From Constitutional to Treaty Federalism: A Comparative Perspective

Federalism in the European Union differs significantly fromthe American model. First, instead of relying on fixed constitutionalrights, the EU remains committed to a treaty-based process offlexible accommodation. Second, the federal system of constitutionalpower division has been replaced by the subsidiarity principle.The scope and dimension of Community action are tied to negotiatedcriteria of necessity and efficiency. Third, European federalismhas not adopted the American senate model. Member-state participationin the decision-making process is based on the German modelof weighted council representation. Regions and civic organizationshave gained an additional consultative voice. As a novel typeof federal polity, the EU may gain model character for a globalizingworld of nation-states whose interests appear loosely interconnectedby federal arrangements rather than firmly nested in a federalstate.     

Intergovernmental Relations in Canada: The Emergence of Collaborative Federalism

"Executive federalism" or "federal-provincial diplomacy" haslong been considered the defining characteristic of Canadianfederalism, which combines federalism and Westminster-stylecabinet government. However, these processes have come underincreasing stress in recent years from a number of forces thathave affected the nature and conduct of federalism and intergovernmentalrelations in Canada. Executive federalism has not been displaced,but has been increasingly informed by a set of practices thatwe call "collaborative federalism," characterized more by theprinciple of co-determination of broad national policies ratherthan by the more traditional pattern of federal-leadership.     

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 Institutional Design: The Perils and Politics of a Triple-E Senate in Canada

Since the proposal was put forward by a subcommittee of theAlberta legislature, most western Canadian political leadershave advocated a U.S.-style Triple-E (elected, effective, andequal) Senate. Superficially compatible with western Canada'sstated constitutional and public policy agenda, the Triple-Eproposal has broad elite and popular appeal in the West. However,such an institution will be unlikely to satisfy western demandsfor more effective representation in the federal Parliament,and will prove antithetical to another key western objective:significant reduction of public spending in Ottawa. Insteadof pursuing a Triple-E Senate, the West's constitutional andpolicy objectives could focus on seeking greater devolutionof power to the provinces. Such a strategy would have the addedadvantage of facilitating a constitutional alliance with theprovince of Quebec, thereby enhancing the likelihood of success.     

Public Opinion on Federalism in the United States and Canada in 2002: The Aftermath of Terrorism

This research reports on a public-opinion survey on intergovernmentaland border issues in Canada and the United States conductedin mid-April 2002. In the United States, there was an upsurgein public support for the federal government in 2002 over 2001,and a slight decline in public evaluations of state and localgovernments. Increased support for the federal government wasespecially notable among whites, Republicans, and respondentswith post-undergraduate education-groups that previously registeredlow support for the federal government. Canadians reported lesssatisfaction with all governments in their federal system, lowersupport for their federal government, and much more regionaland partisan division over intergovernmental issues. On internationalborder issues, Americans and Canadians generally agreed thata common border-security policy would be a good idea, thoughCanadians were slightly more likely than Americans to preferease of cross-border trade over improved border security.     

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.     

Federalism, Political Structure, and Public Policy in the United States and Canada

Two of the three large countries on the North American continent—the United States and Canada—share a number of similarities that often make it difficult for the untrained observer to differentiate between the two nations. On the surface, the two are structured similarly as federal systems that, by definition, exhibit shared power between the national government and provincial or state political entities.Although there are other important social and economic characteristics of the two countries that help explain differences in policy processes and outcomes, it is the contention of this article that one gets the clearest sense of what Elazar has called thinking federal by utilizing an analytical approach that joins questions related to federalism with some conceptual frameworks of the public policy field. Two frameworks undergird the argument in this article—the Lowi typology of different types of policies and Deil Wright's typology of different models that describe the American inter-governmental system.In both countries, policies must be sensitive to the greater interdependencies between units of government as well as to linkages between policy areas. The mechanisms or instrumentalities for dealing with policy issues are intrinsically complex. It is also clear that the intergovernmental networks that exist in both the U.S. and Canada are composed of an array of actors. The differing political structures of the systems do impact the types of intergovernmental policies that have emerged in the two countries. The executive dominance so imbedded in Canadian governments has contributed to their ability to adopt and implement certain controversial redistributive policies, such as a national health insurance program. By contrast, the fragmentation of the U.S. system makes redistributive policies more difficult.     

Public Opinion on Federalism in Canada, Mexico, and the United States in 2003

This research reports on public opinion surveys on intergovernmentaland federal issues conducted in Canada, Mexico, and the UnitedStates in March and April 2003. In all three countries, respondentsmost often see their federal government as being the least effective,least efficient, and least trustworthy. Respondents from Canadaappear least supportive of their federal government and mostsupportive of their local governments; those from Mexico appearmost supportive of their state governments; respondents fromthe United States appear more "balanced" in their support ofthe various orders of government. Also, far greater regionaldifferences in opinion exist in Canada than in Mexico or theUnited States. Support for more decentralized federalism isfound to be strong in all these federal countries. This researchalso updates long-term trend data for the United States. Comparedwith respondents from previous years, U.S. respondents in 2003showed a measurable uplick in support for the federal government,compared with state and local governments. This support seemsto be a carryover from the terrorist attacks of 11 September2001.     

Federalism,Physicians, and Public Policy: A Comparison of Health Care Reform in Canada and Brazil

Abstract

This article uses comparative historical analysis to explore physicians’ involvement in health care reform in Canada and Brazil. Drawing on historical institutionalism, the analysis stresses how, beyond partisanship, physicians build consensus around and promote specific policy ideas, and how federal institutions shape physicians’ mobilization. In both countries, physicians’ mobilization shaped the emergence of universal health care coverage, but in quite different ways, because of the differing federal institutions. Although the Brazilian medical lobby was far more heterogeneous than the Canadian profession, one faction was able to mobilize at the local level to pursue policy ideas favorable to universal health coverage.     

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.     

'A Land without a People': an Evaluation of Nations' Efficiency-based Territorial Claims

This paper considers the role of efficiency arguments in grounding territorial rights from a liberal perspective. The view advanced here is pitted against some recent arguments voiced by Margaret Moore opposing the inclusion of any efficiency criterion in our moral reasoning about territorial entitlement. Though I argue against this view, my own conclusion – favouring the adoption of only a moderated version of such principles – is a relatively mild one. It maintains, on the one hand, that the beneficial use of land is morally relevant to determining its rightful owner, but, on the other hand, it also recognizes the limitations of any such principle of utilization. Ultimately, there are good moral reasons for viewing the way in which a given land has been put to use as a relevant component (though admittedly only one) of our account of territorial entitlement.     

Institutional Legitimacy Building in a Context of Transition: The South African Land Claims Court

The success of societal transformation often depends on the legitimacy of the government institutions developed to mediate the transition. This article examines one case of institutional development and legitimacy building, the South African Land Claims Court. Formed in 1996 to help South Africa resolve land-claim concerns that surfaced as the nation transitioned to a postapartheid society, the court demonstrates the challenges of developing an institution in the context of large-scale societal transformation, reconciliation, and governmental legitimacy building. By tracing the evolution of the court and analyzing its first five years of activities, the article presents the challenges and opportunities of legitimacy building for entities working in transitional political and administrative settings.     

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.     

Federalism and suitable housing for the frail elderly: A comparison of policies in Canada and the United States

Abstract

The frail elderly have special multidimensional housing needs beyond affordability, including shelter that is more adaptive to reduced function and offers supportive services. Suitable housing for this population comprises three policy areas—housing, health care, and social services. In a federal system, development and implementation of policies in these areas involves participation of several levels of government and the nongovernmental sector. This paper uses federalism as a conceptual framework to examine and compare these policy areas in Canada and the United States.

In both countries, general national housing policies—relying heavily on the nongovernmental sector and characterized by joint federal‐provincial programs in Canada and by important local government roles and age‐specific programs in the United States‐have benefited the elderly. The effects of such policies on the frail elderly, however, have been less positive because of the general lack of essential human services and, to a lesser degree, health care that enables them to live outside institutions. This is especially true in the United States, where health care policy is fragmented and is dominated by a private insurance system, partial federal financing of health insurance for the elderly, and tense federal‐state relations in financing health care for the poor. Although Canadian policies and programs operate autonomously and more uniformly within a national health plan, neither country has a universal, comprehensive long‐term care system. Geographically diverse patterns of social services, funded by grants to states and provinces and the nonprofit sector, are common to both countries. However, the United States has inadequately funded age‐specific programs and has relied on a growing commercial service provision. Housing outcomes for frail elders are moving in the right direction in both countries; however, Canada seems to be better positioned, largely because of its health care system. As increased decentralization continues to characterize the three policy areas that affect suitable housing for frail elders, the United States can learn from Canada's negotiated federalism approach to more uniform solutions to merging housing and long‐term care.     

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.     

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.     

Recasting Federalism in Mexico

Decentralization of political power and administrative decision-makingduring the last three presidential administrations (1982–2000)has recast federalism in Mexico and sharply altered intergovernmentalrelations between the levels of government and between the principalbranches. Although decentralization cannot be equated conceptuallywith federalism, their relationship is extremely tight in Mexico.The shift toward a more decentralized regime is an outcome offederal government policies and political liberalization. Politicalpluralism and the demise of centralism were further intensifiedby the 1997 midterm elections. The rapidly changing politicalclimate in Mexico has increasingly demanded that the reallocationof power be genuine, that is, that power be shared not onlyvertically, with the various levels of government, but alsohorizontally, with the other branches as well.     

Australian Federalism: A Prospective Assessment

On 1 January 2001, Australia celebrated the centenary of itsfederal Constitution. Throughout its history, the Australianfederal system has proved both resilient and flexible, servingthe Commonwealth through the trials of depression, total war,imperial decline, and economic reconstruction. The constitutionalsystem has been developed through interpretation by the HighCourt and popular input via referendums, as well as by the ongoingprocess of intergovernmental relations. There has been an overallexpansion of Commonwealth powers with the politics of nation-building,but the states remain significantly powerful although financiallydependent on the Commonwealth. Given the institutional and popularsuccess of Australian federalism, the challenges facing theCommonwealth in the new century are not expected to be domesticor constitutional, but strategic and economic: principally,how a smallish middle power should meet the difficulties ofglobalization and security from a position of relative isolationadjacent to Asia in the southern Pacific.