Dynamics: Changing Federal Constitutions

Abstract

AbstractThis chapter addresses how the constitutional purpose of federalism, and the principles which flow from it, shape the dynamics of federal constitutionalism in theory and in practice. In defining the purpose and principles of federalism in earlier chapters a key conclusion was that a federal constitution is a complex matrix of authority which must constantly manage the tension between pluralism and union. To this end the mechanics of constitutional change should offer an appropriate safety valve, relieving pressure in the system and adjusting the direction of the constitution, towards either greater territorial pluralism or stronger union, as the interplay between the polity’s underlying political conditions and the temper of its internal societies shifts. The chapter considers entrenchment and its suitability to a federal constitution. Is the balance between pluralism and union better maintained through constitutional provisions that embed foundational institutional arrangements, or by a more fluid constitutional arrangement that facilitates political openness, allowing stresses within the system to be eased through flexible pathways to change? To this end the chapter considers the different ways in which federal constitutions in practice manage formal constitutional change and addresses both the institutional architecture of constitutional amendment and the ways in which different entrenchment rules can apply to different constitutional provisions within federal systems. The chapter also addresses how change is managed or developed by the courts. Judicial interpretation within federal systems, as within unitary constitutions, has proven to be crucial to the evolution of constitutional meaning, in some cases serving to transform fundamentally the very character and identity of the federal contract.