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The Significance of Federalism in Redesigning Constitutional Systems

Daniel J. Elazar

转自宪政文本

Federalism has had multiple significances for designing and redesigning constitutional systems. In the first place, modern constitutionalism developed out of federal-covenantal principles as they developed through a synthesis of theological and political ideas during the Protestant Reformation and were transplanted to the New World of British North America in the seventeenth century. In the second place, there is the special character of federal constitutional systems which, in their most proper expression, combine two or at times three sets of constitutions -- for federal, state, and at times local governments. These sets of constitutions must be basically complementary but also raise problems of conflicts between them that must be dealt with constitutionally. Third, federal systems have been especially important in contributing to the problems of modern constitutional design, especially popular participation in constitutional design. Finally, the spread of federalistic constitutional design for a variety of systems, especially in the interstate arena, has become a post-modern phenomenon worthy of special consideration because of its special characteristics and newness. All four of these topics are treated in this paper.

The Three Dimensions of the Constitution

Aristotle, the founder of political science, identified three dimensions of every constitution. The one most familiar to us is the frame of government which defines the powers, structures and functions of the government of a particular polity. The second may determine the socio-economic dimension of the constitution, that is to say, the distribution of power within the political society served by the frame of government that gives the frame its reality as a power-map. The third dimension is the moral constitution, that is to say, the normative basis of the constitutional system including the rules of the political game acceptable in the polity. Every constitutional system has all three dimensions for which Aristotle used the term "constitution." We would today use the term "political system." Nevertheless, it is good to remind ourselves of the Aristotelian usage because this three-fold model provides the constitutional basis of the political system.

We may go further in our constitutional examination to identify three great periods of constitutional concern in the Western world: ancient, medieval and modern. While constitutions of every period require all three dimensions, we can identify the emphasis on one dimension or another in each of the three. In ancient times, constitutions tended to emphasize the socio-economic dimension as the basis of constitutionalism. This can be seen in the way both Greek and biblical constitutions emphasized rules of family and inheritance, the organization of the land system which provided the economic basis for most polities, the religious foundations of the polity, and commercial and social relations among families within it.

Medieval constitutionalism, on the other hand, emphasized the moral dimension. That is to say, it did very little in the way of specifying frames of government or the distribution of power in society, but emphasized the moral rules by which people were expected to live without providing for their effective enforcement. Consequently, medieval constitutionalism, which often looks so excellent in its aspirations, essentially failed in its applications.

In part to correct the problems of medieval constitutionalism, modern constitutionalism emphasized the third dimension, frames of government, that is to say, the specification of the way power and authority should be structured, distributed, and limited, checked or balanced and what functions government should perform. The modern frame of government emphasis has been such as to often exclude recognition or proper consideration of the other two dimensions but all of the dimensions are equally important for constitutional systems.

The Three Sources of Polity: Hierarchical, Organic and Covenantal

In the very first Federalist paper, Publius (in this case Alexander Hamilton) states in the very first paragraph:

"It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force."

This question, indeed, was a fundamental one for the entire federal constitutional ratification process as seen by the Americans in 1787. Beyond that, it reflects and points us toward the significant truth that in all of political theory and political science only three basic sources and forms of polity have been identified: the hierarchical form, originally established by conquest and force; the organic form, that has emerged incrementally or through what Publius calls "accident"; and the covenantal form, established by pacts among equals arrived at through reflection and choice. There may be various combinations of these three sources in the case of any participation of polity but the critical one is ultimately distinguishable in each case.

Conquest can be understood to include not only its most direct manifestation, a conqueror gaining control of a land or a people, but also such subsidiary ways as a revolutionary conquest of an existing state, a coup d'etat, or even an entrepreneur conquering market and organizing his control through corporate means. Conquest tends to produce hierarchically organized regimes ruled in an authoritarian manner; power pyramids with the conqueror on top, his agents in the middle, and the people underneath the entire structure. The original expression of this kind of polity was the Pharaonic state of ancient Egypt. It was hardly an accidental those rulers who brought the Pharaonic state to its fullest development had the pyramids built as their tombs. Although the Pharaonic model has been judged illegitimate in western society, modern totalitarian theories, particularly fascism and nazism, represent an attempt to give it a certain theoretical legitimacy.

Organic evolution involves the development of political life from its beginnings in families, tribes, and villages to large polities in such a way that institutions, constitutional relationships, and power alignments emerge in response to the interaction between past precedent and changing circumstances, with a minimum of deliberate constitutional choice. The end result tends to be a polity with a single center of power organized in one of several ways. Classic Greek political thought emphasized the organic evolution of the polity and rejected any other means of polity-building as deficient or improper. The organic model is closely related to the concept of natural law in the political order.

The organic model has proved most attractive to political philosophers precisely because at its best, it seems to reflect the natural order of things. Thus it has received the most intellectual and academic attention. However, just as conquest tends to produce hierarchically organized regimes ruled in an authoritarian manner, organic evolution tends to produce oligarchic regimes which, at their best, have an aristocratic flavor, and at their worst are simply the rule of the many by the few. In the first, the goal is to control the center of power.

Covenantal foundings emphasize the deliberate coming together of humans as equals to establish bodies politic in such a way that all reaffirm their fundamental equality and retain their basic rights. Even the Hobbesian covenant -- and Hobbes specifically uses that term -- which establishes a polity in which power is vested in a single sovereign, maintains this fundamental equality although, in practice, it would not be able to coexist with the system of rule that Hobbes proposes. Polities whose origins are covenantal reflect the exercise of constitutional choice and broad-based participation in constitutional design. Polities founded by covenant are essentially federal in character, in the original meaning of the term -- whether they are federal in structure or not. That is to say, each polity is a matrix compounded of equal confederates who come together freely and retain their respective integrities are republican by definition and power within them must be diffused among many centers or the various cells within the matrix.

The Impact of Covenantalism on Modern Constitutionalism

The Protestant Reformation, especially through Reformed Protestantism, which later became known, somewhat mistakenly, as Calvinism, challenged the fundamentals of medieval order, including medieval constitutionalism, on both theological and political grounds. In challenging the Catholic Church, the Reformed Protestants essentially challenged the entire medieval political theological order, attacking political tyranny as well as religious hierarchy, since medieval Christendom was based upon hierarchy through and through (even feudalism was only a device that modified the pyramid by establishing constitutional rules for its decentralization to descending levels of elites). This was done through the federal theology (their term) which they developed to explain the partnership arrangement between Gold and man upon what, for they, the world rested. It was for this purpose that they invented the term "federal theology" and applied it to politics as well. This was the first time the term "Federal" was used for such purposes.

To be effective, this challenge had to be one not only of manifestations but of foundations as well. In general, Protestant reformers turned back to the Bible. Presumably, the Bible was the ultimate foundation of the medieval order as well but one which the reformers emphasized that the Church had perverted and distorted.

The Reformed Protestant leaders who studied the Bible discovered in it the covenantal premises and expressions that assaulted the very foundations of the hierarchical order and denied hierarchy the divine legitimacy which all of Christendom believed to be necessary for any political order. By the medieval theo-political order, it delegitimized the tyranny of hierarchies. Moreover, as practical men, the Reformed Protestant leaders reconstructed the bodies politic which they inherited or established to reflect their understanding of the biblical covenantal system. Their constitutions of government were still rudimentary but their efforts at reconstitution or founding were rooted in pacts -- covenants between rulers and ruled, magistrates and citizens -- within the congregation of believers, thereby placing them all on an essentially equal footing.

It soon became apparent that covenants, while necessary for foundations of the new political order, were not sufficient. Constitutions of government were needed to translate those covenants into real institutions that would be both effective and be true to the principles of the covenants that underlay them. Those rules became the basis of modern constitutionalism.

In continental Europe modern constitutionalism emerged in those borderlands stretching from northern Italy to the North Sea, the area once embraced by the Middle Frankish kingdom established for Lothar, the oldest son of Charlemagne, at the end of the ninth century, a territory that embraced what later became both the heartland and most of the peripheries of Reformed Protestant ascendancy in the sixteenth and seventeenth centuries. Consitutionalism was even more powerful in its emergence in British North America, most particularly in New England in the seventeenth century. Indeed, the effective chain of modern constitutionalism can be traced back to the constitutional documents of the Plymouth Colony, the Massachusetts Colony, Connecticut, and Rhode Island of the 1630s and 1640s, and from those early experiments on through the adoption of the Constitution of the United States of America in 1787-1789.

Developments proceeded along two fronts: First cam the elaboration and sophistication of systems of constitutional rules embodied in the documents and, then, the secularization of those constitutional documents. The first New England constitutions were either lists of principles without extensive procedures or elaborate codes, often included by adoption, from the Bible. Over time, these developed into better designed constitutional documents providing the institutional frameworks and increasingly the rights protections required in modern constitutions. Indeed, one can say that with the framing of the American state constitutions during the Revolutionary War modern constitutionalism had arrived and reached its apotheosis in the federal constitution of 1787.

This tradition was adopted with a few variants by the French revolutionaries after 1789, by the Polish revolutionaries in 1792, and from then became the standard for constitutional development in the modern world. The next great spate of constitution-making was in Latin America in the early nineteenth century following the federal and constitutional forms of the United States. Latin Americans endowed their constitutions with a new meaning for federalism, seeing in federalism not simply an instrumental device for good government but also the embodiment of liberalism against the hierarchies established by the Spanish and Portuguese during the colonial period. In many respects they represented hopes for the future rather than concrete and currently implementable power maps.

As modern constitutionalism spread, its overt covenantal basis disappeared. The covenants or their secular versions, political compacts, had been already entered into -- to establish peoples as to form polities -- and the constitutions were written to effectuate them in constitutions. once those constitutions were in place, there was no need to appeal beyond them in most cases. Constitutionalism came to replace direct covenantalism except under those conditions of foundings or refoundings where new covenants had to be cut.

This replacement came to be so complete during the course of the nineteenth century that the covenantal foundations of constitutionalism were forgotten by all but a handful of scholars. Constitutionalism by itself became a hallowed as well as a practical means of establishing and maintaining democratic republicanism, but its federal/covenantal roots should not be forgotten in the process of seeking how to effectuate and to better constitutional systems.

Federal Constitutional Systems

As modern constitutionalism spread, distinctions between federal and unitary states and systems also became more pronounced in the constitutional as well as in other spheres. Unitary systems required only one constitution for the whole and all of its parts. Indeed, in many cases only the whole was officially denominated a government, the other units of political organization within the unitary state were designed "authorities," provinces, or "countries" (land, pays) in the cultural rather than the political sense.

In federal systems, on the other hand, the idea was a greater or lesser measure of coequality among governments within the political system, certainly federal and state and at times local as well. Each of them was to have its own constitution, reflecting the will of the people who constituted that particular government and had to live according to its rules. Thus federal systems rest upon multiple constitutional documents, each drafted by, for, or on behalf of the particular public it is designed to serve. All such constitutions must be considered in order to fully understand the constitutional framework and system of federal polities.

While each of these constitutions may be independent, the federal constitution and the constitutions of the constituent units must share certain common principles and premises, a common spirit if you will, in order to fit into a common mosaic. Thus, for example, the federal and state constitutions of the United States are all based upon tripartite separation of powers systems, while the federal and provincial or state constitutions of Canada and Australia are all based upon the combination of federal and Westminster parliamentary systems. Indeed, to the best of this writer's knowledge, none have ever even raised the possibility of following a different course in a serious manner, not to mention the harmonization or shared values among the polities within each system. Indeed, we have seen the consequences of the demise of shared values in former Yugoslavia or the intensification of those shared values which lead to conflict rather than cooperation, even if their constitutional expectations and systems remain much the same.

It is true that some federal systems have only one federal constitution that includes within it constitutional provisions for state and local government as well as multi-level intergovernmental collaboration. Nigeria is an example of this. In almost every case they represent very hierarchical federal systems that barely meet the definition of federalism if, indeed, they do. Again, Nigeria is a good example.

Even in those federal systems where separate constitutions for the major constituent units are not required, to the extent that the systems have been properly federal, matters have evolved in that direction. Canada may be the outstanding example of this. The Canadian provinces, following the English model, did not need to adopt provincial constitutions, but over time basic laws have developed that have become de facto constitutional documents, although not entrenched in the normal constitutional manner. They have gained increasing respect from the provincial parliamentary and other governing authorities.

Often, local constitutional documents are denominated "charters" or the equivalent, indicating that they are not coequal with the federal and state constitutions but are derivative from the powers of one or the other. The semantic distinction is an important one, as the rulings of constitutional courts dealing with those charters reveal. The struggle between state constitutions and local charters may seem to be exactly like the struggle within unitary systems but the addition of a federal government is a complicating factor since it allows localities to develop a more independent constitutional tradition by appealing in both directions. The United States, which probably started with less and has gone further than any other federal system, may be the best example of this.

In the original American constitutional system no provision was made for separate local constitutional standing. First of all, the matter was left to the states and the states usually followed the English example of close subordination of local authorities to the state government. Over time, however, the very existence of federalism led to the development of greater local autonomy through general laws empowering localities, without the need for individual recourse to the state legislature for every charter matter, and through home rule provisions that enabled the local governments to adopt their own constitutions, even if for only limited purposes.

The existence of multiple constitutions from a single constitutional system places a premium on intergovernmental relations, including intergovernmental constitutional relations, an especially important dimension in the significance of federalism on constitutional systems. All polities beyond the scope of direct rule by one person have intergovernmental relations, but there is a major difference in the character and quality of intergovernmental relations in federal and non-federal systems. So, too, there are qualitative differences between hierarchical, organic, and covenantal (federal) systems. In the latter, intergovernmental relations must be truly intergovernmental, although constitutionalism, perhaps because of its covenantal roots, has introduced a measure of potential autonomy into intergovernmental relations in all constitutional systems that is worthy of further investigation in each specific case. For example, the changes that have taken place in highly centralized and unitary France in the past three decades deserve to be noted and examined.

Federal Dimensions of Constitutional Design

Just as federal systems are among the major pioneers of modern constitutions, so, too, have they been pioneers in the development of patterns of continuing constitutional design. One of the foremost inventions of modern constitutionalism was the possibility for constitutional revision within the constitutional system. Prior to that, most constitutional revision had to be achieved through some kind of revolution since the system itself did not make adequate provision for change except perhaps through authoritative interpretation. Changes of the latter normally were limited since it was not easy to justify them. It took a very daring group of interpreters to make major changes through constitutional interpretation alone. It was not impossible, but it was rare, even very rare. Moreover, the authoritative interpreters were almost always the people in power, which meant that their willingness to make changes was often limited since the needed changes often went against their immediate personal interests.

One of the great achievements of modern constitutionalism, part of its republican and democratic character, was the introduction of provisions for constitutional revision within the constitutional document itself. These took two forms: either a formal procedure for constitutional amendment through the institutions established by the constitution or formal provisions for calling a special constitutional convention which would look at the whole document or any part of it for that purpose. Both devices were developed at about the same time.

The United States and the individual states were pioneers of both devices at the time of the American Revolution or immediately thereafter. Both have served federal polities well. Amendment through the formal institutions has been the most widespread device in the federal arena while both that kind of amendment and periodic constitutional conventions have been useful devices in the state arenas. The study of state conventions both for the foundings and constitutional revisions in the various American states has been a subject of no little interest, although it needs to be better studied within the larger political science framework of contemporary political science ideas and methodology.

Subsequently, a third device was developed, the constitutional referendum. Switzerland pioneered in this form of constitutional change and it soon spread to other federal systems, particularly the American states, though it has not been used with regard to the U.S. constitution. The Swiss have developed the constitutional referendum to a fine art and in some respects an exact science. All three arenas of government in Switzerland use constitutional referenda and their use in connection with the federal constitution involves a combination of federal and state arrangements since majorities have to be secured by canton and not only through a federal majority. Referenda are in such demand that a calendar has been established scheduling them so that not too many will occur in any one election.

The use of the referendum as a constitutional design device has spread to some three-fifths of the American states where it is used much more freely than in Switzerland, although not always in such quantities. California, in particular, with its very large and politically activist population, has developed an exaggerated use of the constitutional referendum. California's people expect to be involved in state and local constitutional design. The state's various interests are able to organize to take advantage of the opportunities offered and funding is generally available from them to make that possible. The popular referendum has become a weapon in the state's normal process of political conflict. A few years ago when the matter of state regulation of automobile insurance came before the voters, six different and often contradictory amendments were on the ballot in the same election, the purpose of several of which was mostly to confuse the voters rather than to secure any kind of reasonable change.

California has not adapted the Swiss system of setting a referendum timetable. Whatever passes the post in terms of the signatures on the appropriate petitions is placed on the ballot at the very next statewide election. This has lead to very long and complex ballots with more propositions than even especially attuned voters can assimilate and, as indicated above, often contradictory ones designed to obfuscate rather than elucidate.

California is the extreme case. Most other states have been able to keep the referendum system within balance even without special legislation. In the United States and Switzerland it is no doubt the most widespread form of popular involvement in constitutional design for states and localities.

In contrast, efforts to call constitutional conventions on federal matters in the United States have consistently failed because people are afraid to open up the pandora's box of an unrestricted constitutional convention which may attempt to "tamper with" constitutional provisions deemed sacred by the country as a whole or by particular groups within it. Thus, interpretation by the U.S. Supreme Court has become the most prevalent mode of federal constitutional design used in the United States, a form which excludes popular participation except at the very margins and which goes against the spirit of modern constitutionalism as it was originally formulated.

Germany and the German-speaking countries have, for this reason, attempted to utilize constitutional courts but to restrict the scope of their activity by requiring the other institutions of government or the public at large to participate in any processes of constitutional change. Nevertheless, constitutional court interpretation is spreading as a form of constitutional change in those countries as well as in many, if not most, others and the American experience is looked upon admiringly and increasingly applied, especially in the field of human and civil rights where more popular bodies are less likely to expand the rights of individuals in the way the constitutional courts will.

Interstate and Global Constitutional Arrangements

When modern federalism was first developed in the United States in the eighteenth century, Europe was moving rapidly away from federalism in any form toward the unitary centralized state, usually defined as a nation-state, provided for in the international system established by the Treaty of Westphalia (1648) at the very beginning of the modern epoch. The Westphalia system provided for the principle of indivisible state sovereignty and all that flowed from it, whereas federalism required what in statist terms was called "divided sovereignty." In federalist terms this meant popular sovereignty with governments not being sovereign but rather being the products of powers delegated to them by the people, who could delegate whatever powers they wanted to as many different governments as they wanted and still remain entirely within the legitimate theoretical framework of federalism.

Indeed, the first American effort at modern federalism, the modern confederation embodied in the Articles of Confederation, failed in part because the way it attempted to divide sovereignty among governments went against the spirit of the times. In its place the Americans substituted modern federation whereby the United States appeared as a single nation to the outside world while internally its people delegated powers to the federal and state governments and through the state governments to local governments as well. This "compromise" satisfied the demands (in some respect aesthetic demands) of the larger world and enabled the United States to develop as a single nation with a noncentralized political system over the next 200 years.

The American model of modern federation was frequently copied in the nineteenth century and in some cases succeeded. In any case, the federation model was so successful that it totally eclipsed any other forms of federalism so that federalism and federation became, for all intents and purposes, synonymous. Nevertheless, the necessities of other situations required the application of federal principles in other ways in the twentieth century. Principal among them were internal regionalization that became more than regional decentralization as in Belgium, Italy, and Spain, and the development of associated state relations between larger powers and smaller, usually offshore, entities that demanded autonomy but did not seek or could not sustain full independence, as in the case of the Netherlands and its Caribbean territories or the United States and Puerto Rico.

These new forms of federalism spread rapidly after World War II when they were joined by the revival of confederation and confederal arrangements, albeit in a new style. Pioneering in this regard was the European Community, now the European Union, after the federationist idea of the United States of Europe fell by the wayside because of the strong separate identities of the individual states. Western Europe was united through confederal devices which were strengthened over the subsequent forty years until Western Europe more or less formally became a confederation.

Other confederations and confederal arrangements emerged at the same time or immediately thereafter. Moreover, federalism, which increasingly became a form of political organization for the very largest countries, at least nominally, began to spread to the smaller ones as well as individuals and groups sought greater control over their immediate political environment while at the same time needing to combine for security and economic purposes into larger entities.

Each of the new federal arrangement required new forms and styles of constitutional design, following but adapting old principles and models. Almost all were begun with a political compact that was then followed by a constitution (or constitutions, in some cases) embodying the rules, structures, functions, and powers of the new federal arrangement. In both cases, constitution referenda by one or both parties to the arrangements were required.

At first the revival of federal arrangements was a matter for individual states or nations and it was still possible to distinguish between federal and unitary states or political systems. Beginning with the European Community, initially a linkage of politically sovereign states by what was formally a a network of treaties, that distinction began to diminish. Form the first what was different about these treaties was that they were enforceable by coming institutions and subject to the rulings of a common constitutional court. France, perhaps the most unitary state of all, became part of the new Western European confederation and was even forced to offer a degree of constitutional autonomy to Corsica, not to speak of those of its overseas territories that did not want or could not sustain independence. Moreover, when Charles de Gaulle in one fell swoop abandoned France's African colonies, he did so in such a manner that they were tied to their former mother country through control of their currency and economic systems in an arrangement that was not designated federal or even viewed as such by the participants and which was confined to the economic and military sphere but which had at least quasi-federal elements within it. Thirty years later, in the early 1990s, the French used it to try to force greater democratization on community members in Francophone Africa through refoundings via mutual conventions.

By the early 1990s, it was hard to find any state in the world that did not have interstate ties that were more than simply treaty arrangements but which were constitutionally entangling. Most of these arrangements remained nominally open to unilateral dissolution but in practice few, if any, could be dissolved without such great cost that none of their members would think of dissolving them. This was particularly true in the economic sphere.

The General Agreement on Tariffs and Trade was formally no more than an international treaty but, as the nations of the world came to realize during the recently completed Uruguay round, not only was there no way for any single country to leave GATT without paying a huge price but even regional blocs had to learn how to accommodate one another within an improved and extended agreement. On one hand, the worldwide GATT system had to be divided into regional groupings and, on the other hand, the regional groupings learned how to compromise with one another to maintain, renew, and extend the GATT agreement. Indeed, at the conclusion of the long and exhausting Uruguay round, the final document provided for the replacement of GATT with a World Trade Organization (WTO) whose name already signified how far the constitutionalizing process had gone beyond simply an international treaty to being a kind of constitutional arrangement, however limited.

Thus another arena of federal arrangements is emerging, the international arena, that goes beyond individual states, even large states. While there is no talk of international federations, except among radical ideologues, and these international relations have not reached the intricacy of confederal arrangements, they are being constitutionalized, an extremely important step that is causing every state in the international arena to constitutionally recognize that exclusive state sovereignty is a thing of the past, that the Westphalia system has collapsed, and that what was initially achieved, de facto, as a result of the invention of nuclear weapons and the movement toward greater economic interdependency is now acquiring a de jure dimension as well so as to give it some regularization, stability, and to give the members of the international community, as polities, as groups, and as individuals, some measure of protection. This, too, has lead to new forms of constitutionalism and constitutional design.

How far this will go and how it will get there cannot be foreseen at this moment. There are too many imponderables and too many opportunities for directions to shift, but what seems to be happening is that mechanisms are emerging that have blurred the earlier distinctions between unitary and federal states and their constituent units and citizens and to bring all together in some increasingly, if only moderately, constitutionalized framework. This means that the distinction between political scientists interested in international relations and those interested in national or domestic affairs is also being blurred. All of us in the profession need to pay due attention to these changes.