Formation, Representation and Amendment in Federal Constitutions

Abstract

This article presents a theory of federal constitutionalism based on a comparative analysis of the American, Swiss, Canadian and Australian constitutions. The article focuses on what are argued to be five key dimensions of federal constitutionalism: namely, formation, representation, configuration of power, execution of federal law and amendment. It is argued that there is a systematic relationship between the formative processes by which federal constitutions come into being and the representative structures, distribution of governmental power and amendment procedures adopted thereunder; and it is proposed that this relationship can provide the basis for formulating an explanatory theory which sheds important light on both the design and the interpretation of such constitutions. The article begins by identifying a range of contemporary problems of constitutional interpretation related to these themes, and asks whether they may be illuminated by a comparative analysis. The article next turns to a variety of approaches to defining federalism, and argues that the prevailing theories are inadequate. The article then sketches the outlines of an alternative, mediating approach to federal constitutionalism and concludes by applying this approach to the formative processes, representative institutions, configurations of power and amendment procedures adopted within the four constitutions under consideration. How well the theory applies to other federal systems that lie outside the immediate scope of the inquiry is left for another day.