Challenges of Multi-Level Constitutionalism

Abstract

The focus of this paper is multi-level government within the state, defined to include a range of forms of significantly devolved government, of which federation is one. The argument was sparked by the apparent paradox that, while multi-level government is now widely regarded as a desirable feature of a system of government, for many good reasons that include its potential to deepen democracy, multi-level systems tend to become increasingly centralised over time, detracting from the advantages they offer. The paper suggests that a partial explanation lies in prevailing conceptions of constitutionalism, almost all of which were developed by reference to the assumptions of a unitary state. It argues instead for a concept of constitutionalism adapted to the objectives and circumstances of multi-level government, in a compound form that might be described as multi-level constitutionalism. Multi-level constitutionalism would not dictate the degree of devolution, but it would support its adoption and operation once in place. Implementation of multi-level constitutionalism in turn demands cultural change on the part of the principal actors, to give it practical effect. The paper explores what this might require of political elites in pursuing intergovernmental arrangements and of courts, interpreting and applying the governing constitution. It concludes with still-tentative suggestions about the extent to which a suitably modified version of multi-level constitutionalism could apply above the level of the state, to regional and international arrangements.

Keywords: constitutionalism,multi-level government, multi-level constitutionalism

JEL Classification: K00, K39