Federalism and Constitutional Design

The United States is the classic exemplar of federal democracy, but it had the good fortune to be born with many of the essential components of a fully functioning democracy already in place. Alexis de Tocqueville wrote in 1831 that the “constitution of the United States is an admirable work, nevertheless one may believe that its founders would not have succeeded, had not the previous 150 years given the different States of the Union the taste for, and practice of, provincial governments.” ¹ America’s colonial legislatures—the legal embodiment of opposition to Britain and governors appointed by the monarchy—were readily transformed into governing bodies as well as constituent assemblies. Those assemblies’ experience with drafting state constitutions, in turn, proved invaluable when it came time to draft the national document. More generally, America was born with an endowment of regional electoral systems, regional factions that served as seedbeds for state and national parties, regional courts, regional public bureaucracies, and an electorate familiar with transfers of power by popular vote.

It is often argued that, given these advantages, America’s democratic experiment holds few lessons for countries that are currently in transition from authoritarian to democratic rule, which would do better to emulate other countries with authoritarian legacies such as Spain or Taiwan. This view, however, is mistaken. It may be true that such cases best illustrate general principles of transition from authoritarianism to democracy. But mature democracies such as the United States better illustrate the principles of stable federal relations and the proper design of those democratic institutions that must be outlined in a nation’s constitution during the transition. Countries that have undergone recent transitions successfully may best illustrate “how to get there,” but stable democracies best illustrate what “there” is.

Yet the specific conditions to which Tocqueville refers are neither necessary nor sufficient for the creation of a stable democratic state, federal or otherwise. They are not sufficient because the same circumstances describe Europe today, even though Europe’s political integration remains largely a promise; they described America not only in 1787 but also in 1860, prior to the outbreak of the Civil War; and they describe contemporary Canada despite the threat of Quebec’s secession. Nor are they necessary, since it would be a stretch to say that they described Germany after the Second World War, Spain after Franco, or India after independence. Nevertheless, Tocqueville’s observations are universally relevant, for they force us to think in general theoretical terms about the nature of the advantage America gained from its colonial and preconstitutional experiences. Although the circumstances that prevailed in America in 1787 may be unique, we should not assume that they are anything more than one particular way of satisfying a general necessary and sufficient condition for a stable federalism.

Most commentary on federalism ignores that minimum necessary condition for stability: the federal agreement’s capacity for self-enforcement and the crucial role of political parties in that arrangement. ² And even when the critical institutional factors are considered, there is a natural inclination to make precisely the wrong choices. First, because it is commonly assumed that people in new democracies are “unskilled” voters, easily misled by nationalist or ethnic appeals, it is thought that few public offices should be filled initially by direct election. Second, because regional governments are assumed to be either corrupt or subject to corruption and because regional elections are seen as easy targets for fraud, regional and local elections either are postponed until a degree of political stability emerges at the national level or are subjected to strict oversight and control by the national government. Third, because many people adhere to a naive view of democracy in which elections are seen as mechanisms for measuring or determining the “popular will,” elections for the national legislature, for regional and local governments, and for the presidency are typically held at different times in the belief that this will avoid confusion in the expression of that will. Fourth, because the chief executive is commonly identified as the head of a state’s constitutional order, it is assumed that...