Protecting Territorial Minorities: Defensive Federalism
In this post Marc Sanjaume-Calvet (Universitat Pompeu Fabra), discusses the role of federalism as a way of protecting from the tyranny of the majority, safeguarding both against the ills of centralised power and territorial self-government. The reflections in this post stems from his recently published book, coedited with Professor Ferran Requejo (UPF), Defensive Federalism Protecting Territorial Minorities from the “Tyranny of the Majority” (2023, Routledge).
Defensive federalism to the rescue
In the era of democratic backsliding and globalization the federal tradition of thinking remains mostly untouched. Both in its European and Anglo-American inceptions federalism was intended to be a remedy against tyranny. Nonetheless, in its practical and theoretical evolution during the nineteenth and the twentieth centuries, federalism somehow forgot about its fundamental roots. For example, in the American federalist tradition, the Jeffersonian arguments in favour of the federated states vis-à-vis the “political union”, were gradually replaced by far more centralised understandings of the federation. After 1945, centralisation trends have been evident in both uninational and plurinational federations with barely any exception. The concept of defensive federalism, proposed by the editors of this book, aims to provide a renewed analytical tool to the protection of territorial minorities from the tyranny of the majorities in its two dimensions, liberal-democratic and territorial. That is, federalism operates as a safeguard against both centralised power and territorial self-government.
Defensive federalism in practice
The book tackles the notion of defensive federalism mainly from a comparative institutional perspective. Are the classical federal institutional designs being undermined – or even disappearing – due to the centralising evolution of most federal democracies and the globalisation processes in the 21st century? Is federalism, in practice, a just and workable model for plurinational polities? These questions overfly the contributions of the authors in the volume. They analyse the main federal institutions: consociational executives, exclusive powers, self-rule and shared-rule, constitutional asymmetries, opting-in and opting-out, federal veto powers, constitutional judges and the peculiar design of the European Union.
In this variety of institutions, the contributors are asked to answer a crucial question related to defensive federalism: are the institutional and procedural rules truly effective against the “territorial dimension” of the tyranny of the majority? The set of cases are based on recent developments of several federations and regional countries such as Germany, Italy, Spain Switzerland, United States, among others.
Not very good news for territorial minorities
The comparative analysis developed by the volume allows us to answer another main inquiry: Is federalism a sound institutional system for the constitutional recognition and political accommodation of minority nations in plurinational states? Is federalism really effective protecting and developing the self-rule of national minorities? The short answer is, it depends, but no in general terms.
In most of the cases, a general erosion of self-government is observed. This erosion is hardly avoided by classic institutional settings of federalism designed to distribute power. We do not observe strong defensive capacities, for example, when observing upper chambers or watershed compartments of powers (in classical dual federalism when it has been gradually abandoned for concurrent powers). Moreover, the doctrine of federal constitutional judges tends to foster cooperation over self-rule. In contrast, constitutional and political asymmetries, along with opting-out procedures, offer an effective means to preserve self-rule and address national diversity. However, these procedures are relatively uncommon and mainly applied to specific territorial units. Notable examples include Canada’s approach to Quebec (federal judiciary, asymmetry, opting in/out, and a “federal” right of secession), Scotland (asymmetry, potential agreed secession), Belgium’s decentralization process with a diminishing importance of classical asymmetries, and the fiscal asymmetry of the Basque Country. For instance, Canada’s procedural opting-out rule enhances flexibility in the federal system and better accommodation national diversity, although it has faced criticism (akin to the West Lothian question), and some uses have been revoked by federal institutions.
Self-rule through shared-rule? A paradox
A defensive approach faces an important paradox. The analysis of federal institutions, including the peculiar case of the EU, shows that protecting self-government from the tyranny of the majority is a difficult endeavour. A more effective way to protect power, and self-rule, is ensuring access to defensive procedures of shared-rule. That is, through a veto power (or an opting-out option) a territorial self-governed unit can effectively avoid negative impacts on its governmental capacity. However, we also observe that self-ruled units are generally less interested in taking part of federal governance and some of the measures that must protect self-government (asymmetries) are generally granted to specific peculiar units in plurinational contexts (for example, the Basque Country regarding fiscal issues).
The need of defensive federalism
There are good reasons to adopt a defensive federalism approach. The virtue of defensive federalism is its versatile characterisation both as a concept, that of protecting self-government from the tyranny of the majority, and as an analytical tool. In a nutshell, old analytical glasses often blur what we aim to highlight: federalism was and should be about power. How territorial self-ruled units, specially minority nations but not only them, secure and protect their power? A realist approach to this question should be the one guiding the helm when navigating the murky waters of federal politics.
