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Constitutional Law and Regionalism

A Comparative Analysis of Regionalist Negotiations

Vito Breda

This topical book analyses the practice of negotiating constitutional demands by regional and dispersed national minorities in eight multinational systems. It considers the practices of cooperation and litigation between minority groups and central institutions in Australia, Britain, Canada, New Zealand, Italy, Spain, and the U.S. and includes an evaluation of the implications of the recent Catalan, Puerto Rican and Scottish referenda. Ultimately, the author shows that a flexible constitution combined with a versatile constitutional jurisprudence tends to foster institutional cooperation and the recognition of the pluralistic nature of modern states
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Introduction

Vito Breda

During the past three decades, regionalist political parties and minority groups in Australia, the UK, Canada, Italy, New Zealand, Spain and the US have revived claims of ethnic ownership of local, regional and state institutions. Depending on the type of relationship between regional and central states, the constitutional effects of such ethnic revival have been antagonism or participation. For instance, Spanish nationalists and regionalist parties had an uneasy relationship. There is, at the time of writing this introduction, still great tension between Spanish and Catalonian institutions. Whether such tension is part of a cycle of simulated identity politics or a real constitutional crisis will be discussed at length in the Spanish chapter.

However, in the great majority of instances, regionalists seek to negotiate with the central governments. This process is often a manifestation of the distinctive perception of what is acceptable in a constitutional system. For instance, the overarching principles of formal equality, as they have been constructed by the US Supreme Court, limit negotiations over the recognition of identity claims within US states and territories. The narrow construction of the principle of equality is shared, albeit with different implications, in Australia and Canada. In these legal systems that have a rigid amendment process, courts have taken the role of updating their constitutional systems in a way that reflects their multinational nature.

A review of the literature on Australian, Canadian and American constitutional law, reproduced in the respective chapters, reveals a genuine concern. Identity-based constitutional demands might endanger the commonwealth and individual rights. This concern has almost ironic effects in Australia, where negative racial discrimination is protected by federal heads of power, and yet equality and protection of rights narratives are used to prevent the constitutional recognition of minority rights.

This book compares the stability of the legal systems that adopt rigid constitutions with those that foster a dynamic interaction between regional minorities and central institutions. New Zealand, the UK and Italy went through a progressive reform of their decentralization policies that led to an increase in regional legislative competences. New Zealand’s Tokelau, several of the Italian regions and Scotland have obtained, in a relatively short period of time, both fiscal autonomy (known as fiscal federalism) and quasi-federal legislative competences. In reviewing the Scottish devolution, Robert Hazell noted that, in Europe, only the Swiss Confederation allocated more political power to its regions.

Although some of these processes have been analysed, the book intends to cover a gap within political and constitutional literature that I believe has prevented a comparative understanding of the constitutional effects of regionalist movements in Australia, the UK, Canada, Italy, New Zealand, Spain and the US. Sub-nationalism is perceived as a niche area. Analyses tend to focus on empirical factors (e.g. What are the voting behaviours of Welsh speakers? Where does the support for party X come from? Are you more French Quebecois or Canadian?). However, these analyses acknowledge the constitutional implications of regionalism rather than explaining the role of regionalist parties in amending the constitution or changing the interpretation via constitutional review.

There is a strong body of evidence indicating that constitutional analyses might produce a richer understanding by integrating legal and political methods of investigation. For example, the University College London Constitution Unit, directed with acuity by Robert Hazell, adopted a political studies methodology to deliver a series of ground-breaking publications: ‘Constitutional Futures: A History of the Next Ten Years’ (1999) and ‘Constitutional Futures Revisited: Britain’s Constitution to 2020’ (2008). Constitutions and their systems of territorial governance are changing under the pressure of identity groups. Sub-nationalism and minority groups are what Hazell calls ‘drivers of change’. The political activities of regionalist parties and minority groups seldom look for rupture (e.g. secession) and even when they do, it is part of simulated politics in which bombastic claims are used to obtain better terms in the negotiation that unavoidably follows. Yet these negotiations do not occur in a vacuum. They happen within a distinctive constitutional structure that, in different forms, ensures the democratic coherence of the agreements that emerge from the negotiation processes. A selection of the elements (e.g. constitutional jurisprudence) that helped develop or that trammelled those negotiation processes is discussed in this book. Constitutional Law and Regionalism is therefore not a comprehensive comparative constitutional analysis.

The book is divided into eight chapters. The first chapter explains why and when an identity-based constitutional claim should be inserted into a democratic constitutional system. The chapter explains that sub-state national identities, from the Maori to the Basque and from Native Hawaiians to the Scottish, should be considered as an element of modern constitutional democracy. I argue that a constitution is the manifestation of a distinctive identity and that any attempt to explain it as a culturally neutral endeavour is contrafactual. The idea of ‘neutered’ public bureaucracy, that Hegel saw as the ‘universal class’ in the Philosophy of Right, is a projection of a self-directed and imagined national community. The characterization of the state as neutral is potentially undemocratic because it allows the majority group that has already selected the cultural features of a democracy, such as its language and its established church, to exclude political claims because they are not culturally neutral.

Chapters 2–4 evaluate the past two decades of British, Spanish and Italian decentralization policies. European nation states are under pressure externally from the expanding role of international organizations, such as the European Union, and internally by regionalism. Central institutions in Italy, Spain and the UK have different constitutional traditions and have chosen different strategies to grapple with the new regionalism. Italy’s federal reform has been driven by its amoral political system, called ‘neo-patrimonial’ by Fukuyama. Spain continues to experience an extensive constitutional litigation and political tensions. Hundreds of central and regional statutes have to go through the review of the Constitutional Court. However, there are strong indications that such high levels of constitutional litigation, and the political tension related to it, are partly due to the political commodification of nationalist narratives by both regional and unionist political parties.

Chapters 5–8 review Canada, the US, New Zealand and Australia’s constitutional systems, respectively. New Zealand has adopted its own variation of the Westminster Model so it has a relatively flexible constitution. Maoris and Pacific Islanders have well-supported constitutional claims (e.g. the Treaty of Waitangi) that have progressively re-shaped the economic and territorial structure of New Zealand. Canada, the US and Australia all have rigid constitutions. These, like New Zealand, are large, multicultural and mostly unbidden immigration nations that endorse civic nationalism and their distinctive, substantive constitutional patriotism. A democratic constitution should be, amongst other things, a historical manifestation of a covenant between individuals who might otherwise have nothing in common. This assumption is unproblematic insofar as it is not engaged by identity groups that pre-existed that model of political association. The chapters on Canada, New Zealand, the US and Australia discuss the effects that identity-based constitutional claims by national minorities, such as Native Hawaiians, Puerto Ricans, Quebecois and Aboriginals, have on these constitutional systems.