On federalism

OPEN UNIVERSITY OF CATALONIA

THE 1978 SPANISH CONSTITUTION. A FEDERAL MODEL? COMPARATIVE STUDY OF THE CONSTITUTIONS OF SPAIN AND THE UNITED STATES OF AMERICA. ANALYSIS, CONCLUSIONS AND PROPOSALS.

By

Eduard Tunyí
Lawyer and student of political sciences

November 2007 0

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The constitution of the United States in contrast with the Spanish

constitution: united federalismversus federalism to stay united. The purpose of federalism is to bring states together and it occurs between previously independent states that wish to join forces to gain greater power, but that hold on to certain powers as a condition to joining a larger common state (Linz. 1999). Federations of this kind are usually cases in which there was a shared feeling of nation or values before the creationof the federation. The case of the United States is the paradigm of the federation (it was after all the first), and its constitution, approved in 1787, reflects this sentiment. After the Declaration of Independence in 1776, the 13 ex-colonies initially set up a confederation, which made it possible to win the war of secession against England, but whose limitations were quick to come to light.Thus, in order to “form a more perfect union”, to quote the preamble, a common political unit was created that overlapped that which existed in the 31 states (each of these independent states had, and still has, its own constitution, parliament, government, courts and institutions). It is important to highlight the use of the verb “to form”, as it implies the creation of something that as yet did notexist, and on the noun “union”, which is self-explanatory. Along these same lines, the well known “We the people...” conveys the idea that rather than the United States as a political body approving the constitution, it was the people who did so (through their state delegates). Therefore, the people created the state, the ex novo union, as it did not exist beforehand. This was a founding charter,which is why the term the Founding Fathers is used. In short, the federation was not born of a concession to the union, but because it was the wish of its component parts: the states.

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The preamble also gave rise to the idea, which would subsequently be made explicit in Section 8 of Article 1, whereby the states, in other the words, the people, gave up their sovereignty to found this unionthat was more perfect than a mere confederation, but that it did so by retaining a number of significant powers. We talk about the system of the distribution of powers between the federation and the states, characterized by the fact that the powers entrusted to the federation (defense, monetary affairs, foreign policy, foreign trade, etc.) are strictly defined and that everything else is left tothe states. It is therefore a system that presupposes that the states are entrusted with all powers (because they did not give up any), except for those conceded to the federation, which are exceptions. This will be discussed in more detail below. It should also be taken into account that when the union came into being in 1787, it was only made up of 13 states, whilst today the United States ofAmerica is made up of 50 states. This reflects the idea that the union was not a closed, concluded and definitive arrangement, but that as set out in Section 3 of Article 4, Congress could admit new member states to the union. Therefore, the territory is not set in stone by the text of the constitution, but allows new states to join the union. It even allows two or more states or parts of states tocome together and a state can divide, providing approval to do so is given by Congress.1 However, beyond the case of the United States and other countries that followed 2, it is difficult to come across new examples of democratic federalism set up for the purposes of uniting territories. Current practices of multinational federalism seem to be more the result of efforts to unite already existing...