Defensive Federalism: Protecting Territorial Minorities from the “Tyranny of the Majority”

Description

The empirical evidence on federal and regional polities often shows critical imbalances in the territorial division of powers beyond what has been formally established in the constitutional rules. This volume highlights the rights, institutions, decision- making processes and procedural rules that can protect and develop the practical political, economic and cultural powers of federated and regional entities, especially those linked to territorial national minorities. The authors focus on federalism as a safeguard of self- rule, as well as a set of institutional and procedural rules to avoid the territorial dimension of the "tyranny of the majority". They answer two fundamental questions: how is it possible to design new stable and fairer federal agreements between national minorities and majorities where there is no single ideal solution? Is there a need for a new kind of "defensive federal model" for approaching national pluralism in liberal democracies? This book will be of great interest to students and scholars of federalism, national diversity and democracy, as well as policymakers and practitioners in both public and private institutions. Cover Half Title Series Information Title Page Copyright Page Table of Contents Notes On Contributors 1 Defensive Federalism: Tackling the Two Faces of the Territorial Tyranny of the Majority – A Revised Federal ... 1 Introduction: Protection of Self-Government and the Tyranny of the Majority 2 Defensive Federalism: Tackling the Liberal-Democratic Face of the “Tyranny of the Majority” 3 Defensive Federalism: Tackling the Territorial Face of the “Tyranny of the Majority” 3.1 Changes in the World 3.2 Changes in Federal Analysis: Political Theory and Comparative Studies 3.2.1 Two Classical Federal Traditions 3.2.2 Later Analyses (Since the 1990s) 4 Defensive Federalism in a Nutshell 5 Contributions in this Volume Notes References 2 Consociational Executives: Power-Sharing Governments Between Inclusion and Functionality 1 Introduction 2 Inclusion and Functionality: Two Sides of the Same Coin? 3 Variations in Consociational Executive Design 3.1 Executive Formation 3.1.1 Cabinet Entry Rules 3.1.2 Portfolio Allocation Rules 3.1.3 Formateur Rules 3.1.4 Investiture Votes 3.2 Executive Function 3.2.1 Decision-Making Rules in Cabinet 3.2.2 Veto Rights 3.2.3 Autonomy Provisions 4 Conclusion Notes References 3 Exclusive Powers and Self-Governed Entities: A Tool for Defensive Federalism? 1 Introduction 2 Instruments of Power Allocation as a Hub for Changes in Power Relations 2.1 Power Relations and Institutional Hubs for Change 2.2 Shared Powers: Framework Powers 2.3 Shared Powers: Concurrent Powers 2.4 Exclusive Powers 3 Exclusive Powers and Its Side Effects 3.1 Exclusivity as a Principle of Defensive Federalism (?) 3.2 Side Effects of the Exclusivity Principle 3.2.1 Fragmentation 3.2.2 Remedying Legal Constructs 4 Moderating the Centralising Effects of Concurrent Powers 4.1 Involvement of the SNEs in Central Decision-Making 4.2 Involvement of the SNEs in the Adjudication of Federalism Disputes 4.3 The Subsidiarity Principle 5 Conclusion Note 4 The Limits of Self Rule Without Shared Rule 1 Introduction 2 Conceptualising Self Rule and Shared Rule 3 Does Shared Rule Threaten Or Protect Self Rule? 4 Self Rule and Shared Rule in the UK 4.1 Devolution and Self Rule 4.2 Sovereignty and the Sewel Convention 4.3 Shared Rule 4.4 Devolution and Brexit: The Vulnerability of Self Rule Without Shared Rule 5 Conclusion: Does Shared Rule Defend Or Constrain Self-Government? Note References 5 Constitutional Asymmetries as an (In)effective Counterbalancing Tool in Protecting Territorial Self-Government? 1 Introduction 2 Territory and Identity as the (Un)Breakable Bond 3 Constitutional Asymmetry as an Alternative to Maximal Claims 4 Models for the Protection of Asymmetrical Territorial Self-Government 5 Constitutional Asymmetries as a Counterbalancing Tool 6 Why Recurring Symmetrisation Trends Matter? 7 Effectiveness of Constitutional Asymmetries: Identifying Problems 8 Effectiveness of Constitutional Asymmetries: Identifying Safeguards 9 Conclusions Notes References 6 Political Asymmetries: “Opting In and Opting Out” Decision-Making Procedures in Canada 1 Introduction 2 “Opting Out/Opting In” 3 “Defensive Federalism” in Canada 4 Canada as Plurinational 5 “Defensive Federalism” Mechanisms in Canada 5.1 Central Political Institutions 5.2 Federalism 6 Origins of Opting Out/Opting In Procedures in Canada 6.1 Building the Canadian Nation 6.2 The Quiet Revolution: Building the Quebec Nation 6.3 “Opting Out” of Federal Spending Programs 6.4 “Opting Out” of Federal Regulatory Programs 7 Constitutionalising Opting Out 7.1 The Victoria Charter 7.2 Pepin-Robarts Task Force 7.3 Beige Paper of Quebec Liberal Party 8 The Constitution Act, 1982 9 Post-1982 Efforts to Constitutionalise “Opting Out” From Federal Programmes 9.1 The Meech Lake Accord 9.2 The Charlottetown Accord 9.3 Quebeckers: Our Way of Being Canadian 10 “Opting Out/Opting In” Procedures in Intergovernmental Relations 10.1 Distinct Society’s Resolution 11 Assessing the Canadian Experience With “Opting In/Opting Out” Procedures 12 Protecting Self-Government 12.1 The Application of “Opting Out” Procedures May Be Quite Restricted 12.2 “Opting Out” Procedures May Have Conditions That Limit Government Autonomy 12.3 “Opting Out” Procedures May Depend On the Central Government’s Continued Acquiescence 12.4 Central State Officials May Oppose “Opting Out” Procedures 12.5 Inefficiencies 12.6 “Opting Out” May Trigger Greater Public Opposition When Applied to Rights Rather Than Programmes 13 Recognition and Accommodation of Minority Nations 13.1 “Opting Out” and Canadian Plurinationalism 13.2 The Functioning of Central Political Institutions 13.3 Democratic Accountability 13.4 State Nationalism 13.5 Governments That Do Not Represent “Minority Nations” May Seek to Take Advantage of “Opting Out” Procedures Notes Bibliography 7 Agreeing to Disagree: Federal Veto Powers in Switzerland 1 Introduction 2 Federalism and Veto Powers: What We Know So Far 2.1 Federalism, Territorial Vetoes and Minority Protection 2.2 Veto Players, Bargaining Logics and Their Effects 3 Territorial Vetoes in Switzerland 3.1 Overview 3.2 Cantonal Veto Powers: Always, for All, Cooperative 3.3 Defending Territorial Minorities? 3.4 Comparative Assessment 4 Concluding Discussion: Three Theses On Federal Veto Powers Notes References 8 The Role of Constitutional Judges in Protecting Territorial Self-Government 1 Introduction 2 Constitutional Courts and Territorial Self-Government 3 Constitutional Judges Protecting Territorial Self-Government? The Distribution of Powers as Litmus Test 3.1 Exclusive Subnational Powers 3.2 Concurrent Subnational Powers 3.3 Suspension of Subnational Powers 4 Conclusion Notes References 9 The Defensiveness of Nation States: Preventing Majority Domination in the European Union 1 Introduction 2 The EU and Defensive Federalism 3 The Puzzle of Sovereignty in Europe 4 Preventing Majority Domination in the EU Notes References 10 Federal Chiaroscuros: Concluding Remarks Index