Challenges of Multi-Level Constitutionalism

Forthcoming, E Fisher, J King and A Young (eds), The Foundations and Future of Public Law, Oxford University Press

U of Melbourne Legal Studies Research Paper No. 823

30 Pages Posted: 3 Jul 2019

See all articles by Cheryl Saunders

Cheryl Saunders

University of Melbourne - Law School

Date Written: July 3, 2019

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

Suggested Citation

Saunders, Cheryl Anne, Challenges of Multi-Level Constitutionalism (July 3, 2019). Forthcoming, E Fisher, J King and A Young (eds), The Foundations and Future of Public Law, Oxford University Press, U of Melbourne Legal Studies Research Paper No. 823, Available at SSRN: https://ssrn.com/abstract=3414067

Cheryl Anne Saunders (Contact Author)

University of Melbourne - Law School ( email )

Centre for Comparative Constitutional Studies 723 Swanston Street (2nd Floor)
Parkville, Victoria 3010
Australia
61 3 8344 0753 (Phone)
61 3 8344 9374 (Fax)

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