The Federal Contract: A Constitutional Theory of Federalism

Federalism is a very familiar form of government, deployed by constitution-makers to manage diverse polities at various key stages in the history of the modern state. Despite its pervasiveness in practice, federalism has been strangely neglected by constitutional theory, tending to be subsumed within one default account of modern constitutionalism or treated as an exotic outlier-a sui generis model of the state rather than a form of constitutional ordering for the state. This neglect is both unsatisfactory in conceptual terms and problematic for constitutional practitioners, obscuring the core meaning, purpose, and applicability of federalism as a specific model of constitutionalism with which to organise territorially pluralised and demotically complex states. In fact, the federal contract represents a highly distinctive order of rule which requires a particular, 'territorialised' approach to core constitutional concepts: constituent power, the nature of sovereignty, subjecthood and citizenship, the relationship between institutions and constitutional authority, patterns of constitutional change, and ultimately the legitimacy link between constitutionalism and democracy. In rethinking the idea and practice of federalism, this book adopts a root and branch recalibration of the federal contract. It does so by analysing federalism through the conceptual categories which characterise the nature of modern constitutionalism: Foundations, Authority, Subjecthood, Purpose, Design, and Dynamics. This approach seeks to explain and in so doing revitalise federalism as a discrete, capacious, and adaptable concept of rule that can be deployed imaginatively to facilitate the deep territorial variety of so many states in the twenty-first century.