THE THEORY AND PRACTICE OF CONTESTATORY FEDERALISM.

• Author: Gardner, James A.

TABLE OF CONTENTS INTRODUCTION 511 I. THE THEORY OF CONTESTATORY FEDERALISM 516 A. The Madisonian Theory of Perpetual Contestation 518 B. The Problem of Methods of Contestation 519 C. The Problem of Constitutional Stabilization 523 II. AN INVENTORY OF METHODS OF SUBNATIONAL CONTESTATION 527 A. More Defiant or Uncooperative 531 1. Secession 531 2. Violent Resistance 533 3. Defiance 534 a. Strong Defiance 535 b. Weak Defiance 536 4. Invocation of Third-Party Coercive Processes 538 5. Withholding Cooperation Needed or Requested by the National Government 540 B. More Neutral and Independent 541 1. Individual Exercise of Autonomous Power 541 2. Subnational Cooperation and Harmonization 542 3. Reverse Preemption 543 4. Power Entrepreneurialism 545 C. More Cooperative and Integrated 546 1. Negotiation and Bargaining 546 a. Demands for More Power or Autonomy 547 b. Political Extortion 549 c. The Partnership Model 551 2. Influence in National Domestic Policy Making Processes 555 a. Direct Subnational Participation in National Lawmaking 556 6. Indirect or Informal Influence in National Legislatures 557 i. Through a Second Chamber 557 ii. Formal Lobbying 559 iii. Influence Through Political Parties 560 iv. Mobilization of Popular Opinion 562 c. Influence on Legislative Outcomes Through the Executive Branch 563 d. Influence on National Administration 564 3. Participation in Foreign Policy 565 D. Summary 566 III. CONTESTATION AND THE PROBLEM OF CONSTITUTIONAL SELF-STABILIZATION 567 A. Subnational Tactics and the Processes of Constitutional Innovation 569 1. Influence by Constitutional Design 570 2. Influence by Extraconstitutional Innovation 573 3. Influence by Innovative Exploitation of Constitutional Uncertainty 575 B. Contestatory Federalism and the Problem of Constitutional Wandering 581 1. Expansion of the Time Horizon 582 2. Judicial Review as a Stabilizing Device 585 CONCLUSION 587 INTRODUCTION

In one of the most consequential phrases ever uttered in the field of constitutional law, James Madison declared: "[a]mbition must be made to counteract ambition." (1) With this phrase--an adage that gave birth to the modern field of constitutional design (2)--Madison hypothesized that the inexorable pressure of human weakness would eventually preclude most government officials from complying with constitutionally prescribed limitations on their own power. From this premise, Madison went on to conclude that the only reliable way to stabilize constitutional divisions of authority over the long term was to structure power in a way that pits officials against one another. (3) Thus, he predicted, a careful allocation of powers to different officials, holding different positions and portfolios and answerable to different constituencies, could, if well executed, maintain a constitution in equilibrium at its design parameters through a well-crafted balance of perpetually opposed forces (4)--a system of so-called "checks and balances." (5) Madison prescribed this solution in two dimensions: horizontally in the form of separation of powers, and vertically in the form of federalism. (6) I focus here on the latter, and the question I wish to take up is this: Was Madison correct? Can the countering of ambition by ambition stabilize the constitutional division of authority between national and subnational governments?

Like all attractive theories, Madison's theory of contestatory federalism is neat and tidy, with a happy ending. At the time he conceived it, however, it was almost entirely speculative; a federation structured in this way had never previously existed, (7) and Madison's account was based more on deduction from plausible first premises than on observation or experience. Today, more than two centuries later, a large majority of the world's free population lives in federal states. (8) Although the precise structures of these federations differ, they are clearly recognizable from Madison's account; indeed, in some contemporary accounts, U.S. federalism provides the template against which all other federal systems may be evaluated. (9) In light of this extensive experience, it is appropriate to inquire into the accuracy of Madison's speculative analysis. In this paper, I do so by asking three questions. First, was Madison correct that contestation between national and subnational governments occurs in federal states? Second, if he was, by what means and methods does such contestation occur? Third, does such contestation in fact, as Madison predicted, stabilize the constitutionally prescribed allocation of power between the national and subnational levels?

These questions have received surprisingly little systematic attention. A few studies examine methods of intergovernmental conflict in single states, or at most in two states, (10) but no study does so on a broadly comparative basis. Moreover, the single-country studies generally confine themselves to descriptive accounts of methods of intergovernmental relations, rarely relating the use of those methods to the heart of Madison's theoretical project--the question of constitutional self-stabilization. (11)

The present study fills that gap. Based on more than fifty interviews with scholars and government officials in nine federal or quasi-federal (12) states--Argentina, Austria, Belgium, Canada, Germany, Italy, Spain, Switzerland, and the United States (13)--as well as extensive research in primary and secondary source materials from each state, this Article examines the tools, methods, and mechanisms that subnational units actually deploy to influence national political agendas, shape national policy making, and resist or undermine unwanted exercises of national power. (14) The Article then goes on to examine whether the dynamic thus created succeeds in stabilizing the allocation of power between the national and subnational levels at the design parameters contemplated by the federal constitution.

The Article proceeds in three parts. Part I sets out the Madisonian theory of contestatory federalism. It describes Madison's account of how liberty may be preserved by dividing governmental authority among different power centers, highlights Madison's lack of attention to how his theory of mutual checking and contestation might be operationalized in practice, and probes some of the potential weaknesses in Madison's conception of constitutional self-stabilization.

Part II reports the results of my field research by providing a thorough inventory, along with illustrative examples, of methods of subnational contestation actually used in the federal states under study. This compilation produces two notable findings. First, it confirms Madison's prediction that checking and contestation will occur in federal states. In fact, the study shows not only that subnational units in all nine federal states push back against national power from time to time, but that in some states they do so regularly and with considerable effectiveness. Second, it demonstrates that subnational units in the federal states studied here have from time to time resorted with great creativity to an enormous variety of methods to attempt to shape, influence, or thwart national policies. These tools of influence range from openly defiant methods, such as threatening secession or refusing to obey national laws or orders of national courts; to surreptitious undermining of national policies through uncooperative implementation of national law; to coordinated subnational occupation of policy space left vacant by national governments; to politically oriented mobilization of popular opinion; to more cooperative and routinized methods such as lobbying, negotiation, and ministerial consultation. Intergovernmental contestation not only occurs, but is occasionally waged with great vigor and creativity.

Part III takes up the question of constitutional stabilization by analyzing the extent to which the tools of contestation identified in Part II are among those affirmatively provided, or at least contemplated, by the constitutions of the federations in which the tools are used. Although constitutions authorize many of the tools that subnational units deploy, the evidence shows that several widely used tools are clearly unauthorized, and many others press so hard against the boundaries of what might be constitutionally contemplated as to raise significant doubts about their constitutionality. These findings suggest that Madison may have seriously underestimated the strength of the incentives facing government officials, who seem willing not only to innovate within the bounds of constitutional authority to get their way, but also to go outside those bounds when the tools of contestation offered by the constitutional plan do not provide the desired degree of efficacy.

All this raises the intriguing possibility that Madison's theory of contestatory federalism may be far more potent than he anticipated. Madison argued that a contestatory system of federally divided power would stabilize the constitutional allocation of authority through a process of dynamic self-equilibration. (15) That may occur. On the other hand, it appears that on some occasions government officials wish so strongly to prevail in their struggles against one another that they seek advantage wherever they can find it, including by resort to extraconstitutional methods. In these situations, the constitutionally induced struggle that Madison believed would stabilize the constitutional allocation of power may actually destabilize it, as government officials attempt through informal or surreptitious means to alter or bend the constitution to achieve their own goals. (16) This phenomenon in turn raises important questions about the binding effect of constitutions on official behavior and the capacity of constitutions to stabilize themselves at their initial design specifications, or indeed at any particular point of constitutional evolution. (17)

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