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state hood

Federalism

[fed-er-uh-liz-uhm]

Political federalism is a political philosophy in which a group of members are bound together (Latin: foedus, covenant) with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). Federalism is the system in which the power to govern is shared between the national and state governments, creating what is often called a federation. Proponents are often called federalists.

In Europe "federalism" is sometimes used to describe those who favor a stronger federal government (for example, with governance under the European Union) and weaker provincial governments. In federal nations of Europe (such as Germany, Austria and Switzerland) or South America (such as Argentina or Brazil), the term "strong federalism" usually means sub-national states having more power than the national (federal) government, in contrast with a centralist system.

In Canada, federalism means opposition to sovereigntist movements (usually those of Quebec). The same is historically true in the United States. Advocates of a weaker federal government and stronger state government are those that generally favor confederation, often related to "anti-federalists". The state or regional governments strive to cooperate with all the nations. The old statement of this position can be found in The Federalist, which argued federalism helps enshrine the principle of due process by limiting arbitrary action from the state. First, federalism can limit government power and infringe rights, since it allows the possibility that a legislature wishing to restrict liberties will lack the constitutional power. The level of government that possesses the power lacks the desire. Second, the legalistic decision making processes of federal systems limit the speed with which governments can act.

India

The Government of India referred to as the Union Government or Central Government, was established by the Constitution of India, and is the governing authority of a federal union of 28 states and 7 union territories. The governance of India is based on a tiered system, wherein the Constitution of India appropriates the subjects on which each tier of government has executive powers. The Constitution uses the Seventh Schedule to delimit the subjects under three categories namely the Union list, the State list and the Concurrent list.

Asymmetric Federalism

A distinguishing aspect of Indian federalism is that unlike American federalism, it is asymmetric. Articles 370 makes special provisions for the state of Jammu and Kashmir as per its Instrument of Accession. Article 371 makes special provisions for the states of Andhra Pradesh, Arunachal Pradesh, Assam, Goa, Mizoram, Manipur, Nagaland and Sikkim as per their accession or state-hood deals.

Coalition Politics

Although the Constitution did not envisage this, India is now a multi-lingual federation. India has a multi-party system with political allegiances frequently based on linguistic, regional and caste identities, necessitating coalition politics, especially at the Union level.

Europe

Several Federal systems exist in Europe, such as in Switzerland, Austria, Germany, Belgium and the European Union. Germany and the EU are the only examples in the world where the upper federal house (Bundesrat in Germany ,Council in EU), which represents the states, is neither elected nor appointed, but is composed by the governments of the states.

In Germany, during the first part of the twentieth century, Adolf Hitler viewed federalism as an obstacle. He wrote in Mein Kampf as follows: "National Socialism must claim the right to impose its principles on the whole German nation, without regard to what were hitherto the confines of federal states." In Britain, federalism has long been proposed as a solution to the "Irish Problem", and more lately, the "West Lothian question

Following the end of World War II, several movements began advocating a European Federation, such as the Union of European Federalists or the European Movement, founded in 1948. Those organizations were influential in the European unification process, but never in a decisive way.

The European Union includes many characteristics of federalism. The European federalists campaigned in favour of a directly elected European Parliament (est. 1979), and were among the first to put a European Constitution on the agenda. Their opponents are both those in favor of a lesser role for the Union and those who wish the Union to be ruled by national governments rather than by an indirectly elected parliament and an unelected commission, President and Foreign Minister. Although federalism was mentioned both in the drafts of the Maastricht treaty and the Treaty establishing a Constitution for Europe, it was never accepted by the representatives of the member countries. The strongest advocates of European federalism have been Germany, Belgium, and Italy, while those historically most strongly opposed have been France and the United Kingdom. However, in recent times the French and UK governments have become increasingly pro-European Union and Poland and Austria have taken on the roles of primary opponents to a stronger EU.

Europe has charted its own brand of constitutional federalism.(Joseph H. H. Weiler)

Those uncomfortable using the “F” word in the EU context should feel free to refer to it as a quasi-federal or federal-like system. Nevertheless, for the purposes of the analysis here, the EU has the necessary attributes of a federal system. It is striking that while many scholars of the EU continue to resist analyzing it as a federation, most contemporary students of federalism view the EU as a federal system (See for instance, Bednar, Filippov et al., McKay, Kelemen, Defigueido and Weingast).(R. Daniel Kelemen)

United States

In the United States, federalism is the system of government in which power is divided between a central government and the government of each state.

Because the states were preexisting political entities, the U.S. Constitution did not need to define or explain federalism in any one section. However, it contains numerous mentions of the rights and responsibilities of state governments and state officials vis-à-vis the federal government. The federal government has certain expressed powers (also called enumerated powers), including the right to levy taxes, declare war, and regulate interstate and foreign commerce. In addition, the necessary-and-proper clause gives the federal government the implied power to pass any law "necessary and proper" for the execution of its express powers. Powers that the Constitution does not delegate to the federal government or forbid to the states—the reserved powers—are reserved to the people or the states. The power delegated to the federal government was significantly expanded by amendments to the Constitution following the Civil War, and by some later amendments-- as well as the overall claim of the Civil War, that the states were legally subject to the final dictates of the federal government.

After this, the federal government has increased greatly in size and influence, both in terms of its influence on everyday life and relative to the state governments. There are several reasons for this, including the need to regulate businesses and industries that span state borders, attempts to secure civil rights, and the provision of social services. Although many people believe that the federal government has grown beyond the bounds permitted by the express powers, from 1938 until 1995, the U.S. Supreme Court did not invalidate any federal statute as exceeding Congress' power under the Commerce Clause for over fifty years until United States v. Lopez overturned the power of the Federal government under the Commerce Clause (see also, challenging the Gun-Free School Zones Act). However, most actions by the federal government can find some legal support among the express powers, such as the Commerce Clause. The Commerce Clause is used by Congress to justify certain federal laws, but its applicability has been narrowed by the Supreme Court in recent years. The Supreme Court rejected the Gun-Free School Zones Act in the aforementioned Lopez decision, and they also rejected the civil remedy portion of the Violence Against Women Act of 1994 in the United States v. Morrison decision. Recently, the Commerce Clause was interpreted to include marijuana laws in the Gonzales v. Raich decision.

"Dual federalism" holds that the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted very narrowly, such as the Tenth Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. In this narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants such. In this case, there is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.

However this theory also holds the federal government as the final judge of its own powers. Understanding the constitutional role of Native American governments (Indian country), separate and distinct from state and federal governments, exercising limited powers of Tribal sovereignty, has given rise to the concept of "bi-federalism."

Brazil

The fall of Brazilian monarchy in 1889 by a military coup d'état led to the rise of the presidential system, headed by Deodoro da Fonseca. Aided by well-known jurist Rui Barbosa, Fonseca stablished federalism in Brazil by decree, but this system of government would be confirmed by every Brazilian constitution since 1891, although some of them would distort some of the federalist principles. The 1937 Constitution, for example, granted the federal government the authority to appoint State Governors (called interventors) at will, thus centralizing power in the hands of President Getúlio Vargas. Brazil also uses the Fonseca system to regulate trade.

The Brazilian Constitution of 1988 introduced a new component to the ideas of federalism, including local governments as federal entities. Brazilian cities are now invested with some of the traditional powers usually granted to states in federalism, and although they are not allowed to have a Constitution, they are structured by an organic law.

Canada

In Canada, the system of federalism is described by the division of powers between the federal parliament and the country's provincial governments. Under the Constitution Act (previously known as the British North America Act) of 1867, specific powers of legislation are allotted. Section 91 of the constitution gives rise to federal authority for legislation, whereas section 92 gives rise to provincial powers. For matters not directly dealt with in the constitution, the federal government retains residual powers; however, conflict between which level of government has legislative jurisdiction over various matters has been a longstanding and evolving issue. Areas of contest include legislation with respect to regulation of the economy, taxation, and natural resources.

Australia

On 1 January 1901 the Australian nation emerged as a federation. The model of Australian federalism adheres closely to the original model of the United States of America, though through a Westminster system.

Federalism with two components

In Belgium, the state structure is formally a federation, but because it exists in fact of only two component parts, the Dutch-speaking and the French-speaking populations who are relatively equal in strength, one could speak of a special case of federalism. In such cases, resembling a marriage, it is difficult to think that one 'partner' (the bigger of the two) could force a majority-decision on the other, but also that the other (the smaller of the two) could block indefinitely such a majority. When the differences of opinion nest on the cleavage between both 'partners', decisions on those subjects, even trivial ones, can only be taken by a compromise between both 'partners'. As such, federalism with only two 'partners' resembles in practice more a confederation.

This was also the case in Czechoslovakia until the Czech Republic and Slovakia separated in 1993 and in the Federal Republic of Yugoslavia from 1992 (in 2003 it became a confederation: State Union of Serbia and Montenegro which ended when in 2006 Montenegro declared its independence). The 1960 Constitution of Cyprus was based on the same ideas, but the 'marriage' of Greeks and Turks failed. Also, Tanzania, which is the union of Tanganika and Zanzibar. Similar power-sharing arrangements between two 'communities' can be found in Fiji, Saint Kitts and Nevis, in Northern Ireland (the Belfast Agreement) and in Trentino-Alto Adige/Südtirol.

Christian Church

Federalism also finds expression in ecclesiology (the doctrine of the church). For example, presbyterian church governance resembles parliamentary republicanism (a form of political federalism) to a large extent. In Presbyterian denominations, the local church is ruled by elected elders, some of which are ministerial. Each church then sends representatives or commissioners to presbyteries and further to a general assembly. Each greater level of assembly has ruling authority over its constituent members. In this governmental structure, each component has some level of sovereignty over itself. As in political federalism, in presbyterian ecclesiology there is shared sovereignty.

Other ecclesiologies also have significant representational and federalistic components, including the more anarchic congregational ecclesiology, and even in more hierarchical episcopal ecclesiology.

Some Christians argue that the earliest source of political federalism (or federalism in human institutions; in contrast to theological federalism) is the ecclesiastical federalism found in the Bible. They point to the structure of the early Christian Church as described (and to many, prescribed) in the New Testament. This is particularly demonstrated in the Council of Jerusalem, described in Acts chapter 15, where the Apostles and elders gathered together to govern the Church; the Apostles being representatives of the universal Church, and elders being such for the local church. To this day, elements of federalism can be found in almost every Christian denomination, some more than others.

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