Models of Subnational Constitutionalism
By Jonathan L. Marshfield.
In 1977, a group of Nigerian constitution makers asked an astute question. Following a gruesome civil war, Nigeria began the task of crafting a federal constitutional democracy. Although the constitutional delegates agreed on a decentralization of political power, they nevertheless asked a separate question: should the Nigeria states be permitted to adopt their own constitutions? The proceedings from the 1977 Constituent Assembly show that the delegates gave careful consideration to that question as a distinct institutional choice. They decided that although Nigeria was committed to a federal arrangement, the states should not be permitted to adopt their own constitutions. State constitutionalism, they concluded, had proven too “divisive” during Nigeria’s prior constitutional regime, and it “was inimical to the unity of the country.”
The Nigerian experience begs a deeper question that theorists have largely neglected. Although scholars and constitution-makers have developed various theories regarding the utilities of federalism, they have not separately considered how subnational constitutions can uniquely serve (or undermine) those same purposes. Nor have they searched for any independent purposes that subnational constitutionalism may serve. In short, theorists have largely failed to consider the independent normative justifications for introducing subnational constitutionalism into federal systems. As the Nigerian experience illustrates, that theoretical question is not without serious practical consequences.
This Article takes up that important but neglected question. The goal is to move towards a systematization and critical analysis of possible justifications for introducing subnational constitutionalism into federal systems. The Article first offers a description of subnational constitutionalism that is derived from rational-choice theories of political institutions and a survey of the world’s federal systems. It concludes that subnational constitutionalism is best described as a series of rules (both formal and informal) that protect and define the authority of subnational units within a federal system to exercise some degree of independence in structuring and/or limiting the political power reserved to them by the federation. Building upon that working description, the Article argues that there are at least three coherent justifications for subnational constitutionalism. First, it can deepen a federal system’s ability to accommodate multiple political communities within a single constitutional regime. Second, it can uniquely contribute to federalism’s liberty-protecting, check-and-balances function. Third, the Article argues that scholars have largely overlooked the possibility that subnational constitutionalism can improve the deliberative quality of democracy within subnational units and the federal system as a whole.