Revisiting Federalism: Core and Basic Characteristics

haiting zhang, Southern Methodist University Dedman School of Law

Abstract

ABSTRACT

This article makes analytical and comparative studies on the essential characteristics of federalism: legally shared sovereignty, constitutional specific division of powers and a court arbiter role.

The essence of a state is sovereignty; the allocation of sovereignty within a state thus determines its nature. Because of the inconsistency between legal sovereignty and political sovereignty, to study federalism from a legal point of view requires determining where legal sovereignty resides. The traditional sovereignty atom was split in accommodation of the dramatic theoretical and political revolution early in America’s history; the theory of popular sovereignty largely contributed to the transformation. In contrast to legally sole sovereignty system employed by the English, the modern American federal system is built around legally shared sovereignty; American case law clearly recognizes the distinction when deciding cases dealing with division of powers.

The essence of legally shared sovereignty mandates a specific division of powers by constitution between the national government and constituent parts. While general principles controlling the division of powers within a federal system exist, the details of power division vary among federal countries. Further, a written, rigid constitution forms the basis of the federal division of powers. It cannot be changed unilaterally and the constituent states play a vital and necessary role in the amending process. As a symbol of the states’ existence in the national government, an upper (senatorial) chamber is usually included as an important mechanism for the states’ participation in preserving the federal structure.

Under a federal system, the disputes between the national government and the constituent states are inevitable. A court as an arbiter plays a vital and essential role in the operation of federalism. The shared sovereignty nature and the division of powers demand an independent arbiter. Federalism as legalism and the court’s “the least dangerous branch” rationale make a court’s arbiter role a default choice.

Legally shared sovereignty, specific division of powers under a constitution, and the court’s arbiter role are the three essential characteristics of federalism. Legally shared sovereignty, the core characteristic, determines the nature of the entire system. The other two basic characteristics derive from and reflect the core characteristic. By contrast, unitary systems cannot support any form of legally shared sovereignty. However, there exists no clear-cut demarcation between federal and unitary systems with respect to either division of powers or the existence of the court as an arbiter.