The Theory and Practice of Contestatory Federalism

83 Pages Posted: 12 Nov 2017 Last revised: 7 Feb 2019

Date Written: March 29, 2018

Abstract

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed on the ground to influence or to thwart national policy making used by subnational units in nine federal or quasi-federal states: Argentina, Austria, Belgium, Canada, Germany, Italy, Spain, Switzerland, and the United States.

The study produces two notable findings. First, the evidence confirms Madison’s prediction that subnational units in federal states will from time to time assert themselves against national power – ambition does appear to counteract, or at least to be deployed against, ambition. Second, the data show strikingly that subnational units in federal states have energetically developed a great variety of methods to attempt to shape, influence, or thwart national policies. Indeed, the evidence demonstrates that subnational units have not confined themselves to the use of tools of influence provided by their constitutions, but have in many cases creatively developed new tools of influence outside of the formal constitutional scheme. This phenomenon raises the possibility that Madison’s institutional prescription for constitutional stabilization may have the perverse effect of creating the conditions for constitutional destabilization instead. This conclusion in turn throws doubt on the Madisonian premise that constitutions can, through careful engineering, be made to stabilize themselves at their initial design specifications.

Keywords: Federalism, Constitutional Design, Contestation, Madison

Suggested Citation

Gardner, James A., The Theory and Practice of Contestatory Federalism (March 29, 2018). 60 William & Mary Law Review 507 (2018); University at Buffalo School of Law Legal Studies Research Paper No. 2017-010. Available at SSRN: https://ssrn.com/abstract=3068259 or http://dx.doi.org/10.2139/ssrn.3068259

James A. Gardner (Contact Author)

University at Buffalo Law School ( email )

Room 514, O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-3607 (Phone)
716-645-2064 (Fax)

HOME PAGE: http://www.law.buffalo.edu

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