Understanding Constituent Powers in Federal Systems

Constitutions that claim to be democratic frequently appeal to the people or the nation as the
constitutive power on which the constitution is founded. Thus, the constitution derives its
existence from an exercise of constituent power by the people of the nation. However, the
constituent power of the people has to be institutionalised in order to give rise to a written
constitution. It has to be exercised through some kind of constitution-making process, and the
particular process that is adopted will unavoidably constrain and shape the constitution that
emerges. In federal systems, moreover, there is a plurality of peoples that has to be reckoned
with. In federations, therefore, the process through which the constituent power is exercised
is constrained and shaped by the emergence of two sets of peoples: the people of each
component state and the people of the federation as a whole.

Understanding Constituent Powers vis-à-vis Constituted Powers

Constituent power is distinct from the constituted powers contained within a constitution.
Amendment clauses appear within the texts of constitutions and are therefore a kind of
constituted power. However, amendment clauses offer a means by which constitutions can
themselves be altered, which is virtually the exercise of a kind of constituent power. And yet,
many amendment clauses prescribe procedures that are different from those used when the
constitution was created. When this is the case, do they thereby displace the constituent
power, or somehow co-exist with it? Merely attending to the written text of a constitution
alone will not answer this question conclusively, because the constituent power is the
presupposition of the constitution, and not something contained within it despite the text of
the constitution itself being a product of the constituent power, and therefore containing
within itself suggestions as to its nature.

The preambles of many federal constitutions testify to the importance of this question, often
by using language that expresses the mixed character of the federation. Compare, for
example, the preambles of three very different federations, namely India, the United States
and Ethiopia, which respectively begin with the following words: “We, the People of India”;
“We the People of the United States” and “We, the Nations, Nationalities and Peoples of
Ethiopia”. Each expresses a subtly different account of the constituent power on which the
constitution was founded.
Constituent Powers – Amending Clauses

The amending clauses of federations have to grapple with essentially the same problem of
polity and polities. To take India, the United States and Ethiopia again as examples, it is
evident that the amendment clause in each country points to a particular configuration of
power, more or less reminiscent of the way in which the constituent power was
institutionalised in the framing of the constitution. All three constitutions in some way and to
some extent involve the constituent states in processes of constitutional amendment, but the
significance and degree of that involvement varies.

In India, the bulk of the constitution can be amended by two-thirds majorities of the two
houses of the Parliament, and only particular articles of special importance require the
approval of at least half of the state legislatures.

In the United States, the entire constitution can be amended only when ratified by the
legislatures or in conventions of three-fourths of the states. Except, in addition, no alteration
to the suffrage of a state in the Senate can occur without that state’s consent.

In Ethiopia, the constitution can be amended only when approved by a two-thirds majority in
a joint sitting of the two houses of the federal legislature and by two-thirds of the Councils of
the member states. Except that, additionally, the rights and freedoms protected by the
constitution cannot be altered except with the approval of all state councils and a two-thirds
majority in each of the two houses of the federal legislature.

Moreover, the Ethiopian Constitution affirms the right of every Nation, Nationality and
People to secede from the federation. This is in stark contrast to the Indian Constitution,
which grants the Union Parliament power to create new states by amalgamating or dividing
the territories of existing states and to alter the territories of the states generally, and which
affirms the right of the federal government to intervene in the affairs of the states in cases of
emergency. The U.S. Constitution falls somewhere between: it is silent on secession, but the
attempted secession of the southern states during the civil war was repulsed by the Union,
and the Supreme Court subsequently held that the Constitution had established “an
indestructible Union composed of indestructible States”.

On the face of these provisions, the Indian constitution offers the least opportunity for state-
input into constitutional amendments, the American offers substantially more opportunity,
and the Ethiopian constitution offers the most. In India, it seems, the very identity and
existence of the states is subject to the authority of the Union; while in the United States both
the Union and the States are deemed indestructible; while in Ethiopia, the territorial bounds
of the Union itself can be altered by unilateral withdrawal of a state. These differences
correlate in general terms with the way in which the constituent power is described in the
preambles of each of these constitutions.

Plurality of the Constituent Powers

The apparent correlation between constituent power and amendment clauses gives rise to a
wider question. To what extent does the unity or plurality of the constituent power shape the
amendment procedure adopted in a constitution?

As the examples of India, the United States and Ethiopia suggest, federal constitutions can be
the result of very different conceptions of constituent power. For one of the commonplaces in
the literature is that federations can be formed, not only through aggregation of formerly
separate and independent states, but also through devolution of powers of self-government to
nascent political communities within a formerly unitary state.

If each federal system is unique in the way that its constituent power is conceived and
institutionalised. This conceived institutionalisation influences the impact of constituent
powers on the processes for constitutional alteration in each constitution. If the configuration
of the constituent authority lying behind a federal system is not simply unitary, but also
fundamentally plural, there is good reason to expect that this will shape not only the
mechanisms by which a federal constitution was brought into being, but also the mechanisms
by which it can be changed in the future.

The federal (or federal-like) systems considered in this article illustrate the pattern in which
constitutive power is configured and tends to be replicated, in modulated forms, within the
distribution of powers, representative institutions and amendment clauses of the resulting
constitutional arrangement.

Federal constitutions are usually rigid in order to ensure that the terms of the federal compact
cannot be altered unilaterally by either the federation or the constituent states. But rigidity is
only one part of the equation. Federations also display characteristically federal ways of
securing that rigidity. Typically, this involves some formal recognition of the plurality of
polities of which the federation is composed. Federal constitutions thus involve a kind of
plurality-in-unity which simultaneously recognises the plurality of states of which the
federation is composed as well as the unity into which those states are combined.

Causal Linkage between Federalism and Constituent Powers

All federal constitutions are in an important sense transformational. They either involve the
transformation of a plurality of states into a federation or the transformation of a unitary state
into a federalised state consisting of component polities.

The more closely the procedures prescribed by an amendment clause replicate the constituent
power on which a constitution is founded, the less significant is the transformation, while the
more an amendment clause departs from the formative process, the greater the
transformation. An aggregative federal constitution, premised on the independence of the
constituent states, will be more or less transformative depending on the extent to which the
states retain or else relinquish control over the amendment of the federal constitution. A
devolutionary federal constitution, premised on the sovereignty of the original unitary state,
will be more or less transformative depending on the extent to which control over the
amendment of the constitution is retained by the parent state or else relinquished to the
newly-created component polities.

When every potential member state is treated as a constitutive equal any federation of those
states will be founded on the unanimous consent of them all. In such cases, moreover, the
constituent polities are in a position to insist upon being treated as equals within the
federation, and tend to do so, especially in relation to those matters they regard as most vital
to their interests. However, because federal constitutions are transformative, it is possible that
the constituent polities may agree to form a federation in which they are not treated as equals
in all respects.

On the other hand, where a federation is devolutionary, this tends to be reflected in

amendment clauses that allow the legislative institutions of the original unitary state to retain
an essential role in constitutional amendment, even if at the same time an important or
essential role is also given to the newly-established component polities. However, in
devolutionary systems, the equality of the component polities is not necessarily a
presupposition of the federating process and so the status and powers conferred upon the
component polities may often be asymmetrical rather than symmetrical.
Similar analyses apply to federal systems that emerge out of territories under the imperial or
military control of a state external to the federation. Once again, the exact configuration of
the constituent power at the establishment of the federal system is of crucial importance, the
major difference being that there are three political orders to be considered: the imperial
polity, the federal polity and the component polities. In such cases, the federating process
may be more or less aggregative or devolutionary as regards the relationship between all
three political orders of government.

The formative character of each federal system, whether aggregative or devolutionary,

contributes to the development of assumptions that underlie constitutional reasoning in each
country, as contested as that reasoning so often is. For example, no matter how much the
principle of federalism may have come to be recognised and applied in the interpretation of
the Indian Constitution, the Supreme Court appears to remain wedded to the proposition that
the Constitution derives its authority from a constitutive act of the people of India, conceived
in fundamentally unitary terms, and uses this idea in its decisions to very practical effect.
Likewise, no matter how centralised judicial interpretation of the American and Australian
Constitutions may have become, the courts in both countries continue to conceive of their
respective systems as constitutively federal in ways and to an extent that simply cannot obtain
in countries like India and the United Kingdom.

Conclusion

Today, comparative constitutional law lacks an explanatory theory of the formation and
amendment of federal constitutions. Therefore it is difficult to define and understand the
characteristic issue that arises in federal systems, namely the relationship between the
federated polity and the constituent polities. One of the prime difficulties encountered by
attempts to formulate explanatory theories in the field of comparative federalism concerns the
context-dependent nature of the formation of a federal constitution. Because federal bargains
are a function of the unique conditions of each country, comparison between countries is
especially difficult and general explanatory theories of federalism seem elusive.

However, if close attention is given to the way in which effective constitutive authority is
configured at the critical moments when a constitution is brought into being and undergoes
fundamental change, it is possible to identify certain systemic consequences for the structural
features of the constitution, including its formal amendment procedures. This is because the
exact way in which constitutive authority is configured operates as a kind of presupposition
in constitutional reasoning. It is also a locus of effective political power, which tends to have
a systemic effect on the way in which constituted power is distributed within the resulting
federal system. By approaching the question in this way, the uniquely context-dependent
nature of the bargains that underlie the formation of federal constitutions can be assimilated
into a theory that offers a generalised explanation of the formation and amendment of federal
constitutions understood comparatively.