Autonomy, Subsidiarity, Solidarity: Foundations of Cooperative Federalism

Abstract

What does the constitutional principle of federalism entail? Instead of a detailed set of specific rules, the principle of federalism relies on a series of principles that distinguish federations from other political forms. The author proposes that three such principles stand out from within our constitutional instruments and jurisprudence: autonomy, subsidiarity and federal solidarity. The combination of these three interrelated constitutional principles forms the normative structure that gives Canadian federalism its internal logic. And it is the author's contention that this internal logic is one of cooperative federalism. It is these principles that must guide the judiciary when it fulfills its special duty as of the Constitution, and as such, as guardian of the principle of federalism.Indeed, each of the three principles -- autonomy, subsidiarity and federal solidarity -- offers its own normative justification for cooperative federalism. First, cooperative federalism is justified as a means to optimise the constitutionally guaranteed autonomy of each partner in the federation. It does so by optimising the capacity of federal partners to effectively manage complex issues, while, at the same time, protecting their respective exclusive jurisdictions. Second, the constitutional principle of subsidiarity entails that powers were not divided at random between federal partners. Rather, they are distributed according to the principles of proximity (geographical or otherwise) and, in case of incapacity, to a subsidiary institution. A relation of subsidiarity is, among other things, one in which the principal is meant to be assisted or helped by a subsidiary power. It would thus be antithetical to the principle of subsidiarity for a subsidiary agent to seek to hinder the capacity of the principal to achieve its legitimate goals. The principle of subsidiarity thus provides a normative justification for the constitutional requirement of cooperation between central authorities and provinces. Third, despite their respective autonomy, the federal government and the provinces are joined together not only by constitutional rules, but also by a shared citizenry towards whom they have obligations. The nested political identities of the citizenry in a federation are institutionally reflected in the fact that each level of government is separate, yet participate in a common body politic. Thus, partners in a federation cannot treat each other as if they were foreign, independent states whose actions do not have direct consequences on their own citizenry. Hurting federal partners amounts to hurting the shared body politic. The principle of federal solidarity thus creates certain positive duties of assistance, and certain prohibitions against imposing certain negative externalities on other federal partners. Cooperative federalism is thus normatively justified by the need for each level of government to protect and promote the interests of a shared citizenry forming a common body politic.