Divided Sovereignty in US Federalism and Its Legacy

While Althusius' ideas were mainly ignored in Europe, they somehow travelled across the Atlantic, contributing to the creation of the first archetypal federal system, the US constitution of 1787.

[t]he Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursions by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct rela­tionship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. (US Term Limits, Inc. v. Thornton, 514 US 779 (1995), Justice Kennedy (concurring))

The novelty of the Philadelphia compromise of 1787 was that it placed the US in a position somewhere in between an international and a national structure, with sovereignty shared between the Union and the states (Schütze 2009, p. 23). Sovereignty was virtually divided between the two levels of government, although—technically speaking—the US federal constitution does not specify where it resides (Palermo and Kossler 2017, p. 89).

Although not an absolute rule, other classic federations now entrench divided sovereignty. For example, article 3 of the Swiss constitution mandates that

The Cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution

Likewise, article 30 of the German Grundgesetz is explicitly labelled ‘Sovereign powers of the Länder' and mandates that

Except as otherwise provided or permitted by this Basic Law, the exer­cise of state powers and the discharge of state functions is a matter for the Länder

However, while the German and Swiss federal constitutions explicitly refer to the sovereignty of the constituent units, federal constitutions of systems such as Canada or Australia are silent in this regard.

In dividing sovereignty between two levels of government, federalism some­how disrupted the classic understanding of sovereignty in Europe. Perhaps this is one of the reasons why—Germany and Switzerland aside—for a long time federalism was not enthusiastically welcomed in Europe (Beaud 2012, p. 274). In fact, in the European legal tradition, the power of the state is ‘held to be a power of dominance... such that the state may be defined as a unit for decision-making and action' (Beaud 2012, p. 274). Within this framework, only the unitary state could exist, as federal states would undermine the idea of sovereignty (Beaud 2012, p. 274).

To overcome this antinomy between federalism and sovereignty, some creative solutions have been engineered. For example, in countries like Italy and Spain, whose constitutional systems were initially shaped quite heavily by the French unitary state, but were at some point forced to decentralize, the solution was to distinguish between the concept of sovereignty (which is one and belongs only to the centre) and that of autonomy (which is what the regional level enjoys). Here, the central government retains full sover­eignty (foreign policy, defence, currency, and so on), while regional govern­ments enjoy exclusive powers in areas such as town and country planning, tourism, health, and so on (Beaud 2012, p. 275). In other words, while they enjoy broad autonomy and legislative powers, they are not considered sov­ereign, and remain subject to the control of the central government (Beaud 2012, p. 275).

But is this distinction between autonomy and sovereignty truly fundamen­tal, or is it just using different terms to refer to the same thing? After all, we observed that classic federations invariably refer to the spheres of compe­tences of the constituent units as sovereign and autonomous powers, as if the two terms mean the same thing, while only in regional states like Italy does this distinction become important. Furthermore, while there is a long-standing scholarly tradition investigating the many shades of sovereignty, autonomy is simply construed as the ‘little sister' of sovereignty and encompassed within it.

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