Distinctive Identity Claims in Federal Systems: Judicial Policing of Subnational Variance

Abstract

It is characteristic of federal states that the scope of subnational power and autonomy are subjects of frequent dispute, and that disagreements over the reach of national and subnational power may be contested in a wide and diverse array of settings. Subnational units determined to challenge nationally-imposed limits on their power typically have at their disposal many tools with which to press against formal boundaries. Federal systems, moreover, frequently display a surprising degree of tolerance for subnational obstruction, disobedience, and other behaviors intended to expand subnational authority and influence, even over national objection. This tolerance, however, has limits. In this paper, we examine a set of rulings by national constitutional courts invalidating formalized claims by subnational units to a distinctive subnational identity. The emphatically negative reactions of these courts contrast instructively with the tolerance often displayed by other state actors toward similar identity claims when they are asserted in political and sub-constitutional settings, suggesting that the legal formalization of distinctive identity claims is perceived by courts to pose an unusually acute threat to the state.