Teaching and Researching Comparative Subnational Constitutional Law
By Robert F. Williams.
I had the opportunity to teach “Comparative Subnational Constitutional Law” as a five-week seminar in Graz, Austria in May-June of 2009. I admit that I have not yet sought to develop, or even apply, any of the theories being debated in comparative constitutional law circles. Professor Vicki Jackson has suggested four goals of comparative constitutional study: 1) developing a better intellectual understanding of other systems; 2) enhancing the capacity for self-reflection on one’s own system; 3) developing a normative understanding of best practices; and 4) responding to domestic questions that are comparative in nature. All of these seem to apply equally to comparative subnational constitutional law. Believing that there were enough materials now in English (my only language) to put together a set of readings for such a seminar, I gathered up a number of the publications that I have listed in the bibliography at the end of this article. I made these materials available to the students who had registered to take this course in English and found that most of the Austrian law students, like most American law students in the prior generation, were basically unaware of the, albeit relatively limited, legal importance and potential of the subnational constitutions in their country.
In fact, in Austria the constitutions of the Länder have not been considered very important, nor is the subnational constitutional space allotted by the Austrian Constitution particularly substantial. In other words, the Austrian Constitution is more “complete” than many other federal constitutions, in that it specifies a number of the structural elements of the component unit governments within the national constitution itself. Consequently, the subnational constitutional space is not very extensive. Still, however, the Länder constitutions in Austria have important (potential or possible) legal and political roles, and I thought it would be important to begin with an introduction to those matters. Rather than comparisons with the state constitutions in the United States, I concluded that a comparative class might be more meaningful if we started with the subnational constitutions of the host country. Discussing the potential of subnational constitutions can be very interesting, as I have discovered in Austria, South Africa, Brazil, Mexico and Argentina. Analyzing at least some of the preliminary questions quoted below in the context of the subnational constitutions of the host country can lay an effective groundwork or baseline for a selective consideration on some or all of these questions vis-à-vis the subnational constitutions in other countries.