Dual Federalism Research Articles

America's Machiavellian: Gouverneur Morris at the Constitutional Convention

AbstractWhile generally a steady ally of James Madison and the nationalists, Gouverneur Morris, delegate from Pennsylvania, worked from a different conception of republican politics. Morris's republicanism was more old than new, relying on the divided sovereignty of a mixed regime to protect the rights of citizens and minorities. This conception, it is argued here, bears the stamp of Machiavelli, especially regarding the relationship of the classes and the role of the executive. Like Machiavelli—but unlike Madison—Morris wanted to underscore society's class divisions, organizing the representatives of rich and poor into two distinct, and hostile, chambers of the legislature. And like Machiavelli, whose “civil prince” was the champion of the people, Morris's executive was to be the “guardian of the people” and the “guardian of liberty.”

Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism

This article contributes to the debate over the original meaning of the Second Amendment by placing two underappreciated concepts, federalism and auxiliary rights, at the center of the amendment’s original meaning. It argues that 18th-century Americans viewed the right to keep and bear arms as an auxiliary right enabling the protection of more fundamental personal rights, rather than as an individual, collective, or civic right. Furthermore, the Second Amendment was ratified in response to Anti-Federalist fears that the nationalization of military power in the new Constitution would permit the federal government to oppress the people and destroy the power of the states. Given this context, this article suggests that the Second Amendment was a jurisdictional amendment that dealt with which level of government had authority to make firearms regulations rather than which regulations were acceptable. It was intended to maintain a balance of military power between the state and national governments by protecting the states’ concurrent power to arm, organize, and train their citizen militias free from federal disarmament. In contrast to reigning views, which either permit or forbid gun regulation at both the federal and state levels, adopting this paradigm would prohibit all national firearms legislation but would also undermine support for incorporating the amendment against the states. Although the contemporary practicality of the American founders’ solution is questionable, they produced a creative solution to the problem of divided sovereignty in federal republics that deserves to be incorporated into broader accounts of federalism.

How Courts Structure State-Level Representation

I examine how and state courts influence the relationship between state-level public opinion and policy. The system of dual federalism, combined with the sweeping power of judicial review, allows state and courts to establish the types of policies that states are constitutionally allowed to implement. In particular, courts can set federal floors for policy, below which no state can go. State courts, in turn, can raise the level of this floor. As a result, both and state courts can shape the extent to which state policy can match the preferences of the median voter in a given state. I demonstrate this important role of courts by analyzing data on public opinion, judicial decisions, and state-level policy on the issue of abortion, from 1973 to 2012. I show that changes in the set of allowable abortion restrictions, according to the combined decisions of and state courts, significantly affect whether states implement majority-preferred policies. These results demonstrate the importance of placing courts in the larger study of state-level representation.

Judicial Federalism and Representation

This paper evaluates how the power of courts in a system of dual federalism affects state-level representation. I develop a framework in which courts establish a federal in a given policy area, thus creating an asymmetry -- states in which the legislature has chosen a lower level are compelled to shift policy to the floor, whereas states in which legislatures or voters prefer levels above the floor are unaffected. I develop versions of the framework in which the status quo at the state level may lag behind changes in public opinion, and in which cross-state moral externalities exist. In doing so, I use the framework to recast the familiar counter-majoritarian difficulty -- the problem of unelected judges striking down legislation enacted by elected legislatures -- as an issue of federalism. To illustrate the framework, I present a quantitative analysis of the path to the legalization of same-sex marriage in all 50 states, using both original and existing data on public opinion, and state judicial decisions, and state-level policy.

Western Sparks: The Constitutionality of Federal Land Management from the Founding to the Civil War

The constitutional basis for federal land ownership has not been seriously questioned in modern times. As early as 1840, the Supreme Court declared that Congress’ constitutional power over public lands was without limitation. The Court affirmed the federal government’s police power over public lands repeatedly, and as recently as 1976.This paper does not dispute that classic property clause doctrine is at odds with the contemporary jurisprudence regarding federal land ownership and management as adjudicated by the courts. Rather, this research focuses on exploring the original understanding of federal land ownership as seen through three parallel tracks: first, political doctrines, including dual federalism, compact theory, and nullification; second, federal land principles and policies, including acquisition and disposition; and third, early Supreme Court decisions. Moreover, this paper seeks to examine whether classic property clause doctrine and other constitutional origins of power regarding federal lands were consistent with historical events and developments that occurred along these tracks from the founding through the Civil War. This paper concludes that political doctrines that supported the classic property doctrine were live at least until the early 20th century. These doctrines were seriously undermined by the Civil War, Reconstruction amendments, and finally by the New Deal. While federalism saw a minor revival in the 1990s by the Supreme Court, these political doctrines are now largely regarded as antebellum relics. Furthermore, federal land acquisition and disposition policies generally supported the classic property theory, at least until Withdrawal and Reservation at the beginning of the 20th century. Finally, Supreme Court decisions provided support for both the classic and police power theories. However, the full-fledged police power theory embraced in Kleppe was not fully articulated until the 20th century.

Temples, Courts, and Dynamic Equilibrium in the Indian Constitution

Must all states have fixed constitutional identities? Does democracy necessarily entail citizen-sovereignty? This Article uses ethnographic data from India to argue that the answer to both questions is “no.” In the aftermath of a massive stampede in 2011, the Kerala High Court initiated an overhaul of the complex executive, legislative, and judicial network that governs the famous Hindu temple at Sabarimala. The courtâ–™s conflicting goals were to avoid further consolidating government authority over the temple and to further empower officials so that they could undertake needed reforms. Ultimately the court did bothâ–”and neitherâ–”in an instance of judicial balancing that reflects the two visions of sovereignty in India. On the one hand, Indian constitutional law and judicial practice reflect a conventional vision of sovereignty, in which sovereign authority is wholly vested in citizens and merely exercised on their behalf by the state. On the other hand, there exists a vision of “divided sovereignty” in which the state, as the agent of reform, has sovereign authority independent of citizens. The productive tension between these two visions, according to which sovereignty is both vested wholly in citizens and divided between citizens and state, is the dynamic equilibrium at the heart of Indian democracy.

Multilevel Constitutionalism and the Crisis of Democracy in Europe

Misconception of the EU is the reason for increasing scepticism – multilevel constitutionalism: conceptualising the EU as a matter of the citizens – critiques and the defence of multilevel constitutionalism – European treaties as a form of a new supranational social contract – embedded autonomy in a system of divided sovereignty – explaining and enhancing democratic legitimacy of the EU – the legitimising principles of additionality, of voluntariness and of open democracy – taking ownership of the EU and taking subsidiarity seriously – backing the European monetary policy by new competences for a common economic and fiscal policies – engaging in European policies as a way out of the crisis.

THE EUROPEAN UNION IN THE LIGHT OF COMPARATIVE POLITICS

Abstract: In the academic literature the European Union (EU) is analysed from different theoretical perspectives. Taking the perspective of international relations, the EU emerges as an international organization or a confederation; on the other hand, looking from the perspective of comparative politics, the EU presents itself as a more integrated entity, a federation, a quasi-state or a state in the making. The recent perspective, i.e. the governance school, sees the EU as an original structure, a sui generis entity, a new, emerging system of governance without government. However, at the present stage of development, the EU reveals features that are characteristic for the federal structure, i.e. the federal political system characterised by two leading models of dual and cooperative federalism, hence the comparative method seems to be the most appropriate as a research tool.

Easing the shoe where it pinches: The Lottery case and the demise of dual federalism

Journal of Supreme Court HistoryVolume 40, Issue 2 p. 133-153 Article Easing the shoe where it pinches: The Lottery case and the demise of dual federalism John W. Compton, John W. ComptonSearch for more papers by this author John W. Compton, John W. ComptonSearch for more papers by this author First published: 01 July 2015 https://doi.org/10.1111/jsch.12070Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume40, Issue2July 2014Pages 133-153 RelatedInformation

The Origins of Indirect Rule in India: Hyderabad and the British Imperial Order

The main problem with the orthodox account of modern world politics is that it describes only one of these patterns of international order: the one that was dedicated to the pursuit of peaceful coexistence between equal and mutually independent sovereigns, which developed within the Westphalian system and the European society of states....Orthodox theorists have paid far too little attention to the other pattern of international order, which evolved during roughly the same period of time, but beyond rather than within Europe; not through relations between Europeans, but through relations between Europeans and non-Europeans. Instead of being based on a states-system, this pattern of order was based on colonial and imperial systems, and its characteristic practice was not the reciprocal recognition of sovereign independence between states, but rather the division of sovereignty across territorial borders and the enforcement of individuals' rights to their persons and property. The American Revolution and the “revolution” in Bengal posed new political questions for domestic British politics and inaugurated a new era for the British empire. As the British committed themselves to the administration of a vast population of non-Europeans in the Indian province of Bengal, and estimations of financial windfalls were presented to stockholders and politicians, the center of the British Empire came slowly to shift toward the East. The evolution of a system of indirect rule in India as it related to larger political questions being posed in Britain, partly because of its protracted and diverse nature, has not received the same attention. Attention to Indian states, in the scholarship on eighteenth century South Asia, has closely followed the expanding colonial frontier, focusing on those states that most engaged British military attention: Bengal, Mysore, and the Marathas. And yet, the eighteenth century should also command our attention as a crucial moment of transition from an earlier Indian Ocean world trading system, in which European powers inserted themselves as one sovereign authority among many, to that of being supreme political authorities of territories that they did not govern directly. India's native states, or “country powers,” as the British referred to them in the eighteenth century, underwrote the expansion of the East India Company in the East. The tribute paid by these states became an important financial resource at the company's disposal, as it attempted to balance its books in the late eighteenth century. Additionally, the troops maintained to protect these states were significant in Britain's late eighteenth century military calculations. These states, in other words, were absolutely central to the forging of the British imperial order, and generative of the very practices that came to characterize colonial expansion and governance.

Easing the Shoe Where It Pinches: The Lottery Case and the Demise of Dual Federalism

Easing the Shoe Where It Pinches: The Lottery Case and the Demise of Dual Federalism JOHN W. COMPTON The decades around the turn of the twentieth century are remembered as the high point of dual federalism—the theory of state-federal relations that regards each level of government as sovereign within its own exclusive regulatory sphere. In the popular mind, the era is associated with Supreme Court decisions that eviscerated significant federal laws on the grounds that Congress had exceeded the scope ofits enumerated powers, or else impinged on powers reserved to the states under the Tenth Amendment. In U.S. v. E. C. Knight, for example, the Court reasoned that Congress’s commerce power could not be used to break up a sugar refining monopoly, since the authority to regulate manufacturing processes belonged exclusive­ ly to the states.1 Similarly, in Hammer v. Dagenhart, the Court struck down the first federal child labor on the grounds that the measure was not a legitimate regulation of commerce, as Congress had claimed, but rather a surreptitious attempt to invade the state-controlled sphere of labor regulation.2 Manufacturing monopolies and child labor were undoubtedly serious policy problems, but the Court insisted that they would be addressed at the state level or not at all. In the words of Chief Justice Melville Fuller’s opinion for the Knight majority, “acknowl­ edged evils, however grave and urgent... had better be borne” than “the risk be run” of blurring the boundary between state and federal authority.3 And yet, the Fuller Court upheld at least one federal law that threatened to transform the state-federal relationship in ways argu­ ably more profound than either the Sherman Antitrust Act or the Keating-Owen child labor law. The law in question was the Lottery Act of 1895, a measure that, under the auspices of the commerce power, criminal­ ized the interstate transportation of lottery tickets and other lottery-related materials.4 To many observers, both in the 1890s and more recently, the Lottery Act appeared 134 JOURNAL OF SUPREME COURT HISTORY patently at odds with the basic precepts of dual federalism. For starters, there was considerable evidence to suggest that the Framers had not viewed Congress’s power to “regulate” interstate commerce as entailing the power to prohibit such commerce. In addition, it was widely believed that the lottery industry, like the insurance industry, was not “commercial” in nature and therefore not subject to federal regulation under the commerce power.5 Finally, there was the obvious fact that Congress’s primary purpose in enacting the Lottery Act had not been to protect or promote commerce, but rather to regulate public morality—a function that traditionally belonged to the states, and that is not listed among Congress’s Article I powers. But in Champion v. Ames (1903)— popularly known as the Lottery Case—a bare majority of the Court rejected each of these constitutional objections.6 According to Justice John Marshall Harlan’s majority opinion, Congress’s power over interstate commerce was “plenary” in nature. If an interstate traffic in lottery tickets existed, Congress was free to regulate that traffic in any way it saw fit, up to and including outright prohibition. Justice Fuller, writing on behalf of the four dissenters, acknowledged that Congress’s power to “regulate” interstate commerce could in some instances entail the power to prohibit it. And yet he insisted that the prohibitory commerce power extended only to items that were “themselves injurious to the transaction of interstate commerce.” Congress could constitutionally prohibit the interstate transportation ofdiseased cattle, for example, because this protected an important market from a product that might otherwise destroy it.7 But, unless one could show that lottery tickets “communicate[d] bad princi­ ples by contact,” Fuller wrote in jest, Congress could not prohibit their interstate transportation. Ifthe Court failed to draw this line in the sand—the line between prohibitory Charles F. Champion was indicted in 1899 for attempting to ship Paraguayan lottery tickets from San Antonio to Fresno via the Wells Fargo Express Company. The nation’s express companies, fearing that the Lottery Act represented the first step towards full-scale federal regulation of their industry, quickly...

Introduction

Introduction Melvin I. Urofsky The articles in this issue cover a large spectrum of Supreme Court history—how the Justices decided certain cases, dissents that never appeared, a reminiscence of the fourteenth Chief Justice, some little-known aspects of important cases, a rebuttal to an article that appeared in an earlier issue, and, last but certainly not least, Grier Stephenson’s review of books. Docket books are little notebooks that, at least in the time with which I am familiar, had small locks opened by an even smaller key, somewhat akin to a teenage girl’s diary. But instead of comments on Mary’s dress or how interesting the new boy in class is, the comments are on cases argued before the Supreme Court and the discussions on those cases in the Conference following oral argument. In the ones I have used, the jottings may be quite lean—A, B, and C voted to reverse; everyone else to affirm—to lengthy, and sometimes near-verbatim, transcripts of who said what. Given the secrecy with which the Court surrounds its internal deliberations—there are no clerks, secretaries, or messengers at the Conference—the docket books allow historians a limited but often illuminating glance at how Justices discussed certain cases. The Court recently made docket books in the possession of the Curator more easily available to scholars, and Barry Cushman has examined the entries for the first five Terms of the Hughes Court. These are important years, as the country entered the Great Depression following the boom years of the Roaring Twenties. Initially the cases coming to the Court were fairly similar to those in the preceding five Terms, but as the states tried to deal with widespread economic problems, mortgage foreclosures, unemployment, and the like, the measures they experimented with pushed the bounds of what the Justices had previously allowed to the state police powers. Professor Cushman, who is the John P. Murphy Foundation Professor of Law at the University ofNotre Dame, leads us in an exploration ofthe Court in a time ofimportant transition. v vi JOURNAL OF SUPREME COURT HISTORY Most textbooks, including mine, pay very little attention to Champion v. Ames (1903), the Lottery Case, except to note that it is somewhat of an anomaly in the Court’s Commerce Clause jurisprudence at the time. John W. Compton, an assistant professor of political science at Chapman University, argues that it is, in fact, more than an anomaly. Up until that case, most scholars, lawyers, and jurists assumed that only the states had police powers, that is, the authority to enact measures for the health, safety, and welfare of their citizens. The federal govern­ ment, of course, had plenary authority in those areas assigned to it by the Constitution, such as regulation ofinterstate commerce, but police powers analogous to those ofthe states supposedly did not exist. Professor Compton shows how the decision in the Lottery Case marked the demise of this form of dual federalism, although it would be many years before the Court would acknowledge the existence of a federal police power. The Schwimmer case (1929) is usually remembered for one of Justice Oliver Wendell Holmes’s most striking aphorisms, namely, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” Rosika Schwimmer had her application for citizenship denied because, as a pacifist, she could not in good conscience declare that she would take up arms in defense of her country. Holmes pointed out the silliness of this reason, noting that the U.S. Army did not take women and that Schwimmer was then over fifty years old, an age that would have disbarred men as well. We are so enthralled by Holmes’s language—as well we should be—that often we do not look much beyond the dissent. Why did the government turn her down? Who was she, and how did the whole ordeal reflect on the burgeoning women’s movement of that decade? Why did the government allow conscientious objectors to avoid combat but penalized...

The Federalist and V. Ostrom on Concurrent Taxation and Federalism

Vincent Ostrom viewed concurrent federal and state taxation as a key element of the theory of the compound republic. Alexander Hamilton viewed his theory of concurrent tax jurisdiction elaborated in The Federalist as an important intellectual achievement and device for convincing readers that the new federal government needed, and could be entrusted with, an unhampered tax power because citizens would be able to control that power through their House of Representatives, federal taxes would ordinarily be moderate, and the states would retain their sovereign tax powers. Furthermore, the dual federalism arising from this concurrent jurisdiction would be cooperative in two important respects: the federal and state governments would practice mutual forbearance in tax policy making, and the federal government would employ state officers for tax collection.

Policing Farm Animal Welfare in Federated Nations: The Problem of Dual Federalism in Canada and the USA.

Simple SummaryIn any federation of states, societal oversight of farm animal welfare (agriculture policy arena, prevention) is more difficult to achieve than providing punishment of individuals abusing of companion animals (post injury). The constitutional division of powers and historical policy related to animal agriculture and non-government organization policing cruelty of companion animals may be entrenched. With changing societal expectations of agriculture production, each level of government may hesitate to take the lead, due to financial or ideological beliefs and simultaneously, obstruct the other government level from taking the lead, based on constitutional grounds. The tradition of private policing of companion animal abuse offences may be unworkable in the provision of protection for animals used in industrial production.In recent European animal welfare statutes, human actions injurious to animals are new “offences” articulated as an injury to societal norms in addition to property damage. A crime is foremost a violation of a community moral standard. Violating a societal norm puts society out of balance and justice is served when that balance is returned. Criminal law normally requires the presence of mens rea, or evil intent, a particular state of mind; however, dereliction of duties towards animals (or children) is usually described as being of varying levels of negligence but, rarely can be so egregious that it constitutes criminal societal injury. In instrumental justice, the “public goods” delivered by criminal law are commonly classified as retribution, incapacitation and general deterrence. Prevention is a small, if present, outcome of criminal justice. Quazi-criminal law intends to establish certain expected (moral) standards of human behavior where by statute, the obligations of one party to another are clearly articulated as strict liability. Although largely moral in nature, this class of laws focuses on achieving compliance, thereby resulting in prevention. For example, protecting the environment from degradation is a benefit to society; punishing non-compliance, as is the application of criminal law, will not prevent the injury. This paper will provide evidence that the integrated meat complex of Canada and the USA is not in a good position to make changes to implement a credible farm animal protection system.

The Fractured Island: Divided Sovereignty, Identity and Politics in Ireland

Since the final conclusion of the Good Friday Agreement in 1998 the violent conflict and military operations convulsing the state of Northern Ireland since 1969 appeared over and peace restored. Despite this, profound mistrust and division remains. This paper examines the factors influencing historic conflict in Ireland with reference to the acceptable forms of governance in a deeply divided society with antagonistic and diametrically opposed concepts of citizenship, allegiance and sovereignty present in the population. The changes have been fundamental and profound: absence of military occupation models, entry into public life and political responsibility of former combatants, development of power-sharing governmental structures and progress of civil society. The fact remains that the Good Friday Agreement was seen by the majority community - the unionist population – as a guarantee to assert its intention and desire to remain an integral part of the United Kingdom (to remain British). In the same manner and in the same way the Agreement was seen by the minority community – the nationalist population – as a guarantee to assert its intention to leave the United Kingdom and to re-unite with the rest of Ireland (to remain Irish). Ireland has never been a uniform or agreed socio-political entity. The nature of Irish society has been a fragmented, divided and polyglot one. The fractured States that emerged from the forced partition of Ireland in 1922 epitomized the crises and issues around sovereignty and identity. Disputed sovereignty in Ireland is analyzed in relation to three key associated factors: ownership, legacies of colonial power and the dynamics of changing demographics.

Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction

In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization. Through close examination of these three questions, this Article aims to show that framing the analysis in terms of divided sovereignty, and recognizing the close parallels between tribal, territorial, and related federal-state contexts, may yield the most attractive resolutions that are viable in light of the Supreme Court’s recent decisions. This Article contrasts this approach with an alternative framework that would organize the analysis around a distinction between “inherent” and “delegated” governmental authority.

The relationship between national and sub-national human rights institutions in federal states

The rapid spread of national human rights institutions represents one of the most important developments in the human rights movement in recent years. Many federal states have joined this global trend by creating national human rights institutions, state human rights institutions, or both. This article presents an empirical comparison of how such states have addressed the federal division of power and responsibility concerns that have arisen in such an enterprise. So far, no single strategy has emerged to address federalism concerns. Some countries have established unitary but deconcentrated national human rights institutions, while others have multiple sub-national human rights institutions but no internationally recognised national human rights institution. The most common response has been the establishment of both a national human rights institution and a network of sub-national human rights institutions. Strict forms of dual federalism are rarely embraced however, and the relationship between national and sub-national institutions, where both exist, has been characterised by both episodic cooperation and significant tensions.

The U.S. Supreme Court and new federalism: from the Rehnquist to the Roberts Court

1. A Notably Conservative Plan of Book 2. Federalism Politics & Policies: Old, New, and Progressive Trends Federalism at the Founding The Evolution of Federalism Jurisprudence The Founding and Nascent Nationalism The Civil War, Dual Federalism and the Rise of Economic Nationalism The Rise of the Democratic Welfare State Through Cooperative Federalism The Judicial Role in New Federalism Politics 3. The Rehnquist Court, New Federalism, and States' Rights The Politics of New Federalism Rehnquist New Federalism Revolutionary and Counter-Revolutionary Trends Dormant Commerce Clause Process Federalism and Clear Statement Rules New Federalism and the Constitutional Culture 4. Federalism, Justice Clarence Thomas, and Religious Freedom in the States The Rehnquist Court and Religious Liberty Justice Clarence Thomas and Establishment Clause Federalism Historical Roots and Contemporary Approaches to Establishment Clause Federalism Assessing Establishment Clause Federalism The Constituencies of Establishment Clause Federalism Congress and the Executive Recent Developments in Federal Law The Executive Branch State and Local Governments Interest Groups Churches Public Opinion and American Religious Life Religious Liberty, Federalism, and the Roberts Court 5. Federalism and Globalization Federalism, the Constitution, and Foreign Policy Preemption Structural Shift from Above Structural Change from Below The U.S. Supreme Court Response The Sidelined Court The Confined Court Flexible, Pragmatic Foreign Policy Preemption Divided Court? Conclusion 6. The Roberts Court and New Federalism Federalism and the New Roberts Court Appointments New Directions of Federalism in the Roberts Court Statutory Construction Cases: Preemption Constitutional Cases: The Eleventh Amendment and Commerce Clause Conclusion

Book Review: Federalism and the Constitution of Canada

In his recent book, Federalism and the Constitution of Canada, David E. Smith characterizes Canada’s federalism as existing on two planes. Horizontally, Canada consists of a territorial federalism- divided among ten provinces with equal jurisdiction and three territories, united by a common central government. Vertically, Canada is a cultural federation: two distinct nations, the English and the French, again connected by a common central government. Using this schema, Smith reevaluates some of the key questions in Canadian federalism. In particular, he analyses the relationship between Canada’s constitution and its variant of federalism. While Smith’s analysis provides a novel approach to the study of Canadian federalism, this review highlights some of the difficulties with his framework of dual federalism; in particular that his conception of cultural federalism is too rigid to accommodate Canada’s broad cultural composition.

Bipolar Federalism and the Social Welfare State: A Case for Shared Competences

Comparative studies on the organization of the welfare state in federal systems have referred to Belgium as a model for future federalism, because of its devolutionary nature. In reality, its dyadic or bipolar nature turns Belgian federalism into a unique and highly unstable experiment. However, as long as Brussels obstructs the exit option, the two linguistic groups are doomed to coexistence. Therefore, for Belgium more so than for any other devolutionary state, accommodating both centrifugal dynamics and the need for cohesion is vital. We argue that although dual federalism, including the equality of federal and sub-federal entities and the exclusive allocation of powers, typifies bipolar federal states, a system of shared powers is more suitable when it comes to matters related to social security.