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

65

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 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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237

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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A.-G. Gagnon

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
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).

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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.

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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

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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

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288

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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

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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.

290

F. Requejo

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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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

Comparative perspectives

J. Kincaid

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.

319

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-

320

J. Kincaid

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.

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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.

346

R. L. WaUs

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