Two recent trends, one favoring federalism as a form of governmental organization and the other favoring written constitutions, have lately combined to produce an impressive proliferation of subnational constitutions. Documents that can fairly be described as constitutions now govern the affairs of subnational units - states, provinces, cantons, Länder - in federal states on every continent. What remains unclear, however, is whether the proliferation of subnational constitutions indicates a corresponding spread of the practice of subnationalism constitutionalism - whether, that is, the appearance of subnational constitutions around the globe evinces a spreading ideological commitment to a strong role for subnational governments in shaping the lives, and protecting the liberty, of citizens of federal states. This paper examines some aspects of the context and conditions in which subnational constitutions have emerged and finds the evidence mixed. On one hand, the rise of ethnocultural self-determination as a justification for federalism, and the presence in many subnational constitutions of provisions directly protecting human rights, are consistent with an ideology of subnational constitutionalism. Other considerations, however, tend to undermine the possibility of a thriving subnational constitutionalism. These include the ready availability of national constitutional politics as a forum for resolving significant social and political questions; the practice in many parts of the world of resorting to extraconstitutional politics to resolve fundamental issues of governance and identity; the rise, especially in Europe, of subsidiarity as the prevailing political theory of subnational power; and the growing emphasis around the globe on supranational and international regimes as primary protectors of human rights.
European Constitutional Law Review
This article has been published in a revised form in European Constitutional Law Review 10.1017/S1574019608003258. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. © Asser Press 2008
James A. Gardner,
In Search of Sub-National Constitutionalism,
Eur. Const. L. Rev
Available at: https://digitalcommons.law.buffalo.edu/articles/231