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Every country must allocate final decision-making authority over different issues/subjects within its boundaries. Historically, many scholars working on this topic implicitly assumed that identifying the features providing entities with justified claims for authority and the entities possessing those features would also identify which groups should have which powers (or vice versa). However, many candidate allocative principles select multiple entities as candidates for some sub-state authority and yet fail to explain which powers each should possess. Further work must explain which groups should possess which powers when and what to do when two groups can make equally-valid authority claims using the same principle. Subsidiarity, the principle under which authority should presumptively belong to the entity representing those ‘most affected’ by its exercise and capable of addressing underlying problems, is one of the few principles focused on identifying which groups should have which powers. Unfortunately, subsidiarity alone does not provide guidance on many issues/subjects. Useful subsidiarity-related guidance relies on balancing underlying justificatory interests, which do the real allocative work. Another allocative principle remains necessary. A deflationary account of subsidiarity’s allocative potential nonetheless provides insights into how to articulate a new principle and accounts of subsidiarity that can fulfill other moral roles.
In this Introductory chapter to “Amending America’s Unwritten Constitution,” the editors invite readers to consider the puzzle presented in the book: How to amend America’s unwritten constitution? The editors undertake a systemic inquiry into each of the major themes raised by the puzzle: What is a “constitution,” what is “America’s” constitution, what does it mean to “amend” a constitution, and how might we identify an amendment to an “unwritten” constitution, specifically the unwritten constitution of the United States. As the editors set out to answer these questions, they survey the existing literature in the field to lay the foundation for the chapters to follow. They introduce the chapters as well as how each of them illuminates the answer to the major thematic questions raised and explored in the book. What results is ultimately both a proper introduction to this book and also an important scholarly resource to understand constitutional change in the United States.
For present purposes, I take “America’s Unwritten Constitution” to refer (at least in some measure) to the norms, conventions, and practices that have developed in America to give meaning to, and fill in the gaps of, the constitutional text that was penned in 1787, ratified by a requisite number of states shortly thereafter, and formally amended by the Bill of Rights in 1791 and seventeen times during the two-and-a-quarter centuries since. One important constraint on the nation’s Unwritten Constitution is that is must, at some acceptable level, accommodate itself to the written document. A related feature of the Unwritten Constitution is that, as with the formal text, abiding aspects of the unwritten version need to be anchored in some kind of political foundation. These two features of the Unwritten Constitution – a fidelity to the document itself and a grounding in democratic processes – can be helpfully appreciated by examining another crucial component of today’s Unwritten Constitution, and one as to which federal courts have generally been much less central in determining the meaning and operation of the written Constitution’s provisions: the way we select Presidents in America.
Dans cet article, je présente le potentiel d'utiliser une approche féministe radicale de l’empowerment comme grille d'analyse dans les études fédérales. Pour ce faire, je développe un cadre analytique qui s'inscrit dans la quatrième vague d’études sur le genre et le fédéralisme qui s'intéresse aux interactions entre oppressions imbriquées et dispositifs fédéraux (institutions, pratiques, discours). J’étudie les processus d’empowerment des personnes agricultrices s’étant mobilisées à la fin de l'année 2020 en Inde contre l'entrée en vigueur de nouvelles lois agricoles. Par ce cas, j'illustre d'abord comment le fédéralisme participe à la fragmentation de groupes marginalisés, tout en soulevant la nécessité d’élaborer des dispositifs fédéraux à partir des réalités, écosystèmes et environnements locaux. Puis, je montre comment une conception féministe radicale de l’empowerment peut modifier les perspectives d'analyse en études fédérales et rendre visibles des structures qui perpétuent les oppressions imbriquées au sein d'une fédération.
The pragmatic partnership among West European nations that has emerged since 1945 exemplifies how “win-win” strategies can bring powerfully beneficial results over time. Yet the EU model cannot be straightforwardly applied at the global level, for five reasons. First, the cultural and political differences among the world’s nations are much greater than they are within Europe. Second, the obscene divide between “haves” and “have-nots” is much starker and more intractable at the global level than it is within Europe. Third, rapid globalization has caused a political backlash in many nations, bringing to power leaders who seek a defensive retrenchment behind national walls. Fourth, global institutions of cultural integration, such as UNESCO, remain relatively weak. And fifth, racist prejudice and nativist xenophobia are on the rise in many nations. Nevertheless, the historical precedent set by the EU demonstrates that national sovereignty can be incrementally dismantled, yielding new forms of institutionalized cooperation among formerly separate and mutually hostile peoples.
The COVID-19 pandemic of 2020 was one of the rare events that shocked almost every world government simultaneously, thus creating an unusual opportunity to understand how political institutions shape policy decisions. There have been many analyses of what governments did. We focus instead on what they could do, focusing on the institutional politics of agency – how institutions empower rather than how they constrain, and how they affect public policy decisions. We examine public health measures in the first wave (March-September 2020) in Brazil, India, and the U.S. to understand how the interplay of institutions in a complex federal context shaped COVID-19 policy-responses. We find similar patterns of concentrated federal executive agency with limited constraints. In each case, when federal leadership failed public health policy responses, federated, subnational states were left to compensate for these inefficiencies without necessary resources.
Historic places are vulnerable to a wide variety of threats: neglect, lack of maintenance, demolition, war, and, of course, time itself. No physical or legal intervention will ever be able to make them last forever. Yet, laws can help make historic sites more resilient to the avoidable consequences of obvious threats. This chapter focuses on the legal framework in the United States for fortifying heritage against one particular threat: disasters resulting from natural hazards. Natural hazards include large-scale meteorological and geological events such as hurricanes, tropical storms, tornadoes, floods, blizzards, wildfires, earthquakes, extreme heat, and drought. Climate change has made many of these events more frequent and more intense. Given the increasing risks to historic sites, one might think that planning, mitigation, and recovery efforts are being undertaken with increased urgency. Unfortunately, this is not the case. Without adequate planning and protection, some of our cultural heritage has already been lost or will be lost imminently. This chapter begins by identifying and assessing current policies regarding the protection of historic resources before, during, and after a disaster. It highlights key elements for successful legal protection at each of these three stages. Then it describes our multi-governmental, federalist framework for heritage-related disaster policy. This policymaking takes place at the federal, state, and local levels, mostly through the legislative process and action by executive agencies. Each level of government plays overlapping roles in planning for, mitigating, and recovering from disaster. As the scale of government gets smaller, coordination among historic preservation authorities becomes either less effective or non-existent. This chapter covers each level of government in turn by first describing federal disaster planning and historic preservation requirements. Next, the chapter explores how two states and four local governments have integrated disaster mitigation and historic preservation considerations.
If you search for ‘federation’ on the internet, you will find accounts of systems of government in which sovereignty is divided between a central, national government and a series of regional, partially self-governing states. You may well find a webpage of the Parliamentary Education Office recording that, ‘in a process known as Federation’ Australia ‘became a nation on 1 January 1901 when six British colonies – New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania – united to form the Commonwealth of Australia’ (PEO 2020). These search results suggest some key takeaway points for students of Australian politics. First, a federation is a particular form of political system where two tiers or levels of government (national and regional) share power and neither has authority over the other. Second, when capitalised ‘Federation’ describes the process which resulted in the creation of Australia at the dawn of the last century. The final point to note is that Australia’s federal system shapes its politics and other activities. Its federation provides a good example of how 21st century Australian politics remains in the grip of institutions established in the distant past.
Homeless squatting on empty land is a local challenge, replicated on a world-wide scale. While some have argued that neoliberal globalization has had a homogenizing effect on domestic legal systems generally, and on states’ responses to squatting more specifically, domestic institutions retain significant capacity and capability to govern; and their resilience critically determines economic success and political stability and nation-states adapt to changing circumstances. This chapter frames our analyses of state responses to homeless squatting on empty land in the context of nation state norms and narratives: what we describe – adapting Robert Cover – as the property “nomos” of each jurisdiction. We argue that state responses to squatting are framed by the “foundational” regime goals through which the state’s role and relationships to citizens with respect to property were articulated and understood, and examine how these foundational goals with respect to private property, housing and citizenship emerged in each of the five primary jurisdictions from which we draw insights and illustrations in this book: the United States of America, Ireland, Spain, South Africa, and England and Wales. In doing so, we aim to better understand how domestic institutions, norms and narratives in each of these jurisdictions have shaped the nomos within which “the state” acts in response to homeless squatting on empty land.
This chapter explores the history of Australian constitutionalism. To this end, it necessarily develops a definition of constitutionalism that fits the sometimes-distinctive Australian approach but that also is plausible from the standpoint of global theory and practice. To assist to frame the historical story, the chapter identifies a series of continuing influences on Australian constitutionalism, including the sources on which it draws; the implications of the long Indigenous relationship with country; the nature and duration of colonial status from 1788; and the early impetus towards electoral democracy. Against that background, the chapter traces the historical development of written Constitutions in Australia; of the role of popular sovereignty, including conceptions of the people; of the character and extent of constitutional limits on public power; and of judicial review. It concludes with some brief reflections on the principal features of Australian constitutionalism now and some of the challenges that it faces.
Federation is an inherently flexible form of political organisation that involves ongoing negotiation, coordination and compromise to meet changing local and temporal conditions. The history of Australian Federation illustrates this: from the origins of the federal idea in the mid-nineteenth century, amid the emergence of quasi-federal arrangements within the British Empire (1847-1890); to the creative outcomes of Australia’s constitution-making decade, when American and other influences garnered attention (1891-1901); and through the subsequent outworkings of the Australian Constitution as it has been interpreted and applied alongside the growth of the nation. The proven adaptability of Federation may inform contemporary approaches to the constitutional recognition of Australia’s First Peoples.
In a legally and politically pluralistic world, multiple actors often claim authority over the same spaces or subjects. Democratic theory must therefore find democratic ways for various actors to coordinate, negotiate, and contest their respective authority claims. Some such practices are well established. Sometimes, actors choose to divide authority between them, as in federal arrangements. In other cases, they engage in shared decision-making, as in consociation systems. This chapter focuses on a less studied set of practices termed ‘conditional authority’. When actors engage in practices of conditional authority, each party accepts and accommodates the independent authority of the other, but only subject to certain conditions. Such practices allow parties to negotiate the boundaries of their respective claims and manage conflict without requiring either a division of authority (federalism) or the presence of co-decision mechanisms (consociationalism). Drawing on examples from the European Union and the relationship between Canada and Indigenous peoples, this chapter argues that practices of conditional authority represent an important and novel form of pluralist praxis.
It is generally agreed in social scientific scholarship that federal institutions promote efficiency and economic growth in the modern world. This chapter asks whether the same case can be made for antiquity. Political scientists and economists recognize three major mechanisms by which federal institutions promote economic growth: decentralized fiscal decision-making that incentivizes the adoption of policies enhancing local economies; high redistributive capacity that can direct resources where they are most needed; and reliance on local revenues that encourages local governments to invest in public goods that enhance market activity. Although there is some evidence to suggest that these each of these institutional arrangements existed in antiquity, it is argued that there is simply not enough evidence to demonstrate that they did, in fact, lead to economic growth in the ways that the modern theory of fiscal federalism predicts. The chapter then explores several different ways in which federal institutions may have led to economic growth in the case of Greek antiquity – regional property rights and the pooling of complementary resources, shared currency, and enhanced diplomatic power – while cautioning that there is no evidence to prove that there was a causal link between any of these practices and actual economic growth.
This chapter evaluates the successes and failures of the world government movement after the Second World War. It focuses on the work of the World Association of Parliamentarians for World Government (WAPWG), which advocated a world parliament to ensure that postwar international governance represented the democratic wishes of the international body politic. The chapter assesses the WAPWG's place in the broader firmament of world government organizations and the wide but uneven support for the idea of a world parliament in both the British Conservative and Labour parties. It examines how world parliamentarians confronted nuclear proliferation, UN reform, Commonwealth relations, and Cold War politics. The WAPWG’s informal structure allowed its members to speak freely and to build an autonomous transnational movement. What world government advocates gained by being freed from institutional constraints, however, they lost in a lack of access to resources and the organizational scale that allowed UN staff to participate in large and lasting international initiatives.
On the eve of victory in the 1979 revolution, Ruhollah Khomeini and his Islamists followers discussed blueprints for a new system of Islamic government. Integral to these plans was an emphasis on the new institutions of Islamic shura (local councils) to replace the secular anjumans (local associations) that existed in town and cities. The chapter details Khomeini’s call to establish elected local government in early 1979, months before the new constitution delineating the shape of the new state had been ratified, indicating the significance of the shura. I examine the tensions between the competing visions of shura within the theocratic Islamist camp, by contrasting the views of Khomeini and Mahmoud Taleghani. This chapter also discusses the aborted attempt to hold the first local government elections in the fall of 1979, a factor contributing to the new regime’s reluctance to decentralize government for another decade and a half. The chapter details the multiple and conflicting perspectives on shura during the deliberations leading to the first constitution. The ratified constitution subordinated local and national government (shura and the Majles) to the velayat-e faqih and established a settlement that shaped and constrained the future possibilities and limitations of decentralization in the ensuing decades up to the present day.
The Horn of Africa is the most conflict-ridden region in the African continent. Both inter-and intra-state conflicts have dominated the region. In a bid to check intra-state conflicts and accommodate ethno-national and religious diversity, federal or federal like models of governance have been proposed, discussed, and, in some cases, adopted across the region. Focusing on Ethiopia, Somalia, Sudan and South Sudan, this article discusses the origin, reasons, and prospects of the federal idea in the Horn. The article argues that the major rationale for the federal idea in the Horn is the containment of communal tensions. Yet, the track record of federalism in alleviating communal tensions has not been encouraging. This is partly related to design issues that have undermined the efforts to use federalism to address communal tensions. More importantly, however, the commitment to genuinely implement the federal idea has largely been absent.
Chapter 6 explores the possibility of composing higher-order macro-institutions, starting with micro-norms/rules and institutes and their mutual compatibility and balancing. A necessary precondition for power-sharing is monopolisation of destructive resources and ‘legitimate’ violence over a territorial space: the ‘territorial institution’. In territories in which destructive means have been successfully monopolised and there are no challenges to the ruling function, ‘fundamental norms’ or ‘constitutions’ may develop that delineate the institutional regime. The territory, the constitution and the institutional regime are macro-institutions located at the highest level in the vertical layering of institutions and are complex combinations of single norms/rules and institutes. But, as macro-phenomena, they are characterised by emerging properties that cannot exclusively be reduced to lower-level properties. Different regimes rest on the prominence of some institutes over others. In some cases, the predominant institutes damage the others excessively. In other cases, the institutes balance each other. The chapter suggests that institutional analysis generalisations should concern political institutes, their balancing and combination, and the likely effects. Actors’ preferences and constellations of actors should be kept separate from institutional analysis. Adding them results in generalisations concerning the interaction between political institutions and political structures; that is, in the analysis of ‘political regimes’.
The governance arrangements of the UK, and even its borders, have developed over many centuries and will continue to be subject to change. For a long period after its creation the UK maintained highly centralised governance arrangements based upon the sovereign Parliament in Westminster. Over the twentieth century these arrangements enabled central government to introduce far-reaching measures, from state pension provision to the National Health Service and comprehensive education. Nonetheless, because Westminster is dominated by MPs representing English constituencies, its legislative output was not always constrained by the wishes of MPs representing seats in Scotland, Wales or Northern Ireland. This chapter traces how discontent at the degree of centralisation in the UK has been answered by the devolution of law-making power to institutions in Scotland, Wales and Northern Ireland. Each of these sets of devolved institutions has different powers and functions, which will be explored in turn (including an evaluation of how these arrangements have changed since devolution was introduced in 1998). Only then can we consider whether devolution has provided a solution to the challenges inherent in governing a country as complicated as the UK.
As the United States emerges from the worst public health threat it has ever experienced, the Supreme Court is poised to reconsider constitutional principles from bygone eras. Judicial proposals to roll back rights under a federalism infrastructure grounded in states’ interests threaten the nation’s legal fabric at a precarious time. This column explores judicial shifts in 3 key public health contexts — reproductive rights, vaccinations, and national security — and their repercussions.