Federalism and Decentralization: Ownership Rights and the Superiority of Federalism

The benefits and costs usually ascribed to federalism are benefitsand costs of decentralization; they are, therefore, presentin unitary states that are in fact all decentralized. The benefitsand costs specific to federalism pertain to ownership rightsin constitutional powers. Federalism is superior to confederalismand unitarianism because the ownership rights peculiar to thatsystem of government are such that they ensure the perduranceof competition when one or more competitors are unsuccessful.They do so because under federalism, powers cannot be repossessedunilaterally. Ownership rights have to be enforced; as a consequence,there are also costs that are specific to federalism.     

German Federalism in Historical Perspective: Federalism as a Substitute for a National State

A German national state was founded comparatively late in themodern era. In 1871 the German princes formed the German Empire.Unde Prussian hegemony, the Empire remained dependent on itsmember states. The constitution of the Weimer Republic of 1919turned the relations between the federation and the states upsidedown. The Länder, as the constituent states close to beinga decentralized unitary state. The Nazi regime centralizd it.After World War II, the West Germans and the Western Alliesagreed on forming a federal type of government. There was, however,controversy about the kind of federalism to be established.The West German Basic Law retained the tradition of a secondfederal parliamentary chamber in which the Land governmentsare represented. Sovereignty is shared and exercised jointlyby the federation and the Länder in most domestic policyfields.     

The State of American Federalism, 2004: Is Federalism Still a Core Value?

Federalism as a political issue was conspicuously absent fromthe 2004 presidential contest. Unlike many previous campaigns,neither party's candidate made much mention of problems besettingstates and localities. The war against global terrorism andthe changing situation in Iraq shaped the election. Progresswas made on homeland security, but intergovernmental wranglingover federal grants continued unabated. Federal-state feudswere common in several policy areas, including education, environmentalprotection, and health care. State finances received a revenueboost as economic growth picked up, but rising costs for Medicaid,education, employee pensions, and prisons clouded states' financialforecasts. The U.S. Supreme Court decided several cases witha federalism dimension, and these decisions plus those of thepast several years suggest the Court has moved not so much togrant more power to the states but to prune back the power ofCongress. Much of what has happened during the first Bush administrationmust be seen against the larger background of changes in theAmerican political party system. Changes in party organizationand policy control, especially during the first Bush administration,reaffirm David Walker's assessment that over the past quartercentury American federalism has become more nationalized.     

Pragmatic Federalism: Australian Federalism from Hawke to Howard

The article explores the nature of Australian federalism by examining four major themes in the period from Hawke to Howard. The investigation of these themes – Australian conceptions of federalism; the role of party in shaping federalism; the way problems and politics have influenced policy‐making and thereby federalism; and the nature of federal judicial review – suggests that Australian federalism can most accurately be characterised as pragmatic. It appears as a federalism shaped by pressing problems, specific policy agendas and the prevailing political dynamic, rather than by overarching conceptions of federalism derived from political theory or articulated in party ideology. This pragmatic federalism explains important aspects of Australian federalism, especially the trend towards centralisation of authority.     

Devolutionary Federalism and Elazar's Typology: The Arkansas Response to Reagan's New Federalism

This article examines the relationship between the federal andstate governments with regard to the Reagan administration'sNew Federalism. The underlying concern centers on the financialrelationship among governments portrayed by Elazar's typologyof federal aid. The focus of this investigation is directedtoward the adjustments being made by the states to accommodatethe financial and administrative changes occurring on the nationallevel, as illustrated by the case of Arkansas. The analysiscenters on two questions: 1) Has the New Federalism initiativeachieved Reagan's goals of decentralizing governmental authorityback to the states? 2) Has a major redirection in the federalsystem been achieved by reducing the federal financial obligationin the intergovernmental system? The changes being made in thefederal system, as reflected by the adjustments occurring amongthe states, may signal an important realignment of federalism.     

The State of American Federalism, 2005: Federalism Resurfaces in the Political Debate

After several years during which federalism was rarely a prominentor explicit issue in political debates, it was in several waysthrust into the public consciousness in 2005. It was not thatthe president or Congress ceased sacrificing state and localinterests to substantive policy goals, as shown by the costlyREAL ID Act, stringent new federal requirements in the TemporaryAid to Needy Families reauthorization, and congressional interventionin the Terri Schiavo case. However, Hurricane Katrina, and particularlythe delayed and ineffective intergovernmental response, generatedsubstantial debate about the appropriate federal role in disasterrelief. In addition, state and local governmental oppositionto the No Child Left Behind Act intensified and generated significantattention during the year, particularly as a result of a Utahstatute asserting the precedence of state over federal law anda Connecticut lawsuit against the act. Meanwhile, state governmentscontinued to address a number of policy problems that federalofficials were unable or unwilling to confront, especially regardingenvironmental, health-care, and labor issues. Finally, althoughthe Supreme Court in 2005 continued its recent (2003–2004)trend of pulling back somewhat from its late-1990s Congress-curbingdecisions, federalism issues figured quite prominently in thesenate confirmation hearings for Chief Justice John Robertsand Justice Samuel Alito.     

Australian Federalism and the Debate Over a Bill of Rights

Successive Australian Labor governments have tried to nationalizestandards for the protection of rights either by means of astatutory bill binding on the states under the Commonwealth'smuch expanded external affairs power, or by further entrenchingspecific rights in the Constitution. All these attempts havefailed for a variety of political and constitutional reasonsincluding, importantly, the strength of Australia's establishedsystem of federalism and parliamentary responsible government.The article examines the constitutional issues underlying thedebate over a bill of rights for Australia, arguing that Labor'sattempts to implement a bill of rights have been inspired bya preference for more centralized government whereas the defeatof such initiatives indicates, the established strength of Australianfederalism.     

Introduction: Federalism and Surface Transportation

The articles for this symposium address federal, state, andlocal relationships in surface-transportation programs. Theseprograms support access to and mobility within specific locations,but the benefits do not uniquely belong to any one politicaljurisdiction. Transportation investments link jurisdictionsand produce dynamic interactions among them that both followand create strong competitive economic, land-development, intergovernmental,and political forces.     

Australian Federalism: Developments and Prospects

This article discusses the principal recent developments in,and future prospects for, constitutional change, judicial review,fiscal arrangements, local government, public policy, and intergovernmentalrelations since the 1977 Publius issue on Australian federalism,taking into account the arguments presented in the other contributionsto this volume. It highlights the continuing vertical imbalanceof Australian fiscal federalism, and the Hawke Labor government'srecent initiative for a closer working partnership with thestates for reforming intergovernmental arrangements. It arguesthat while there is scope for the latter, there is greater needfor the former. Nevertheless, the 1980s was significant as adecade of predominantly Labor governments working with the federalConstitution, while the 1990s promises to be a decade of celebratingthe centenary of the Australian Constitution and working towardimproving the functioning of its federal system.     

Federalism and Modernization: Canada and the United States

Since World War II, the federal systems in the United Statesand Canada have moved in opposite directions: the U.S. has becomeincreasingly centralized, while the provinces in Canada havegained power at the expense of Ottawa. These divergences canbe explained by such societal factors as economic structures,international commitments, and locations of minority populations;and by institutional factors, such as the number of constituentunits, methods by which provincial authorities are representedin federal legislatures, and especially by the contrast betweenCanada's Westminster-type institutions and the U.S. separationof powers. These differences are illustrated by intergovernmentalfiscal processes, energy policies, and federal-municipal relations.They cannot be accounted for by modernization theories, butrather by economic structures, demographic distributions, andespecially constitutional and institutional arrangements.     

Federalism and the shadow economy

This paper analyzes the relationships between federalism and the shadow economy. The theoretical analysis leads to the conclusion that the shadow economy is smaller in federal countries than in unitary states. The mobility of individuals among competing jurisdictions leads policy makers to adopt policies that are more efficient in terms of taxation and public good provision. This increases the return for activities in the formal sector relative to those in the informal one, thus reducing activity in the shadow economy. A cross-sectional empirical analysis of a sample of 73 countries confirms this theoretical prediction.     

Federalism and the European Parliament

The European Parliament has been a source of controversy sinceits inception. Its direct election was seen as endorsing a federalstructure and political future for the European Community (laterEuropean Union). Changes in its authority and legislative powerswere seen as symptomatic of creeping federalism and the emasculationof member states' national sovereignty. The European Parliament'sconscious contribution to developing federalism and constructinga federal Europe relate to its direct election, its powers,and its proposals to hold a constitutional convention. The Anglo-Saxonmisconception of federalism is analyzed, the role of a billof rights examined, and the failures of democratic legitimacyexposed with a view to see what contribution federal bargainsmay make to close the democratic deficit and to impel a reviewof the current institutional arrangements.     

Federalism and the European Union: A constitutional perspective

Constitutional questions have resurfaced in the last few years with regard to the European Union. The Maastricht Treaty is a kind of constitutional reform. The rejection of this treaty by Denmark in its first referendum, and the subsequent debate of the treaty that has taken place, raise questions about both the nature of the European Union, and the process by which its rules (constitution) get revised and approved. Similar questions surround the entry of Austria and the three, additional Scandinavian countries into the Union. Perhaps, no event called the European Union's constitution, or lack thereof, into question more that way in which a new President of the Commission was chosen during the summer of 1994. This paper will reexamine the European Union's structure and procedures from a constitutional perspective. Drawing upon the author's recently completed book, Constitutional Democracy, the paper will review the purpose for the Union's existence, the implications of this purpose for the structure of the Union (federalism versus confederation), the rules for making collective decisions in the Union, citizenship, and in particular, the procedures by which the European Union's “Constitution” is written and revised. The constitutional perspective adopted is taken from public choice. The political institutions of the European Union are examined relative to those rational, self-interested individuals would choose to advance their interests.     

Garcia: Of Federalism and Constitutional Values

In Garcia v. San Antonio Metropolitan Transit Authority (1985),a majority of the U.S. Supreme Court's justices did violenceto the principles of the U.S. Constitution by leaving the statesto take their Tenth Amendment complaints to the Congress. Inabdicating their proper constitutional role, the majority ofjustices ignored history, political realities, and constitutionalprinciple. The Constitution's institutional arrangements, ofwhich federalism is a key component, are an intrinsic part ofthe constitutional scheme by which government power is limitedand individual rights are protected.