Vol. 16 No. 7 (July, 2006) pp.546-549
FEDERALISM, SUBNATIONAL CONSTITUTIONS, AND MINORITY RIGHTS, by G. Alan Tarr, Robert F. Williams, and Josef Marko (eds). Westport: Praeger Publishers, 2004. 256pp. Cloth $89.95/£50.99. ISBN: 0-275-98023-5. Paper $24.95/£13.99. ISBN: 0-275-98024-3.
Reviewed by Jeffrey Polet, Department of Political Science, Hope College. Email: polet [at] hope.edu.
For American readers, schooled as they are on the lessons of Jim Crow, the basic claim of G. Alan Tarr and his co-editors, Robert F. Williams, and Josef Marko, might seem rather audacious: that federalism, by enhancing authority to subnational units of government, provides a greater degree of protection for minority rights than a unitary national system of government. The American experience certainly seems to augur against such a claim, and that specific issue is taken up by Tarr in his chapter on American state constitutions and minority rights. Tarr effectively demonstrates that, although states have increasingly expanded minority rights beyond those provided for by the Federal constitution, the Constitution has nonetheless remained central in protecting minorities against statewide popularly-inspired initiatives. In short, even in the American context the record of federalism in protecting the rights of minorities is, at best, mixed.
The picture becomes even more complicated when applied internationally. The editors have divided the book into two main parts, with the second part separated into three subsections. In Part I, the editors lay down the theoretical framework to explore the relationship between federalist structures and minority rights. One central problem in this regard is the process by which federal arrangements are structured. In the American case federalism evolved along two basic lines: first, as a gradual shifting of authority from the states to the federal government. That is to say, federalism was a bottom-up development whereby the formation (and subsequent consolidation) of the power of a centralized national government was the final stage of a protracted process. Secondly, American federalism had two constituent elements: demography and geography. In this too the American case proves to be somewhat exceptional (as can be seen in comparison with the case studies provided in the second part of the book). In America, demography and geography did not neatly overlap, so that identification of minorities as groups within particular regions proved difficult at best. Indeed, part of Madison’s famous argument in Federalist #10 is that an extended sphere of government will sufficiently muddle things so as to make oppression of minorities logistically impracticable. Then too, in America, demographic distinctions did not fall along linguistic lines. Clearly one of the determinative elements of the American experiment in democracy is the fact that it is uniformly English-speaking. Given the connection between language and culture, such a happenstance could not help but be propitious with regard to the prospects of [*547] the nascent republic. Here, however, the authors effectively demonstrate the difficulties with asseverating the normative character of the American experience. Federalism may be a bottom-up formation as in America, but it is more likely to be a top-down creation, and in that instance the difficulties of maintaining legitimacy increase significantly. The situation is further complicated by the fact that in top-down situations group identity tends to be more pronounced, making identity as a citizen more uncertain and group conflict more intense. In those situations, majorities have less at stake in terms of oppressing minorities, and thus are far more likely to engage in such acts. The fracturing of group identity, both presupposed and advocated by Madison, was geared toward the end of making the formation of majorities both unlikely and unstable. Across the globe, however, such groupings are more the rule than the exception.
Given the predominance of the top-down model, important questions are raised concerning the space left to subnational constitutions to provide additional rights to minority groups. The editors identify four factors that contribute to leaving this space: 1) the era in which the new system was adopted; 2) the ease with which the constitutions can be amended; 3) regional differences; and 4) how well subnational constitutions can copy or borrow from other component units. These considerations provide the framework for the case studies that follow. A second chapter by Kristin Henrard establishes many of the basic legal principles involved in resolving the possible conflicts between the demands of democracy in its majoritarian dimensions, the need to provide a stable and well-ordered state (with the concomitant imperative for minimal social harmony), and the particular claims of constituent groups. With regard to the latter, Henrard argues that a properly constituted regime will provide substantive equality for minority groups, a requisite that goes beyond simple non-discrimination principles. There is little discussion of the downside of such a claim, and one wonders whether in this regard Henrard has set the bar a little too high. In a final chapter establishing the analytical framework, Nicole Töpperwien investigates the significance of participatory rights for the sustenance of federalist regimes. The paradox here is that, although minority groups often seek to maintain their unique identity and to gain appropriate accommodations (if not outright advantages) to themselves, they also need to see themselves as one of the constituent elements of the state. To this end, they tend not to demand rights as individuals (a calculation that would strengthen the hand of the state by creating a uniform identity as citizen), but to demand rights as groups. In Töpperwien’s estimation, this is the preferred way to handle the challenges of multiculturalism, because, by providing a participatory connection to the state, it still allows for a high degree of legitimacy. In short, political oppression is stayed, not through recognition of universal equality along the lines of something like the 14th Amendment, but rather through the mutual recognition of universal differences. “The value of diversity,” she claims, “can turn into a fundamental principle of the state” (p.49). But I [*548] question whether this idea of diversity is sufficiently weighty to provide for the kind of legitimacy and social cohesion that national existence ultimately requires. One might ask, for example, what sorts of diversity ought to be valued and recognized as contributing to the strength of the political community. And then we might ask further what criteria we might employ to determine valuable diversity. While Töpperwien raises the question, the answer is wanting, except to say that whatever the criteria are, they have to be acceptable to all the parties involved. But surely this is a practical tautology that provides little guidance for actual practice. A reasonable criterion Töpperwien raises subsequently would be conflict-prevention; but even here cultural differences could be insuperable (a criticism that is suggested in part by Töpperwien’s misconstrual of the relationship between culture and politics in the American context). In short, something seems to be missing from her analysis.
The second part of the book assesses specific instances of the relationship between federalism and minority protection, dividing systems into “mature” structures, systems in the process of being transformed, and those that are “multinational” in scope. Comparativists will find much useful information in these chapters, and the editors have done an admirable job insuring their coherence and overall quality. One sense the reader develops is a feeling for the remarkable adaptive qualities of federalist arrangements – both in terms of federalism’s ability (if such agency can be ascribed) to adapt to the cultural and political particularities of different states, and to its ability to handle different problems. In Germany, federalism’s significance has little to do with its ability to protect minority rights, for Germany is a well-integrated society with few minority issues. But it has been important, and will continue to be, with regards to the massive immigration problem Germany experiences. I was particularly impressed with Francesco Palermo’s review of federalism in Italy. There, minority rights attach to territory and not to persons, with the result of strong asymmetries in the regional system. The regional arrangement, moreover, tracks different language groups with the effect that only linguistic minorities are considered to be minorities, and maximum protection is offered only within the particular region (a similar problem exists in Belgium, as demonstrated in Wouter Pas’ excellent contribution). This inevitably leads to some form of balkanization, and indeed Palermo characterizes the assimilation of linguistic groups into the Italian nation as a “risk.” This slackening of national identity is accompanied by the decline of the state (indeed, skepticism with regard to the modern nation-state is a veritable leitmotiv throughout the book) as both a source of rights and a legitimate exerciser of power. If the nation-state itself attenuates, the whole idea of “minorities” becomes increasingly indeterminate as well.
In Jens Woelk’s chapter on Bosnia and Herzegovina, the problem of federalism and minority rights is presented in extremis. First of all, it is the starkest example of a top-down model of federalism available, imposed on the [*549] region by an international coalition and ruled by international tribunals (most notably the High Representative of the International Community). Secondly, the problems of multi-ethnicity are especially pronounced (Balkanized both literally and figuratively). Third, the basic problems to be addressed are not problems of democracy per se with regard to minority rights, but essentials of the rule of law itself, in both its coercive and legitimating functions. On this score, basic principles of governance are being adjusted on the fly. If one views federalism as primarily a means of dividing power, then the Bosnian case stands as an example of the difficulty in finding the right balance of power required to keep groups apart and hold them together.
This brings me to my main criticism of the book as a whole. Federalism is a way of “splitting the atom of sovereignty” in a way that groups are functionally handcuffed in their ability to “vex and oppress” one another. Hobbes identified trust as the basic problem of liberal politics, and the restoration of a minimum of trust as the sine qua non of any well-ordered regime. Federalism may be thought of as a mechanism to enflame distrust, rather than one that can create, or at least operate on the basis of, a minimum order of trust. Indeed, as Madison notes in Federalist #10, in an extended republic where persons have little immediate knowledge of one another, “communication is always checked by distrust, in proportion to the number whose concurrence is necessary.” For that reason, increased regionalism will perchance circumvent those problems of distrust as far as regional politics go. But if rights are connected to regionalism (and/or ethnicity), then the problems of both trust and minority protections will become even more pronounced. The Bosnian example is sufficient proof of this, and ought to create skepticism concerning the prospects for democracy in Iraq, which increasingly appears as if it will be created along regional lines or not at all. Even if the former, the problems of trust are so pronounced as to make the prospects grim indeed. The authors of the text and various essays do not raise this issue, and for this reason I suspect the mechanisms of federalism and the valuing of diversity are, in the end, inadequate in themselves to the task the editors establish: protection of minority rights.
© Copyright 2006 by the author, Jeffrey Polet.
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