Federalism

The terms "federalism" and "confederalism" share a root in the Latin word foedus, meaning "treaty, pact or covenant". Their common early meaning until the late eighteenth century was a simple league or inter-governmental relationship among sovereign states based on a treaty. They were therefore initially synonyms. It was in this sense that James Madison in Federalist No.39 had referred to the new US Constitution as "neither a national nor a federal Constitution, but a composition of both" (i.e. as constituting neither a single large unitary state nor a league/confederation among several small states, but a hybrid of the two).[6] In the course of the nineteenth century United States, the meaning of federalism would come to shift, strengthening to refer uniquely to the novel compound political form established at the Philadelphia Convention, while the meaning of confederalism would remain at a league of states.[7]

In the narrow sense, federalism refers to the mode in which the body politic of a state is organized internally, and this is the meaning most often used in modern times. Political scientists, however, use it in a much broader sense, referring instead to a "multi-layer or pluralistic concept of social and political life."[8]

The first forms of federalism took place in ancient times, in the form of alliances between states. Some examples from the seventh to second century B.C. were the Archaic League, the Aetolic League, the Peloponnesian League, and the Delian League. An early progenitor of federalism was the Achaean League in Hellenistic Greece. Unlike the Greek city states of Classical Greece, each of which insisted on keeping its complete independence, changing conditions in the Hellenistic period drove many city states to band together even at the cost of losing part of their sovereignty. Subsequent unions of states included the first and second Swiss Confederations (1291–1798 and 1815–48), the United Provinces of the Netherlands (1579–1795), the German Bund (1815–66), the first American union known as the Confederation of the United States of America (1781–89), and second American union formed as the United States of America (1789–1865).[9]

Modern federalism is a political system based upon democratic rules and institutions in which the power to govern is shared between national and provincial/state governments. The term federalist describes several political beliefs around the world depending on context. Since the term federalization also describes distinctive political processes, its use as well depends on the context.[10]

In political theory, two main types of federalization are recognized:

• integrative,[11] or aggregative federalization,[12] designating various processes like: integration of non-federated political subjects by creating a new federation, accession of non-federated subjects into an existing federation, or transformation of a confederation into a federation
• devolutive,[11] or dis-aggregative federalization:[13] transformation of a unitary state into a federation

According to Daniel Ziblatt, there are four competing theoretical explanations in the academic literature for the adoption of federal systems:

1. Ideational theories, which hold that a greater ideological commitment to decentralist ideas in society makes federalism more likely to be adopted.
2. Cultural-historical theories, which hold that federal institutions are more likely to be adopted in societies with culturally or ethnically fragmented populations.
3. "Social contract" theories, which hold that federalism emerges as a bargain between a center and a periphery where the center is not powerful enough to dominate the periphery and the periphery is not powerful enough to secede from the center.
4. "Infrastructural power" theories, which hold that federalism is likely to emerge when the subunits of a potential federation already have highly developed infrastructures (e.g. they are already constitutional, parliamentary, and administratively modernized states).[14]

Immanuel Kant noted that "the problem of setting up a state can be solved even by a nation of devils" so long as they possess an appropriate constitution which pits opposing factions against each other with a system of checks and balances. In particular individual states required a federation as a safeguard against the possibility of war.[15]

Proponents for federal systems have historically argued that the power-sharing inherent in federal systems reduces both domestic security threats and foreign threats. Federalism allows states to be large and diverse, mitigating the risk of a tyrannical government through centralization of powers.[16][17]

In a federation, the division of power between federal and regional governments is usually outlined in the constitution. Almost every country allows some degree of regional self-government, but in federations the right to self-government of the component states is constitutionally entrenched. Component states often also possess their own constitutions which they may amend as they see fit, although in the event of conflict the federal constitution usually takes precedence.

In almost all federations the central government enjoys the powers of foreign policy and national defense as exclusive federal powers. Were this not the case a federation would not be a single sovereign state, per the UN definition. Notably, the states of Germany retain the right to act on their own behalf at an international level, a condition originally granted in exchange for the Kingdom of Bavaria's agreement to join the German Empire in 1871. Beyond this the precise division of power from one nation to another. The constitutions of Germany and the United States provide that all powers not specifically granted to the federal government are retained by the states. The Constitution of some countries like Canada and India, state that powers not explicitly granted to the provincial governments are retained by the federal government. Much like the US system, the Australian Constitution allocates to the Federal government (the Commonwealth of Australia) the power to make laws about certain specified matters which were considered too difficult for the States to manage, so that the States retain all other areas of responsibility. Under the division of powers of the European Union in the Lisbon Treaty, powers which are not either exclusively of Union competence or shared between the Union and the Member States as concurrent powers are retained by the constituent States.

Satiric depiction of late 19th-century political tensions in Spain

Where every component state of a federation possesses the same powers, we are said to find 'symmetric federalism'. Asymmetric federalism exists where states are granted different powers, or some possess greater autonomy than others do. This is often done in recognition of the existence of a distinct culture in a particular region or regions. In Spain, the Basques and Catalans, as well as the Galicians, spearheaded a historic movement to have their national specificity recognized, crystallizing in the "historical communities" such as Navarre, Galicia, Catalonia, and the Basque Country. They have more powers than the later expanded arrangement for other Spanish regions, or the Spain of the autonomous communities (called also the "coffee for everyone" arrangement), partly to deal with their separate identity and to appease peripheral nationalist leanings, partly out of respect to specific rights they had held earlier in history. However, strictly speaking Spain is not a federation, but a system of asymmetric devolved government within a unitary state.

It is common that during the historical evolution of a federation there is a gradual movement of power from the component states to the centre, as the federal government acquires additional powers, sometimes to deal with unforeseen circumstances. The acquisition of new powers by a federal government may occur through formal constitutional amendment or simply through a broadening of the interpretation of a government's existing constitutional powers given by the courts.

Usually, a federation is formed at two levels: the central government and the regions (states, provinces, territories), and little to nothing is said about second or third level administrative political entities. Brazil is an exception, because the 1988 Constitution included the municipalities as autonomous political entities making the federation tripartite, encompassing the Union, the States, and the municipalities. Each state is divided into municipalities (municípios) with their own legislative council (câmara de vereadores) and a mayor (prefeito), which are partly autonomous from both Federal and State Government. Each municipality has a "little constitution", called "organic law" (lei orgânica). Mexico is an intermediate case, in that municipalities are granted full-autonomy by the federal constitution and their existence as autonomous entities (municipio libre, "free municipality") is established by the federal government and cannot be revoked by the states' constitutions. Moreover, the federal constitution determines which powers and competencies belong exclusively to the municipalities and not to the constituent states. However, municipalities do not have an elected legislative assembly.

Federations often employ the paradox of being a union of states, while still being states (or having aspects of statehood) in themselves. For example, James Madison (author of the US Constitution) wrote in Federalist Paper No. 39 that the US Constitution "is in strictness neither a national nor a federal constitution; but a composition of both. In its foundation, it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal, and partly national..." This stems from the fact that states in the US maintain all sovereignty that they do not yield to the federation by their own consent. This was reaffirmed by the Tenth Amendment to the United States Constitution, which reserves all powers and rights that are not delegated to the Federal Government as left to the States and to the people.

The structures of most federal governments incorporate mechanisms to protect the rights of component states. One method, known as 'intrastate federalism', is to directly represent the governments of component states in federal political institutions. Where a federation has a bicameral legislature the upper house is often used to represent the component states while the lower house represents the people of the nation as a whole. A federal upper house may be based on a special scheme of apportionment, as is the case in the senates of the United States and Australia, where each state is represented by an equal number of senators irrespective of the size of its population.

Alternatively, or in addition to this practice, the members of an upper house may be indirectly elected by the government or legislature of the component states, as occurred in the United States prior to 1913, or be actual members or delegates of the state governments, as, for example, is the case in the German Bundesrat and in the Council of the European Union. The lower house of a federal legislature is usually directly elected, with apportionment in proportion to population, although states may sometimes still be guaranteed a certain minimum number of seats.

In Canada, the provincial governments represent regional interests and negotiate directly with the central government. A First Ministers conference of the prime minister and the provincial premiers is the de facto highest political forum in the land, although it is not mentioned in the constitution.

Federations often have special procedures for amendment of the federal constitution. As well as reflecting the federal structure of the state this may guarantee that the self-governing status of the component states cannot be abolished without their consent. An amendment to the constitution of the United States must be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each of the states, before it can come into effect. In referendums to amend the constitutions of Australia and Switzerland it is required that a proposal be endorsed not just by an overall majority of the electorate in the nation as a whole, but also by separate majorities in each of a majority of the states or cantons. In Australia, this latter requirement is known as a double majority.

Some federal constitutions also provide that certain constitutional amendments cannot occur without the unanimous consent of all states or of a particular state. The US constitution provides that no state may be deprived of equal representation in the senate without its consent. In Australia, if a proposed amendment will specifically impact one or more states, then it must be endorsed in the referendum held in each of those states. Any amendment to the Canadian constitution that would modify the role of the monarchy would require unanimous consent of the provinces. The German Basic Law provides that no amendment is admissible at all that would abolish the federal system.

• Fiscal federalism – the relative financial positions and the financial relations between the levels of government in a federal system.
• Formal federalism (or 'constitutional federalism') – the delineation of powers is specified in a written constitution, which may or may not correspond to the actual operation of the system in practice.
• Executive federalism refers in the English-speaking tradition to the intergovernmental relationships between the executive branches of the levels of government in a federal system and in the continental European tradition to the way constituent units 'execute' or administer laws made centrally.
• Gleichschaltung – the conversion from a federal governance to either a completely unitary or more unitary one, the term was borrowed from the German for conversion from alternating to direct current.[25] During the Nazi era the traditional German states were mostly left intact in the formal sense, but their constitutional rights and sovereignty were eroded and ultimately ended and replaced with the Gau system. Gleichschaltung also has a broader sense referring to political consolidation in general.
• defederalize – to remove from federal government, such as taking a responsibility from a national level government and giving it to states or provinces