The Federal Spirit

In In Search of the Federal Spirit (2012), Michael Burgess's ‘initial purpose is to investigate what is meant in the mainstream literature on federalism by the nebulous phrase “the federal spirit”—as ambiguous as it is seductive' (p.

Burgess (2012, p. 3) summarizes the notion in the following terms: ‘a politi­cal predisposition to negotiate and bargain among equals—suggesting above all a willingness to compromise—over fundamental questions concerning constitution-making in the process of state formation or reformation'. This is, of course, a rather theoretical and normative conception that one must not confound with empirical reality. All federations somehow fail to live up to the promised virtues of federalism. Nonetheless, if one is committed to democracy and the principles it rests on—and because of ‘the interrelationship between federalism and democracy' (Burgess and Gagnon 2010, p. 10)—it is then of a matter elementary logic to demand that the working dynamics within federa­tions come as close as possible to the federal spirit. Following Ramon Maiz, we also argue that ‘when considering national problems from the perspective of encouraging democracy... it makes little sense to separate the analysis of what is... from the analysis of what should be and its philosophical-political and moral fundamentals' (Maiz 2000, p. 36).

The federal spirit is not something that partners in a political association can simply put into motion as the federation emerges and dismiss it from their thoughts thereafter; partners need to understand the federal spirit as a ‘daily plebiscite', to borrow Ernest Renan's potent expression. Put differently, if ‘the federal spirit.

Foremost, by spirit, one may understand ‘a synonym for the word “idea” or “notion”, something that conveys a sense of affinity for a thing of value in and of itself' (Burgess 2012, p. 7). Hence the federal spirit appeals to a firm commitment to a specific assemblage of values or principles, that of feder­alism. According to Burgess, such values are of two distinct but interrelated kinds: those that relate to ‘federal loyalty' and those that relate to ‘federal comity'. As he put it,

The first of these ideas, federal loyalty [Loyautefederate, or Bundestreue], [refers] to the fundamental commitment of the constituent units and their representatives to the overall needs of the larger federal system, while the second concept, federal comity, [requires] of both federal and local officials a sense of ‘fair play'—the presumption of a willingness to ‘give the other side a “break”, to be ready for compromise' wherever seri­ous strains developed, to be, in other words, ‘pragmatic in the approach to problems' on which the federal and local authorities were divided or on which ‘their intrinsic interests clashed'.

BURGESS 2012, p. 14

In a nutshell, then, the federal spirit consists in a ‘predisposition to “think federally”, that is, to avoid centralist, hierarchical solutions to problems and instead to adopt power sharing, non-centralist, participatory approaches in a compound polity based upon consent' (Burgess 2012, p. 15).

Now that we have a better understanding of the philosophical grounds and moral underpinnings of the federal spirit, what criteria shall one derive from it to critically appraise the evolution of the relationship between different part­ners in a (multinational) federation? Again, let us probe Burgess's thoughts. He identified four core dimensions from which the federal spirit should transcend political dynamics in a federal state (2012, pp.

1. Self-restraint, that is, ‘the duty and obligation of both the federal and constituent unit governments to take account of each other's inter­ests when exercising their respective constitutional powers';

2. Damage limitation, which refers to ‘the duty and obligation of each [order] of government to exercise its powers in such a manner that will avoid harm to other parts of the federation and to the federation as a whole';

3. Moral imperatives, meaning that ‘there is both a moral and a political obligation for each [order] of government to observe the unwritten constitutional norms that together comprise the substantive mean­ing of the written constitution'; and

4. Political empathy, ‘the predisposition of each [order] of government to conduct both vertical and horizontal relations in a spirit of part­nership that incorporates friendship, understanding, mutual trust, respect, and good faith'.

The third dimension, ‘moral imperatives', obviously needs to be adapted to the proper language of any case-study, while the others are more universal in focus. As we shall see below, the Supreme Court of Canada (scc), in its now-famous Reference re. Secession of Quebec (1998), precisely determined and defined four underlying yet unwritten constitutional principles that ought to ‘assist in the interpretation of the text and the delineation of the spheres of jurisdiction, the scope of rights and obligations, and the role of our political institution' (par. 52). These principles are: 1) federalism, 2) democracy, 3) constitutionalism and the rule of law, and 4) protection of minorities (para. 49). These principles are said to be of equal value and none of them can trump the others.

To avoid any conceptual ambiguity, the scc states that the principle of federalism

recognizes the diversity of the component part of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction.

... The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. (par. 59)

The democratic principle refers to ‘the supremacy of the sovereign will of a people' (par. 61), but the Court insists that

the relationship between democracy and federalism means. that in Canada there may be different and equally legitimate majorities in dif­ferent provinces and territories and at the federal level. No one majority is more or less ‘legitimate' than the others as an expression of democratic opinion. (par. 66)

... The consent of the governed is a value that is basic to our under­standing of a free and democratic society. (par. 67)

The ‘constitutionalism principle bears considerable similarity to the rule of law, although they are not identical' (par. 70). Put simply, ‘the constitutionalism principle requires that all government action comply with the Constitution. The rule of law requires that all government action must comply with the law, including the Constitution’ (par. 70). Finally, ‘the fourth underlying constitu­tional principle... concerns the protection of minorities’, referring to ‘specific constitutional provisions protecting minority language, religion and educa­tional rights’ (par. 70).

In the following section we discuss the evolution of Quebec-Canada dynamics over the past 50 years, seeking to understand how these two partners have managed (or not) to overcome their political differences. In so doing, we are concerned more with providing a fair interpretation than with the need to offer an exhaustive account of the most significant events.

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