Constitutional Arrangements of Federal Systems

Constitutions alone do not make or break federations. In anyevent, they are not static, and evolve over time through judicialreview and political understandings, even in the absence ofconstitutional change. Nevertheless, institutions, principles,and procedures for which constitutions provide are significantinfluences on federations. This article examines some key featuresof federal constitutional arrangements in different federalsystems: the status of the constituent instrument; the divisionof powers between the orders of government; the scope of economicunion; regional disparity; and the relationship of federalismto the rest of the system of government. Today, there is a wideand widening variety of federal structures in systems aroundthe world. Borrowing is tempting, but should be done with care;federalist elements are closely linked with other aspects ofa system of government and with the historical, political, andeconomic setting in which it has been developed.     

The West German Federal Constitutional Court as Guardian of the Federal System

The West German Federal Constitutional Court has generally actedas a guardian of the German federal system. The Court has preventedattempts by the federation to encroach upon the modest autonomyleft to the Länder. If a national solution for a problemseems indispensable, the Court favors techniques that compensatethe Länder for a loss of autonomy by granting them certainparticipation rights. Guided by that principle, the Court'sconstruction of the Basic Law has increased considerably thenumber of federal statutes that require the approval of theBunesrat. Thus the Court emphasizes today the idea of partnership.However, in a 1986 decision, the Court made clear that a certainamount of federal leadership is needed to keep the system running.In this decision, the Court reminded the federation expresslyof its responsibility for the whole.     

The German Federal Constitutional Court and European Judicial Politics

With its decision on the ratification of the Lisbon Treaty, the German Federal Constitutional Court (FCC) has handed over another landmark ruling on European integration. The ruling made Germany's ratification of the Treaty conditional upon the passage of a new law giving the Bundestag greater oversight of European affairs. This and the consequences of stronger parliamentary oversight for the German government and the way it conducts negotiations at European level have been the focus of most early comments on the decision. No less important, however, are the ruling's potential repercussions on European judicial politics. Coming after a series of highly controversial judgments by the European Court of Justice, the FCC's Lisbon decision is clearly meant as a warning to Brussels and, above all, Luxembourg. The decision could undermine the Court of Justice's authority and encourage non-compliance on the part of national courts, thus bringing about a constitutional crisis at European level. Alternatively, the decision may compel the Court of Justice to reconsider some of the most controversial aspects of its activist jurisprudence and to exert more restraint in the foreseeable future.     

Federal Systems in the Global Economy: Research Issues

The emerging global economy has altered makeup of federal systemsand set the stage for new international institutions. This articleidentifies key research issues that bear upon the connectionbetween federalism and globalism. Five specific research questions are considered. The first concernsthe impact of global economic change on the sovereignty of nationaland subnalional governments. Second, the effect of the globaleconomy on intergovernmental relations is considered. Next,the question of placement of economic policy responsibilitiesin a federal system is posed. Finally, the article asks whetherfederalism eases adaptation to the global economy and protectsdemocratic values.     

Costing Constitutional Change: Estimating the Cost of Five Variations on Australia's Federal System

Australia's system of government is by far the most centralised of the four 'classic' federations, hosting extremely centralised states, exceptionally weak local governments, and little of the substantive decentralisation and subsidiarity often presumed to derive from a federal structure. Five variations on the present structure are examined to estimate the costs of improved decentralisation, including New States models as traditionally advocated, Regional States models based on the ACT combined state–local prototype, and a National–Local model comprising a strengthened national government and local governments in essentially their present form. 1 Results indicate that the Regional States or National–Local models could deliver greater decentralisation while saving over $20 billion per annum compared to the present system. Generally, the analysis suggests that coherent modelling of alternative government structures may be more feasible than previously thought.     

State Sovereignty in the Federal System: Constitutional Protections Under the Tenth and Eleventh Amendments

The U.S. Supreme Court has held that state sovereignty is protectedby principles of common law rather than explicit constitutionalguarantees under the Tenth and Eleventh Amendments. The Courthas also cautioned that congressional actions, even under delegatedpowers, may not threaten the integrity of states as sovereignentities in the federal system. The National League of Citiesdecision in 1976 appeared to reverse this doctrine by implyingthe existence of Tenth Amendment protections of state actionsin traditional functional areas. However, the federal courtsdiscounted the NLC ruling as a compelling precedent in subsequentfederalism cases because of its vagueness and its fundamentalinconsistency with established doctrine. In 1985, the SupremeCourt overturned the ruling in Garcia v. San Antonio, reaffirmingthe common law nature of state sovereignty and arguing thatconstitutional protection of state interests lies primarilyin the representative structure of the federal system ratherthan in specific constitutional guarantees.     

Budgetary Consequences of Selling Federal Power Assets

This article reports on an analysis of the long-term budgetary effects of selling federal power programs at market value. The analysis looks at changes in future budgetary receipts and costs for power operations and at changes in future federal taxes as a result of new ownership. Under current rate-setting policy, federal agencies must generate a future operating surplus (and hence, budgetary income) worth about $46 billion in today's dollars to repay past capital investments. With optimistic assumptions about rising power rates, market values for all federal power assets (including the power-generation assets of the Bureau of Reclamation and the Corps of Engineers) could be as high as $62 billion. In that case, their sale would produce long-term budgetary savings of about $16 billion, in today's dollars. The analysis also notes that budgetary savings are not a measure of the gains in economic efficiency from privatization. Such considerations as efficiency or fairness to particular groups will be important in any debate about the future of federal power programs.     

Defining Executive Power: Constitutional Reform for Grown-ups

Australia is well endowed with constitutions. It has seven, one for the commonwealth and each of the six states, and nine if the documents establishing self-government for the Australian Capital Territory and the Northern Territory are included. This gives plenty of scope for constitutional reform: that is, changing the most important rules which specify how a political community is governed. In the event, public debate over constitutional reform in Australia has been sporadic and concentrated on a narrow range of issues. Perhaps this is as it should be. Constitutions should reflect broad public acceptance of the basic rules governing the operation of government, and if the system is running smoothly, there is little reason for change. Only when events occur that demonstrate that there are shortcomings in the structure of government should constitutional reform be considered.     

Federal Judicial Remedial Power: The Yonkers Case

The United States District Court in 1985 determined that Yonkers,New York intentionally segregated public housing and publicschools by locating nearly all of its public and subsidizedhousing in one section of the city. Although the city initiatedactions to promote school integration in compliance with a courtorder, the city council refused to implement the housing remedyorder. Failure of the council to implement a consent order in1988 led to the U.S. District Court holding the city and fourcouncil members in contempt of court and imposing fines. Thedesegregation decision was upheld by the U.S. Circuit Courtof Appeals and by the U.S. Supreme Court. The court of appealsupheld the contempt rulings against the city and the four councilmembers, and the Supreme Court granted the council members'petition for issuance of a writ of certiorari. The council membersraised procedural objections, charged the district court withabuse of discretion, maintained that the remedial ordinancecould not be adopted by the specified date without violatingthe state's notice and hearing requirements, and claimed legislativeimmunity and protection under the First Amendment. The SupremeCourt in 1990 held that the district court's contempt sanctionswere "an abuse of discretion" and that the district court shouldhave limited its contempt sanctions to the city of Yonkers andnot to the councilmen. The Court did not address the questionof whether local legislators possess legislative immunity.     

Challenges to Authority that are Significant, But Fall Short of Being Federal or Constitutional

Dan Elazar was overly generous with respect to claims of constitutionalism,republicanism, and federalism in the Hebrew Bible, and too freewith the term "federalism" for post-biblical Jewish polities.Yet numerous politically relevant episodes in the Bible indicatethat the regimes of ancient Israel were something other thanpurely authoritarian, and modem Israel, though highly centralizedin its formal arrangements, tolerates substantial give and takein the operations of national and local authorities.     

The Political Economy of India's Fiscal Federal System and its Reform

This article examines recent and potential reforms in India'sfiscal federal system. We summarize key federal institutionsin India, including tax and expenditure assignments, and mechanismsfor Center–state transfers. We discuss the institutionalprocess by which reforms can and do take place, including therole of academics, political influences, and especially institutionssuch as the Finance Commission. In contrast to the past, recentcommissions have played a greater role in articulating an agendafor fiscal federal reform, which then proceeds through politicalbargaining. This change has taken place in the context of, andbeen influenced by, broader economic reform in India.     

Changing Public Attitudes on Power and Taxation in the American Federal System

The research reported here updates for 2001 some public opiniondata previously provided by the U. S. Advisory Commission onIntergovernmental Relations. The 2001 survey results indicatea general continuation of earlier opinion trends. The federalgovernment is viewed as providing citizens the least for theirmoney; the federal income lax, followed by the local properlytax, is seen as the worst lax; a majority of the public indicatesthat local governments need more power; the public is most likelyto identify the federal government as having too much power;and the public is least likely to say that the federal governmentneeds more power. For the most part, these attitudes are heldwithout much variation by all categories of respondents; however,region, education, and, to a lesser extent, a few other demographicvariables do distinguish among respondents in a statisticallysignificant manner.     

我国权力监督体系中主体要素的宪法考量

关于我国公共权力监督体系中主体要素的宪法建构问题,既有理论上的分歧,也有实践中的困惑,需要我们从法治理念、宪法规范、宪政实践等多重视角对执政党监督、人民政协监督、人大监督、司法审查、检察监督、公民监督、舆论监督等形态进行全面考量和科学把握,既要符合宪政发展的一般要求,又要体现中国特色,既要正视现实的不足,又要展望未来应然趋势.     

Federal Aid and Afro-American Political Power in Three Mississippi Towns

Since 1967 Afro-Americans have made great strides in electoralpolitics in the rural South. However, comparable progress inacquiring material resources to satisfy escalating demands fromnewly mobilized constituents has not been achieved in many instances.This article examines the experiences of three, rural, Mississippitowns which elected their first Afro-American mayors in the1970s. In responding to the separate demands of representation(direct citizen benefits) and institutionalization (maintenanceof Afro-American leadership), the new mayors made successfuluse of various federal aid programs. While helping the mayorsto improve public services and construct new community facilities,the federal aid did not contribute to the more long-range goalof institutionalization. The continuing problem for such localareas under Afro-American political control is the lack of independentresources.     

Political Economy of Grant Allocations: The Case of Federal Highway Demonstration Grants

This article examines the political economy of U.S. federalhighway demonstration grant allocations. Demonstration grantsare a rapidly growing segment of federal highway grants directlyearmarked for a congressional district by Congress, unlike themajority of highway grants where Congress determines a formulaand allocates funds accordingly to states. Our empirical analysis,considering the period 1983–2003, suggests that a state'sability to attract demonstration project grants is positivelyinfluenced by its contributions to the highway trust fund andpolitical variables, and it is not affected by the formula highwayaid and vehicle miles traveled in a state.     

The Politics of Constitutional Change in a Federal System: Negotiating Section 92A of the Canadian Constitution Act (1982)

This article examines the process of constitutional change surroundingthe enactment of the natural-resource amendment (Section 92A)to the Canadian Constitution Act (1982). It traces the motivationsbehind the adoption of the clause to a combination of long-termexogenous factors originating in the OPEC-inspired price risesof the 1970s, and short-term endogenous factors particular toCanada's political and institutional arrangements, includingunpredictable patterns of judicial arbitration of constitutionalissues. The presence of endogenous and exogenous "shocks" tolong-established constitutional modus vivendi allows some predictionsto be made about the general nature and direction of futureconstitutional change. However, the workings of short-term politicaland institutional variables make it impossible to predict theexact content of the constitutional response to such influences.This finding supports Banting and Simeon's hypothesis that constitutionalchange is political process subject to political forces in societyand that constitutional change, like constitution-making, remainsan art and not a science.