CONSTITUTIONAL POLITICS AND THE FATE OF FEDERALISM. Canada's and Spain's Political Experiences in Comparison

CONSTITUTIONAL POLITICS AND THE FATE OF FEDERALISM1 Canada's and Spain's Political Experiences in Comparison Francisco Colom González -Instituto de FilosofíaConsejo Superior de Investigaciones Científicas Madrid. Spain ---------------------------- The theoretical relevance of federalism Constitutional politics in a liberal democracy is confronted with a double normative task which is not easy to concile: on one hand it must provide the legal consensual frame for the selfgovernment of a sovereign nation; on the other hand it must also protect the rights and liberties of the individual citizens whose collective will as "the people" makes up national sovereignity. Federalism therefore, both as a political theory and a political model, seems particularly well suited for that purpose, since it is committed to the diffusion of power and the linkage of individuals and groups in a way that allows the pursuit of common ends, while preserving the respective integrities of the intervening parties2. By combining the principles of constitutionally shared power and autonomy, federalism institutes negotiation as a means to achieve political ends. However, it would be inaccurate from a theoretical point of view to consider federalism just as a mere technique for the territorial allocation of power, since it has a complex normative core which entails respect for plurality, guidance by the virtue of tolerance and an idea of political justice. These features may help to explain why federalism has attracted the attention of both constitutional theorists and political philosophers3. 1 A version of this paper in Spanish was published in the journals DEBATS (Spain), 56 (Agosto 1996): 4-16 and ALTAMIRANO: REVISTA DEL HONORABLE CONGRESO DEL ESTADO DE GUERREO (México) 1/6 (Mayo-Junio 1998): 11-35, and as chapter 7 of Francisco Colom. Razones de identidad. Pluralismo cultural e integración política, Bacelona, Anthropos, 1998: 285-313. 2 . D. J. Elazar: Exploring Federalism. Tuscaloosa: University of Alabama Press, 1987, 24. 3 . For an account of the philosophical relevance of federalism see W. J. Norman: "Towards a Philosophy of Federalism", in J. Baker (ed.): Group Rights, Toronto, University of Toronto Press, 1994, 79-100. In the Spanish intellectual realm, several "Catalanista" thinkers of the last century had already stressed the philosophical nature of federalism as a political Weltanschauung, a global way of considering the organisation of the state, the origin of sovereignty and the role of individual rights in it. Reference can be made to Lluis Durán i Ventosa: Regionalisme i Federalisme. Barcelona, Edicions de la Magrana, 1993. Political theories have traditionally examined the federal principle according to their idea of what a just society should be, namely, as a means for dismantling political authority in the case of anarchism, as a territorial frame in which to carry out the liberal system of checks and balances or as a participatory device for deepening democracy by limiting the size of the basic political units, allowing thus collective self-determination4. The role of "identity" as a meaningful reason for human groups to federate is not clear in any of these approaches. In spite of their normative differences they all tend to assume the culturally homogeneous nation-state as the self-understood receptacle for federal arrangements. For instance, when considering the different models of representative government John Stuart Mill, a classical landmark for liberal political philosophy, declared free institutions as next to impossible in a country made up of different nationalities. A community of language, history and recollections would be of the utmost importance for the creation of a united public opinion, an indispensable requisite for the working of representative government. The forging of federative bonds should therefore take root in a "sufficient amount of mutual sympathy among the populations" based on affinity of "race, language, religion and, above all, of political institutions, as conducing most to a feeling of identity of political interest"5. Although sceptical about multinational states, Mill's idea that political institutions can after all help to create a shared identity is of particular interest here. On the other side of the ideological spectrum Carl Schmitt, a devoted anti-liberal, saw federalism at odds with the principle of sovereignty, since this should entail the political capability to decide on the state of emergency. The alleged contradictions of federalism concerning the rights 4 . These different political approaches can be respectively found, for instance, in P.J. Proudhon: Du principe federative. Paris, Bossard, 1921; A. Hamilton-J. Madison and J. Jay: The Federalist Papers. Toronto, Bartam, 1982; P. Piccone-G. Ulmer: "Rethinking Federalism", Telos Nr. 100 (Summer 1994), 3-16 and B. A. Ackerman: "NeoFederalism?", in J. Elster - R. Slagstad (eds.): Constitutionalism and Democracy, Cambridge, Cambridge University Press, 1988, 153-193. 5 . In J. S. Mill: Considerations on Representative Government, in Collected Works, XIX, Toronto-Buffalo, University of Toronto Press, 1991, 371-578. 2 of self-determination and preservation of the federated entities could only be overcome by demanding a "substantial homogeneity" of them all6. Whereas Mill and Schmitt saw the convenience of federation mainly in terms of a defence strategy for small or weak states, we can find a clearer normative idea of federalism in Francesc Pi i Margall, president of the first Spanish Republic in 1873 and a liberal theorist himself. For him federalism was a broad and elastic principle which could be used to agglutinate all sorts of societal entities. His disregard for any naturalistic conception of nations encouraged him to defend a federal arrangement as the best political solution for the coexistence of the Iberian peoples7. It is precisely the integration of national identities into higher and politically more complex units than the nation-state which makes federalism a hot issue for contemporary constitutional and political theory. National pluralism bulging under Spanish and Canadian political structures has not only conditioned to a great extent the fate of their respective constitutional designs during the last decades, but has also shown the limits of federal arrangements as an instrument for preserving political unity when more fundamental cleavages are at stake. It will be stressed here that the conversion of constitutional politics in a sort of federal engineering may help to prevent a dramatic breakdown of national unity, but under certain conditions can also become, as Peter Russell has convincingly shown in the Canadian case, a self-centered political process with no easy way out8. - Constitutional developement as a political process Canada's and Spain's recent constitutional experiences show significant differences and similarities that are worth examining. Here I will consider the fate of federalism in both countries as 6 . C. Schmitt: Verfassungslehre. Berlin, Duncker & Humblot, 1983, 363-379. 7 . F. Pi i Margall: Las nacionalidades. Madrid, Mundo Latino, 1929, 85-98. 8 . See P. H. Russell. Constitutional Odyssey. Toronto: University of Toronto Press, 1993. 3 related to a particular process of political change in which constitutional issues have been used both as a means to an end and as an end in themselves. That is, the Constitution has been an instrument for building a limited consensus on the rules for conflict solving, but as far as the territorial allocation of power and the recognition of collective identities are concerned, it has also become a political arena in itself. For diverse historical reasons both countries are still engaged in a process of territorial remodelling which demands a considerable amount of a very specific political consensus: an agreement on the identity and on the fundamental principles of the body politic. This is the level to which John Rawls refers in philosophical terms as bearing the principles of justice for the basic structure of society and which Peter Russell has labeled as "mega constitutional politics"9. When analyzing the relationship between interest representation and public-policy making in Western democracies, Claus Offe distinguished two types of political rationality: one associated with interventionist politics aiming at optimal satisfaction of manifest interest and a different type which tries to keep policy output constant by channelling demand inputs in a way compatible with the available system of interest representation10. Constitutions provide norms for both types of rationality, as they are sets of norms designed for allocating political power and for organizing models of conflict resolution. Even if this is not always necessarily so11, in functional terms Constitutions must help to mantain the working balance of the poltical system as a whole at a reasonable level. This is particularly true in the case of federal arrangements, where collective identities and institutional powers interplay within a territorial dimension. Other than ordinary policy making, constitutional politics seek to redesign the basic structure of commitments that bind together a political system so that unity can be preserved. 9 ."Mega constitutional politics issues the fundamental question of whether the citizens of a nation-state share enough in common, in terms of their sense of political justice and collective identity, to go on sharing citizenship under a common constitution". P. Russell. Op. cit. 75-76. See also J. Rawls A Theory of Justice. Oxford: Oxford University Press, 1973, 11. 10 . C. Offe: Disorganized Capitalism, Cambridge, Polity Press, 1985, 223 and ff. 11 . Some bargainig models, for instance corporatism, have often a weak constitutional basis or none at all. 4 When using comparative political approaches, as is the case here, we must proceed first by analyzing the social and historical contexts in which conflicts originated. The character of Canada and Spain as multinational states may offer a formal appearence of similarity that a closer glance at their territorial arrangements only halfway confirms. For instance, as far as the amendment of the Constitution is concerned, the Spanish experience has not been as dramatic as that of Canada. On the other hand, Spain has endured for the last twenty five years a degree of political violence related to nationalistic questions that Canadians have been almost completely spared of12. On the whole, both countries show considerable differences in their political traditions and in the historical conditions which have lately compelled them to enagage in constitutional politics. In a deeper sense, however, that experience can be considered as the outer sphere of a process of political change in which the balance of social powers and political institutions that make up each society are being redefined. The Spanish Constitution of 1978 was a historical achievement for a country that has been plagued by four civil wars during the last two centuries and that was just coming out of a period of forty years of dictatorship. Francoism after Franco's death was surely futureless, but the possibility of a democratic revolution was ruled out by the existing balance of powers between what was left of the regime and the clandestine opposition. Transition to democracy was therefore the result of a process of reform through which moderate francoists, the left wing and the Catalonian nationalists achieved a limited consensus so that a Constitution would be drafted and a new political order could be peacefully accomplished. The position of the Basque moderate nationalists was ambiguous throughout the whole process, as they refused to join the parliamentary commission in charge of the constitutional draft and did not call for a positive vote to the Constitution in the referendum that 12 . For a general account of political violence in contemporary Spain see F. Reinares: "Sociogénesis y evolución del terrorismo en España", in S. Giner (ed.): España: política y sociedad, Madrid, Espasa Calpe, 1990, 353-395; from the same author, see also "Democratización y terrorismo en el caso español", in J. F. Tezanos, et al. (eds.): La transición democrática española, Madrid, Editorial Sistema, 1989, 611-644. 5 followed. However, for all its years in provincial power, the Basque Nationalist Party has made a thorough defense of the Statute of Autonomy for the Basque Country, the validity of which only can be conceived within the Constitution they refused to endorse13. The political agenda of the transititon was certainly vast and complex: not only did it have to grant the alternation in power typical to democracy, but it also had to create a legal frame for industrial relationships, develop the instruments of a modern welfare state, redefine the institutional role of the army and the Catholic church, reduce the vast economic disparities among the regions and give an answer to the longing for political autonomy of the Basques and Catalans. Being the result of an agreement for a process of political reform, the Constitution of 1978 was a relatively open document, with many articles left for a subsequent development. The terms of the political bargaining during that period are sometimes obvious in the constitutional text. This is the case of Article Nr.2, where mention is made of the "regions" and "nationalities" that make up the Spanish nation. The constitutional meaning of the term "nationalities" has long been discussed, since it has no explicit role in the territorial organisation of the state as it is treated in Chapter VIII of the Constitution. Obviously, it was a concession to the demands for recognition of Spain's cultural diversity. Twenty years after Franco's death Spanish democracy is accepted to be satisfactorily integrated in its European environment. The cycle of constitutional development related to the democratic transition can be said to be completed, except for the share of power between the central government and the autonomic communities. For all its political meaning, this incompleteness need not be perceived by everyone as something negative14. The fact is that the approach given to the 13 . Ley Orgánica 3/1979, de 18 de Noviembre, de Estatuto de Autonomía para el País Vasco. Título Preliminar. Artículo 1º. 14 . As Miquel Roca, a Catalan nationalist and a father of the 1978 Constitution, has argued concerning Catalonia's position within Spain, "Countries are living things, but self-government is changeable. It is therefore impossible to ask from us a commitment to close the autonomic model". El País, September 10th, 1995. He should also add that an open federal model provides unending political ammunition for a nationalist party against the central government. 6 Basque and Catalan demands for political autonomy during the delicate period of the transition, that is, the division of the state in seventeen communities with different levels of self-government in order to blur the plurinational character of Spain, seems not to suffice anymore15. During all these years Catalonia and the Basque Country have shown a thriving political identity and an impressive capability to develop the bureaucratic and legal instruments needed to implement the selfgoverment granted to them by the Constitution. Unexpectedly, however, several other communities with no particular historical or linguistic identity have made clear not to be ready to be left out of the process of devolution of powers from the central government. Demands for a federal interpretation of Chapter VIII of the Constitution can therefore be heard more often and strongly16. Nevertheless, to think that the evolution of the autonomic system towards a federal model can disactivate Spain's "national question" amounts to the belief that politics can be supplanted by administrative measures. As Canadians know so well, the option for a symmetrical or an asymmetrical federal model is a difficult political issue that concerns the terms in which a pluralistic community defines itself17. The idea of Spain as a sovereign political unity made up of individual citizens distributed among seventeen communities provided with equal autonomic powers is substantially different from the idea of Spain as a void political structure (a state) inhabited by several cultural nations whose collective rights (mainly self-determination) must be constitutionally recognised. The cultural interpretation of federalism, that is, the case of cultural difference being the 15 . A good overview in English of the Spanish autonomic process and its future challenges can be found in A. Brassloff: "Spain: the state of the autonomies", in M. Forsyth (ed.): Federalism and Nationalism, Leicester, Leicester University Press, 1989, 24-50. 16 . See Ll. Armet (et. al.): Federalismo y Estado de las autonomías. Barcelona, Planeta, 1988. 17 . As Jordi Solé Tura, a father of the Spanish Constitution, has stated, "any one-sided interpretation that in a substantial and systematic way questions the concept of a unique Spanish nation or the existence and legitimacy of different nationalities within it, that is, the existence of a real nation of nations or of a community of communities, renders impossible the democratic development of Chapter VIII of the Constitution in a progressive and federal sense (...) Compound states, for example federal states, can only work and spread open their potentiality if this question has been clearly resolved". "Una lectura autonomista y federal del modelo de estado constitucional", in Federalismo y Estado de las autonomías, Ll. Armet (et. al.) Op. cit. 126-127. 7 base for the asymmetric allocation of territorial power, in so far as it is not accepted by the counterparts, poses therefore a major challenge to federal arrangements in multinational states. That seems to be the case in Canada and Spain, since national minority movements have made of the defense of their differencial identities the guidance for their federal strategy18. Contrasted with the Spanish experience, Canada's constitutional development can be interpreted as a being part of a wider and more complex process of political nation-building. In this sense, the constitutional patriation of 1982 was both the last step to reassert the institutional autonomy of Canada in relation to the old metropolis and a bold response to the challenge presented to Canadian unity by Québec's nationalist movement during the seventies. In this respect, constitutional politics and the fate of federalism are in Canada two sides of the same coin19. However, it would be inaccurate to view the Quiet Revolution as the sole reason for Canada to engage in such a distressing and difficult business as constitutional politics has proved to be. Since the Constitution Act of 1867, the evolution of Canadian federalism has been marked by the difficulty of creating a unitary country out of a set of highly heterogeneous and scattered territories. The adjustment of the federal model to the demands posed by political and historical changes was, with no doubt, hindered by the lack of ready constitutional means. As the debates of 1865 in the United Province of Canada show, the adoption of federalism by the fathers of Confederation was a pragmatic response to historical and societal realities, rather than the endorsement of a political 18 . The defense of asymmetric federalism as a way to politically reflect the cultural fact of Spain´s national pluralism has been quite common among Catalan intellectuals and politicians. See, for instance, F. Requejo Coll: "Diferències nacionals i federalisme asimètric", in E. Udina (ed.): Quo Vadis Catalonia, Barcelona, Planeta, 1995, 240-271. Basque nationalists, on the contrary, have been traditionally more interested in the constitutional recognition of the right to selfdetermination. For a normative account of self-determination as a collective right and the conditions of its legitimacy from a liberal point of view, see A. Buchanan: Secession. Boulder, Westiview Press, 1991, 74 and ff. On the political history of the principle of self-determination, see A. de Blas: "A vueltas con el principio de las nacionalidades y el derecho de autodeterminación", in Revista Internacional de Filosofía Política, Nr.3, (Mayo 1994), 60-80. 19 . See Ll. Brown-John: "The Meech Lake Accord in Historical Perspective", in M. Burguess (ed.) Canadian Federalism. Leicester-London-New York, Leicester University Press, 1990, 176-204. 8 ideology20. The British constitutional tradition was alien to federal questions, so new institutional mechanisms had to be developed to meet the challenges presented by historically changing conflicts of interest. Fluidity has therefore come to be considered the main characteristic of Canadian federalism. Since the amendment of the Constitution was commonly seen by the provinces as the occasion to change the share of powers with the central government, a major issue in federal systems, it is no surprise that mega constitutional politics became in Canada an endless process where the amount of consensus needed for the resolution of critical questions was always below the required level. This inability to reach consensus has made of the Canadian Constitution an instrument of political bargaining itself, rather than a general frame for political negotiation. In this sense, the new referendum on sovereignty/association for Québec seems to put things half way back to where they were in 1980. Something similar happened with the Spanish Constitution during the first stage of the democratic transition, the difference being that political bargaining in that moment was not as heavily burdened by the question of national identity, but by the urgency to provide a consensual environment for the restoration of democracy. This is the point where constitutional politics and "normal politics" come to coincide: when the debate on the "basic structure of society", to put it in rawlsian terms, becomes a self-centered process in which political forces measure their power and citizens are systematically confronted with the basic dilemmas of their society. - The "compact theory" and the legitimacy of national unity Every foundational moment in the history of a country entails a challenge to the established political loyalty of its members. The problem starts when that challenge cannot be satisfactorily resolved so that the debate concerning fundamental questions of political justice and collective 20 . R. Wagenberg-W. Sonderlund-R. Nelson-D. Briggs: "Federal Societies and the Founding of Federal States: an Examination of the Origins of Canadian Confederation", in M. Burguess (ed.) Op. cit., 7 and fol. 9 identity gives way to the ordinary political game of pluralist competition for power. The historical (re)interpretation of the common institutions becomes then an intellectual and political weapon. The idea of the Constitution as a political compact, the terms of which cannot be modified without the counterpart's consent, has played a major role in the Canadian constitutional debate. During the Constitutional Conferences the provincial premiers insisted in the provinces being the original members of such a compact, demanding therefore their right to control any possible amendment to the Constitution. On the other hand, defenders of Quebec's right to constitutional veto argued that Confederation was based on a pact between Canada's two founding peoples: the English and the French. As Peter Russell has remarked, from a strictly legal point of view it is quite difficult to conceive the British North America Act of 1867 as a contract, since neither the original provinces nor their people had sovereign legal power21. A real constitutional compact presupposes at least the existence of two independent constituent powers22, and at that time the only existing political entities were the United Province of Canada and the Maritimes, both under the sovereign power of the Imperial Parliament. This circumstance cannot obviate the fact that Confederation was the product of a deal between the anglophone and the francophone political elites. Beyond any legal or historical consideration, it is no secret that for the French Canadians the political legitimacy of that federal arrangement has largely depended on their egalitarian image of it. However, the patriation of the Constitution without the consent of Québec, the inclusion of the Charter of Rights and Freedoms in it and the failure of Meech Lake and Charlottetown agreements have reaffirmed provincial equality and dissipated the dual idea of Canada23. As a result of this, Canadian national identity has been defined after 1982 in individual rather than in communitarian terms: as a country of citizens, 21 . P. H. Russell: Op. cit. 17-18. 22 . C. Schmitt: Op. cit., 61-75. 23 . S. Langlois: "Le choc de deux societés globales", in L. Balthazar (et. Al.): Le Québec et la restructuration du Canada (1980-1991), Québec, Septentrion, 1991, 95-108. 10 not a compact of peoples. The old Anglo-French dualism has been replaced therefore by the conflict between Canada and Québec's vindication of a "distinct society" status as an alternative to sovereignity. In this conflict, the political interests of linguistic minorities both in Québec and in the rest of Canada have often run in an opposite direction to those of the supporters of deconfederation, since cultural rights for minorities are expected to have a better chance in a united Canada than in an imagined association of sovereign ex-Canadian states. The compact theory has played a different role in Spanish politics, for even if the current Constitution was the product of a carefully bargained consensus, the deals that historically forged national unity were of a pre-modern constitutional character. The Spanish nation building process is in fact one of the oldest in Europe, dating back to the end of the fifteenth century, when the dynastic merging of Castile and Aragon culminated in the reconquest of the last territories seized by the Moors and in the defeat of the French dynasty in Navarre. However, the political structure of the Spanish Empire, as it corresponded to the Old Regime, consisted of a number of territories personally linked to the King by very different sets of statutes, obligations and privileges. The Decreto de Nueva Planta (1716), an outcome of the War of Succession, is a historical landmark in the territorial structuralization of Spain. By means of it the triumphant Bourbon dynasty wiped out the self-government rights (Fueros) of the rebel regions of Catalonia and Valencia and set in motion the creation of a financially and politically centralized state, a task that would be completed in the nineteenth century by the Spanish liberals with the abolition of the Basque provincial rights. Regional self-rule for those territories became ever since a tug-of-war between liberals and traditionalists that bursted in civil conflict three times within a period of forty years (the Carlist wars of 1833, 1846 and 1872)24. 24 . The dynastic conflict ignited by the Carlist movement was a clear expression of a deeper political cleavage between Spanish liberalism and the remanence of the Old Regime absolutism. However, it is important to remark that the defence of the Basque Fueros only became a central issue of the the Carlist ideology (Dios, Rey y Fueros) in september 1834, that is, after the traditionalist insurrection against the government of the regent María Cristina, supported by the liberals. See M. Artola: La burguesía revolucionaria (1808-1869). Madrid, Alfaguara - Alianza, 1973, 54. 11 It is at the end of this period where we find the first traces of a rising national consciousness in some of those regions with a differentiated identity and/or a historical grievance. Besides certain material pre-conditions, such as the crystallization of regional economies, educational institutions and local public spheres, the self-interpretation of regional identity in terms of nationality needed a very specific kind of cultural and political developement. According to the general process so poignantly described by Gellner and Hobsbawm, it was first the local intellectuals who invented the symbols and national myths of a cultural romanticism that paved the way for the mobilization of political nationalism25. It was only then also, that the language became the common criteria to allocate national identities, even though none of the current regional nationalisms has had a fixed relationship between its linguistic identity and its territorial claims26. Catalan, for instance, is spread well over the provincial borders of Catalonia without having created a pancatalan political identity that might include Valencia and the Balearic Islands. The extention of Euskadi (the invented name for the land of the Basque people) is still a matter of discussion even for those who supposedly belong to it and does not match with the administrative borders of the Spanish Basque country27. Last, Galician nationalism has combined the myth of the celtic origins with the stress on the cultural affinity with the Portuguese, while avoiding any claim of political integration with them. As a reaction against all these centrifugal tendencies, a Spanish nationalist ideology with its own myths 25 . See E. Gellner: Nations and Nationalism, Oxford, Basil Blackwell, 1983 and E. J. Hobsbawm: The Invention of Tradition, Cambridge, Cambridge University Press, 1983. For a brief and general overview of the role of culture in the rise of peripheral nationalisms in Spain, see J. P. Fusi Aizpurúa: "La aparición de los nacionalismos", in Revista del Centro de Estudios Constitucionales, 11 (Enero-Abril 1992), 181-194. A more specific account of the literary invention of the Basque "ancestral" identity is given by J. Juaristi: El linaje de Aitor, Madrid, Taurus, 1987. The ideological roots of these nationalisms have been analyzed by A. Elorza: "Los nacionalismos en el Estado español contemporáneo: las ideologías", Estudios de Historia Social, 28-29 (Enero-Junio 1984), 149-168. 26 . The relationship between the mastering of a vernacular and the degree of national consciousness has been repeatedly confirmed by surveys in Catalonia and the Basque country. See M. García Ferrando (et. al.): La conciencia nacional y regional en la España de las autonomías, Madrid, Centro de Investigaciones Sociológicas, 1994, 171 and fol. 27 . Navarre, for instance, has always defended (and preserved) a separated political status from the other Basque provinces. 12 and symbols has developed in the last hundred years, of which Franco's regime constituted its most centralized and authoritarian expression28. Given these facts, the appeal during the democratic transition to the alleged origin of Spain's unity as a compact of pre-existing nations was meant to limit the character of the 1978 Constitution as a self-founding political document. Leaning on the fuerista political tradition, Basque nationalists sistematically demanded the recognition of the pre-constitutional nature of their "historical rights", meaning the charter of Basque provincial rights abolished in the nineteenth century. In their view, this medieval charter amounted to a document of quasi-constitutional nature that historically placed the bond of the Basque territories to the Castilian crown (and later to the Spanish government) on a two-sided, and therefore conditional, basis. In this sense, the inclusion of a Repeal Provision in the Constitution was meant to give a historical recognition to these rights without conceding any juridical precedency to them. On the other hand, Catalan nationalists have made of 1714, the date when Catalonia lost its regional self-government to the Bourbon dynasty, the symbol of the territorial status to be historically regained. The details of such a political arrangement have not been openly exposed yet, but hints about a compound monarchy as a possible model for the future have often been heard from Jordi Pujol, president of Catalonia and head of the leading nationalist party. - Dealing with national pluralism: symmetric and asymmetric federalism - As mentioned above, the current Spanish territorial structure can only be explained if it is viewed as the product of a double political challenge: the democratic reform of Franco's authoritarian regime after his death and the institutional recognition of Spain's national pluralism. 28 . The interpretation of Spanish nationalism as the reaction of a beleaguered and weak state against the challenge of peripheral forces has been convincingly sustained in G. Gortázar (ed.): Nación y Estado en la España liberal, Madrid, Noesis, 1994. 13 The result of this combined task has been, both in political and organizational terms, quite surprising. The autonomic model was indeed designed to articulate the plurinational character of Spain, but since recognizing the specific nature of the Basque and Catalan identity claims seemed too bold a decision for Adolfo Suárez's cabinet29, a provisional consensus was achieved so that a system of "autonomic communities" would be constitutionally adopted as the new territorial pattern for the state. Catalonia and Euskadi should thereafter be two communities among several other. However, a certain degree of asymmetry was provisionally recognised through the constitutional paths offered to the existing provinces in order to qualify as autonomic communities30. The so called "historical nationalities", that is, those regions which briefly enjoyed political autonomy before the civil war (Catalonia, Euskadi and Galicia) were granted a faster constitutional way to create their institutions of self-government (through Transitional Provision Nr.2). For those remaining, two aditional ways were left open (Articles 143 and 151). The difference between them concerned the procedure to qualify as an autonomic community and the period of time for the administrative power to be transfered. Article 151 not only marked a shorter path to become a community, but also opened immediately the way for the highest level of self-rule offered by the Constitution. On the contrary, the great amount of local consensus required by Article 143 in a short time placed the other regions on a slower route to autonomy and fitted them provisionally with a lower level of local power. It is important to remark that the difference between both procedures did not really consist in the amount of power that could be finally devolved from the central government to the communities, but in the privileges given to the historical (i.e. "national") ones in terms of political 29 . Adolfo Suárez and his party Unión de Centro Democrático led the first stage of the democratic transition (19761981). 30 . The autonomic model has preserved the former provincial system, so that every community is made up of one or more provinces. 14 bargaining power31. The Constitution did not even set the number of communities that could be created. This was left to the ability of the political forces for mobilizing local support in favor of self-government. In this way, a procedural asymmetry de facto was instituted in the territorial structure of the country, since the political ambition of the regions soon produced very different institutional results. Indeed the whole constitutional arrangement ignited a complex and multiple speeded process of power devolution that rendered unexpected results and is still far from being closed. The result of this is a federally inspired system where self-government is obtained on the basis of bargainig and whose limits can always be inched a little bit further. Although quite different from the American, German or Canadian models, the "federal" label is still appropriate here, since the territorial division of power is supported by the Constitution and is not liable to change by a mere parliamentary majority. Under these conditions, the territorial strucuture of Spain now presents a patchwork of communities with different sets of power, making it difficult to find two identical ones. Historical privileges, urgent local problems and political ability combined during the whole process in as many different ways as there are now communities. In the first rank we can find those regions which earlier and most strongly defended their communitarian identity: Catalonia, the Basque country, Galicia and, unexpectedly, Andalusia. Following are three other regions (Valencia, Navarre and the Canary Islands) that soon joined the former group by means of political agreements with Madrid and obtained a considerable amount of power through Article 150.232. In the last rank 31 . Among the thirty two subjects depicted in Article 149 as exclusive to the state, at least fourteen can run in competition with the autonomic communities. The expression "without excluding" (sin perjuicio) referring to a possible set of local iniciatives or the description of the state resposibility as the "regulation of the basic conditions leading to the equality of all the Spaniards" leaves open a broad arena for constitutional interpretation. That exclusiveness is further questioned by Article 150, which determines special procedures to transfer administrative power from the state to the communities. On this topic, see J.J. González Encinar: "Ein asymmetrischer Bundesstaat", in D. Nohlen (ed.): Der Staat der Autonomen Gemeinschaften in Spanien, Opladen, Leske & Budrich, 1992. Taking into account the ambiguity contained in the Articles concerning the exclusive responsibility of the state, it is easier to understand that the shaping of the territorial structure of Spain has mainly depended on a bargaining process. However, this process has not nearly been as inter-governmental as it has been among the political parties. 32 . Article 150.2 regulates the conditions and procedures under which the central government can transfer power to the autonomic communities. 15 we finally find those communities, ten altogether, that have achieved a more basic level of selfgovernment through the slower constitutional path of Article 143. The autonomic structure has been lately completed with the Charters of Ceuta and Melilla, the two Spanish enclaves in North Africa. Fifteen years after the devolution process was iniciated, when the trend is to reach a more homogeneus level of self-government among the communities, the prevailing question is if Catalonia and the Basque country are ready to see their differential identities blurred in a symmetrical federal landscape. On the other hand, the idea of equality as the basic principle of territorial political justice has been thoroughly defended by many of the communities with no particular historical identity. Equal self-government here is not mainly demanded as a means for preserving a cultural identity, but as an instrument for obtaining via Madrid resources from the richest regions, among which Catalonia and the Basque country are to be counted. A possible scenario for the future would be the most selfconfident communities setting the highest standards of autonomy for the rest to follow. This might lead to some of the contradictory results of Canadian federalism, where the attempts to match Québec's specific demands within the frame of a symmetric federation have eroded the executive powers of the central government. The thrive of provincialism for reasons other than the preservation of regional identity is also a familiar item in Canadian politics. The control over the natural resources draw a front line between Ottawa and the Prairies during the process of constitutional reform, especially after the introduction of the National Energy Program in 1980 stirred the traditional feeling of alienation in the Western provinces against the dominant role of Central Canada33. This feeling has been an important element, not only in the reshaping of federal-provincial relations, but in the refusal of the Western provinces to grant any constitutional privileges to Québec. Certainly, the recognition of national pluralism poses a major challenge to federal systems, 33 . See D. Milne: Tug of War: Ottawa and the Provinces under Trudeau and Mulroney, Toronto, James Lorimer Publishers, 1986 and G. Toner- F. Bregha: "The Political Economy of Energy", in M. S. Whittington-G. Williams (eds.): Canadian Politics in the 1980s, Toronto, Methuen, 1984, 105-136. 16 since the normative pattern for the allocation of power that inspired liberal federal doctrines in the last two centuries can only give a limited response to the social dynamics that gears ethnoterritorial conflicts34. In spite of decentralization national minorities, when whipped by a feeling of relative deprivation, may find the dimming of their distinctiveness in a symmetric federal system politically unbearable. Québec's persistent demand for the constitutional recognition of its being a "distinct society" or, in the Spanish political terms, Catalonia's and Euskadi's defence of their "differential fact" seem to be at odds with the federal model instituted in countries like the United States or Germany, that is, with the idea of a homogeneus divison of territorial power among the central governmment and the federated states and of a sovereign people made up of free citizens endowed with equal political rights. In a multinational federal state, trying to preserve political unity by generalizing the level of self-government urged by peripheral nationalist movements can only lead, beyond a certain point, to the weakening or even to the desintegration of the union. As Bower has stated it, "the question is how much we can strip the [Canadian] federal government of its powers and still have a country; in other words, to define the limits beyond which we cannot go by way of decentralization and still be a viable nation"35. On the other hand, the liberal option for citizenship rights, as it happened with the Canadian Charter of Rights and Freedoms, can produce a shift in the location of sovereignty towards the judiciary and entangle the process of conflict resolution with the constitutional multiplication of political actors36. An outlet to the dilemma might be the institution of some kind of asymmetry within the federal structure. Such an approach would require for sure a new normative and 34 . For an analysis of the concept of "ethnoterritoriality" see J. R. Rudolph-R. J. Thompson: Ethnoterritorial Politics, Policy and the Western World, Boulder-London, Lynne Rienner Publishers, 1989. 35 . M. Bower: Canada's Constitutional Crisis, Edmonton, Lone Pine, 1991, 52. See also G. Breton-J. Jenson: "La nouvelle dualité canadienne: l'entente de libre-échange et l'aprés-Meech", in L. Balthazar Op. cit., 77-92. 36 . See R. LaRue-J. Létourneau: "De l'unité et de l'identité au Canada", in International Journal of Canadian Studies 78 (Spring-Fall 1993), 81-94. 17 constitutional definition of how a culturally plural nation wants to be understood by its citizens or, in other words, "to reconcile coexisting solidarities [...] i.e., the searching of a modus vivendi among territorial and non territorial social pluralisms"37. However, introducing asymmetry as a federal principle, a difficult political task itself, cannot really guarantee higher institutional stability in a multinational state, as it deeply affects the traditional practice of jurisdictional powers, responsible government and citizenship. It therefore demands not only a considerable intellectual effort in redefining the boundaries of minority rights and cultural entitlements, but the formulation of a new principle of federal political justice and of the conditions under which political loyalty is to be expected from the citizens38. - Constitutionalism and the federal condition in multinational states: an open question - As we have seen, many of the features of the Canadian and Spanish federal models can be understood as a result of their backgrouds as multinational states. However, the bargaining model involved in their processes of constitutional development played a major role in the nature of the outcomes. Ostrom has pointed to the advantage given to the executive in a Westminster style parliamentary system as a difficult chapter in Canadian politics. Whereas the federal government assumes a predominant role in the policy making process, provincial parliaments have been traditionlly controlled by regionally based parties39. This is of particular importance in a federal system of a strong consociational character. Given the absence before 1982 of an amendment 37 . A. Cairns: "Constitutional Change and the Three Equalities", in R. L. Watts-D. M. Brown (eds.): Options for a New Canada, Toronto, University of Toronto Press, 1991, 87. 38 . Canadian political philosophy has already made a remarkable work in this field. See, for instance, W. Kymlicka: Multicultural Citizenship, Oxford, Clarendon Press, 1995; Ch. Taylor: Multiculturalism and the Politics of Recognition, Princeton, Princeton University Press, 1992; J. Tully: Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambrdige, Cambridge University Press, 1995 and the essays collected in J. Baker (ed.): Group Rights, Toronto, University of Toronto Press, 1994. 39 . V. Ostrom: "Federal Principles of Organization and Ethnic Communities", in D.J. Elazar (ed.): Federalism and Political Integration, Lanham, University of America Press, 1984, 73-86. 18 formula in the Constitution, executive federalism became, with the support of Québec and under the principle of unanimity, the main instrument to deal with the delicate issue of consitutional reform40 . Such a convention demands an extraordinary amount of consensus from first ministers who are strongly conditioned by their provincial parliaments. This may help to explain the historical difficulty in obtaining a general endorsement for constitutional agreements in Canada. For all the democratic deficit of this practice, its political effectiveness has been after all higher than the attempts to obtain legitimacy through participatory devices like the Citizen's Forum on Canada's Future. As the failure of the Charlottetown Accord and the subsequent polls show, the searching for an ever increasing base of consensus in the constitutional reform ended up eroding the very legitimacy sought by its main political actors. A great deal of the success of the Spanish democratic transition has been generally attributed to the process of the elite accomodation through which it was implemented. In fact, the disarticulation of Franco's regime was initially carried out from within. Given the nature of the transition from authoritarianism, consensus building with the opposition took place by means of a gradual reciprocal recognition that set the institutional devices for the democratic election of a constitutional assembly41. The amount and the quality of the consensus required by such a foundational process was not to be found again in Spanish politics. The perceived urgency of the political reform, the possibility of a reversal in the democratic process and the consociational 40 . What is called "executive federalism" has become a typically Canadian political feature consisting in the resolution of relevant public issues through the interaction among provincial governments, mainly the first ministers meetings. This term was first coined by D.V. Smiley: The Federal Condition in Canada. Toronto, McGraw-Hill, 1987, 83-100. For further reference on Québec's support of executive federalism since Lesage's government until patriation, see A. G. Gagnon: "Québec-Canada Relations: the Engineering of Constitutional Arrangements", in M. Burguess Op. cit., 95-119. 41 . Przeworski has formally described democratization as the process of institutionalizing an uncertain interplay of forces, so that no authoritarian power apparatus can control political outcomes beyond a given moment. Its feasibility would depend on the existence of institutions which can reasonably prevent the interests of the major political forces from being adversely affected under democratic competition. This is precisely the political rationale underlying rightwing reformers dismantling Franco's regime within its own legality prior to any bargainig with the democratic opposition. See A. Przeworski: "Democracy as a Contingent Outcome of Conflicts", in J. Elster-R. Slagstad (eds.) Op. cit., 59-80. 19 strategy adopted for the seeking of agreements helped to moderate the ambition of the demands to be included in the Constitution in a way that cannot be expected in a situation of "democratic normality". Quite on the contrary, the making of highly complex arrangements like federal ones, if exposed to universal review, can easily become an occasion for every organized group to publicly display its grievances. Consensus is after all a scarce resource in political systems. This does not pretend to be a technocratic statement, nor does it intend to dig into the debate between the participatory and the elitist conceptions of democracy. It only wishes to remark on the differences underlying the scenarios of constitutional politics seeking a federal deal, social movements competing for cultural constitutional recognition and the ordinary process of political democratic legitimization. It is certainly an open question if federal systems can keep multinational states together. Democratization and federalism as combined processes have remarkably failed in countries like the Soviet Union and Checoslovaquia, whereas federal arrangements in stable democracies like Canada or Belgium are facing serious challenges. As far as Spain is concerned, full fledged federalism is still a difficult item for its political culture. Generally considered, a federal Constitution is probably a too narrow place for reciprocally exclusive nationalisms. Under these circumstances, institutions designed to encourage shared values and solidarity are indispensable if federation is to survive42. However, in the uncertain business of constitutional politics when carried out in countries with strong national cleavages, a workable federal deal is more likely to be achieved by means of limited commitments than by straight popular consensus, that is, by appealing to the liberal "art of separation" rather than by the pursuit of a general will43. 42 . For a normative analysis of Canada´s and Québec´s common, but at the same time divergent political cultures, see Ch. Taylor: "Shared and Divergent Values", in R. L. Watts-D. M. Brown (eds.) Op. cit., 53-76. 43 . See M. Walzer: "Liberalism and the Art of Separation", Political Theory Vol. 12 No.3 (August 1984), 315-330. 20