The Federal Contract: A Constitutional Theory of Federalism PDF
Preview The Federal Contract: A Constitutional Theory of Federalism
The Federal Contract The Federal Contract A Constitutional Theory of Federalism STEPHEN TIERNEY 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Stephen Tierney 2022 The moral rights of the author have been asserted First Edition published in 2022 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Public sector information reproduced under Open Government Licence v3.0 (http:// www.nationalarchives.gov.uk/ doc/ open- government- licence/ open- government- licence.htm) Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2021950735 ISBN 978– 0– 19– 880674– 5 DOI: 10.1093/ oso/ 9780198806745.001.0001 Printed and bound in the UK by Clays Ltd, Elcograf S.p.A. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. To Liam, Daniel, and James Preface Federalism is a very familiar form of government. It characterises the first modern constitution— that of the United States—a nd has been deployed by constitution- makers to manage large and internally diverse polities at various key stages in the history of the modern state: nineteenth- and twentieth- centuries nation- building and decolonisation; post- war reconstruction; post- 1989 constitutional realignment; and, most recently, an ongoing period of fluid and troubling conflicts grounded in the politics of identity. Despite its pervasiveness in practice, this book argues that federalism has been strangely neglected by constitutional theory. It has tended either to be subsumed within one default account of modern constitution- alism, or it has been treated as an exotic outlier—a sui generis model of the state rather than a form of constitutionalism for the state. This neglect is both unsatis- factory in conceptual terms and problematic for constitutional practitioners, ob- scuring as it does the core meaning, purpose, and applicability of federalism as a discrete model of constitutionalism with which to manage complex states. The federal turn in modern constitutional theory—w hat I call the federal con- tract— represents nothing less than an alternative form of social contract: a distinct register of constitutional government, adapting public law to the management of territorial pluralism. Territorial pluralism has always been, and continues to be, a challenging but unavoidable backdrop to the design of many polities, and yet its political significance has largely been ignored in pursuit of a uniform approach to state- making and constitution- building. Federalism offers a radical alternative to unitary constitutionalism; but so unsettling are its potential implications for the monistic elision of people, state, and constitution (a relationship that has charac- terised modern constitutionalism), that its true meaning as a categorically distinct type of democratic government has been blurred. The federal contract offers an alternative account of many of the most funda- mental concepts with which constitutionalists and political actors have trad- itionally operated: constituent power, the nature of sovereignty, subjecthood and citizenship, the relationship between institutions and constitutional authority, and ultimately the legitimacy link between constitutionalism and democracy. This book contends that each of these categories requires to be recalibrated through the calculus of federal constitutionalism in order to draw out its distinctive meaning and mode of application specific to a federal constitutional setting. This is a matter of practical as well as conceptual importance. Constitution- makers in some of the most unsettled regions of the world turn to federalism today as a possible solution to the territorial difficulties with which they are confronted. viii Preface In doing so they find an idea of government that has been constricted by insti- tutional assumptions stemming from eighteenth- and nineteenth- centuries con- stitutional practice, when what they need is a pliable and practical schema for government that can be tailored to their own circumstances. Only through a fun- damental reassessment of the core constitutional purpose of federalism can its cap- aciousness and flexibility as a consistent and rational genus of authority be fully appreciated. In rethinking the idea and practice of federalism, this book adopts a root and branch reappraisal of the federal contract. It does so by analysing federalism through the conceptual categories which characterise the nature of modern con- stitutionalism: Foundations, Authority, Subjecthood, Purpose, Design, and Dynamics. This approach seeks to explain and in so doing revitalise federalism as a commodious and adaptable concept of rule that can be deployed imaginatively to facilitate the deep territorial variety and complexity of the contemporary state in the twenty- first century. Acknowledgements This book is the culmination of reflections over a number of years on the relation- ship between territory and authority. I have developed these ideas through many academic papers and am very grateful for the helpful comments of attendees at events in Oxford, the London School of Economics, University College London, the European University Institute, the University of Quebec at Montreal, Leuven, Ghent, Ottawa, Texas, Oslo, Seoul National University, Toronto, the University of Montreal, Notre Dame, and Yale. I have also benefited from events organised by the Edinburgh Centre of Constitutional Law, including the annual symposium we run with International IDEA on constitution- building in situations of territorial complexity. I am indebted to Pau Bossacoma Busquets, Gary Jacobsohn, Geneviève Nootens, and James Tully for insightful comments on the manuscript. At Oxford University Press I would like to thank Jamie Berezin and Alex Flach who each showed strong support for the project, anonymous reviewers for their encouragement, and the production team led by Iona Jacob for their professionalism. The research assist- ance I received from Noah Brown at Notre Dame and Peter Reid at Edinburgh was also invaluable. Much of the book was written during the trying circumstances of pandemic lockdown and I am deeply grateful for the support and forbearance of my wife Ailsa and my children to whom the book is dedicated. Over many years I have benefited greatly from reading the work of and dis- cussing ideas with so many colleagues that I cannot possibly name them all, but I wish to note the particular influence of Martin Loughlin, Peter Oliver, James Tully, Neil Walker, Michael Keating, Erin Delaney, Jeff King, Mark Elliott, Adam Tomkins, Alison Young, Robert Schütze, David Armitage, Nicholas Aroney, Margaret Moore, Richard Simeon, Richard Albert, and Asanga Welikala. At the start of my academic career I was encouraged to study federalism by Alain Gagnon. I owe Alain a great debt for the kindness and collegiality he showed to a young scholar from another country and another discipline. Alain worked closely with Michael Burgess— a wonderful man whose humanity and generosity are very much missed—a nd the diverse networks which they have both established over the years are emblematic of the federal spirit at its best. I am also appreciative of the students I have taught and from whom I have learned. I introduced a new course on comparative federalism at Notre Dame in 2020 which was a very valuable testing ground for my ideas. Over the years my students at Edinburgh have also offered challenging and exciting insights on fed- eralism and constitutionalism, constantly reminding me with their passion and
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