition 2005) Montreal and Kingston, McGill-Queen's University Press: 416-447. McGarry, J. 2005, "Asymmetrical Federalism and the Plurinational State", Draft Position Paper for the 3rd International Conference on Federalism, Brussels.

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Maiz, R. and Requejo, F. (eds) 2005, Democracy, Nationalism and Multiculturalism, London and New York, Routledge. Nagel, K.J. 2004, "Transcending the National/Asserting the National: How Stateless Nations like Scotland, Wales and Catalonia React to European Integration", Australian Journal ofPolitics and HistOlY 50, I: 58-75. Neremberg, K. and Griffiths, A. (eds) 2002, Handbook of Federal Countries, (new edition 2005) Montreal and Kingston, McGill-Queen's University Press. Norman, W. 2001, "Secession and (Constitutional) Democracy", in F. Requejo (ed.) 2001, Democracy and National Pluralism, London and New York, Routledge. Raz, J. 1986, The Morality ofFreedom, Oxford, Oxford University Press. Requejo, F. 1999, "Cultural Pluralism, Nationalism and Federalism. A Revision of Citizenship in Plurinational States", European Journal of Political Research, 35, 2: 255-286 (partially reprinted in D. Karmis and W. Norman (eds) 2005, Theories of Federalism. A Reader, New York, Houndsmills, Palgrave Macmillan). Requejo, F. (ed.) 2001a, Democracy and National Pluralism, London and New York, Routledge. Requejo, F. 2001b, "Political Liberalism in Multinational States: the Legitimacy of Plural and Asymmetrical Federalism", A. Gagnon and J. Tully (eds) 2001, Multinational Democracies, Cambridge, Cambridge University Press: 110-132. Requejo, F. 2005, Multinational Federalism and Value Pluralism, London and New York, Routledge. Requejo, F. 2009 (forthcoming), "Cosmopolitan Justice and Minority Rights: The Case of Minority Nations (or Kant again, but different)", Kluwer. Rodden, J. 2004, "Comparative Federalism and Decentralization. On Meaning and Measurement", Comparative Politics, July: 481-500. Saidemann, S. and Ayres, RW. 2000, "Determining the Causes of Irredentism: Logit Analyses of Minorites at Risk Data from the 1980s and 1990s", Journal of Politics, November: 1126-1144. Skinner, Q. 1998, Liberty before Liberalism, Cambridge, Cambridge University Press. Taagepera, R and Shugart, M. 1989, Seats and Votes: The Effects and Determinants of Electoral Systems, London, Yale University Press. Taylor, C. 2001, "Plurality of Goods", in R Working, M. Lilla and R. Silvers, The Legacy of Isaiah Berlin, New York, New York Review Books. Tierney, S. 2004, Constitutional Law and National Pluralism, Oxford, Oxford University Press. Wallersteen, P. and Sollenberg, M. 2001, "Armed conflict 1989-2000", Journal of Peace Research, 38, 5: 629-644. Watts, R. 1999, Comparing Federal Systems, Montreal and Kingston, McGill-Queen's University Press. Watts, R 2002, "The Distribution of Powers, Responsibilities and Resources in Federations", in K. Neremberg and A. Griffiths (eds) 2002, Handbook of Federal Countries, (new edition 2005) Montreal and Kingston, McGill-Queen's University Press: 448471. Watts, R 2005, "A Comparative Perspective on Asymmetry in Federations", Asymme/ly Series 2005 (4), IIGR, Queen's University.

14 Federalism and democracy Comparative empirical and theoretical perspectives John Kincaid

Relationships between federalism and democracy can be examined empirically and theoretically; that is: how democratic are federal systems compared to other political systems, and is federal democracy, in theory, more democratic than non-federal democracy? This essay explores both perspectives, concluding that, empirically, federal polities compare well with non-federal systems on democracy and rights protection, but much better than other systems on quality of life. Furthermore, federal polities achieve these levels of political and economiC performance under much more adverse demographic circumstances than those faced by non-federal polities. Theoretically, moreover, federal democracy is more democratic than non-federal democracy. Federal polities are defined broadly here as polities having constitutionally recognized constituent politiCal communities that exercise exclusive and concurrent powers of self-government through legislative powers of their own and are also represented in the federation's legislature. The following 24 polities are thus classified as federal for the analysis below: Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Canada, Comoros, Ethiopia, Germany, India, Malaysia, Mexico, MiCronesia, Nigeria, Pakistan, Russia, St. Kitts and Nevis, South Africa, Spain, Switzerland, United Arab Emirates, United States of America, and Venezuela. One might, of course, quibble about the countries included in and excluded from this list. For example, Serbia and Montenegro has been excluded because it is too new (2003) to be useful for comparative empirical analysis, and it did not last long (Wood 2006). One might argue that such autocratically ruled countries as Ethiopia, Malaysia, and Pakistan do not belong on the list and that such countries as South Africa (cf. Steytler 2005) and Spain (cf. Agranoff and Gallarin 1997; Moreno 2001) are not truly federal. These countries have been included, however, because they are commonly classified as federal (cf. Watts 1999; Hueglin and Fenna 2006) and because this inclusive approach carries less risk of appearing to bias the comparative empirical analysis in favor of federalism.

300

J. Kincaid

Historical and empirical perspectives Since the fall of Portugal's dictatorship in 1974, and especially since the fall of the Berlin Wall in 1989, many reformers have linked democracy rhetorically to decentralization and to federalism (Kincaid 1995; Diamond 1999). Such links have been made partly in reaction against the suppressions of democracy and freedom perpetrated by so many centralized, authoritarian regimes during the twentieth century. Many reformers have pitted democracy against authoritarianism and federalism/ decentralization against centralization. The link also reflects what Daniel J. Elazar termed "a dual political interest" of the contemporary era: "first, in creating more viable units of government ... to undertake vast new responsibilities and, second, in enhancing citizen participation in government to foster democracy" (Elazar 1987, 114). Ronald L. Watts also identifies two interests in federalism: (1) a "desire for smaller, self-governing political units, more responsive to the individual citizen" and (2) a "desire to give expression to primaty group attachments linguistic and cultural ties, religious connections, historical traditions, and social practices" (2002,1). Others hold a dimmer view: "Federalism seems to be creeping insidiously onto the democratization agenda," notes Philippe C. Schmitter (2000, 40). Still others, seeing threats to democracy from globalization, envision a need to extend federalism globally in order to protect deinocracy locally. David Held asserts "that democracy can result from, and only from, a nucleus, or federation, of democratic states and societies" (1992, 11). Links between federalism and democracy, however, were present in all three waves of democratization that began in the nineteenth century (Huntington 1991). The first wave (1828-1926), which "led to the triumph of democracy in some 30 countries" (Huntington 1997,4) - not all of which survived - produced four of the world's five major and successful federal democracies: the United States of America originally established in 1789 but democratized in 1828 according to Samuel P. Huntington, Switzerland in 1848, Canada in 1867, and Australia in 1901. This first wave also produced federal systems in Mexico (1824), Venezuela (1830), Argentina (1853), Germany (1871), Brazil (1889), and Austria (1920). However, most of these latter systems were not democratic at the outset, and all ofthem experienced breakdowns of democracy and federalism that ushered in periods of undemocratic autocratic or militalY rule. Thus, ten (or 42 percent) of to day's 24 federal countries had originally established federalism during the first wave, although only four of them did not experience a federal-democratic breakdown. The second, short wave of democratization (I943-1962) brought the number of democracies back up to more than 30, including creation of the world's fifth major and successful federal democracy, Germany in 1949, along with federal systems in India in 1950, Austria in 1955, Nigeria in 1960, and Malaysia in 1963. Again, however, two of these five federations - Nigeria and Malaysia have not been consistently and successfully democratic. The third wave (1974-present) increased the number of electoral democracies, as well as federal polities - democratic and non-democratic. In faCt, II (or

Comparative perspectives

30 I

46 percent) of the 24 federal countries listed above were established during the third wave, although, again, a number of them, such as Ethiopia, Pakistan, Russia, and the United Arab Emirates, are undemocratic or questionably democratic. As a result, today, about 39.0 percent of the world's population lives in the 24 federal polities identified above. However, only seven (or 29 percent) of the 24 federal countries has been continuously democratic for 50 or more years: Australia, Austria, Canada, Germany, India, Switzerland, and the United States (although Belgium was democratic before it became a federal democracy in 1993). This historical perspective, therefore, does not provide a ringing endorsement for federalism as a form of democracy.

Fedemlism in the third wave of democ.·atization Nevertheless, an interesting facet of the third wave has been the actual, or at least attempted, democratization of long-standing federal systems - such as Argentina, Brazil, Mexico, Russia, and Venezuela - that had succumbed to military rule or authoritarian one-party rule during or after the previous eras of democratization. Nigeria also recently returned to democratic governance, though its democracy is threatened by corruption and ethno-religious violence. For the most part, federal systems that were established during previous eras, and which survived for at least 50 years, still exist (Elazar 1987). Thus, democratization or re-democratization in such countries has usually involved a revival or reinvigoration rather than abandonment of federalism. At the same time, a few federations experienced dissolution (i.e. Czechoslovalda) or partial dissolution (i.e. the Union of Soviet Socialist Republics and Yugoslavia). The USSR was the only modem federation to collapse after lasting more than 50 years. The principal factor in the dissolution of these federations was democratization, which liberated people from authoritarian rule. In effect, then, democracy killed three federations after the fall of the Berlin Wall. Democracy's third wave has also given rise to celitrifugal federalization as opposed to traditional centripetal federalization. Instead of forming a federal union through the constitutional unification of separate political communities, a federation can be formed through the constitutional decentralization of unitary states, as in Spain, so as to restore what are often regarded to be the ancient selfgoverning autonomies of the nation-state's previously suppressed, political communities (e.g. Basques and Catalans). The Federal Republic of Germany is the first model of centrifugal federalization. Federalism was a component of deNazification intended to inhibit tyrannical re-centralization, and the Grundgesetz partially restored West Germany's historic political communities as constituent Lander and created new ones as well. The third wave of democratization has also spawned asymmetrical federalism. Typically, federal polities founded during democratization's first and second waves were symmetrical; all of the constituent political communities were equal with respect to constitutional powers of self-government and

Comparative perspectives

302 J. Kincaid relations with the federal government. Asymmetrical federalism awards different levels of constitutional self-governance to different constituent political communities and allows for differential federal-constituent relations, as in Canada, the European Union, Russia, and Spain. Asymmetry may be established by differential constitutional delegations or reservations of powers to constituent political communities (e.g. Spain) and/or by general constitutional or treaty provisions that allow constituent political communities to opt out of certain rules (e.g. the European Union). The third wave of democratization also has been associated with what might be called "creeping international treaty federalism" entailing, perhaps, a paradigm shift from statism to federalism - a "shift from a world of states ... to a world of diminished state sovereignty and increased interstate linkages of a constitutionalized federal character" (Elazar 1995, 5). One can say "creeping" because the process is slow, and there is opposition to it from nation-state sovereigntists, for whom federalism is the F-word of international integration. Although this international or interstate federalism is treaty-based, one of its emerging characteristics is the quasi-contitutionalization of treaties - most notably in the European Union, a federated entity that originated during the second wave of democratization but has been de~pened and broadened during the third wave, producing an almost-but-not-quite constitutionalized federal polity (Kincaid 1999; Nicolaidis and Howse 2001) that is likely to remain in that status for the foreseeable future since voters in France and The Netherlands rejected the proposed EU constitution in 2005. Both the second and third waves of democratization have been characterized, as well, by the substantial influence of the world's oldest federal democracy, the United States of America. Unlike its isolationism after World War I, the United States engaged the world after World War II, fostering democracy and federalism in Germany and Austria, democracy and decentralization in Japan, the federalistic unification of Western Europe for what the Marshall Plan called a United States of Europe, and the establishment of confederal-like international institutions such as the United Nations, World Bank, International Monetary Fund, and North Atlantic Treaty Organization, even while guarding its own sovereignty jealously. Federalism was thus an element of U.S. democratization policy during the first half of the second wave of democratization, but it was not a noticeable element of U.S. democratization policy thereafter because, during the Cold War, the United States downplayed the promotion of democracy. Democracy reappeared on the country's foreign policy agenda after 1989, but federalism did not become prominent until President George W. Bush embarked on the wars in Afghanistan and Iraq and made federalism a key feature of efforts to democratize those countries, especially Iraq. Aside from the wisdom of invading countries to foster democracy and federalism, American federalism's roots in liberal individualism make it an ill-fitting model for many contemporary situations. Other countries, especially Canada, Germany, and Switzerland, have also played important roles in fostering federalism and democracy during the third

303

wave. All three have promoted themselves as models of federal democracy. In 1998, moreover, the government of Canada funded the establishment of an international Forum of Federations. Last but not least has been the seemingly ubiquitous presence through all three waves of the British, many of whose former colonies turned to federalism after independence, beginning with the United States in 1781. Fully ten (42 percent) of the 24 federal polities listed earlier were former British colonial territories.

Democratic and l"igbts performance In light of this history, how, then, do federal polities perform compared to nonfederal systems today? Table 14.1 indicates that federal polities perform comparatively better, though not always substantially better, than non-federal polities on measures of democracy and comlption. According to Freedom House's definition of electoral democracy, 75 percent of all federal polities are electoral democracies compared to 60.7 percent of non-federal polities. However, among both federal and non-federal polities that score high and medium on the United Nations' Human Development Index (HDI), differences between federal and non-federal polities narrow considerably. Only in the low-HDI category do federal polities outs core non-federal polities substantially, although the small cell size for the federal polities in this category makes the 50.0 result suspect. Given that elections are merely a formal measure of democracy and that elections are not always free and fair in some countries, the next four measures refine types of regimes. A liberal democracy, in contrast to a mere electoral democracy, is characterized by (1) responsible government, (2) free and fair competition for political office, (3) full and equal rights of political participation, (4) full civil liberties, and (5) a well-functioning state with effective and fair govemance (Siaroff 2005, 67). A semi-liberal autocracy has limited political pluralism and civil liberties; however, national elections are not free and fair enough to change the government. A closed autocracy is characterized--by one-party or no-party rule with no free and fair elections and few, if any, civil liberties. Although 45.8 percent of all federal polities are liberal democracies compared to only 31.5 percent of all non-federal polities, there are virtually no differences between federal and non-federal polities across the three HDI categories. In the category of mere electoral democracies, which is different from the Freedom House measure, 25.0 percent of all the federal polities fall into this category compared to 28.0 percent of all non-federal polities. Within the high- and lowHDI measures, the federal polities are slightly more likely than the non-federal polities to be electoral democracies, but not in the medium-HDI category. Sharper differences show up in the autocracy categories, however. Autocratic federal polities are much more likely to be semi-liberal autocracies than are autocratic non-federal polities. Among the latter, moreover, 19.7 percent are closed autocracies compared to 4.2 percent of federal polities - a percentage accounted for entirely by one federal case, the United Arab Emirates (UAE).

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In summary, although federal polities score only slightly better than nonfederal polities on the measures of electoral democracy, they score substantially better on liberal democracy. On the measures of autocracy, moreover, federal polities are more likely to be semi-liberal autocracies and much less likely than non-federal polities to be closed autocracies. (The six semi-liberal federal autocracies are Bosnia and Herzegovina, Comoros, Ethiopia, Malaysia, Pakistan, and Russia.) Perhaps in these cases, the existence of a federal arrangement, even if it is not very effective or democratic, still serves to constrain the emergence of centralized autocracy. Interestingly, on average, federal polities are less corrupt than non-federal polities, even though the federal category includes Ethiopia, Nigeria, Pakistan, Russia, and Venezuela, all five of which had an average score of 2.2 in 2005 on Transparency International's measure of corruption. At the same time, the five major federal democracies - Australia, Canada, Gennany, Switzerland, and the United States - all have low corruption, with an average 2005 score of 8.4. Among the medium- and low-HDI polities, however, there is virtually no difference in levels of corruption between federal and non-federal polities, and in the low-HOI category, federal countries (Ethiopia and Nigeria) even score slightly higher on corruption than do comparable non-federal polities. These findings might seem counter-intuitive because, given the greater selfgoverning regional and local autonomy in federations, one might expect more corruption because (1) regional and local officials are not under close control by national officials, (2) they are more likely to be less-well paid and less professionalized, and (3) they have more freedom than nationally supervised officials to extract bribes and payoff clients. Apparently, this is not the case. On the contrary, the explanation, perhaps, lies precisely in regional and local selfgovernment. That is, because elected regional and local officials in a federation are more likely to be tied to and held accountable to regional and local voters and taxpayers rather than to distant national officials, they might be held to a stricter regimen of propriety and accountability than would be the case without autonomy (Bennett 1990 and Huther and Shah 1996): The possibility of such accountability has often been regarded as one of the values of federalism, a possibility suggested, though not confirmed, by these findings.

Freedom and rights pl'otections The results reported in Table 14.2 indicate that, overall, federal polities are more often fi'ee and partly free than are non-federal polities. Fully 88 percent of federal polities are free or partly free compared to 73 percent of non-federal polities. In addition, with the one exception of the UAE in the "not free" high-HOI category, federal countries also are significantly less often "not free" than are non-federal polities. Moreover, the differences between the federal and nonfederal polities on these freedom measures are rather substantial, not trivial. Overall, federal polities also score slightly better (2.8) than non-federal polities (3.1) on the measure of economic freedom, which is a measure of the degree

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economic miracle-worker, and at the low end of development, socioeconomic conditions may trump federalism. Certainly the results reported for federal polities in Table 14.3 are strongly influenced by the presence of such wealthy federal polities as Australia, Canada, Germany, Switzerland, and the United States arrayed against only 19 other federal polities. A key question, then, is whether federalism might be an economic asset or a liability in underdeveloped countries. There is virtually no research on this question, although one study of federal and non-federal systems in the developing world concluded "that federal institutional arrangements negatively affect the capacity of national governments to implement macroeconomic reforms. The result is a tendency toward macroeconomic fragility, volatility, and crisis" (Wibbels 2000, 698). Such problems have been recognized by students of federalism; however, Wibbels' study is problematic because the 31 non-federal countries in his study's sample include many small, substantially homogeneous nations (e.g. Malta and Morocco) as well as countries arguably not in the developing category (e.g. Israel). Furthermore, whereas 75 percent of the federal countries in his sample were electoral democracies, only 68 percent of the nonfederal countries were electoral democracies. Thus, the federal and non-federal samples were not matched evenly. It is likely that some problems experienced by developing countries are aggravated by federalism, especially federations established to govern large territories and having significant religious, linguistic, racial, ethnic, and/or other geographically based communities that might oppose the national government and resist national unity. However, as Table 14.3 indicates, the medium-HDI federal polities perform better than the medium-HDI non-federal political systems, suggesting that beyond the very lowest levels of development, a well stnlChlred and well functioning federal system has quality-of-life benefits, perhaps for several reasons. For one, deconcentrating power and allowing more self-governing regional and local autonomy is likely to be accompanied by economic liberalization, as in federal India and non-federal China, and to stimulate more entrepreneurial regional and local economic development. In turn, development may yield more investment in human capital (i.e. health, education, and welfare). Greater regional and local self-government may also reduce political tensions, especially in multicultural federations, as various cultural communities feel freer to pursue their destinies and have less reason to accuse the national government of discrimination. At the same time, most federations delegate monetary policymaking exclusively or substantially to the national government, while fiscal policymaking is usually a concurrent or shared power. To the extent that regional and local governments have fiscal autonomy and responsibility, more fiscal discipline and accountability are likely to be imposed on regional and local officials by voters and taxpayers than might be the case without autonomy. Generally, accountability requires a close connection between taxing and spending; that is, any politician who enjoys spending tax money should first experience the pain of extracting it from the taxpayers. Absent such pain, politicians are tempted to

310 J. Kincaid spend with abandon. Likewise, borrowing and paying down debt require a watertight connection; otherwise, national-government bail-outs of overextended regional and local governments create a moral hazard that encourages regional and local governments to borrow excessively. The alternative is strict regulation by the national government, but such regulation reduces regional and local autonomy. In the United States, for example, the federal government has no obligation to bail out state or local governments; they must swim or sink on their own. Fiscal discipline and accountability are imposed on state and local governments by voters themselves (through their state constitutions, municipal charters, statutes, and elections) and also by the bond market. As the data in Table 14.3 suggest, therefore, a well-structured federal system can create a monetary and fiscal climate conducive to economic growth and improved living conditions (Kincaid 2001). At the same time, federal polities are the most likely to have a capitalist or mixed capitalist economy as defined by Freedom House (see Table 14.3).1 Fully 58.3 percent of all federal polities have such economies compared to 41.7 percent of all non-federal systems. It is especially notable that 90.9 percent of federal systems in the high-HOI category have a capitalist or mixed capitalist economy compared to only 65.8 percent of the pigh-HDI non-federal polities. Similarly, by the measures of economy type in rows 7 and 8 of Table 14.3, federal polities are more often market-capitalist economies than are non-federal polities. Notably, no federal polity is classified as having a statist economy. It is possible, then, that the combination of federalism and capitalism substantially explains the superior performance of federal polities in wealth creation and quality of life. Is federalism, then, the handmaiden of capitalism, or vice versa? Given that the U.S. Declaration of Independence was issued in 1776, the same year in which Adam Smith published his Wealth of Nations, one could say that modern federalism and capitalism were invented simultaneously. They then developed hand-in-hand in the world's first federal democracy. Although capitalism did not begin to flourish in the United States until the 1840s, there are affinities between federalism and capitalism. For one, the federal republic forged by the framers of the U.S. Constitution was rooted in the liberal proto-capitalist tradition of John Locke, the repUblican tradition of Machiavelli, and the federal theology of Reformed Protestantism. Second, a federal system is constitutionally noncentralized; a capitalist market is non-centralized. Both federalism and capitalism have characteristics of spontaneous organization. Third, both federal systems and capitalist markets are animated, in part, by competition - interjurisdictional and intergovernmental competition in federations - as well as by contractual cooperation, and both federalism and capitalism strike balances between anarchy and monopoly (Kenyon and Kincaid 1991). Fourth, capitalism requires liberty and self-governing autonomy, as does a federal democracy, along with a reliable rule of law and disinterested governance to enforce contracts and property rights. A federal democracy is also a covenantal or contractual alTangement that requires a reliable rule of law and

Comparative perspectives

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disinterested governance to enforce the covenant and to protect what Albert Breton has termed "the ownership rights regarding constitutional powers" (2000, 15) in a federal system. This ownership, argues Breton, fundamentally distinguishes federalism from decentralized unitarism. In a decentralized unitary polity, "all powers are owned by the national government" (Breton 2000, 4), which can repossess decentralized powers and, thus, function as a monopolist (see also Elazar 1987 on the distinction between non-centralization and decentralization). In a federal polity, the ownership of powers is dispersed, much like a capitalist market, such that "some powers are owned by the federal government, while others are owned by the Lander, provinces, republics, or states" (Breton 2000, 4). The ownership of those powers is constitutionally guaranteed and protected by the rule of law. A key objective for Breton is maintenance of competition, such that a well-functioning federal system will not succumb to monopoly any more than would a well-functioning market. In addition, capitalism requires free trade, expansive markets, and mobility of capital, labor, and goods. Federalism lowers trade barriers between jurisdictions, facilitates interjurisdictional mobility, and establishes expansive COlmnon markets. Finally, federalism may be conducive to capitalism because, given a dispersal of powers in a federation, no government possesses sufficient authority or power to command the national economy. Yet, a federal polity also can mitigate the ravages of capitalism through dual (national and regional) fiscal policymaking and economic regulation, as well as through redistribution, such as fiscal equalization, which operates in most federations.

Demographic bases of federal and non-federal polities Beginning with the first wave of democratization, two principal rationales for federalism have been needs (1) to govern territorially large polities democratically rather than imperially and (2) to accommodate religious, linguistic, racial, ethnic, and/or other organic cultural heterogeneity, especially geographically based diversity (e.g. French-speaking Quebec), by establishing unity while preserving diversity. The average 2004 population (see Table 14.4) of the 24 federal polities was 103.4 million, which is 355 percent larger than the 22.7 million average population of all non-federal polities. Additionally, the average land area of the federal polities is almost seven times (or 575 percent) larger than that of all non-federal polities. Indeed, seven of the world's eight territorially largest nations - Argentina, Australia, Brazil, Canada, India, Russia, and the United States - are formally democratic federal polities. Only China is non-federal, although some observers (Montinola et al. 1995; Davis 1999) argue that China has become virtually federal. Together, the 24 federal polities accotmt for 50.6 percent of the land area of all 192 polities. These land-area and population differences between federal and non-federal countries are startling and striking. The federal polities also are more urban, with 64.0 percent of their populations being urban compared to 52.2 percent for all non-federal polities. Only in

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the low-HDI category are federal polities slightly less urban than non-federal polities. The higher urban population in most federal polities probably reflects the urban agglomeration effects of a capitalist economy and higher levels of development. Also striking in Table 14.4 are the results showing that federal polities are much more culturally diverse than non-federal polities. Table 14.4 reports three different measures of cultural diversity. The first is a measure of ethnolinguistic fractionalization developed in 1985. Overall and in all HDI categories, federal polities are markedly more fractionalized than non-federal polities. The next measure - based on raw data provided by Alan Siaroff (2005) - shows that the mean number of effective ethnic groups in federal polities is likewise larger in each category than the mean number in non-federal countries. The third measure used in Table 14.4 (Row 6) is computed from Freedom House, which,lists for most countries the percentages of the total population accounted for by various racial and ethno-religious groups. The percentage for each country's largest group was recorded for this study as a measure of cultural homogeneity. The United States, for example, was classified as 73 percent white. For Nigeria, the largest group was the Hausa and Fulani at merely 29 percent. This measure is admittedly rough and also somewhat questionable for some countries, such as the 73 percent white classification for the United States, which masks that population's ethno-religious diversity. Nevertheless, the measure is revealing and consistent with the other two measures. On average, the largest cultural group in federal polities constitutes 63.9 percent of the national population. By contrast, the largest cultural group in non-federal polities constitutes 72.7 percent of the national population. The bottom row in Table 14.4 indicates, as well, that, on average, federal polities have 2.6 official languages while non-federal polities have only 1.3 official languages. Although this federal versus non-federal difference is muted considerably in the high- and low-HDI categories, the difference is largest between federal and non-federal polities in the medium-HDI category. Although these data do not confirm that a federal system is a political necessity for large multi-cultural countries, they do suggest that federalism may be almost a political necessity for achieving peaceful national unity among diverse cultural groups, especially when those groups are geographically based and insist on maintaining their identities. Cultural cleavages and intergroup mistrust may be too deep to establish a unitary polity without resorting to authoritarianism. In less heterogeneous polities, it may be more feasible to establish a decentralized unitary polity because, at the 72.7 percent average for the non-federal polities, one group is sufficiently dominant to establish a unitary system and then to decentralize power without major risks of opening cultural fissures. In federal polities, however, the largest cultural group is, on average, under two-thirds of the population. The non-federal polities also are quite small in both population and land area; hence, neither federalism nor decentralization may be a necessity or probability for them. Cultural diversity can be accommodated democratically by propor-

314 J. Kincaid tional representation, constitutional rights protections, and other devices, although in small polities having deep cultural cleavages, federalism or decentralization might still be preferable or necessary, as possibly in Cyprus - a tiny bicommunal entity (Bahcheli 2000; Theophanus 2000). Bicommunal federations, however, are usually unsuccessful (Duchacek 1988). Alternately, diversity can simply be suppressed by authoritarian rule. Indeed, as shown in Table 14.5, among the non-federal polities, the most numerous cultural community in those classified as free by Freedom HOllse constituted, on average, 78.3 percent of the national population. Among those classified as partly free, however, the most numerous group constituted, on average, 67.6 percent of the total national popuhltion, while among those classified as not free, the most numerous group constituted 69.2 percent of the population. Thus, it appears to be easier to establish a free electoral democracy in a more homogeneous polity than it is in a more heterogeneous polity. The same pattern holds for the federal polities, where the most numerous cultural community in the free polities constitutes 70.0 percent of the national population compared to 52.4 percent for the partly free and 57.8 percent for the not-free federal polities. The most diverse set of polities in the table is the two polities (Ethiopia and Nigeria) located in the 10w-ffDI partly free category. Interestingly, the most heterogeneous polities are the partly free federal and non-federal polities, although the partly free federal polities are much more heterogeneous than the non-federal polities. Why the partly free polities should be, on average, the most heterogeneous is not clear. Perhaps in these more heterogeneous polities there are political balancing mechanisms among groups that constrain autocracy and produce limited freedom. In summary, the above empirical analysis suggests that federal polities perform very well compared to non-federal polities on a variety of measures of democracy, freedom, rights and liberties, political economy, and quality of life. Although, on average, the world's federal polities perfonn only slightly better than the world's non-federal polities on mere electoral democracy, federal polities score markedly better on measures of liberal democracy and liberal autocracy. At the same time, federal polities are more often less corrupt than non-federal polities. Federal polities also are substantially more often free and partly free than are non-federal polities. Although federal polities score only slightly better than non-federal polities on economic fi'eedom, they score substantially better on protections of political rights and civil liberties. Likewise, federal polities perform substantially better than non-federal polities on measures of political economy and quality of life. These outcomes are probably linked to the fact that federal polities more often have a capitalist or mixed capitalist economy than do non-federal polities. Additionally, no federal polity has a statist economy. What is perhaps most remarkable about these findings, though, is that the federal polities achieve these performance results under extraordinarily more adverse demographic conditions than non-federal polities, namely, much larger population, larger territorial size, and greater cultural heterogeneity.

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Theo"etical and normative perspectives Given that six of the world's federal polities are not electoral democracies (Le. Bosnia and Herzegovina, Ethiopia, Malaysia, Pakistan, Russia, and United Arab Emirates), a federal system does not, in itself, establish or guarantee democracy. However, it is not evident that federalism is an effective tool or enhancement of non-democratic governance. Non-democratic federations tend to be ruled by an authoritarian party or military junta that overrides the de jure federalism to impose a de facto unitarism. The fonner USSR was the classic example of a constitutionally federal polity ruled despotically by a single party. Federalism does, however, seem to be an effective tool and enhancement of democratic governance.

Territo.-ial scope and security It can be argued that federalism has made democracy globally viable for the first

time in history by forging a mode of democratic governance for large, culturally heterogeneous political systems. Such systems had been imperial empires or leagues of feudal principalities or warlords prior to the 1780s. Small republics and leagues of free city-states, such as the Hanseatic League, usually had unstable lives cut short by internal strife or external conquest. As Alexis de Tocqueville (1969) suggested in the 1830s, modern federal democracy remedied these problems by combining the advantages of large republics (e.g. a common defense and common market) with the advantages of small republics (e.g. local self-government) while minimizing the disadvantages of each. In principle, moreover, there is no limit to the territorial size of a federation, nor must the constituent communities all be territorially contiguous (e.g. the U.S. states of Alaska and Hawaii). A unitary democracy, centralized or decentralized, faces territorial and popUlation limits beyond which it is likely to become no longer viable.

Democracy and concurrent consent A federation is fundamentally democratic insofar as it is founded on the concurrent consent of the constituent peoples andlor their governments. Federations formed wholly or partly by conquest, such as the former USSR, have poor records of success because federalism ultimately requires a voluntary will to live together. In the absence of such a will, constituent communities exit, or seek to exit, the federation, or an authoritarian regime imposes unity. In many culturally heterogeneous societies, the practical political alternative to federalism is not unitary democracy but unitary authoritarianism because the cultural communities, or "nations," within the nation-state do not conceptualize themselves as one nation. This is a COlmnon problem in Africa where diverse nations, or tribes, have been compelled to live within despotic, unitary states. The desire of so many cultural communities to territorialize their identity in statist form confronts

Comparative perspectives

317

many nation-states with a stark choice between consent and conquest either federal or consociational democracy or authoritarian rule. The maladies of democracy in such federations as Malaysia and Nigeria cannot necessarily be solved, therefore, by decentralized unitary democracy; the will for unity is weak in the first place. Although many critics argue that federalism is less democratic, even antidemocratic, because it frustrates simple majority rule and legitimates too many veto points to make democratic governance effective', the empirical findings suggest that this is not necessarily the case. Instead, it can be argued that federalism is more democratic, even super-democratic, precisely because it frustrates tyranny by the majority, empowers constituent political communities to be veto points, and requires national decision-making to be more consensual rather than majoritarian precisely to win over those veto points, not only to prevent majority tyranny but also to ensure more equitable and politically legitimate governance. A fundamental flaw of majoritarian democratic theory is the Rousseauian assumption that a polity's demos is, or should be, fundamentally homogeneous. No such demos exists anywhere, and efforts to establish such a demos can degenerate into Jacobin terror. It is not without reason that the Jacobins persecuted federalists in their drive to amalgamate France's diverse residents into just such a demos. Only recently, under France's Fifth (and second longest-living) Republic (1958-present) and decentralization (Bernier 1992), have France's constituent communities begun tentatively to reassert ancient identities. Unlike Rousseau's General Will, the federal democratic principle does not "lead to the disappearance of countless atomized individuals in a collectivist antheap" (Kinsky 1995, 8) but rather to the empowerment of the autonomous individual within self-governing communities able to reinforce the individual's autonomy and identity, mediate between the individual and the whole polity, enhance the individual's voice, serve as a school of democracy for the individual, and attend to the individual's life necessities. According to Henri Brugmans, a great concern of the anti-totalitarian federalists of the mid-twentieth century was "that the individualism inspired by the Jacobins led logically towards an atomization of society, which in its turn would bring out the absolute state as the counterpart of this disintegration" (quoted in Kinsky 1995,9). Since the collapse of fascism and of the Soviet Union, fear of this type of totalitarianism has been replaced by fear of global-capitalist and American-style individualism, which, while promoting democracy, has perhaps already turned traditional national cultures into endangered species (e.g. Declaration 1999) by threatening to denude individuals worldwide of their historic identities and reduce citizens to insular consumers. Consequently, in many federal democracies, such as Canada, and in every federal democracy within the orbit of the European Union, constituent political communities have obtained enhanced constitutional guarantees of self-government and of participation in international and EU negotiations. These constituent communities in Europe also pressed for creation of the EU's Committee of the Regions. Likewise, anarcho-federalists

318

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and small-is-beautiful advocates see in local self-governance a key bastion of communitarian and individual liberty against global capitalism.

Individual and communitarian identity and liberty A federal democracy seeks to balance individual and communitarian identities and liberties. Historically, federalism aimed first to protect communitarian liberty, namely, the right of the constituent communities, such as the Swiss cantons and U.S. states, to govern themselves in all matters of local relevance and to maintain their ways of life. Protecting communitarian liberty indirectly protects individual liberty, as well, by preventing one group from unilaterally imposing costs on individuals of another group or robbing those individuals of their lives, rights, property, or historic identity. A Christian minority might not wish to be ruled by a Muslim majority, and vice versa. At the same time, federalism creates a national democratic community of limited power and protects certain rights of all individuals within that community. FUlthermore, insofar as the national and constituent political communities can check and balance each other, or function as a concurrent or double majority as in Switzerland, they can guard against usurpations of power by each other ~nd, as James Madison argued in Federalist 51 (Cooke 1961), provide securities for individual rights that might not be available in a unitary democracy. This is another attribute that makes the federal principle potentially applicable on a global scale where the desires and rights of individuals to act globally must be balanced with the self-governing rights of more than 192 nation-states and thousands of regional and local communities within those nation-states. A global demos able to construct a benign Jacobin democracy seems neither possible nor desirable. There are, however, significant challenges to this balance in modernizing societies and in a globalizing world where some communities still perpetuate appalling deprivations of individual rights, such as the 2002 death-by-stoning sentence, later overturned on appeal, of Amina LawaI for alleged adultery under Sharia in northern Nigeria. The constitutional and moral authority of the federal entity as representative of the national, regional, or global community to intervenein the affairs of the constituent communities to protect or enhance the rights of individuals in those communities is controversial. This was true even with the EU's rather mild sanctions against Austria. Such interventions can also spill over into authoritarianism, as with the Congress party's repeated use of president's rule over states in India primarily for political rather than democratic or humanrights purposes (Ray and Kincaid 1988). The United States experienced such challenges when southern states claimed states' rights to maintain slavery and, then, racial segregation. The abolition of slavery required a civil war (1861-65) in which the northern union states defeated the southern confederate states. The abolition of racial segregation in the mid-twentieth century required enormous national political, judicial, and fiscal pressure, including occasional uses of federal troops and marshals, to enforce desegregation in recalcitrant states.

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Even so, as the empirical findings above suggest, federal polities, on average, provide better protections of individual rights and liberties than do non-federal polities, even though the federal polities have more of the cultural heterogeneity that creates tensions between communitarian and individual liberty. In nonfederal polities, individual-rights protection is either high or low for everyone, depending on how much majority support can be mustered for protection or how far the regime desires to extend protection. In a federal polity, the presence of self-governing constituent communities creates not only the possibility but also the actuality of various communities providing more rights protection than the national norm and pioneering protections that can be disseminated nationwide. The history of federal democracies is replete with constituent governments advancing rights protections, such as women's suffrage, well before their national dissemination or adoption. Although the United States, for example, is often viewed as a nation ofunifonn rights, the U.S. Supreme Court and the Congress establish only minimum, national, rights protections; the states, under their state constitutions, grant higher rights protections, including protections that contradict U.S. Supreme Court rulings, so long as the states do not fall below the floor of federal rights. Thus, diverse rights protections exist among the 50 states. Perhaps the tensions between individual and communitarian liberty and between the constituent and national political communities are creative ones that produce consensus-building that ratchets up individual-rights protections more rapidly and effectively than in non-federal democracies where a ruling majority might be less disposed to increase protections, especially for minorities. Furthermore, if rights protections are low in a non-federal polity, there is nowhere to flee for better protection unless one exits the country - a difficult, often impossible, option for most people. A key federal liberty is mobility. The ability to move between self-governing constituent communities (i.e. to vote with one's feet) allows migration to jurisdictions that offer rights protections as well as economic opportunities, taxes, services, and qualities of life - more compatible with one's interests or preferences. Although language and cultural barriers may limit such mobility in culturally heterogeneous federal polities, interjurisdictional mobility is still more viable than emigrating or fleeing abroad as a refugee.

Federal democracy and justice Given that justice is, ultimately, what people believe is fair, equitable, and/or morally right, justice, in democratic theory, must rest on consent. In this respect; federal democracy is, in principle, superior for several reasons. For one, federal democracy limits the ability of a majority to impose rules of justice that may be unjust to minorities. This is a critical matter in all polities, but even more so in culturally heterogeneous polities where there are many different conceptions of justice often rooted in ancient traditions and religions. Given requirements for broad-based or concurrent consent, rather than simple-majority consent, in a federal democracy, rules of justice derived from consent are likely to be compar-

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atively benign and to enjoy considerable legitimacy. Because powers are both shared and divided in a federal democracy, there also are multiple forums of justice anchored in multiple forums of consent, and many rules of justice can vmy justly among those forums according to socioeconomic and cultural conditions, as well as public preferences. In turn, mUltiple forums offer citizens multiple points of access to public power and, thus, an ability to appeal to other forums or governments when one is unresponsive. Forum shopping is common in federal democracies. Multiple governments also provide citizens with competing sources of information that enhance political transparency and counteract propaganda. Although advocates of universal rights and justice seek uniformity, human beings have fundamental, and often rationally legitimate, disagreements about what is just, beginning with disagreements about negative versus positive rights. Abortion, animal rights, cloning, firearms, capital punishment, child care, conscientious objection, disabilities, education, euthanasia, gender, health care, homosexuality, imprisonment, marriage, pornography, privacy, and welfare are only a few issues of justice about which humans disagree profoundly. Furthermore, some questions of justice have no obviously right answer. A federal democracy accommodates such disagreement by agreeing to disagree on some matters. Rules of justice embedded in the federal constitution and applicable uniformly reflect what is politically achievable for the whole polity, while diversity endures among the constituent political communities on matters of disagreement and ensures that justice issues remain dynamic rather than static. Federalism also allows constituent communities to be laboratories of democracy by experimenting with policies having justice implications without harming the nation in the event of failure. In the United States, for instance, physician-assisted suicide is permitted only in Oregon, and the U.S. Supreme Court refused to strike down the laws of the 49 states that prohibit it, in part because it recognized that Americans are deeply divided on this issue. The Court left the issue to be addressed by the federal democratic process, which will likely lead some other states to authorize physician-assisted suicide if Oregon's experience is judged to be benign. Some years from now, individuals desiring such suicide might move to states that permit it. Justice is also a matter of matching private burdens and public benefits. In a federal democracy where most domestic services are financed and provided by constituent governments, benefits can be matched to burdens. Citizens get what they pay for, rather than paying for what they do not want, need, or get, thus matching public services with public preferences. Furthermore, given that different services have different economies of scale, that federal, regional, and local officials responsible for services are elected by the people of the various jurisdictions, and that interjurisdictional mobility spurs competition between jurisdictions, a federal democracy is likely to enhance service efficiency and effectiveness, and to have a high rate of policy innovation and innovation dissemination. Governance and service provision in a federal democracy also require sub-

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stantial intergovemmental and inter-jurisdictional cooperation, which promote efficiency and equity. Cooperation also contributes to bridge-building and mutual aid among the constituent political communities and, thus, to politybuilding and justice enhancement - all matters of heightened importance in culturally heterogeneous polities. At the same time, every federal democracy redistributes wealth among places and/or persons. Some, such as the United States, emphasize redistribution among persons, in part to enhance personal selfgovernance and mobility. Most federal democracies, such as Canada and Germany, emphasize redistribution among places, in part to ensure that each constituent jurisdiction can provide a minimum level of services to citizens. Redistribution may reflect a cooperative will to live together, a social-welfare consensus, or even a price to be paid for union, as exhibited by the ability of certain constituent communities to extort payments from the federal polity in return for unity. ExtOition is not the noblest rationale for redistribution, but it is usually preferable to conquest or fragmentation. Hence, Anglophone Canada pays off Francophone Quebec, the western German Lander payoff the eastern Lander, and the EU pays off its poorer member-states. A salutary outcome, though, is that evelY federal democracy mythologizes this extortion as a just social compact. Thus, the EU's structural funds enjoy considerable legitimacy as a matter of Community justice and are embedded in Title XIV of the Maastricht Treaty, appropriately entitled "Economic and Social Cohesion." It has also been argued that an ideal federal democracy would constitutionally authorize secession, as in Ethiopia's federal constitution, because "secession, or the threat thereof, represents the only means through which the ultimate powers of the central government might be held in check. Absent the secession prospect, the federal government may, by overstepping its constitutionally assigned limits, extract surplus value from the citizenry almost at will, because there would exist no effective means of escape" (Buchanan 199540, 21-22). This exit option is implicit in all federal arrangements and, thus, serves as leverage in the pursuit of justice by the constituent political communities and their citizens. Finally, rooting justice in consent recognizes that Justice is also a matter of self-defense, a fundamental right exercised not only by access to courts and other government institutions but, more importantly, by opportunities to vote, hold elected office, and participate in political life in a myriad of ways. A federal democracy vastly increases oPPOItunities for participation by multiplying the number of participatory forums and by making more elected offices and governments accessible to ordinary citizens. In the United States, for example, 537 elected officials and nine unelected justices preside over a federal government encompassing a huge territory inhabited by some 300 million people, but more than 497,000 other elected officials have substantial, constitutionalized selfgoverning powers in the 50 states and 87,900 localities. In turn, the selfgoverning responsibilities of the constituent political communities and their localities enhance the self-governing capacities of individuals and their ability to attend to their own needs and to the needs of their community rather than waiting supinely for state intervention.

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Conclusion Arguably, federalism is the highest stage of political organization because federal polities encompass 39 percent of the world's population. If one adds the EU and China as de facto federal polities, then federalism encompasses more than 60 percent of the world's population. If one also counts such international institutions as the United Nations as federal, then federalism encompasses the world's popUlation. This, of course, stretches the concept. Nevertheless, just as the federal principle, in its various manifestations, appears to be the only nonimperial basis for organizing political life on large scales, so does federalism seem to be the only basis for organizing democratic governance on large scales. The unitary principle can snap when stretched across too much territory, even with decentralization. More important, the demos essential for unitary democracy fragments when stretched across human heterogeneity. The consociational principle based on elite accommodation can be stretched across territory and heterogeneity, but only up to a point, beyond which it experiences serious democratic deficits, as in the EU and all international political organizations. Although federalism itself does not guarantee democracy, it appears to be the most viable framework for democratization across large territories and human heterogeneity, especially under conditions of freedom. A federal democracy combines unity and diversity and bases both unity and diversity on popular consent, thereby allowing people to have their cake and eat it too, namely, large-scale democratic governance for the things large-scale governance is necessary and small-scale democratic self-governance for the things that make life most worth living.

Note Freedom House identifies seven economy types: traditional or pre-industrial, capitalist, mixed capitalist, capitalist-statist, mixed capitalist-statist, statist, and mixed statist. A capitalist economy has a modern market sector; a mixed capitalist economy combines "predominantly private enterprise with substantial government involvement in the economy for social welfare purposes" (Karatnycky 2001,37).

References Agranoff, Robert and Juan Antonio Ramos Gallarin. 1997. "Toward Federal Democracy in Spain: An Examination of Intergovernmental Relations." Publius: The Journal of Federalism 27 (Fall): 1-38. Bahcheli, Tozun. 2000. "Searching for a Cyprus Settlement: Considering Options for Creating a Federation, a Confederation, or Two Independent States." Publius: The Journal ofFederalism 30 (Winter/Spring): 203-216. Bennett, Robert J. 1990. Decentralization, Local Governments and Markets: Towards A Post-Welfare Agenda. Oxford: Oxford University Press. Bermeo, Nancy. 2004. "Conclusion: The Merits of Federalism," in Federalism and Territorial Cleavages, eds, Ugo M. Amoretti and Nancy Bermeo. Baltimore, MD: Johns Hopkins University Press.

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Bernier, Lynne Louise. 1992. "Socialist Intergovernmental Policy During the Mitterand Era." Publius: The Journal ofFederalism 22 (Fall): 47-66. Breton, Albert. "Federalism and Decentralization: Ownership Rights and the Superiority of Federalism." Publius: The Journal ofFederalism 30 (Spring 2000): 1-16. Buchanan, James M. 1995. "Federalism as an Ideal Political Order and an Objective for Constitutional Reform." Publius: The Journal of Federalism 25 (Spring): 19-27. Cooke, Jacob E. 1961. The Federalist. Middletown, CT: Wesleyan University Press. Davis, Michael C. 1999. "The Case for Chinese Federalism." Journal of Democracy 10 (April): 124-137. Diamond, Larry. 1999. Developing Democracy: Toward Consolidation. Baltimore, MD: Johns Hopkins University Press. Duchacek, Ivo D., ed. 1988. "Bicommunal Societies and Polities." Publius: The Journal ofFederalism 18 (Spring): entire issue. Elazar, Daniel 1. 1987. Exploring Federalism. Tuscaloosa: University of Alabama Press. Elazar, Daniel J. 1995. "From Statism to Federalism: A Paradigm Shift." Publius: The Journal ofFederalism 25 (Spring): 5-18. Held, David. 1992. "Democracy: From City-states to a Cosmopolitan Order?" Political Studies 40: 10-38. Hueglin, Thomas A. and Alan Fenna. 2006. Comparative Federalism: A Systematic Inquby. Toronto: Broadview Press. Huntington, Samuel P. 1991. The Third Wave: Democratization in the Late Twentieth CentlllY. Norman, OK: University of Oklahoma Press. Huntington, Samuel P. 1997. "After Twenty Years: The Future of the Third Wave." Journal of Democracy 8 (October): 3-12. Huther, Jeff and Anwar Shah. 1996. Simple Measure of Good Governance Applying as to the Debate on Fiscal Decentralization. Washington, DC: The World Bank. Karatnycky, Adrian et aI., eds. 200 I. Freedom in the World: The Annual Survey ofPolitical Rights and Civil Liberties, 2000-2001. New York: Freedom House and Transaction. Kenyon, Daphne A. and John Kincaid, eds. 1991. Competition among States and Local Governments: Efficiency and Equity in American Federalism. Washington, DC: Urban Institute Press. Kincaid, John. 1995. "Values and Value Tradeoffs in Federalism." Publius: The Journal ofFederalism 25 (Winter): 29-44. _ Kincaid, John. 1999. "Confederal Federalism and Citizen Representation in the European Union." West European Politics 22 (April): 34-58. Kincaid, John. 2001. "Economic Policy-Making: Advantages and Disadvantages of the Federal Model," International Social Science Journal 167 (March): 85-92. Kinsky, Ferdinand. 1995. Federalism - A Global Theory: The Impact of Proudhon and the Personalist Movement on Federalism. Nice: Presses D'Europe. Montinola, Gabriella, Yingyi Qian, and Barry Weingast. 1995. "Federalism, Chinese Style: The Political Basis for Economic Success in China." World Politics 48 (October): 50-81. Moreno, Luis. 2001. The Federalization of Spain. London/Portland: Frank Cass/ Routledge. Nicolaidis, Kalypso and Robert Howse, eds. 2001. The Federal Vision: Legitimacy and Levels of Governance in the US and EU. Oxford: Oxford University Press. Ray, Amal and John Kincaid. 1988. "Politics, Economic Development, and SecondGeneration Strain in India's Federal System." Publius: The Journal of Federalism 18 (Spring): 147-167.

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Schmitter, Philippe C. 2000. "Federalism and the Euro-Polity." Journal of Democracy 11 (January): 40-46. Siaroff, Alan. 2005. Comparing Political regimes: A Thematic Introduction to Comparative Politics. Peterborough, ON: Broadview Press. Steytler, Nico. 2005. "Republic of South Africa," in Constitutional Origins, Structure, and Change in Federal Countries, eds, John Kincaid and G. Alan Tarr. Montreal and Kingston: McGill-Queen's University Press, pp. 312-346. Theophanus, Andreas. 2000. "Prospects for Solving the Cypms Problem and the Role of the European Union." Publius: The Journal of Federalism 30 (Winter/Spring): 217-241. Tocqueville, Alexis de. 1969. Democracy in America, J.P. Mayer, ed., George Lawrence, trans. Garden City, NY: Doubleday, Anchor Books. Watts, Ronald L. 2002. "The Relevance Today of the Federal Idea," Keynote Address at Pre-Conference for the Internationale Foderalismuskonferenz 2002. Glion, Switzerland (14 Febmary). Wibbels, Erik. 2000. "Federalism and the Politics of Macroeconomic Policy and Performance." American Journal ofPolitical Science 44 (October): 687-702. Watts, Ronald L. 1999. Comparing Federal Systems, 2nd edn. Montreal and Kingston: McGill-Queen's University Press. Wood. Nicholas. 2006. "Coming in May: A Possible Balkan Divorce," The New York Times, 27 Febmary, p. A4.

15 Comparative reflections on federalism and democracy Ronald L. Watts

Introduction The first chapter of this volume has presented a powerful case for the close interrelationship between federation as a form of government and the principles of liberal democracy. The following chapters have provided a rich variety of analyses examining intellectual thought on federalism as a concept and of experience in the operation of a wide range of federations. This chapter concludes the volume with some general reflections on the interrelation between federation as a form of government and democracy, and upon the future prospects for federal democracy as a way of managing political conflict and 'glocalization' in the contemporary world. I

The interrelation of federation and democracy Does federatioll presuppose democracy?

Most of the federal systems examined in this volmne have also clearly been democracies. The United States of America (USA), Switzerland, Canada, Germany and Spain fall into such a classification. Indeed, Alfred Stepan goes so far as to suggest that although there are many multinational polities in the world and few of them are democracies, those multinational democracies that do exist are all federal (Stephan, 2004c, p. 442). He cites as key examples Switzerland, Canada, Belgium, Spain and India. Adding to these examples that of the USA, he notes that the six long-standing democracies that score highest on an index of linguistic and ethnic diversity are all federal systems. He also points out that if one adds to the list such democracies as Australia and Austria, then in terms of the total number of people who live in long-standing democracies, the majority of them live in federal democracies (Stepan, 2004, p. 29). Furthennore, John Kincaid's Chapter 14 in this volume explores extensively the large range of federations and the extent to which they have demonstrated democratic processes. From these overviews it is clear that there is a significant connection between democracy and federalism. But does federation presuppose democracy? To answer this question it is necessary to clarify what we mean by 'federation' and by 'democracy'. Originally there

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was no necessary connection between federation and democracy. As Michael Burgess and Alain Gagnon note in the introductory chapter, the USA, which served as the classic model for modem federations, was based in its original incarnation upon early American republican thought about political liberty, order, consent and obligation and was not associated with democracy at all. Indeed many of the features advocated in The Federalist Papers such as the dispersion of powers, the checks and balances, the role of the Senate and the Electoral College were expressly designed to limit the potential dominance of a simple majority of the total population (Madison et aI., 1987). Furthermore, the non-democratic institutions of slavery persisted up to the 1860s. The essential character of federation lay rather in the dispersion of authority within a polity between the institutions of shared rule and of regional self-rule, with authority allocated between orders of government by a supreme constitution that was not unilaterally amendable by one order of government acting alone. What distinguished federation from both unitary government and confederation was that neither level of government derived its authority from the other but rather from the constitution. Thus federation represents a species within the broader genus of constitutional government (Friederich, 1968; Hughes, 1963; Watts, 2008, pp. 8-9, 157-170). In describing federation as fundamentally a form of constitutional government, it must be emphasized that the mere existence of a written constitution in federal form is insufficient to classify a polity as a federation. Account has to be taken not only of constitutional fonn but also of operational reality (Watts, 2008, pp. 9, 18, 19-23). Given that an operational constitutional distribution of authority between orders of government is the fundamental feature of a federation, it is clear that a political regime which, despite a constitution nominally federal in form, operates in reality in an authoritarian or totalitarian manner dominated by a central government or a single party is inimical to the concept of federation. Consequently such regimes as that of the Soviet Union (U.S.S.R.), Yugoslavia or Czechoslovakia prior to the 1990s cannot be classified as federations since they do not in operation represent examples of constitutionally dispersed authority. In passing, it might be noted that in purely conceptual terms the altematives to the authoritarian or totalitarian concentration of authority are not limited to democracies. Another possible alternative is a constitutional oligarchy of which the United Arab Emirates (UAE) provides a contemporary example. Nevertheless, if we look at the history of federations, such as those, for example, in the USA, Switzerland, Canada, Australia, West Germany, India and Belgium, in the nineteenth and twentieth century, it is clear that in their evolution as federations they have also increasingly adopted liberal democratic practices and processes. Federation and liberal democratic processes seem to have converged and reinforced each other. Indeed, a significant characteristic of federations generally has included a strong predisposition to liberal democratic processes. This is not surprising since they both presume the voluntary consent of citizens in the constituent units; non-centralization through multiple centres of political decision-making enhancing citizen participation, group self-government

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and government accountability; political bargaining as the way in which decisions are an-ived at; the operation of checks and balances to avoid the concentration of political power; and a respect for constitutionalism and the rule of the law (Watts, 2008, p. 18). Thus, there has developed a convergent congruence in the concepts of federation and liberal democracy. As a consequence, John Kincaid in his second chapter in this volmne has been able to note the strong interrelation between federation and liberal democratic processes in many federations including most of those examined individually in the chapters in this book. Nevertheless, Kincaid also notes a number of federations in Asia, Africa, and Latin America which, while they may be making some progress towards liberal democracy, are yet imperfect liberal democracies. This, in varying degrees, applies to Pakistan and Nigeria even though military rule has now been replaced in both, and to Malaysia, Ethiopia and Venezuela which while permitting opposition parties and a measure of regional autonomy nevertheless retain some constraints on these. Chapter 10 by Richard Sakwa in this book also raises questions about the extent to which the current Russian Federation is fundamentally liberal democratic in its practices. It would appear, then, that although constitutional government rather than democracy is the conceptual prerequisite for federation, nevertheless, liberal democracy enhances the operation of federations making them more effective. The fact that virtually all of the long-standing federations are or have become liberal democracies - Australia, Austria, Belgium, Canada, Germany, India and the USA - suggests prima facie that democratic institutions and processes have in fact been an important element in the effective operation of federal systems. To aspiring or emergent federations this is clearly an important lesson. At the same time, it must be noted that among federal democracies there is considerable variety in the democratic character of their institutions - presidential/congressional or parliamentary, republican or monarchical, different fOlms of bicameralism, different electoral and party systems, and differing use of the devices of direct democracy suqh as referendums and initiatives - and the particular form these take may be as significant for the effectiveness of a federal system as the fact simply that they are liberal democracies. Cimjederatioll enhallce democracy? In addressing this question, it should be noted that here too much will depend, of course, on our definition of democracy, itself a concept whose definition has over the years been much debated. Modem democracy may be about 'rule of, by and for the people', but different interpretations have varied in giving primary emphasis to 'participation', 'accountability' or 'group self-government' (Green, 2006, pp. 262-6). Some critics of federalism such as Riker and Stepan who emphasize the majoritarian essence of democracy as rule by the demos, have argued that federalism places limits upon electoral democracy. For instance, one of the central themes of Riker's writing on federalism was to emphasize the

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demos-constraining character of federalism (Riker, 1964 and 1982). Both Riker and Stepan point out that federalism is inherently (virtually by definition) antithetical to pure majority rule (Riker, see above; Stepan, 2004a, pp. 29-84; Stepan, 2004b, pp. 323-61; Stepan, 2004c, pp. 441-55). To begin with, multiple decision-points or veto points, by limiting majority rule, violate the basic principles ofmajoritarian democracy. Unitary systems with simpler decision rules are in this sense less demos-constraining and potentially more demos-enabling. Secondly, most federations involve bicameral federal legislatures weighted in differing degrees to favour smaller constituent units, thus violating a cardinal principal of democracy based on one person one vote. A counter-view advanced by the proponents offederalism is that while federalism may place some limits upon majoritarian democracy, democracy more broadly understood as liberal democracy is achlally expanded by federalism. This view is strongly advanced in the preceding chapter in this volume by John Kincaid on the basis of an empirical review. Democracy and governmental responsiveness are enhanced by federalism because multiple levels of government maximize the opporhmity for citizens' preferences, establish alternative areas for citizen participation, and provide for governments that are smaller and closer to the people (pennock, 1959, 147-57). In this sense federali.sm can be said to be demosenabling and hence might be described as "democracy-plus" (Watts, 2008, p. 155). Furthermore, from a liberal-democratic point of view, by emphasizing the value of checks and balances and dispersing authority as a check against a tyranny of the majority, federalism protects individuals against abuses by either level (Madison et al. 1787-8; Simeon, 2006, pp. 18-45). Furthermore, as Arendt Lijphart notes, such majority-constraining devices have been characteristic of 'consensus democracies' developing consociational processes within highly divided societies (Lijphart, 1999). It would seem, then, that federalism is a variable that interacts with democratization - in some respects strengthening liberal democracy and in others inhibiting majoritarian democracy. Gibson suggests that among the ways in which federalism affects democratic procedures and policies are: It establishes de jure limits to the scope of governmental action; It increases the number of veto players in the political systems; It creates multiple arenas for political organization and mobilization; It shapes patterns of democratic representation, generally expanding the scope of territorial representation over population representation (representation by 'state' or 'province' rather than by number of people); It distributes power between regions and regionally based political actors; It affects the flow of material resources (fiscal or economic) between populations living in the federal union. (Gibson,2004,pp.9-12)

Many of the arguments pro and con about the impact of federalism upon democratic government are based on theoretical arguments. John Kincaid's second

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chapter in this volume has been particularly valuable therefore in undertaking an empirical quantitative and qualitative audit of the actual experience of federal democracies. Here it must be noted that while much of the literature on the relationship between federalism and democracy has been about the impact of federalism in general, many variations in the structures and processes of different federations have in practice significantly affected this interaction. My own previous work has emphasized this, pointing to significant differences resulting from the creation of federations by aggregation, by devolution or by a combination of the two, from varied formal arrangements and degrees of centralization or decentralization in the allocation oflegislative and executive authority and of financial resources, from different institutional structures within federal governments (e.g. presidential-congressional, collegial or parliamentary) and differences in the composition, method of appointment, and powers of second chambers, from differing degrees of reliance upon judicial review or referendums to umpire the exercise of powers, from different requirements and distributions of veto powers in relation to constitutional amendments, and from different institutions and processes for management of intergovernmental relations (Watts, 2008). These variations, both formal and informal, have produced significant differences in the democratic character of different federations. Alfred Stepan in addressing the relation between federalism and democracy has made a similar point by suggesting that instead of falling into a few categories federations in fact fall along a continuum in the degrees to which they are 'demos-constraining' or 'demo-enabling' (Stepan, 2004c, pp. 441-551). He notes differences among federations created by 'coming together', 'holding together' and 'putting together', in whether they are rnononational or multinational, in the symmetry or aSYlmnetry of their constituent units, and in terms of such other variables as the degree of overrepresentation in the territorial federal chamber, the policy scope of the territorial chamber, the extent to which policymaking is constitutionally allocated to subunits of the federation, and the degree to which the party system is polity-wide in its orientation and incentive systems. Furthennore, Stepan has also pointed to the variation--in electorally generated veto players in different federations and unitary systems, placing the USA and the Latin American federations among the most demos-constraining federations (Stepan, 2004b, pp. 323-61). And if we look further along the continuum between demos-constraining and demos-enhancing federations, we find Switzerland and Australia, followed by Gennany, Belgium, Canada, and finally Austria. One may question the factual basis upon which each of these is classified by Stepan as a four, three, two or one institutional veto player democracy, but the essential point is that there are significant variations among these federations in terms of how their federal character has affected their democratic processes. Size ofpolity ami democracy

Many writers, including the authors of The Federalist Papers, have identified the size of the polity as a crucial variable in the ability of the polity to be

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democratic. Political thinkers such as Machiavelli, Rousseau and Montesquieu noted the difficulties of achieving democratic values and practices in large countries. It is not surprising therefore that one ofthe traditional arguments in support of federalism has been that by combining the existence of smaller constituent units within a larger federal union, democracy is enhanced. The Federalist Papers of 1787-8 took an alternative view, however, stressing large size as a political virtue (Greer, 2006, pp. 5, 262-4). Federalist 10 and 51 argued that smaller polities are more, rather than less, susceptible to takeover by 'faction', and that such problems would be less likely in the larger federal polity (Madison et at. 1787-8). On this ground, the argument was advanced that the larger federation would be more genuinely democratic. Indeed, in many decentralized countries local and regional governments have in practice been marked by cormption, incompetence, or dominance by local elites. Furthermore, there is a question whether large subunits such as Uttar Pradesh in India with a population over 130 million or California with over 32 million (each more than the total population of many federations) are likely to obtain the supposed democratic benefits of small polities.

Multillatiollal alUll1lOllOllatiollal jederatiolls alld democracy Federation as an institutional design was not originally developed to deal specifically with multinational situations. Indeed its origins in its modern form lie in the diverse but essentially mononational USA in the late eighteenth century, and it has since been applied in other basically mononational societies such as Argentina, Australia, Austria, Brazil and Gennany. But the logic on which federation as a fonn of government is based, i.e. that territorially concentrated minorities can be empowered to exercise autonomy or self-mle on matters cmcial to their identity without being overridden by a majority within the larger polity, and at the same time obtain the economic, social, diplomatic, security and other benefits of participating in a larger federation, has had a particular appeal in multinational situations. Thus,· Belgium, Canada, India and Spain represent multinational examples of efforts to establish federal or federal-type democracies. 2 In practice there is ample evidence that multinational federations have experienced greater difficulties in operation than mononational federations (Watts, 2007, pp. 225-47). Nevertheless, it is noteworthy that Lijphart included among the 36 democratic countries he analyzed, the multinational federations of Belgium, Canada, India, Spain and Switzerland and drew attention to their democratic endurance (Lipjhart, 1995, pp. 5, 51). Indeed, these examples suggest that while multinational federations have often been more difficult to govern, it was because they were difficult countries to govern in the first place that they adopted federal political institutions (Watts, 2008, p. 192). In analyzing the basis of federal democracy in multinational federations, Ferran Requejo in Chapter 13 of this volume and elsewhere, has suggested that we need to distinguish two different variants of democratic liberalism. The first

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is based 'essentially on individual rights of a universal kind, on a nondiscriminatory idea of equality for all citizens and ... distmsts the very notion of collective rights, suspecting such a concept of presenting authoritarian risks' (Requejo, 2004, p. 262). The second variant 'adds to these elements the protection and development of specific cultural and political differences in the public and constitutional spheres for distinct national groups living within the same democracy. It holds that the absence of such recognition, and of broad-ranging self-government, results in a discriminatory bias against national minorities and violates the principle of equality (p. 262). He goes on to suggest that when democratic liberalism in the second sense is applied to federations where at least some of the constituent units represent minority nations, asymmetrical arrangements for those constihlent units have in practice proved characteristically to be appropriate (p. 268). Stepan comes to a similar conclusion arguing that while the concept of collective rights may be in tension with an emphasis on individual rights, 'in multinational polities, some groups may be able to participate fully as individual citizens only if they acquire, as a group, the right to have schooling, mass media and religious or even legal stmchlres that correspond to their language and culture' (Stepan, 2004c, p. 453). Furthermore, he makes the interesting observation that, of the federal systems that have been democracies since 1988, all the mononational federations (Argentina, Australia, Austria, Brazil, Gennany and the USA) have had some degree of symmetrical constitutional/legal arrangements relating to their constituent units and that, with the exception of the special case of Switzerland, all the multinational federations (Belgium, Canada, India and Spain) have had asymmetrical constitutional/legal arrangements (Stepan, 2004a, p. 40). This is an interesting generalization, although he does not acknowledge the considerable variety in the character and the extent of the asymmetrical arrangements among these multinational federations, variations which significantly affect their democratic processes.

Federatioll, secolld chambers alUl democratic repres~lltatioll Most federations have had bicameral federal legislatures to balance representation of population and of territorial units in their institutions of shared mle. This is by no means unique to federations since there are many unitary political systems with bicameral legislatures. But following the precedent of the Connecticut Compromise at Philadelphia in 1787, federal bicameralism has been a typical characteristic of most federations. Indeed, of some two-dozen contemporary federations, only five do not have bicameral federal legislatures. Each represents special circumstances. Three of these are the tiny micro-federations of Micronesia, the Comoros Islands and st. Kitts-Nevis, and the other two are the UAE and Venezuela. Two other fonner federations which had unicameral federal legislatures were Pakistan (1956-71) and Serbia-Montenegro (19922006), neither of which proved stable. This prevalence of bicameralism in federations has led to a considerable literature on the issue of the extent to which this democratic 'malapportionment' of

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representatives has limited democracy in federations (e.g. Burgess, 2006, pp. 204-6; Stepan, 2004a, pp. 29-84; Stepan, 2004b, pp. 323-61; Stepan, 2004c, pp. 441-55; Lee and Oppenheimer, 1998). Stepan has identified this element as one of the demos-constraining features of federalism. For instance, in the U.S. Senate a single vote in Wyoming counts 65 times more than its equivalent in California. On the other hand, as Burgess notes, the acceptance in most federations of such territorial variations points to the vitality and recognition of the distinct demoi in the various constituent units (Burgess, 2006, p. 206). Furthermore, as Lijphart has pointed out, the checks on democratically elected majorities by federal second chambers have often pushed these democracies in the direction of 'consensus' democracy, contributing to the accommodation of different groups in multinational federations (Lipjhart, 1999). An important point to note here is that there is considerable variation among federations in the weight given to territorial representation and to the methods of selection, composition and powers of federal second chambers (Watts, 2008, pp. 147-54). For instance, although virtually all federations give some weighting to favour smaller constituent units, they range from equal representation (USA and Australia)/ to strongly weighted (Gennany) and lightly weighted (Austria and India) representation in the territorial chamber. for smaller constituent units. In some cases, such as Belgium and Spain, regional representatives are in fact only a minority of the members in the second chamber. In Canada, the composition of the Senate was originally based on equal representation, not of provinces, but for regional groups of provinces and with varying numbers of provinces in these regional groups. There are variations too in the method of appointment: by direct election, by indirect election by state legislatures, by state executive, by appointment by federal government, or a mixture of these. Furthermore, there is considerable variation in the relative powers of federal second chambers. In parliamentary federations, where the federal cabinet is responsible to the popularly elected house, the federal second chambers have nonnally been weaker, while those in non-parliamentary federations, such as those of the USA, Switzerland and the Latin American federations, have had equal powers and hence have been in a stronger position as 'veto players'. It is these variations affecting their role as 'veto players' that led Stepan to place federations on a continuum in terms of their 'demos-constraining' or 'demos-enhancing' character (Stepan, 2004b, pp. 323-61). While one might quarrel with the factual basis on which he categorizes some of the individual federations, fundamentally he is correct in noting the enonnous variation in the role and powers of federal second chambers in different federations. A particularly important illustration of the variations among federations in their second chambers and the impact of these upon democratic processes is that of the German Bundesrat examined in detail in Chapter 9 in this volume by Franz Gress. Clearly, in tenns of a majoritarian view of democracy, not only in its form and distribution of representatives but also in its manner of functioning, the German Bundesrat is not consistent with simple majoritarian democratic

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principles. But from a broader liberal democratic view, the Bundesrat plays a key role in facilitating multi-party resolutions of political differences among different groups within the German federation. Tile impflct oj illtergovemmelltlll rellltiolls ill jef/el'lIl democl'lIcies

The inevitability within federations of overlaps and interdependence in the exercise by governments of their powers has generally required extensive consultation, co-operation and coordination between governments (Watts, 2008, pp. 117-23). There is a widespread view, particularly in those parliamentary federations where "executive federalism" (i.e. negotiations between the executive anns of each government) has predominated and been accentuated with the growth of welfare programmes, that these intergovernmental relations are incompatible with democracy. There is a considerable literature on this in Australia, Germany and especially Canada (Warhurst, 1987, pp. 259-77; Scharpf, 1988, pp. 239-78; Smiley, 1979, pp. 105-13; Cameron and Simeon, 2000, pp. 58-118; Simeon and Cameron, 2002, pp. 278-95). This is an issue which is directly addressed in this book by Alain Gagnon in Chapter lion Canada. The classic critique occurs in Donald Smiley's analysis of executive federalism: first, it contributes to undue secrecy in the conduct of the public's business; secondly, it contributes to an unduly low level of citizen participation in public affairs; thirdly, it weakens and dilutes the accountability of governments to their respective legislatures and the wider public; fourth, it frustrates a number of matters of crucial public concern from coming on the agenda and being dealt with by the public authorities; fifth, it has been a contributing factor to the indiscriminate growth of government activities; and sixth, it leads to continuous and often unresolved conflicts among governments, conflicts which serve no purpose broader than the political bureaucratic interests of those involved in them. (Smiley, 1979, pp. 105-l3). Albert Breton, arguing in favour of intergovernmental competition rather than cooperation, described the latter as intergovernmenfal collusion to serve the interests of politicians and bureaucrats at the expense of interests of the citizens (Breton, 1985, pp. 485-526). More recently, Simeon and Cameron, taking their cue from Smiley, have identified the deficiencies of executive intergovernmental relations in terms of the limiting effect upon: (1) effective governance; (2) responsive govenunent; (3) representative government and transparency and accountability; (4) public deliberation of political issues, particularly citizen engagement and consultation; (5) the scope for citizens to act as decisionmakers, and the role of direct democracy; and (6) democracy as the recognition of distinct communities (Simeon and Cameron, 2002, pp. 278-85). To this can be added the problems Scharpf identified with the 'joint decision trap" in German and EU policy-making (Scharpf, 1988, pp. 239-78). Recently Alan Trench has examined whether these criticisms are justified and whether intergovernmental relations are generally incompatible with democracy and the proper working of democratic institutions. He argues, first, that the

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characteristics identified by the critiques are not inherent to intergovernmental relations but rather are matters of degree arising from different fonns of execution. Second, as an observer from the United Kingdom (UK) - a union state - he argues that it is striking 'how much infonnation about intergovernmental relations is in the public domain in federations, rather than how little'. Third, regarding public engagement, consultation and direct democracy, he states that 'if anything, intergovernmental relations in federations appears to have increased the opportunities for involvement.' Fourth, he notes that the criticisms 'are for the most part predicated on an understanding of democracy as requiring openness and accountability which is manifested through direct or indirect but continuing public involvement' and he goes on to point out that a more realistic view of democracy in a large complex polity is one in which accountability and public participation is primarily focused on periodic elections where citizens can express their approval or discontent with the results of intergovernmental decisions by removing from office either or both of the governments they consider responsible. As to whether 'the joint decision trap' can lead to blocked and ineffective governance, he suggests that a key question is whether unanimity or near unanimity is required and what form the instihltions and processes for intergovernmental negotiations take. There are numen;ms instances where intergovernmental institutions and processes in federations have in fact resolved rather than created disputes. (Trench, 2006, pp. 246-54). Trench concludes, to my mind appropriately, that intergovernmental relations are not inherently incompatible with democratic processes, nonns and values. While on occasion they may cause problems for such norms and values, the fundamental fact remains that the governments involved in intergovernmental relations within federal democracies are themselves democratically elected and accountable to their electorates. Tile effectivelless offederal democracies

An important aspect of whether federalism enhances democracy is whether it contributes to or hinders the effectiveness of the democratic polity. A traditional criticism of federation is that exemplified by Harold Laski when he argued that federal government in its traditional form, with its compartmenting of functions, legalism, rigidity, and inherent conservatism, was obsolescent in the modern world because it was unable to keep pace with the tempo of life that giant capitalism had evolved (Laski, 1939, pp. 367-9). But there are some contrary views and evidence to support federalism as enhancing effective democracy. A number of authors such as J.R. Pennock and Martin Landau have attributed the prosperity, stability and longevity of such federal democracies as the USA, Switzerland, Canada and Australia, four of the longest standing constitutional systems anywhere in the world today, to the effectiveness of federation as a form of political organization. Pennock has argued that by comparison with unitary systems, multilevel governmental organizations are able to maximize the satisfaction of citizens' preferences (or at least

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minimize their frustration), and Landau has suggested that the persistence of these federations has been helped by the redundancy of multiple centres of decision-making providing a fail-safe mechanism that unitary systems lack (Pennock, 1959, pp. 147-57; Landau, 1973, pp. 173-95). Some attempts have been made to assess this empirically. The contributors to a volume of essays edited by Ute Wachendorfer-Schmidt concluded empirically that on balance contemporary federations have performed better both in tenns of respecting democratic rights and in tenns of economic prosperity because of the inherent checks and balances discouraging risky radical governmental policies (Wachendorfer-Schmidt, 2000). In Chapter 14 of this volume John Kincaid's empirical qualitative and quantitative audit of federal democracies confinns the validity of that assessment.

Federal democracy as a means to resolving major contemporary issue/i Tile applicatioll offederal democracy ill cOlltemporary cOllflict alld post-collflict situatiolls

The current decade has seen a proliferation of proposals for resolving conflict in societies through the application of federal proposals. Among states in which federal solutions have been proposed are Bosnia and Herzegovina, Iraq, Sudan, the Congo, Cyprus, Sri Lanka, Indonesia, the Philippines and even JordanPalestine. Furthermore, several federations have in recent years been established, or re-established, in Asia, Africa, the Middle East and Latin America. This popularity of federal solutions parallels the period during the first two decades after the Second World War when numerous colonial and post-colonial federations were established. But one lesson that emerged from that earlier experience is that federalism is not a panacea. A significant number of those earlier federal experiments failed, either because the necessary preconditions were simply lacking or because the particular variant of federation established or evolved was inadequate to the requirements of the particular society or region in question. We need, therefore, to recognize that there may be sihlations in which proposals for a federal solution are simply not appropriate. This raises a number of questions for consideration. First, what can we learn from cases where federalism has been applied as a conflict management tool. Here the lessons, both positive and negative, from such efforts in Switzerland, Canada, India, Malaysia, Nigeria, Belgium and Spain may be particularly relevant. In this context a careful examination of the pathology of federations should be helpful (Watts, 2008, pp. 179-88; Franck, 1968; Hicks, 1978). Second, we need in each case to take account of the specific sources and kinds of conflict, and particularly whether the clashes of nationalism, of religious fundamentalism and of identities are amenable to a federal solution or limit applicability. Third, alternative institutional and procedural tools for conflict management need to be considered to see if they might serve the particular

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conditions in that society or region better than a federation. Fourth, is the issue of the procedures required to manage effectively a transition from conflict to peace. This includes the role of the international community, the transition from negotiation to democratic legitimacy (a prime issue in Iraq), and the fundamental requirement of a process to establish a prevailing political culture of mutual respect, trust and compromise which is a prerequisite for any effective federal solution. The basic issue is the challenge, not of eliminating national, religious and multicultural identities and diversity, but rather of how to accommodate, reconcile and manage these social diversities within an overarching polity that facilitates peaceful co-existence. Consequently, in examining the potential and limits of federal solutions for resolving deep multicultural conflicts, a fundamental aspect is not simply how to design an appropriate federal framework and how to negotiate agreement upon it, but first how to develop the necessary preconditions: an environment and conditions conducive to federal thinking and a political culture sustaining tl1e combination of both self-rule and shared rule which is the essence of federal solutions. Sigllificallce of the Ilatllre of diversity ami cOlljficts

Consideration of the applicability of a federal solution or a specific form of federal institutions must take account of the particular nature of the multicultural diversity and conflicts to be accommodated and managed. Traditionally federal political systems have been viewed as better suited to accommodating territorially based diversities because such systems distribute political authority among territorially defined sub-units. Federal systems, as a territorial form of political organization, safeguard distinct groups, minorities and interests best when these are regionally concentrated in such a way that they may achieve self-government as a majority within their own territory. Where social segmentation is not territorially distributed, other non-federal solutions such as corporative organization, primarily consociational processes, and constitutional protections of basic rights or of minority rights may be more appropriate alternatives. Nevertheless, it is sometimes argued that even in such situations the dispersion of political power and the checks and balances inherent in any federal system may provide some protection for non-territorially distributed minorities. It should be noted that even where the primary social segmentation is territorially distributed, populations rarely in practice are distributed into neat watertight territorial compartments. Virtually all federations have had to take account of the existence of intra-unit minorities, i.e. minorities within minorities, sometimes by redrawing the boundaries of constituent units, but most commonly by embodying a set of fundamental rights in the constitution to protect intra-unit minorities (Watts, 2008, pp. 165-8). Sometimes the possibility of non-territorial 'personal federalism' has been advocated for situations where significant distinct groups inhabit the same territory (Marc and Aron, 1948). It is appropriate therefore that the experience of the innovative Belgian combination of regional (terri-

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toria!) and community (personal) constituent units within a federation be examined in some depth. Among the factors usually inducing conflict among different groups are economic differentiation, particularly economic disparities, historical grievances, and differences in prevailing ideological views. However, social segmentation and the consequent demand for political self-expression and self-rule have been particularly virile where territorially concentrated groups have been marked by differences of religion, language, race, social structure and cultural tradition. In federal and quasi-federal systems, this has been most marked in Switzerland, Canada, India, Malaysia, Nigeria, Belgium, Spain, South Africa, Ethiopia and Bosnia and Herzegovina. Generally the ten'itorial segmentation of a society has been sharpest where the territorial distribution of the different factors causing conflict - religious, linguistic, ethnic, economic, historical and ideological - have tended to coincide, mutually reinforcing each other. On the other hand, where the territorial distribution of the different segmenting factors has varied so that instead of coinciding, they cut across each other, this may have a moderating effect upon the intensity of the conflict. Switzerland provides a classic example of the latter. There the division between Protestants and Catholics, the linguistic concentrations, and economic interests all cut across each other. Cantonal alignments on federal political questions have therefore tended to vary according to whether religious, linguistic or economic considerations were primarily at issue. Consequently, political conflict has been less polarized than that, for example, between Quebec and English-speaking Canada where the differences have tended to be much more mutually reinforcing. There is also a significant difference between situations where there is a distinct majority alongside a minority or minorities, as compared to those societies composed of a number of minorities with no single distinct group in a prevailing majority. In the former there is a tendency for minority groups to feel themselves vulnerable to perpetual dominance by the pennanent majority. This sharpens their defensiveness and insistence upon a clear measi.lre of autonomous self-rule. Among federations, examples of such situations have been those of Quebec within Canada, the southern regions in Nigeria when Northern Nigeria dominated a three-region Nigeria, the concerns of non-Malay groups in Malaysia, and the non-Hindi speaking groups in southern India. 4 To some extent, the impact of the majority groups in these federations, and also in Switzerland, has been moderated, however, by distributing the majority group in each case among a number of distinct provincial, state or cantonal governmental units, none of which has a permanent overall majority in the federation, and each of which over time has tended to develop its own historical interests and identity. One special situation worthy of note is the particular difficulties that have been experienced almost invariably by bicommunal federations. The difficulties of dyadic federations and confederations have been widely recognized (Duchacek, 1988, pp. 5-31). Pakistan prior to the secession of East Pakistan in 1971 and Czechoslovakia prior to the segregation of its two parts in 1992 have

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provided eminent examples of the difficulties which have arisen in federations organized on bicommunallines. Other recent two-unit federations or confederations experiencing difficulties have been st. Kitts-Nevis and Serbia-Montenegro. The problem with two-unit federations generally has been the inevitable tendency to insist upon parity between the two units in all matters. This has proved to be a recipe for political impasses and deadlocks. These occur because there is no opportunity for shifting political alliances and coalitions among the constituent units or their representatives on different issues which is one of the ways in which problems are resolved in multi-unit federations. Instead, in a two-unit federation every policy issue becomes a zero-sum game in which one of the two units is seen as a winner and the other as the loser. Furthennore, since invariably one of the two units is less populous than the other (e.g. West Pakistan before 1971 and Slovakia before 1992) that unit has usually been particularly conscious of the need to insist upon equality of influence in federal policy-making, while the more populous unit has developed a sense of grievance over the apparently undeinocratic constraints imposed upon it to accommodate the smaller unit. In the cases of Pakistan and Czechoslovakia, the resultant cumulatively intensifying l?ipolarity led ultimately to their terminal instability. Nor does resort to a confederal stmcture resolve the issue. The existence of mutual vetoes, a normal characteristic of confederations, has meant that where there are only two units, repeated impasses and deadlocks have simply shatpened mutual fmstrations cumulatively over time. This issue is particularly relevant to the consideration of a federal solution in Cypms or Sri Lanka. These examples provide a caution against promoting any simple dualistic approach to resolving conflicts. Interestingly, Canada and Belgium represent two other federations with fundamentally bicommunal societies, but in both cases the tendency to polarization has been somewhat moderated by the establishment of a federal stmcture composed in each case of more than two constituent units. Historically, three-unit federations or confederations have for somewhat similar reasons proved unstable as illustrated by the East African experience. This suggests that the incentives built into the current Iraq Constitution for the ultimate consolidation of the governorates into three large regions could prove if that were to be the result - to be fatal. Given the importance of these various factors, the consideration of whether a federal solution or a particular federal variant is appropriate as a tool for resolving contemporary multicultural conflicts will need to take careful account of the particular underlying conditions and motivations. Among the underlying conditions to be considered are: the relative strength or weakness of national, economic and social links among the prospective constituent units; the degree to which the prospective constituent units are themselves internally homogeneous in religion, language, race and culture; the intensity of the differences among the prospective constituent units in religion, language, race, culture, level of modernisation, economic development and political ideology; the degree of disparity in relative wealth and political influence; the relative size and bargaining power of the prospective constituent units; the complementarity or competitiveness of

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the elites in the different prospective units; and the interests of external political powers exerting their influence within the region.

The lIecessary cOlUlitiolls for a federal solutioll The examples of federal successes and failures in moderating multicultural conflict raise the question: what prior conditions are necessary for federal solutions to be effective in such situations? Experience suggests that without certain necessary conditions a federal solution is unlikely to be adopted and, even if adopted, is unlikely to succeed in moderating multicultural conflict. A first precondition is the existence of a will to federate. Federal political systems depend on consensual support and therefore are unlikely to succeed as imposed solutions. Second, since federal systems involve both self~mle and shared-mle, without some basic underlying shared values and objectives, the basis for long-nm shared-mle will in the end be impossible to achieve. Third, tmst is necessary to make federal arrangements work. An essential condition is the devel·opment of mutual faith and tmst among the different groups within a federation and an emphasis upon the spirit of mutual respect, tolerance and compromise. A fourth precondition is the development of a political culture which not only emphasizes sharing and cooperation but which fosters respect for constitutional norms and stmctures and the mle of law. Federal solutions require constitutional stmctures, and therefore where respect for constitutional law is lacking, there is little prospect for their effectiveness. Where a political culture supporting constitutionalism, mutual respect, tolerance and compromise is lacking, federal constitutions have often proved to be mere fayades beneath which authoritarianism and centralization have prevailed. Latin America at various points in the past two centuries has been particularly noted for such examples. The existence of a civil society with a political culture supporting federal values is therefore vital. The above are all necessary preconditions for federal or confederal solutions to operate effectively in moderating multicultural or multinational conflict. Where these conditions exist, their effectiveness in managing political diversity and conflict will then also depend not just upon the adoption of federal arrangements, but in addition upon whether the particular institutional stmctures and processes developed are appropriate for the particular social diversity and circumstances. These institutional variables include the munber, relative size and character of the constituent units, the fonn and scope of the distribution of legislative and executive authority and of financial resources, the extent of regional own-source revenues, constitutionally guaranteed unconditional financial transfers and equalization arrangements; the degree of symmetry or asymmetry in the allocation of powers to the constituent units, the nature of the common federative institutions incOlporating genuine power-sharing in central policy-making, the role of courts, the establishment of fundamental constitutional rights, and the development of processes for collaborative intergovernmental relations. The design of these institutional stmctures and processes will be meaningless, however, without the development of the necessary preconditions for the

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effective working of any federal solution. Given the apparent lack of many of these preconditions in many of the conflict situations where currently federal solutions are being proposed, a major issue for consideration is how to go about establishing these preconditions where they are lacking. In this respect there is a parallel between establishing the necessary conditions for federation and for democracy since the preconditions are so similar. The difficult question is 'how to get there'? In most cases it will almost certainly require a step-by-step process aimed at developing modest institutions with some federal and democratic features and cooperative processes designed to develop trust among the groups involved over a period of a decade or two until the preconditions for establishing an effective full-fledged federation are in place. The process will require leadership within each of the groups involved and at different stages significant real and symbolic concessions from each side. The process by which South Africa moved from the fundamentally conflictual apartheid regime by stages to a democratic quasi-federal regime provides one example of such a process. The step-by-step evolution of the European Union (EU) provides another example. There is here something of a 'chicken and egg' problem: federal institutions to operate effectively need a supportive political culture, but in order to induce a spirit of mutual respect and trust among previously hostile groups they may need some constitutional guarantees. Some conclllsions abollt/ederation as a tool/or resolving conjficts In the light of both the positive and negative lessons drawn from the experience of federal systems over the past century, I draw the following conclusions:

2

3

4

Federal political systems do provide a practical way of achieving through democratic representative institutions the management of multicultural conflict, but they are not a panacea for all such conflicts. The effective application of federal political solutions is limited to those situations where the necessary preconditions exist. Where these are lacking, a prior objective must be the establishment of processes to develop those preconditions. As a tool for the management of multicultural conflict, the effective application of a federal solution is closely related to the degree to which different groups are territorially distributed or concentrated. Federal arrangements are more likely to succeed where there are established traditions of democracy, constitutionalism, rule of law and a political culture encouraging tolerance and compromise. Indeed, it is possible to argue that the degree to which federal political systems have been effective has depended not just on the design of their constitutional structures, but even more on the degree to which there has been a political culture conducive to federalism. Important elements of such political cultures have been the cherishing of diversity, and the development of mutual respect, a sense of com-

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7

8

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munity, respect for constitutional norms, and a prevailing spirit of tolerance and compromise. Bicommunal institutional solutions tend to polarize and accentuate conflict and to suffer terminal instability, and therefore should be avoided. Where the institutional design of a federal system assures minorities of security for their distinctive self-governance, this' has usually reduced tension and conflict. Institutional arrangements which involve genuine power-sharing within the federative institutions are essential in order to generate a continuing consensus which serves as the necessary glue to hold the federal system together. The application of federal solutions may take a variety of institutional forms. There is no single universal form of federation ap~licable everywhere. There have been wide variations in the application of the federal idea to fit particular circumstances. Ultimately, federation is a pragmatic, pnldential technique, the applicability of which often depends upon the particular fonn in which it is adopted or even upon the develdpment of new innovations in its application. '

The impact 0/ 'glocalizatioll '

Globalization has become a major buzzword since the fall of the Berlin Wall. During the past decade or so much attention has been given to the way in which an increasingly global economy has itself unleashed economic and political forces strengthening both international and local pressures at the expense of the traditional nation-state. Global communications and consumerism have awakened desires in the smallest and most remote villages around the world for access to the global marketplace of goods and services. At the same time concerns over the inability to influence large and remote corporations and national governments has induced pressures for more local democratic control over political processes. As a result govenunents have been faced increasingly with the desires of their people to be both global consumers and local citizens at the same time. Tom Courchene, my colleague at Queen's University, has aptly labelled this trend I'glocalization' (Courchene, 1995, pp. i-20). Thus, the nation-state itself is pfO'Ving simultaneously too small and too large to serve all the desires of its citizens. Because of the development of the world market economy, the old fashioned nation-state can no longer deliver many of the benefits that its citizens value, such as rising living standards and job-security. Self-sufficiency of the nation-state is widely recognized as unattainable and merely nominal sovereignty is less appealing if it means that, in reality, people have less control over decisions that crucially affect them. At the same time, nation-states have come to be too remote for citizens to feel a sense of direct democratic control and for nation-states to respond clearly to the specific concerns and preferences of their citizens. In such a context, the notion of federalism with its different interacting levels of government, has suggested possible ways of mediating the variety of global and local citizen preferences (Watts, 2008, pp. 4-7; Burgess, 2006, pp. 257-63).

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This general trend led Daniel Elazar to suggest that the world is in the process of undergoing a paradigm shift from 'statism' to 'federalism' (Elazar, 1995, pp. 5-18). The result has been an increasing movement in international relations towards federal and confederal relationships. These he thought would tend to be more confederal in character, although the recent difficulties and criticisms of the 'democratic deficit' in the predominantly confederal EU may require a rethinking of that view and the application of even more innovative forms of the federal idea. A recent study examining the impact of global and regional integration upon individual federations and similar structures through a series of case studies including the USA, Canada, Australia, Switzerland, India, South Africa, Gennany and the EU, noted that the impact has varied quite significantly and came to three main conclusions (Lazar et al. 2003, pp. 1-2). First, a substantial majority of the federations examined, with some European exceptions, have adapted to changing global and regional integration pressures without a major transformation of their institutions. In most cases, the political actors have been able to modify old institutions for new purposes showing the resilience of their federal institutions and processes. This observation was, however, less true of some of the European political systems. Second, in all the regions covered in this study, with Europe again being the exception, there has been little evidence that global and regional integration are fostering new transnational identities between the federal polities and their global and regional partners. At the same time, such integration appears to have been moderately exacerbating traditional political cleavages within federations, particularly multinational federations. Third, the impact of global and regional integration has not been unidirectional. In any single federation, it may cause effective authority to move upward in some cases and to move downward or outward in others. That is, the trajectory of the impact has been variable. But in no case has recent global and regional integration reversed the pre-existing centralization or decentralization process within a federation. In sum, the federal systems of governance examined in that study have, to date at least, had the flexibility to adapt to pressures for international change without undermining the federal bargains fundamental to their stability.

Conclusion Does a federal political system, by limiting the range of issues on which a majority within the polity may ultimately rule, limit democracy? If democracy is defined simplistically, solely as majority rule or rule by the undifferentiated demos, there is no question that a federal system by constitutionally limiting the jurisdiction of the federal government and establishing constituent units of government with autonomous jurisdiction over some matters does place constitutionallimits upon the scope of decision making by an overall majority within the polity. Federal systems with their constitutional distributions of authority and

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resources, in most cases adjudicated by independent courts, are clearly a form of limited constitutional government. At a more fundamental level, however, there has developed a convergence of federal and liberal democratic values. Liberal democracy is not based solely on majority rule but it also emphasizes constitutionalism and the rule oflaw, respect for minorities and the dispersal of political power. Thus, liberal democratic values provide an important foundation for an effective federal political system that depends upon constitutional norms and the rule of law, respect for regional minorities, and negotiated settlements based upon a spirit of tolerance and compromise. Federation in tum, on balance, has generally supported liberal democratic values by ensuring the democratic legitimacy of both the federal and constituent unit governments, each directly elected by and accountable to its own electorate, and by checking autocracy through the dispersal of political power among multiple political centres of decision making within the polity. It can also be argued that federal systems in fact enhance democratic rule by giving constituent groups which are a majority within their own region the opportunity to decide matters of primarily regional interest by regional majority rule. In this sense, federations represent not a limitation of democracy but 'democracy plus', since they provide majority rule relating to issues of shared interest throughout the polity, plus majority rule within autonomous units of selfgovernment dealing with matters of primarily regional interest. Since federation in essence is a fonn of constitutional government that distributes political and legal authority among a number of territorial decision making entities, regimes which nominally have a federal constitution but that in effect are authoritarian or totalitarian as the result of the complete dominance of a central government or of a single political party, are incompatible with the notion of federal governance. Clear examples are the USSR, Yugoslavia and Czechoslovakia prior to the 1990s. As John Kincaid's empirical assessment in Chapter 14 in this volume indicates, liberal democratic processes have contributed to the effectiveness of a large number of federal democracies in the contemporary world. In turn federal institutions have enhanced liberal democracy as broadly conceived, although the extent to which this has been achieved to date has varied among the newer emergent federations. In these cases the variety of fonns that federal institutions have in practice taken, points to the importance of the particular federal architecture adopted and to the conscious development of a supportive political culture in affecting the degree to which federations have evolved into federal democracies. A review of the range of contemporary federations indicates that federal political systems can provide a practical way of achieving through democratic representative institutions the management of multicultural and multinational conflict, but it is equally clear that federalism is not a panacea for all such conflicts. Where the necessary preconditions for federal democracy are lacking, it will be necessary as a prior objective to focus on creating and developing those conditions. Where that is not possible, then it may be necessary to consider either as interim arrangements or even as ultimate solutions alternative political solutions.

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In the face of the increasing impact of 'glocalization' in the contemporary world, federalism as a broad approach appears generally to provide a useful approach for accommodating the contemporary combination of global and local pressures. In practice to date existing federal democracies appear generally to have had the flexibility to adapt to these trends.

Notes 1 I wish to thank especially Michael Burgess and George Anderson for their helpful comments on earlier drafts of this chapter. 2 Other countries that might be included in this category are Switzerland, Malaysia, Russia and Ethiopia. Each of these cases requires some qualification, however. Switzerland, while not ethnically mononational, containing three main linguistic groups (German, French and Italian) does not constitute the three language groups as national units within the federal structure, there being 26 cantons. Most of the cantons are unilingual although a few of them are bi- or tri-lingual. In the cases of Malaysia, Russia and Ethiopia, the current patterns of party politics and leadership raise questions about the degree to which they may be classified as full democracies. It should be noted that Spain has not adopted the title of 'federation', but in practice displays the institutions and processes normally characteristic of federations. 3 Switzerland distinguishes two categories of representation: two members of the Council of State for each of the 20 full cantons ahd one member each for 6 halfcantons. 4 Strictly speaking the Hindi-speakers. in northern India do not constitute an absolute majority, but they represent by far the largest single linguist group among the many such groups within India.

References Breton, A. (1985) 'Supplementary Statement', in Royal Commission on the Economic Union and Development Prospects for Canada (MacDonald Commission) Report, Vol. 3, Ottawa: Supply and Services Canada, pp. 485-526. Burgess, M. (2006) Comparative Federalism: TheOlY and Practice, Abingdon: Routledge. Cameron, D.R. and Simeon, R. (2000) 'Intergovernmental Relations and Democratic Citizenship', in B.G. Peters and D.J. Savoie (eds) Governance in the Twenty-First Century: Revitalizing the Public Service, Montreal and Kingston: McGill-Queen's University Press, pp. 58-118. Courchene, T.J. (1995) 'Glocalization: The Regional International Interface', Canadian Journal ofRegional Science, 18(1): i-20. Duchacek, I. (1988) 'Dyadic Federations and Confederations', PlIblills: The Journal of Federalism, 18(2): 5-31. Elazar, D.J. (1995) 'From Statism to Federalism: A Paradigm Shift', Publius: The Journal ofFederalism, 25(2): 5-18. Franck, T.M. (ed.) (1968) Why Federations Fail, London: London University Press. Friederich, C.J. (1968) Trends ofFederalism in TheolY and Practice, New York: Praeger. Gibson, E.L. (2004) 'Federalism and Democracy: Theoretical Connections and Cautionary Insights', in E.L. Gibson (ed.) Federalism and Democracy in Latin America, Baltimore: Johns Hopkins Press, pp. 9-12. Greer, S.L. (2006) Terri/OIY, Democracy and Justice: Regionalism and Federalism in Western Democracies, Basingstoke, Hampshire: Pal grave Macmillan.

Comparative reflections

345

Hicks, U.K. (1978) Federalism, Failure and Success: A Comparative Study, London: Macmillan. Hughes, C.J. (1963) Confederacies, Leicester: Leicester University Press. Landau, M. (1973) 'Federalism, Redundancy and System Reliability', Publius: The Journal ofFederalism, 3(2): 173-95. Laski, H.J. (1939) 'The Obsolescence of Federalism', The New Republic, xviii: 367-9. Lazar, H., Telford, H. and Watts, R. L. (eds) (2003) The Impact of Global and Regional Change in Federal Systems, Montreal and Kingston: McGill-Queen's University Press. Lee, F.E. and Oppenheimer, B.J. (1998) Sizing Up the Senate: The Unequal Consequences ofEqual Representation, Chicago: Chicago University Press .. Lijphart, A. (1999) Patterns of Democracy: Government Forms and Peliormance in Thirty-Six Countries, New Haven: Yale University Press. Madison, J., Hamilton, A. and Jay, J. (1787-8) The Federalist Papers; reprinted New York: Penguin Books, 1987. Marc, A. and Aron, R. (1948) Principles du Federalisme, Paris: Le Portulan. Pennock, J.R. (1959) 'Federal and Unitary Government - Disharmony and Reliability' Behavioural Science, 4(2): 147-57. Requejo, Ferran (2004) 'Federalism and the Quality of Democracy in Multinational Contexts: Present Shortcomings and Possible Improvements!, in Ugo M. Amoretti and Nancy Berneo (eds) Federalism and Territorial Cleavages, Baltimore: Johns Hopkins University Press. Riker, W.H. (1964) Federalism: Origin, Operation and Significance, Boston: Little Brown. Riker, W.H. (1982) Liberalism against Populism: A Confrontation betweel? the TheOlyof Democracy and the TheOlY ofSocial Choice, Prospect Heights: Waveland Press. Scharpf, F.W. (1988) 'The Joint Decision Trap: Lessons from German Federalism and European Integration', Public Administration, 66: 239-78. Simeon, R. (2006) 'Federalism and Social Justice: Thinking Through the Tangle', in S.L. Greer (ed.) TerritolY, Democracy and Social Justice: Regionalism and Federalism in Western Democracies, Basingstoke, Hampshire; Pal grave Macmillan, pp. 18-45. Simeon, R. and Cameron D. (2002) 'Intergovernmental Relations and Democracy: An Oxymoron If There Was Ever One?', in H. Balcvis and G. Skogstad (eds) Canadian Federalism: Peliormances, Effectiveness and Legitimacy, Toronto: University of Toronto Press, pp. 278-95. Smiley, D.V. (1979) 'An Outsider's Observation of Federall'rovincial Relations Among Consenting Adults', in R. Simeon (ed.) Confrontation and Collaboration: Intergovernmental Relations in Canada Today, Toronto: Institute of Public Administration of Canada, pp. 105-13. Stepan, A. (2004a) 'Toward a New Comparative Politics of Federalism, Multinationalism and Democracy', in E.L. Gibson (ed.) Federalism and Democracy in Latin American, Baltimore: Johns Hopkins University Press, pp. 29-84. Stepan, A. (2004b) 'Electorally Generated Veto Players in Unitary and Federal Systems', in E.L. Gibson (ed.) Federalism and Democracy in Latin America, Baltimore: Johns Hopkins Press, pp. 323-61. Stepan, A. (2004c) 'Federalism and Democracy', in Ugo M. Amoretti and Nancy Bermeo (eds) Federalism and Territorial Cleavages, Baltimore: Johns Hopkins University Press, pp. 441-551. Trench, A. (2006) 'Intergovernmental Relations in Search of a Theory', in S.L. Greer (ed.) TerritOlY, Democracy and Justice: Regionalism and Federalism in Western Democracies, Basingstoke, Hampshire: Pal grave Macmillan, pp. 246-54.

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Wachendorfer-Schmidt, U. (ed.) (2000) Federalism and Political Peliormance, London and New York: Routledge. Warhurst, J. (I 987) 'Managing Intergovernmental Relations', in H. Bakvis and W. Chandler (eds) Federalism and the Role of the State, Toronto: University of Toronto Press, pp.259-77. Watts, R.L. (2007) 'Multinational Federations in Comparative Perspective', in M. Burgess and J. Pinder (eds) Multinational Federations, London and New York: Routledge, pp. 225-47. Watts, R.L. (2008) Comparing Federal Systems, 3rd edn, Montreal and Kingston: McGill-Queen's University Press.

Index

Page numbers in italics represent tables. Page numbers in bold represent figures. accountability 17, 173 Adams, John 37,38 Adams, John Quincy 133 Adenauer, Konrad 153 Algeria: colonization of 54-6 Althusius, Johannes 2, 223 American Civil War 65, 104, 133, 138 American Commonwealth 94-101 American Commonwealth (Bryce) 86, 87, 94-101, 108, 111-12; significance 96-8 American Constitution 33,69-71 Anti-Federalists 33-4, 39, 124, 129 anti-majoritarianism 129 aristocracy: elective 39 asymmetrical federalism 202, 205, 206-8, 218,229,301-2 autocracy 303-5; closed 303-5, 304; semiliberal 303-5, 304 Bahry, Donna 205 Belgium 279, 289, 290, 296 black Civil Rights Movement 136 Bosnia and Herzegovina 289,290 Breton, Albert 31 I, 333 Britain see United Kingdom Brock, Kathy 241 Bryce, James 86-1 12, 121; advantages of federations 100-1; American Commonwealth 86, 87, 94-101,108, 111-12; background 87, 88; on democracy 105; Edward Augustus Freeman 89, 97, 110; faults offederations 98-9; I-I.A.L. Fisher 92, 93-4; Holy Roman Empire 89-94, I II, 112; Imperial Federation League 109, I 10; Modern Democracies 104-8; Studies in Histo/y and Jurisprudence 101-4

Burelle, Andre 243 Cadalso, Jose 160 Cairns, Alan C. 240, 244 Calhoun, John C. 64-84; American Constitution 68-7 I; concurrency 72-8, 80; constitutionalism 72; early . American federal system 78-82; governmental structure 71-4; life and character 65-9; objections to reading 64; states within federalism 68, 70-1 Cameron, David: and Simeon, Richard 240,333 Canada 14-15, 156,232-46,278,291, 302-3; BNA Act (1867) 234; Britain's powers in 234; centralization thrust 241-2; Charlottetown Accord 239, 240-1,246; Charter of Rights and Freedoms 238, 240; Constitution Act (1982) 239;-elite accommodation 234, 236,237,238; federal Liberals 241-2; federal-provincial relations 233, 234-5, 242; federalism 233; First Ministers' Conferences 234-5; Founding Agreement (2003) 242; francophone population 238; Gang of Eight 239; history 233-6; Lower 48-54; majority nationalism 242-6; Meech Lake Accord 239,241,244-5,246; Mulroney 232, 239,240; 'one-nation' 242-3; Parti Quebecois 238, 246; patriation 238~9; provinces 236-7, 242, 243, 245; Quebec 237-8,239,242,243,245,246,280; Social Union Framework Agreement (SUFA) 241-2, 245; sovereignty 243; states 238-9,243; Supreme Court 14-15; Trudeau 232, 238-9, 243-4;

348

Inde.x

Canada - contd. two orders of government 232, 234, 235; welfare state 234-5,237 centralization: and globalization 232 Charlemagne 90-1 civil liberties 306, 307, 314 civil society 210, 212, 228 civil wars 64-5, 104 co-operative federalism 209, 212 coalitions 189, 191-2 collaborative federalism 233, 247 colonialism 47; Algeria 54-6 Comparative Federalism (Duchacek) 8-9 concurrency 72-8, 80 con federalism 57-8 confederations 338 conflicts 335-9; bicornrnunal federations 337-8, 341; factors inducing 337 Constitution USA 123-34; rules and democracy 130-1; slaves 126 constitutional framework USA 123-32; Congress 125-7;judiciary 129-30; presidency 127-8; state republics 132; "We the People ..." 124-5 Constitutional Government (Friedrich) 7 constitutional law 10 I constitutionalism 8, 9, 16,72; paraconstitutionalism 224-5; and rule oflaw 14-15 corporations 134 corruption 134-5,303,304,305,314 cosmopolitan localism 173 de Gaulle, Charles 258-60 decentralization 166-7, 169,289; constitutional 294 Delors, Jacques 261-4 democracy 1-23, 185, 327; absolute 81; Bryce on 105; concurrent 72-8, 80; and concurrent consent 316-18; defined 119; degrees of 304; electoral 303-5, 304, 314,327-8; and federal second chambers 331-3; impact offederalism on 327-9, 330; liberal 3, 280, 303-5, 304,326-7,328,330-1,343; normative theories 275; and size of polity 329-30; USA founders 120-3 Democracy in America (Tocqueville) 48, 49,53,54,95 democracy and federalism see federalism and democracy democratic practices: expanding 16-18 democratic theory: and federalism 13-18; justice 319

Inde.;'C democratization 300-3; offederal systems 301-3 demographic bases 311-15, 312; cultural diversity 312, 313-14; cultural homogeneity and freedom 314, 315; official languages 312, 313 dictatorial federalisms 5 dictatorship of law 202, 212, 222 dual federalism 209, 211 Duchacek,Ivo 1,8-9,223-4 Dupre: Stephan 235 Elazar, Daniel 9, 16-17,300,342 elections 126, 134, 135,268; electoral votes 127-8; people excluded from 121, 122; primary 135; Senate 134; see also voting elective aristocracy 39 electoral democracies 303-5, 304, 314, 327-8 elite accommodation 212, 234, 236, 237, 238 equality I S5 equivocal federalism 49-52 Essay on Algeria (Tocqueville) 55 Ethiopia 286,291,296 ethnic dimension 227-9 ethno-federalism 209, 227 Europe 251-69, 342; citizens 267, 268, 269; common agricultural policy 258, 259; Common Assembly 254, 255; common environmental policy 263; common market 258, 262; Council of Ministers 254, 255; Court of Justice 254,255; difference with USA 251; Euratom 257, 258; euro 260; European army 256; European Central Bank 264; European Coal and Steel Community (ECSC) 252-5; European Commission 257, 267, 268; European Community (EC) 251; European Convention (2003) 265; European Council 261; European Defence Community (EDC) 256-7; European Economic Community (EEC) 257-60; European Monetary System (EMS) 261; European Parliament 260, 261,267; European Political Community (EPC) 256-7; European Union (EU) 264, 267-9; finances 259, 260; France 252, 258-9, 265, 266; German unification 264; Germany 263-4, 265; High Authority 253, 254-5; Lisbon Treaty 266; Maastricht Treaty 261, 262, 263-4; m~iority voting 258,

259; member state democracies 268; national sovereignty 252-3; Netherlands 259, 266; Republic ofIreland 267; Schuman Plan 252, 253; security 264, 269; single currency 260-1, 263; Single European Act 261-3; single market 262-3; state governments 267; state sovereignty 256; trade 258; Treaties of Rome 257-8, 259; Treaty establishing a Draft Constitution for Europe (TCE) 266-7; Treaty of Nice 265; UK 258-9, 264, 265; voting 267; West Germany 252 European integration 182-3, 269 executive federalism 22, 333; Canada 232-46; challenges facing 236-42; defects of236, 245; Switzerland 153, 155-6; West Germany 182 Exploring Federalism (Elazar) 9 factions 35 federal democracy 11-13, 196; creating 253; effectiveness 334-5; France o~iects to 258-9; intergovernmental relations in 333-4; and justice 319-21; as means to resolve issues 335-42; solutions to conflicts 335-6; Swiss 145-9 federal fayade 204, 209 Federal Government (Wheare) 3 federal intervention 136-7, 139,217 federal polities 299; and non-federal polities 299-321; size and democracy 329-30 Federal Republic of Germany see Germany federal second chambers 331-3; German Bundesrat 332-3 federal solutions 335-42; conditions for 339-40 federal systems 336, 340, 342-3 federal union 289, 296 federalism 244, 245-6, 326-7, 330; advantages 50, 99-100, 105; American 13,29-84,96-7,283; asymmetrical 202,205,206-8,218,229,301-2; Canada 232-46; and capitalism 310-11; co-operative 209, 212; collaborative 233,247; comparative analysis 284-6, 287, 287, 288; defects of 51-2, 98-9, 105-6; and democratic theory 13-18; in democratization 301-3; dictatorial 5; dual 209, 211; economic performance 308, 310-11, 314; effective 225; equivocal 49-52; European 93;

349

executive 22, 153, 155-6, 182,232-46, 333; forces in 101-2; history 2-5, 29-42; impact on democracy 327-9, 330; integral 57; monistic 52-6; normative theories 275; paying for 217-18; quality of life 307-9, 308, 314; scepticism about 223; unilateral 241-2; versus statism 218-22 Federalism and Constitutional Change (Livingston) 4 federalism and democracy 1-23; and constitutionalism 64-84; empirical and theoretical perspectives 299-322; Federalist Papers 29-42; historical and empirical perspectives 300-1; interrelation 325-35; James Bryce 86-112; reflections on 325-44; relationship between 2-13; Russian Federation 223-4; Swiss 154-7; in Swiss history 143-5; theories 275-7, 283; in USA 119-39 Federalism (Riker) 4 Federalism (Smith) 236-7 Federalist 33, 35, 38 federalist deficit 284,289,292 Federalist Papers 29-42, 326, 329, 330 federations 185; bicameral legislatures 331-2; bicommunal 337-8; dissolutions 301; fiscal policymaking 309-10; forming of301; history of326; mononational and democracy 330-1; multinational and democracy 330-1; territorial scope and security 316; uninational 289, 296 First Report on Algeria (Tocqueville) 55-6 Fischer, Joscllka 265 France 55, 106, 252, 265, 266, 317; objects to federal democracy 258-9; see also Europe freedom 155,305-7,306; and cultural homogeneity 314, 315; economic 305-7,306,314 Friedrich, Carl Joachim 7-8 Furet, Franyios 48 Germany 178-97, 263-4, 265, 30 I, 302-3; Basic Law 181,182, 183, 185, 193-4, 196; Bundesrat 181,184,185-6,332-3; Bundestag 185, 186; coalitions 189, 191-2; Commission on Modernization of the Order of the Federation 190-1, 192; Deutschmark 263; and European Union 183; executive federalism 182;

350

Index

Index

Germany - contd. Federal Council 156; federal democracy 196; federalism and democracy 185-7; federalism development 181-4; federalism reform 183-4, 190-3, 194, 195,197; fiscal resources 197; Frankfurt documents 180; 'Grand Coalition' 192, 194; history 178-80; Joint Constitutional Commission of the Bundestag and Bundesrat 182, 183; Land of Hesse 189; Under 180-97; Maastricht Treaty 183; Parliamentary Council 180-1; reform topics 193-4; sovereignty 179; taxation 181; unification 182, 183-4, 264; voting 185-6; West Germany 180-2; see also Europe Gibson, Edward L. 328 Giscard d'Estaing, Valery 261, 266 globalization 341; and centralization 232 "glocalization" 341-2, 344 government: frames of 106 Great Britain see United Kingdom Hallstein, Walter 254-5, 257, 258, 259-60 Hamilton, Alexarider 33-4, 35, 36 Holland see Netherlands Holy Roman Empire 89-94; Charlemagne 90-1; Hapsburg Emperors 92, 113; Peace of Westphalia (1648) 91; Reformation 91 Holy Roman Empire (Bryce) 89-94, Ill, 112; 'Theory of Mediaeval Empire' 92-3 hospitality industry 122 identity 165; dual 163-5; fear of losing 317; individual and communitarian 318-19; state national 163; sub-state 163 identity politics 163-5 inclusiveness 119-20, 137 integral federalism 57 integration: European 182-3,269; global 342; regional 342 Irish home rule 108-9 Jackson, Andrew 133 Jefferson, Thomas 37-8, 121, 132-3 justice 319-21; right of self-defense 321 Kahn, Jeffrey 204 Kaspe, Svyatoslav 222 Kohl, Helmut 262, 263-4

Kymlicka, Will 46

Netherlands 259, 266

Landau, Martin 334, 335 Laski, Harold 334 law: and politics 103-4 legislature 34, 127; bicameral 331-2 Lenihan, D.: Robertson, G. and Tasse, R. 17 liberal democracy 303-5, 304, 326-7, 328, 343; and national pluralism 280; UK 3; USA 3; variants of330-1 liberty 35, 57; communitarian 318, 319; individual 318, 319; Switzerland 145; threats to 34 Lincoln, Abraham 120 Livingston, William 4, 7 Locke, John 34

one-party system 9

Madison, James 30,35-7,38-9, 74, 121-2,223 majority rule 77, 187 military 130, 256 minorities 103, 154,244,331,336,337; justice 319; rights 15, 129, 212, 282; see also minority nations; nationalisms minority nations 277-94, 331; Belgium 279; Canada 279; characterizations 277-8, 295; constitutional freedom 293; degree offederalism 289-90; federal trust and distrust 290-1; nationalism 281; in plurinational democracies 277-91; political accommodation of 279-91; right of secession 291; right to self-determination 282; sovereignty 283; Spain 278; state and sub-state party systems 278-9, 278; sub-state entities 286, 288; territorial accommodation 283-4; UK 279; see also minorities; nationalisms Mitterrand, Franc;:ois 262, 263, 264 Modern Democracies (Bryce) 104-8 monarchy: avoiding 120, 122 monistic federalism 52-6 Monnet, Jean 252-4, 255, 256, 257, 261 Montesquieu, Baron de 16,32-3,34,43 Mulroney, Brian 239 multi-party system 8 nationalism 47-59, 164,227; Lower Canada 48-54; majority 162, 163, 165, 173,242-6; minority 161, 163, 165, 168, 170, 173, 246, 281; "small is beautiful" 56-9; uninational federations 289,296

Paine, Thomas 120, 121 patriotism 51 Pennock, lR. 334-5 Pinckney, Gustavus 66 pluralism 276-7; cultural 276, 277; methodological 276; national 277, 280, 286-9; normative 276; ontic 276 plurinational federations 277-92 Pocock, lG.A. 34-5 political laboratories 188-90 political parties 79-80, 138-9,278-9; Bloque Nacionalista Galego (BNG) (Galicia) 170; Communist Party (USSR) 204, 209; Convergencia i Uni6 (CiU) (Catalan) 170; Democratic Party (USA) 133, 138; Liberal Democratic Party of Russia 216; Parti Quebecois (PQ) (Canada) 238, 246, 279; Partido Nacionalista Vasco (PNV-EAJ) (Basque) 170; Radical Party (Swiss) 150; Republican Party (USA) 133, 134, 138, 139; Spain 168-9; Whig Party (USA) 133 Populist Revolt 134 Porter, John 236 powers 135; allocation of33-5, 50; derivation of 3 7; European Parliament 260; federal 33, 134, 137; ownership 311; power vertical 202, 212, 215, 220, 228; respective 71-4,77; sharing 203, 207,208; state 134, 137, 139 Progressive Revolt 134 Progressives 134-5 Proudhon, Pierre-Joseph 47-8,56-9; and Jacobinism 58-9 Putin, Vladimir 22, 202-3, 211-22, 223, 224-5; use of terminology 224-5 Quebec 14-15,237-8,239,242,243,245, 246, 280; Charlottetown Accord 239, 240-1; Meech Lake Accord 239, 241, 244-5 rationality 282-3 regionalism: segmented 202, 204-18, 221, 229 religion 90-1 representation 185, 242; population 331; territorial 331, 332 repUblicanism 30-42, 119

351

republics 30-1, 316; founding secular 40-1; issue of size 32-4,35-6; problems of establishing 40-2; Rome 30, 31; Russian Federation 204-5, 206, 211-12; USA 30-42, 132; Venice model 31 Requejo, Ferran 330-1 rights: individuals 119, 218, 221, 318, 319, 331; minorities 15, 129,212; performance 303-5; political 306, 307, 314; protections 305-7, 306, 318, 319; of secession 286, 288, 291; self-defense 321; state powers 134; states 68, 104, 119, 137, 138; voting 122, 133, 134, 136 . Riker, William 4-7, 204 Robertson, G.: Tasse, R. and Lenihan, D. 17 Robinson, Ian and Simeon, Richard 233 Roosevelt, Franklin D. 136 Roosevelt, Theodore 125 Russell, Peter 244-5 Russian Federation 15,20-1,22-3, 202-29, 286, 296; asymmetrical federalism 202, 205, 206-8, 218, 229; bilateral treaties 215; centralization 210; Chechnya 202, 215; co-operative federalism 209, 212; conceptual problems 222-9; constitution (1993) 204-5,212,230; dictatorship oflaw 202,212,222; dual federalism 209, 211; elite accommodation 212; ethnic dimension 227-9; ethnicisation 219; federal agencies 213; federal districts 213-14, 216, 224; federal fac;:ade 204; federal interference 214; federal laws 207,214; federal relations 207, 212; Federal Treaty 204; federalism 202-22; federalism and democracy 223-4; Federation Council 214; fiscal matters 207-8; foreign relations 208; institutional uniformity 216; Kaspe 222; local self-government 215; May (2000) decree 213; military 206; national market 208,211,218; national party system 205; para-constitutionalism 224-5; paying for federalism 217-18; power sharing 207, 208; power vertical 202,212,215,220,224-5,228; Putin 202-3, 211-22, 223, 224-5; regime types 206; region merging 216-17; regional governors 215,218; regional laws 219; regional leaders 211, 214; regions 205, 207-8, 209, 210-22; republics 204-5, 206, 209, 211-12;

352

Index

Russian Federation - contd. rights 212, 218, 221; segmented regionalism 202, 204-18, 22 I, 229; Siberia 209-10; sovereignty 202-3, 205-6, 2 19, 22 I; state agencies 206; tsarism 203, 223; Yeltsin 202, 205-6, 207, 208-9, 211; Zhirinovskii 216; see also Soviet Union secession 321; Quebec 14; rights of286, 288,291 Seeley, Sir John 109 self-rule 18 shared rule 18 Simeon, Richard: and Cameron, David 240,333; and Robinson, Ian 233 single party system 9 slavery 64, 65, 81-2, 126, 130, 131, 134; abolition 122, 133,318 "small is beautiful" nationalism 56-9 Smiley, Donald 235, 236, 245, 333 social movements 136-7, 138 sovereignty 17, 69-70, 103-4, 126, 213, 341; Canada 243; contesting 15-16; divided 50, 51, 58; European national 252-3; minority nations 283; Russian Federation 202-3, 205-6, 219, 221; shared 170, 219 Soviet Union (USSR) 5, 22, 203, 223, 301, 316; Communist Party 204, 209; ethnofederalism 209; federal favade 209; federalism 203-4, see also Russian Federation Spaak, Paul-Henri 252, 256, 257-8 Spain 160-73,278; Andalusia 170; Basque Country 170-2; Catalonia 170, 280; Civil War 162, 165; Comunidades Autonomas 164, 166, 167, 168,169, 172; Constitution (1978) 162, 166; decentralization 166-7, 169; Declaration of Barcelona 170; distribution ofpublic employees 166; EEC/EU membership 162, 173, 174; Estado de las Autonomias 166, 168, 169,172; ETA 171-2, 175; ethnoterritorial diversity 160-1; federalization 167, 172-3; Franco 162; Galicia 170; government allegiances 164-5; 'historical nationalities' 169, 170; history 160-3; identities 163-5, 165; languages 161, 172; majority nationalism 162, 163, 165, 173; minority nationalism 161, 163, 165, 168, 170, 173; ongoing reforms 170-2;

Index political parties 168-9, 170; post-Franco 165-9; public expenditure 167; Pujol 170; regional autonomy 167, 169, 170; Senate 168; territorial home rule 161, 162-3, 166, 167, 170; terrorism 168, 171-2,175 Spanish Civil War 162, 165 Spinelli, Altiero 253, 255, 256-7, 261 states 245-6; Canada 238-9; constitutions 97-8; development 223; European and USA 251; rights 68, 104, 119; territorial integrity 131; USA republics 132; within federalism 68, 70-1 statism: compacted 212-13, 218; pluralistic 212, 213, 218; versus federalism 218-22 Stepan, Alfred 325, 329, 331 Studies in HistOlY and Jurisprudence

(Bryce) 101-4 subsidiarity 173, 183, 196 Switzerland 106-7, 142-57,302-3,337; cantons 143, 144, 145-6, 147-54; citizenship 146; civic nationalism 145; communes 145, 146, 147, 148, 149; competences 146, 147; concordats 148; Conference of Cantonal Governments 149, 152, 153; conterences 148-9; constitution (1848) 144; Council of States 151-2; differences with America 51-2, 145; division of competences 152; education 150; equality 155; executive federalism 153, 155-6; federal democracy 145-54; federal law-making 148; Federal Treaty (1815) 144; federalism and democracy 143-5, 154-7; federation 145,146,147; federation-canton relations 151-2; fiscal federalism 152-3, 155; freedom 155; historically rooted regions 154-5; horizontal relations 148-9; language communities 150-1; levels of government 145-6; media 150; migration 153-4; Radical Party 150; vertical relations 147-8 Tasse, R.: Robertson, G. and Lenihan, D. 17 ta'l{ation 134, 167 terrorism 168, 175; ETA 171-2,175 Thatcher, Margaret 262, 263 three-unit federations 338 Tocqueville, Alexis de 47-56, 120,316; advantages of federal system 50; defects offederal systems 51-2

"togetherness": federal 46, 47; limited scope 57-8; in multinational federal democracies 46-59 Trench, Alan 333-4 Trends of Federalism in TheOlyand Practice (Friedrich) 7

Trudeau, Pierre Elliot 238-9, 243-4 Tulloch, Hugh 87, 108 Tully, James 15 two-party system 8 two-unit federations 337-8 unilateral federalism 241-2 Union of Soviet Socialist Republics see Soviet Union United Arab Emirates (UAE) 303, 305 United Kingdom (UK) 3, 106, 258-9, 264, 265,279,303; empire 108-10; Irish home rule 108-9; Scotland 279, 280; uninational 289; Wales 279 United States of America (USA) 3, 106, 302; American Civil War 65, 133, 138; American Constitution 33, 69-71; Bill of Rights 30; Bush (George W.) 302; Congress 125-7; Constitution 123-34; democracy versus federalism 119-39;

353

democratic development 132-8; differences with Swiss federation 51-2; federalism 13,29-84,96-7,283; founders democracy 120-3; history of federalism 29-42; limit government power 13; New Deal 135-6; North and South 122-3; political parties 133, 134, 138-9; presidency 127-8; as a republic 30-42 voting 133, 135, 137, 185-6; blacks 133, 134, 136; change in 263; electoral votes 127-8; Europe 267; majority 258, 259; turnout 138; see also elections wars 64-5, 104,302 Washington, George 120, 122-3 Watts, Ronald 10, 11,235-6,300 Webster, Daniel 124-5 West Germany see Germany Wheare, Kenneth 3-4, 9-10 Whitaker, Reginald 15-16, 17,244 women 122, 135,307 Yeltsin, Boris 202, 205-6, 207, 211 Yugoslavia 5